Can harassed man & elders have their  own hashtags or is it only for young wives ?? 

Hon Minister Maneka ji has introduced hastag #IamTrolledHelp so women could raise an alarm on social media

  • what about mothers physically abused* , verbally abused in person ? Can they have their own #ElderAbuseByWife hashtags ?
  • what about false cases and defaming of mothers? / sisters? * Can they have their own #DefamedbyDaughterInLaw #fake498a #fakeDV hashtags ?
  • what about husband being looted in the name of alimony and maintenance * can we have our own #LootedbyWife hashtags ?
  • Will the ministry that is using our tax money look into all these cases ? ( of course husbands are not covered by any ministry…😦😦 )

NO RELIEF under DV act because this is a property dispute !! Delhi District court !!

Mother claims maintenance, compensation etc etc from Son and Daughter in law. She claims that she was “… subjected to ill treatment by the respondents causing physical, emotional and economic violence upon her….” However court notices that all complaints are regarding some property dispute and denies ANY relief. “….Hence, from the material on record it is quite apparent that the dispute is civil in nature pertaining to some property pursuant to which some quarrel between parties have occurred. From the evidence led, the complainant has failed to show the existence of a ‘domestic relationship’ since the dispute has arose. It is the complainant’s own case that prior to separation of family members, they were all peacefully residing as one unit. No instance of domestic violence committed during that time has been alleged. …”

While we pity hapless elders and mothers being thrown out of household, we are unable to digest misuse of DV act

Probably this is a good case where the “logic” / “ratio” can be used by husbands (please note this is a District court) . Please note that a “mother” may be judged differently from a “wife” when claims of DV are made !!

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

IN THE COURT OF MS. VIJETA SINGH RAWAT:
MM-03: (MAHILA COURT): SOUTH EAST DISTRICT:
SAKET COURTS : NEW DELHI

CC- 12/1/15

ID No. of the Case : 02406R0005422014

Chanda Begum
W/o Sh. Tofique Ahmad
R/o House No.F-526 (Old No.D-115),
Extn.-2, Gali No.1,
20 Feeta Road, Jaitpur Extension,
Badarpur, New Delhi-110044 …….Complainant

Versus

  1. Mohd. Sajid (Son), S/o Sh. Tofique Ahmad
    2.Sahista Begum (Daughter-in-law), W/o Mohd. Sajid
    Both r/o House No.F-526 (Old No.D-115),
    Extn.-2, Gali No.1,
    20 Feeta Road, Jaitpur Extension,
    Badarpur, New Delhi-110044 …… Respondents

Date of institution of case : 10.01.2014
Date of Reserving order : 30.03.2016
Date of Order : 01.07.2016

JUDGMENT

1.The present complaint u/s. 12 of The Protection of Women from Domestic Violence Act, 2005 (herein after referred to as ‘the Act’) has been instituted on 10.01.2014 by Chanda Begum (hereinafter referred to as ‘the complainant’) against Mohd. Sajid (Son) and Sahista Begum (daughter-in-law) (hereinafter referred to as ‘respondents No.1 and 2) seeking following reliefs :-

a)Pass apposite protection orders as prayed in para No.5 of the petition.

b)To pay monthly monetary relief of Rs.7,000/- per month to the complainant towards maintenance.

c) To pay compensation to the tune of Rs.5,00,000/- to the complainant for her intolerable sufferings and mental agony.

d) To pay Rs.25,000/- towards expenses of said proceedings and other legal expenses incurred by the applicant/complainant under compelling circumstances;

e) Prohibiting the respondents from causing theft of electricity by putting wire or otherwise in the shop at the ground floor of the shared household in possession of the respondents and causing mental and economic losses and harassment to the complainant;

f) restraining the respondents from creating any third party interest in the portion of the shared household in their possession or encumbering the same;

g) pass such order or orders under provisions of this Act thereby protecting the applicant/complainant from domestic violence.

AVERMENTS

2.The brief facts of the present case are that complainant is the mother of respondent No.1 and mother-in-law of respondent No.2; that she is the owner of property No.F-526 (Old No.D-115, Extension No.2, Gali No.1, 20 Feeta Road, Jaitpur Extension, Badarpur, New Delhi-110044) which is the shared household; that complainant has five sons and her entire family which used to reside in the aforesaid property has now separated and two married sons live separately, one has expired but his widow and children are dependent upon complainant and one youngest son is also with the complainant; that respondents also have a separate accommodation but are forcibly retaining possession of one room at first floor and shop at ground floor; that husband of complainant is a rickshaw puller and to make both ends meet, the complainant needs the property in illegal possession of respondents. It is further alleged that due to the property being the bone of contention, the respondents have subjected complainant to domestic violence by way of physical assault and verbal abuses which have been complained against.

3.Notice of the complaint was issued to the respondent vide order dated 10.01.2014.

4.Respondent No.1 entered appearance on 24.04.2014 and reply on behalf of respondents was filed on 22.09.2014.

5.In the reply filed preliminary objection has been taken that no domestic relationship exists between parties and hence, no relief under this Act is maintainable. It has been denied that complainant has been subjected to ill treatment by the respondents causing physical, emotional and economic violence upon her. The ownership of property is disputed. However, possession as alleged is not denied by the respondents. It is also stated that the complainant does not meet maintenance from the respondents as she is drawing rental income of about Rs.21,000/- per month. It is also denied that widow of the deceased son alongwith her children are dependent upon the complainant as she is running a beauty parlour. It is denied that any protection order is required by the complainant as the parties are residing separately. Since, respondents did not appear, they were proceeded ex-parte vide order dated 15.03.2016.

EVIDENCE

6.Matter was then listed for ex-parte complainant evidence. By way of complainant evidence, the complainant examined herself as CW1 and relied upon affidavit Ex.CW1/A along with following documents :-

a)Ex.CW1/1 police complaint dated 23.08.2013 to SHO PS Jaitpur.

b)Ex.CW1/2 police complaint dated 23.08.2013 to the office of Head Enforcement.

c)Ex.CW1/3 complaint received at PS Jaitpur vide DD No.25B on 11.12.2013.

7.Witness was not cross-examined as respondent is ex-parte. Thereafter, complainant evidence was closed on the same date.

8.Final arguments were heard by this Court.

9.This Court has thoughtfully considered the material on record and arguments advanced by the complainant.

ISSUES

10.The issues which are required to be proved to entitle a relief under the Act are as under :-
A)Whether the complainant was having a domestic relationship with the respondent in a shared household?
B)Whether complainant was subjected to domestic violence by the respondent so as to qualify her to be an aggrieved person under the Act?
Further, since, we are dealing with a quasi criminal proceeding, the proof test required is of preponderance of probabilities.

ISSUE A

11.As per sec. 2(f), “”domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;”

The burden to prove issue (A) was upon the complainant. The complainant has averred in paragraph No.4 (e) of her complaint ‘that respondents despite having an alternate accommodation continued forcibly retaining in their possession one room at first floor and a shop at ground floor of the shared household despite repeated requests from the complainant to vacate the same.’ Further, the above is reiterated in paragraph No.6 of affidavit Ex.CW-1/A. Even in Ex.CW-1/3 there is a clear stipulation that respondents are residing at a rented accommodation and are forcibly retaining in their possession a room and a shop in the disputed property. The tenor of Ex.CW-1/2 and Ex.CW-1/3 is also to the effect that parties have a dispute regarding property No.F- 526 (Old No.D-115, Extension No.2, Gali No.1, 20 Feeta Road, Jaitpur Extension, Badarpur, New Delhi-110044). Hence, from the material on record it is quite apparent that the dispute is civil in nature pertaining to some property pursuant to which some quarrel between parties have occurred. From the evidence led, the complainant has failed to show the existence of a ‘domestic relationship’ since the dispute has arose. It is the complainant’s own case that prior to separation of family members, they were all peacefully residing as one unit. No instance of domestic violence committed during that time has been alleged. Hence, the issue is decided against the complainant. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

ISSUE B

  1. In view of finding of issue No.A, the present issue needs no consideration.

RELIEFS

13. In view of the findings on issue A, all reliefs are declined. Complaint is dismissed. Copy of the judgment be given Dasti to the parties.

File be consigned to Record Room after due compliance.

(Announced in the open Court on 01st July 2016)

(VIJETA SINGH RAWAT)

MM-03: (MAHILA COURT)

SED:SAKET COURTS:NEW DELHI

01.07.2016

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


Wife who neither proves husband’s income nor assets, gets just Rs.3500 per month after DV case, dance & drama

Wife who can neither prove husband’s income Nor his assets, gets just Rs.3500 per month after all the DV case, dance and drama. This husband is not even appeared for the DVcase 
What is the guarantee he will turn up and pay the maintenance???? If the husband has no assets how will the wife clearthe areas of maintenance???

========

 IN THE COURT OF MS.POOJA AGGARWAL: METROPOLITAN MAGISTRATE­02: MAHILA COURT:SOUTH DISTRICT: SAKET COURT: NEW DELHI 
CC No: 133/14 (03.07.2014)
Unique Case ID: 02406R0178692013
Jurisdiction of Police Station: Ambedkar Nagar
Smt. Rekha, 

W/o Sh. Hari Kishan Gopal Dass, 

D/o Sh. Balashwer Parchey,

R/o 2/385, Dakhachin Puri,

Ambedkar Nagar,  

New Delhi. ………..Aggrieved 

                                         

Versus 
1. Sh. Hari Kishan Gopal Dass (Husband),

S/o Late Sh. Charan Das Azad,

R/o Jagpal, H.no.BS­71, Sector ­19, 

Bara Mohalla, Palval, Haryana,

Also at: H.no. 3/377, Trilok Puri, 

Delhi­110091.                                                                  

  1. Smt. Sakuntala Devi (Mother in law),

W/o Late Sh. Charan Dass Azad,

R/o 1/302, Trilok Puri, 

Delhi­110091.                                                       

  1. Smt. Chander Devi (Sister in law), (Not summoned)

W/o Sh. Rajender,

R/o Palikawas, Sarojni Nagar,

New Delhi.        

  1. Smt. Sagar (Sister in law), (Not summoned)

W/o Sh. Jas Pal, 

PS Ambedkar Nagar Rekha v Hari Kishan Gopal Dass & Ors. Page 1 of 12

 R/o Balmiki Bodar Mauhalla,

Kameti Nagar Parisad Ward No. 19,

Palwal.                                                                                

  1. Smt. Sukuntala Devi (Sister in law), (Not summoned)

W/o Sh. Nanak, 

R/o 1/302, Trilok Puri, 

New Delhi­110091. …………..Respondents
Date of Institution : 11.07.2013
Date of Arguments : 30.06.2016
Date of Judgment : 30.06.2016
                              

EX­ PARTE JUDGMENT 
1. By way of the present application under Section 12 of the Protection of Women From Domestic Violence Act, 2005, Smt. Rekha (hereinafter referred to as “the aggrieved”) has sought various reliefs against her husband, mother in law and sisters in law (hereinafter referred as “the respondents”) including­ a) Protection order under Section 18 of the Act seeking directions for prohibiting acts of domestic violence by granting an injunction against the respondents from repeating any of the acts mentioned in terms of column 4(a)/(b)/(c)/(d)/(e)and (f) of the application; Prohibiting any form of communication by the respondents with complainant; Prohibiting alienation of assets by the respondents and directing the respondents to stay away from the defendants/relatives any other persons of the aggrieved to prohibit violence against them. b) Residence Order under Section 19 of the Act seeking an order directing the respondent to pay the rent of the premises where the complainant is residing according to the status of the respondent; an order CC No: 133/1/14 restraining respondents from dispossessing or throwing the aggrieved from the shared household and entering that portion of the shared household in which she resides. c) Monetary reliefs under Section 20 of the Act: Rs.15,000/­ towards food, clothes, medication and other basic necessities; Rs. 10,000/­ towards medical expenses and Rs. 20,000/­ towards any other loss or physical or mental injury as specified in clause 10(d) for the total amount of Rs. 45000/­. d) Compensation Order under Section 22 of the Act
2. Vide order dated 15.07.2013 the summoning qua respondent no.3 to 5 was declined by the Ld Predecessor of this court and hence the present judgment shall be qua the respondent no.1 and 2 only.
3. As per the application of the aggrieved she got married to respondent no.1 on 04.11.2003 at 287/40, Pandara Park, NDMC, Quarters, New Delhi according to Hindu rites and ceremonies where she resided till 2010 but no child was born out of the wedlock for which she was taunted by the respondent no.2 ie the mother in law. The respondents started harassing and torturing her both physically and mentally after 5 months with respondent no.1 and 2 as well as their relatives taunting her and quarreling with her on petty issues. After retirement of mother in law, the aggrieved with respondent no.1 and 2 shifted from the government accommodation to the rented premises at Dakshin Puri, New Delhi where they resided for 2 years and thereafter the respondent alongwith the aggrieved went to H. No. 3/377, Trilokpuri, New Delhi.
4. In January, 2011, the respondent no.1 in collusion with respondent no. 2 and relatives took the entire jewellery of the aggrieved on the pretext of buying a house and in March 2013 when respondent came home late at night, upon enquiry by the aggrieved, he got angry, beat her and on 04.04.2013 also he beat her.
5. Respondent no.1, at the instance respondent no.2 and his sisters, picked up a quarrel with her, beat her, left the house and did not return and despite efforts for reconciliation, she was compelled to leave him. She lived alone in the matrimonial home for two years and the respondent no.1 paid rent for some time but did not return home and also did not provide for any expenses of the complainant nor performed his duties as a husband and she was financially supported by her parents. She was threatened to be killed by respondent no.1 if she dared to leave him.
6. The respondent no.1 earns at least Rs.15,000/­ per month working as a driver but despite being bound to maintain the aggrieved as his legally wedded wife he is not giving any money to her forcing her to live at the mercy of his parents and brothers. She has no financial support without any source of income and has been deserted by respondent no.1 for the past 4 ½ years. Hence the present case.
7. Domestic Incident Report was duly called for and was filed by the Protection Officer on 05.03.2014. The respondent no.1 and 2 were served by way of publication on 24.2.2015 and 24.07.2015 but neither the respondents entered appearance nor filed any reply and hence were proceeded ex­parte vide order dated 26.02.2016.
8. To prove her case, the aggrieved led ex­parte complainant evidence and examined only herself to prove her case. As CW1, the aggrieved Smt. Rekha tendered her evidence by way of affidavit (Ex. CW1/1) on similar lines as her application and also relied upon the following documents i.e. copy of Adhar Card showing her present address (Ex.CW1/2), copy of her Election ID Card showing previous address (Ex.CW1/3), marriage photograph (Ex.CW1/4), copy of marriage card (Mark A), copy of complaint dt. 4.04.2013 given to PS Kalyan Puri (Mark B), copy of complaint before CAW Cell dt. 11.4.2013 (Mark C), copy of the FIR registered u/s. 498A at PS Ambedkar Nagar (Mark D).
9. I have given my thoughtful consideration to the submissions made on behalf of the aggrieved during the course of final arguments and have carefully perused the entire evidence on record.
10. By virtue of Section 2(a), the reliefs under the Protection of Women From Domestic Violence Act, 2005 can be availed by a woman only if she is in a domestic relationship with the respondent and was subjected to domestic violence by the respondents.
11. From the unrebutted testimony of CW1 in respect of her marrying respondent no.1 on 4.11.2003 as per Hindu Rites and ceremonies and that thereafter she was residing at 287/40, Pandara Prk, NDMC, Quarters, New Delhi with the respondents till 2010, shifted to Dakshinpuri and thereafter went with the respondent at Trilokpuri, the aggrieved has proved that she was living with the respondent no.1 as his wife and was living together with him in shared household / matrimonial home. Further, even in her Election I Card Ex.CW1/B the name of the husband is reflected as Hari Kishan i.e the respondent no.1 herein. The copy of the marriage card Mark A and the marriage photograph Ex.CW1/4 have gone unrebutted thereby proving existence of domestic relationship of the aggrieved with respondent no.1
12. As the respondent no.1 and 2 were proceeded ex­parte, they failed to defend their case and to lead any evidence in support of their defence. No rebuttal has come against the claims of the aggrieved. The oral testimony of CW1 has not been traversed and the testimony of CW1 goes un­rebutted and unchallenged. No reason has been brought on record to disbelieve the unrebutted and un­controverted evidence led by the aggrieved. Hence the factum of domestic relationship between the aggrieved and the respondent no.1 and existence of shared household has been proved.
13. In respect of the infliction of the domestic violence, the oral testimony of the aggrieved as CW1 has gone unrebutted as despite opportunities the respondents for reasons best known to them chose not to join the present proceedings nor to controvert any evidence led by the aggrieved. Thus the averments of the aggrieved as also her testimony in her evidence by way of affidavit in respect of infliction of physical and economic abuse by the respondent no.1 are deemed to be admitted by the respondent no.1 as they have remained unchallenged and unrebutted. Further, no reason has been CC No: 133/1/14 brought on record to disbelieve the uncontroverted evidence led by the aggrieved. Accordingly, by unrebutted testimony, the aggrieved has been able to prove that the respondent no.1 has committed certain acts of physical as well as economic violence and thus she is entitled to claim reliefs under the Protection of Women From Domestic Violence Act, 2005 against the respondent no.1.
14. However, qua the respondent no.2 the aggrieved has testified that she used to taunt the aggrieved as baanjh as no child was born out of the wedlock. However this assertion has come for the first time during the evidence of the aggrieved and being an improvement does not inspire confidence. There is no other specific allegation against the respondent no.2 and in the absence of same, the aggrieved has not been able to prove infliction of domestic violence by the respondent no.2 and hence she is not entitled to any relief against the respondent no.2 under the PWDV Act. 
RELIEFS
15. Protection Order Under Section 18 of Protection of Women From Domestic Violence Act: From the unrebutted testimony of the aggrieved as CW1 it stands duly proved that she is residing separately from the respondent for the past 4 ½ years. In view of the same, the respondent is restrained from repeating any of the acts of domestic violence as deposed to by the aggrieved and he is also restrained from communicating with the aggrieved by any form of communication. SHO PS Ambedkar Nagar is directed to ensure compliance of the same.
16. Any default in compliance of this order shall entail a liability under Section 31 of Protection of Women From Domestic Violence Act.
17. It is pertinent to note that despite seeking a protection order to prohibit the alienation of assets, the aggrieved has not specified any particular assets and in the absence of disclosure of any details, no protection order as sought by the aggrieved can be passed. Hence, this relief for protection order as sought is declined being vague. Further it is duly noted that the entire testimony of the aggrieved is silent as to any violence having been caused to her dependents/relatives/any other person of the aggrieved and hence the said relief for protection order is also declined.
18. Residence Order Under Section 19 of Protection of Women From Domestic Violence Act: The aggrieved has not led any evidence to prove the quantum of rent of the premises where she is residing as per the status of the respondent despite seeking directions against him for payment of the rent. She has also sought an order restraining the respondent from throwing her out from the shared household and from entering that portion of the household in which she is residing. She has not led any evidence to prove the portion of the shared household in which she is residing nor has she led any evidence to prove that the respondent no.1 had ever attempted or is likely to attempt to dispossess or throw her out from the shared household. Hence, no occasion arises to pass the residence orders as sought by the aggrieved. 
19. The aggrieved has also sought alternate accommodation or rent for the same. This relief shall however be decided alongwith the monetary relief.
20. Monetary Relief Under Section 20 of Protection of Women From Domestic Violence Act: As per the income affidavit of the aggrieved she is aged about 38 years, without any educational or professional qualification, without any monthly income and with monthly expenditure of Rs 12,500/­. She has not disclosed any person to be dependent upon her. Since legal aid has been provided to the aggrieved she has not disclosed any litigation charges. She has also disclosed one savings bank account with a balance of Rs 46614/­ as on 10.08.2015. She has stated respondent no.1 to be a driver earning minimum Rs 15000/­ per month but has denied any knowledge as to the assets and liabilities of the respondent no.1.
21. She has not disclosed any income but has claimed Rs.3500/­ per month as expense towards household groceries/food etc., Rs.1000/­ per month towards public transport, of Rs 5,000/­ per month towards medical expenditure without any liabilities. She has disclosed cash in hand to be Rs. 500/­ with one local mobile phone. She has disclosed that she is presently residing in the house of her parents and has not disclosed any other assets or liabilities except jewellery stated to be in the custody of the respondents. She has described the status of the family as lower middle class.
22. As per the settled law, the aggrieved is entitled to get monetary relief which is adequate, fair, reasonable and consistent with the standard of living CC No: 133/1/14 to which the aggrieved person is accustomed. In her application as well as testimony Ex CW1/1, the aggrieved has alleged that the respondent no.1 works as a driver for a private car. In her evidence Ex CW1/1, she has testified that he earns minimum Rs.15,000/­ per month therefrom. However, no documentary evidence has been proved by her to prove the same. However, as the testimony has remained unrebutted, and no reason has been brought on record, to disbelieve the uncontroverted testimony of the aggrieved, thus, in the facts and circumstances of the case, as the respondent no.1 is not alleged to be differently abled he is assumed to be able bodied man, he is assumed to be skilled worker. As the aggrieved is the wife of the respondent without any means of sustaining herself, as also keeping in view that it is the legal duty of the respondent being the husband to maintain her, assuming the income of the respondent as per the Minimum Wages Act, to be not less than Rs.11,000/­per month. Therefore, on the scale of balance of convenience, and in the absence of the respondent no.1 having brought on record that number of family members dependent upon him, it is presumed that only the aggrieved is dependent upon the respondent no.1 and thus I deem it fit to award a sum of Rs.3500/­ per month to the aggrieved by the respondent no.1 towards her maintenance. Needless to mention that this includes rent towards alternative accommodation because aggrieved despite having a right to reside in the shared household is residing separately therefrom and it also includes all other ancillary and miscellaneous expenses. The amount shall be payable to the aggrieved from the date of filing of the petition till the aggrieved becomes disentitled for the same as per law.
23. Respondent no.1 shall pay the awarded amount directly into the account of the aggrieved upon supplying the details of the bank account within three weeks from today to the respondents and filing a copy on record. The amount shall be payable by 10th day of every English calendar month starting from the next month. The arrears be cleared within the period of six months.
24. The default shall be viewed in terms of the judgment of Hon’ble High Court in Gaurav Sondhi Vs. Divya Sondhi-120 DLT(2005)426. Any maintenance that may have already been paid or has been awarded by any other forum, shall be accordingly adjusted.
25. Compensation Under Section 22 of Protection of Women From Domestic Violence Act: The aggrieved has sought compensation but has not specified any quantum thereof nor has she produced any material on record to prove her entitlement to any amount under this head. However, as it has gone unrebutted that she has been subjected to domestic violence she is awarded compensation for mental trauma a sum of Rs. 3000/­ to be paid by the respondent no.1 to the aggrieved.
26. No grounds exist for granting any other relief in favour of the aggrieved.
27. Application of the aggrieved under Section 12 of the Protection of CC No: 133/1/14 Women From Domestic Violence Act, 2005 is accordingly disposed off in the said terms.
28. Copy of this order be given dasti to the aggrieved and be also sent to the local service provider if any. As the respondent no.1 and 2 are ex­parte, a copy of this order be served upon them through the Protection Officer.
29. File be consigned to the record room after necessary compliance.
Pronounced in the open Court on 30.06.2016    
                                  

POOJA AGGARWAL

                                                  Metropolitan Magistrate­02(Mahila Court) Saket/New Delhi

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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