Blind acceptance of photographed ornaments as gold, calculating weight extremely unsafe! Disallow wife’s claim : Kerala HC

In this case the estraged and divorced wife claims the husband was give some 80 sovereigns of gold and shows some photographs of the same. However all her other proofs like copy of bill from one Bismillah Jewellery etc stand dis-proven during cross examination. The facts elicited also also lead to the view that such a Bismillah Jewellery Jewellery was NOT EVEN in existence in the said place at the time of marriage

The court disbelieves the woman’s claim and orders much less gold was given (and to be returned )

The Hon court goes on to make the following pertinent observations

The court notices that the bill for 80 sovereigns of gold claimed to be given by the wif e/ woman, is in itself NOT very reliable !!
"…9. The first respondent produced Ext.P4 claiming that it is the bill issued from Bismillah Jewellery on 17.10.1998 for the purchase of 80 sovereigns of gold ornaments. PW3 was examined on the side of the common first respondent to show that it was issued by him. However, in the box PW3 deposed that he was not then engaged in the business of selling of gold ornaments and he got no sales tax certificate or labour certificate. He would further depose that Ext.P4 is not a bill issued towards the purchase of gold ornaments whilst it is only a bill evidencing the making of gold ornaments as per the order placed by the first respondent….."

Since the So called Jeweller says that he only made the ornaments the question arises as to who paid for the gold or who provided the Gold. That question is also NOT satisfactorily answered by the woman !!
"….How can a claim of entrustment of 70 sovereigns of gold coins for the purchase/making of gold ornaments worth 80 sovereigns be simply swallowed when PW1, the first respondent herself deposed that she did not know from where such gold coins were obtained. ….."

On the question of relying on some photos to decide on the type and quantum of Jewellery, the Hon Court concludes :
"………..Nowadays, it is a fact that imitation gold ornaments made of other metals and ornaments plated with gold are available in market and it will not be able to distinguish and identify such ornaments if worn together with original gold ornaments and photographed, with naked eye. In such circumstances, blind acceptance of all photographed ornaments as pure gold ornaments and further, making calculation regarding the weight of each of such ornaments for the purpose of finding the verity of the claim made for the return of gold ornaments given to the bride at the time of marriage without any other reliable proof would be extremely unsafe. Hitherto no technology has been developed to identify whether an ornament appearing in a photograph is gold or not…………"

This case should really help all men fighting false and unsubstantiated claims of huge quantities of gold having been given by women

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR

FRIDAY, THE 7TH DAY OF NOVEMBER 2014/16TH KARTHIKA, 1936

Crl.MC.No. 3028 of 2012 ()
**************************-
AGAINST JUDGMENT IN CRRP 31/2011 of COURT OF SESSIONS, KOZHIKODE
MC 11/2006 of J.M.F.C.-V,KOZHIKODE

PETITIONER(S)/REVISION PETITIONER/ RESPONDENT:
************************************************************

MOHAMMEDALI,
S/O LATE MUHAMMED MUSLIAR

KOLAPPALLY EDAYAPPURAM HOUSE, CHOORAKKATTIL
PARUTHIPPARA, FEROOK COLLEGE P.O, KOZHIKODE

BY ADVS.SRI.K.RAMAKUMAR (SR.)
SRI.S.M.PRASANTH
SMT.SMITHA GEORGE

RESPONDENT(S)/STATE & COMPLAINANT:
**********************************************

1. RAHIYANATH,
D/O LATE HASSAINAR, MARATHTHAZHAM HOUSE
VAIDYARANGADI P.O, RAMANATTUKARA, NEAR BYE- PASS
KOZHIKODE, PIN-673633

2. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR
HON’BLE HIGH COURT OF KERALA, ERNAKULAM 682031

R1 BY ADV. SRI.P.K.MOHAMED JAMAL
R2 BY PUBLIC PROSECUTOR SMT.V.H.JASMINE

THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07-11-2014,
ALONG WITH CRL.R.P.1920/2012,THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:

CRL.M.C.3028/12

APPENDIX

PETITIONER’S EXHIBITS:
ANNEXURE A-TRUE COPY OF JUDGMENT DATED 1.6.2012 IN CRL.R.P.NO.29 OF 2011 ON THE FILE OF THE COURT OF SESSIONS, KOZHIKODE.
ANNEXURE B:TRUE COPY OF JUDGMENT DATED 31.1.10 IN M.C.11 OF 2006 ON THE FILE OF THE JUDICIAL MAGISTRATE OF FIRST CLASS-V, KOZHIKODE.

RESPONDENTS’ EXHIBITS:NIL

//TRUE COPY//

P.A.TO JUDGE
"C.R"

C.T.RAVIKUMAR, J.
******************************
Crl.R.P.No.1920 of 2012
&
Crl.M.C.No.3028 of 2012
******************************-
Dated 7th November, 2014

ORDER

The captioned Crl.M.C. and Crl.R.P. have matrix from a common order in Crl.R.P.Nos.29 and 31, of 2011 dated 1.6.2012 passed by the Court of Session, Kozhikode. A succinct narration of the facts that led to the passing of the aforementioned common order is required for a proper disposal of these cases. The same petitioner filed both these cases against the common first respondent who is his divorced wife. Among the issues to be resolved the sustainability of a direction to return gold ornaments calculating the quantity relying on a photograph wearing the alleged ornaments handed over at the time of marriage, is also included. For the sake of convenience they are respectively referred to hereafter in this order as `the petitioner’ and `the first respondent’. Their marriage was conducted on 18.10.1998 and the matrimonial acrimony and disharmony developed into a cumbersome situation compelling them to part their ways and ultimately their marriage was dissolved as per decree dated 6.7.2005 in O.P.No.460 of 2002 of Family Court, Kozhikode.

2. Later, the first respondent-wife filed M.C.No.11 of 2006 before the Court of Judicial Magistrate of I Class-V,Kozhikode under Section 3 of Muslim Women (Protection of rights on Divorce) Act (for short `the Act’). Based on the rival contentions the following points were formulated for consideration by the learned Magistrate:- "(1) Whether the petitioner is entitled to get any amount towards `iddath’ period maintenance ? (2) Whether the petitioner is entitled to get reasonable and fair provision for her future maintenance ? (3) Whether the petitioner is entitled to get value of gold ornaments, value of household articles and money, if any, appropriated by the respondents? (4) If the petitioner is entitled to get maintenance, what is the quantum?"

3. The learned Magistrate found that the first respondent is not entitled to get any amount towards `iddath’ period maintenance and that she is entitled to get `56,000/- as reasonable and fair provision and maintenance under Section 3 of the Act. The claim of the first respondent that `the petitioner’ is liable to return 80 sovereigns of gold ornaments or an amount equal to the value of the same and certain other household articles was considered and `the petitioner’ was directed to return either 25 sovereigns of gold ornaments or `3,62,500/- towards its value to the first respondent. Both the petitioner and the first respondent preferred revision petitions against the said judgment before the Sessions Court, Kozhikode respectively as Crl.R.P.No.31 of 2011 and Crl.R.P.No.29 of 2011 and they were heard jointly and a common order dated 1.6.2012 was passed. As per the same, Crl.R.P.No.29 of 2011 filed by the first respondent was allowed in part and Crl.R.P.No.31 of 2011 was dismissed and the petitioner was directed as hereunder:- "1. to return 80 sovereigns of gold ornaments exhibited in Ext.P4 or pay an amount of Rs.16,80,000/- (at the rate of Rs.21,000/- for one sovereign) 2. to return 5.5 sovereigns of gold ornaments towards Mahar or pay Rs.1,15,500/-. 3. to return fridge and mixer or otherwise pay an amount of Rs.10,950/-. 4. to pay an amount of Rs.56,000/- towards reasonable and fair provision and maintenance. In total, if the petitioner is not returning any gold ornaments and articles, he has to pay Rs.18,62,450.00 within a period of 30 days from today." The above Criminal Revision Petition has been filed against the order in Crl.R.P.No.29 of 2011 and the above Criminal Miscellaneous Case has been filed against the order in Crl.R.P.No.31 of 2011.

4. I have heard the learned counsel appearing for the petitioner, the learned counsel appearing for the first respondent and also the learned public prosecutor.

5. As stated hereinbefore, after the dissolution of the marriage the first respondent claimed fair and reasonable provision and maintenance under Section 3 of the Act and the learned Magistrate found that the first respondent is entitled to get `2,000/- each for a period of 28 months. In the light of the decision of the Hon’ble Apex Court in Danial Latifi and Another v. Union of India ((2001) 7 SCC 740) reasonable and fair provision for future maintenance under Section 3(1)(a) of the Act claimed by a divorced Muslim woman cannot be said to be limited for the `iddat’ period and it extends for the entire life of the divorced Muslim wife, unless she gets remarried. Evidently, in this case, the marriage was dissolved on 6.7.2005 and thereafter, the first respondent got remarried on 18.11.2007. It is in the said circumstances that an amount of `56,000/- was granted towards her reasonable and fair provision and maintenance under Section 3(1)(a) of the Act. The said order passed in M.C.No.11 of 2006 was evidently confirmed by the learned Sessions Judge in Crl.R.P.No.29 of 2011. Taking into account the fact that only an amount of `2,000/- was fixed, the status of the parties and the capacity of the petitioner-husband to pay maintenance and other attending circumstances and that the period of 28 months was correctly calculated by reckoning the period between the date of dissolution of the marriage and the date of re-marriage of the first respondent I do not find any ground or reason to interfere with that part of the order in Crl.R.P.No.29 of 2011 of the learned Sessions Judge confirming the fixation of reasonable and fair provision for future maintenance as per the order passed by the learned Magistrate in M.C.No.11 of 2006.

6. The main challenge of the petitioner is against the direction to return 80 sovereigns of gold ornaments or an amount of `16,80,000/-. In that context, it is to be noted that the case of the first respondent is that at the time of the marriage she was given 80 sovereigns of gold ornaments and the same were handed over to the petitioner and he had misappropriated them and therefore, he is liable to return the same. In M.C.No.11 of 2006 on the side of the first respondent, she was examined as PW1 besides getting examined PWs 2 to 4 and marked Exts.P1 to P15. On the side of the petitioner he was examined as RW1 and Messieurs Hamsa Koya and Vijayakumar were respectively examined as RW2 and RW3 and Exts.D1 to D3 were marked. After analysing the entire evidence the trial court found that the first respondent had succeeded only in establishing that 25 sovereigns of gold ornaments were entrusted with the petitioner as against the claimed entrustment of 80 sovereigns. However, in Crl.R.P.No.29 of 2011 filed by the first respondent the learned Sessions Judge reversed the findings and held that the first respondent is entitled to 80 sovereigns of gold ornaments exhibited in Ext.P4 or an amount of `16,80,000/- towards its value. It is further found that the petitioner is liable to return 5.5 sovereigns of gold ornaments towards Mahar or an amount of `1,15,500/- and also a fridge and mixi or otherwise an amount of `10,950/-.

7. The learned Senior counsel appearing for the petitioner contended that the order to return 80 sovereigns of gold ornaments in terms of Ext.P4 or to pay an amount of `16,80,000/- is not founded on any legally sustainable piece of evidence. The oral testimonies of PWs 1 and 3 and also Exts.P4 and P12 series were unworthy for credence and relying on them the learned Sessions Judge ought not to have found that the petitioner is liable to return 80 sovereigns of gold ornaments especially in the light of the evidence of the petitioner as RW1 and the evidence of the Secretary of Ramanattukara Panchayat as RW3 along with Ext.D1, it is contended. In fact, the very finding in M.C.No.11 of 2006 that the petitioner is liable to return 25 sovereigns of gold ornaments itself is also challenged on the same ground. Obviously, to establish that 80 sovereigns of gold ornaments were given to her at the time of marriage with the petitioner Ext.P4 bill issued from Bismillahh Jewellery, Ramanattukara owned by PW3 and Ext.P12 series of photographs were relied on by the first respondent. Nonetheless, the learned Magistrate did not act upon those materials and the conclusion that the petitioner is liable to return only 25 sovereign of gold ornaments was arrived at independent of such materials. The learned Sessions Judge set aside the said finding and conclusion believing the version of PW1 and PW3 and relying on Ext.P4 bill and Ext.P12 series of photographs and held that the first respondent is entitled to get returned the entire 80 sovereigns of gold ornaments.

8. In view of the divergent finding on the aforesaid question I may firstly consider whether Ext.P4 bill could be relied on by the first respondent to establish that in connection with her marriage 80 sovereigns were purchased and given to her. As stated hereinbefore, Ext.P4 bill was issued from Bismillahh Jewellery and to prove the same PW3 was examined by the first respondent and obviously, he deposed to the effect that he had issued Ext.P4. However, it is to be noted that PW3 had also admitted the fact that he was not possessing any licence, at the time of issuance of Ext.P4, to conduct the said Jewellery. The petitioner let in evidence through RW3 to show that the Jewellery by name `Bismillah Jewellery’ was not in existence within Ramanattukara Panchayat at the relevant point of time. Ext.D1 is the certificate issued to that effect by RW3, the then Secretary of Ramanattuara Panchayat. RW3 deposed to the effect that during the relevant point of time no such Jewellery by name `Bismillah Jewellery’ was functioning within the limits of Ramanattukara Panchayat. There is no case for the first respondent and evidently, no case was also advanced before the courts below by the first respondent to the effect that for conducting a jewellery within he limits of a Panchayat a licence from the concerned Local Self Government Institution is unnecessary and unwarranted. It is also relevant to note that PW3 admitted in the box that he was not holding a licence issued from Ramanattukara Panchayat at the relevant point of time. Such circumstances constrained the learned Magistrate to disbelieve PW1 and PW3 on the aforesaid aspect and to discard Exts.P4 as a piece of evidence to support the claim of the first respondent. A perusal of the judgment in M.C.No.11 of 2006 would reveal that the learned Magistrate ordered for the return of 25 sovereigns of gold ornaments without placing any reliance on Ext.P4 or Ext.P12 series of photographs. It indeed came out in evidence that the first respondent left the house of the petitioner without taking her gold ornaments. The case of the petitioner that the gold ornaments were entrusted to PW2 who participated in the mediation talk was also taken into account. The learned Magistrate held that when once it is admitted that the first respondent was in possession of 25 sovereigns of gold ornaments and she left the matrimonial home without taking her ornaments the petitioner who asserted the entrustment of those ornaments with PW2, the mediator, got the onus to establish the same. PW2 had not supported the case of the petitioner. Though he was cross examined at length the petitioner could not elicit anything to discredit his version regarding entrustment of gold ornaments. In the said circumstances, taking into account the admission on the part of the petitioner that the common first respondent had 25 sovereigns of gold ornaments at the time of marriage and that she left his house without taking her gold ornaments and the failure on his part to establish the entrustment of said gold ornaments with PW2 the learned Magistrate found that the petitioner is liable to return 25 sovereigns of gold ornaments to the first respondent and ordered accordingly. As per the impugned common order in Crl.R.P.29 & 31 of 2011 the said finding of the learned Magistrate was reversed by the learned Sessions Judge and the petitioner was directed to return 80 sovereigns of gold ornaments exhibited in Ext.P4 or to pay an amount of `16,80,000/-. The question is whether the re-appreciation of evidence and the consequential reversal virtually, modification, of the finding of the learned Magistrate as per the impugned common order by the learned Sessions Judge in exercise of revisional jurisdiction is legal and justifiable ? For a proper consideration of the said question the scope of revisional jurisdiction of Sessions Judge has to be looked into. It is to be understood that revisional jurisdiction in its own scope does not postulate appreciation of evidence. Normally, the scope of revisional power is to call for the records of any inferior criminal court and examine the correctness, legality or propriety of the finding, sentence or order, recorded or passed and as to the regularity of any proceedings of such inferior court and to pass appropriate orders. Therefore, unless the finding of the inferior court is shown to be perverse or capricious or untenable in law or founded on irrelevant or inadmissible evidence or one passed ignoring relevant evidence interference is uncalled for in exercise of revisional jurisdiction. So also, such interference is impermissible merely because on the same set of evidence another view different from the one taken by the inferior court is possible. Bearing in mind the broad principles, as aforesaid I will scan the impugned common order passed by the learned Sessions Judge in Crl.R.P.Nos.29 and 31 of 2011. As stated hereinbefore, the first question is whether re-appreciation of evidence and the reversal of the finding, virtually modification, of the learned Magistrate in regard to the claim of the first respondent relating return of 80 sovereigns of gold ornaments exhibited in Ext.P4 or its value is legal, proper and correct ?

9. The first respondent produced Ext.P4 claiming that it is the bill issued from Bismillah Jewellery on 17.10.1998 for the purchase of 80 sovereigns of gold ornaments. PW3 was examined on the side of the common first respondent to show that it was issued by him. However, in the box PW3 deposed that he was not then engaged in the business of selling of gold ornaments and he got no sales tax certificate or labour certificate. He would further depose that Ext.P4 is not a bill issued towards the purchase of gold ornaments whilst it is only a bill evidencing the making of gold ornaments as per the order placed by the first respondent. In that context, it will not be inappropriate to look into the precise case of the first respondent and the evidence adduced by her in support of it. Before dealing with the said issue it is to be considered as to how it is to dealt with and why. When the first respondent was examined in chief as PW1 she deposed:- "5aG_OmAm :_\U_Hm 5_G^HaU YV<_ ‘gM^]a" 5a?a" Lg5^?D_O_W H_\U_\aIm.e>^X xI^NDm U_U^Y" 5]_:n_G_\o.e5aG_Oaf? M^U_ 3VJ^Cm U`Ia" U_U^Y" 5]_A^JDm.e.D_V5f_ gUfy U_U^Y" 5]_:na."e

10. She was examined in chief on 12.3.2007. Thereafter, while being cross examined on 21.4.2008 she would depose thus:- ".fa 5aG_Oaf? M^U_ 3VJ_G^Cm >^X U`Ia" U_U^Y" 5]_A^D_xaAaKDm.e18/11/2007W >^X U`Ia" U_U^Y" 5]_:na.e& U_U^YJ_W .H_Am .dD XbVH^MxCBZ )Im .Ky_O_\o.e.fa 2_^NDm U_U^YJ_Hm IC"eU\oDa" f5^?agJ^ .Ky_O_\o."

11. It is to be noted that in respect of her second marriage conducted on 18.11.2007 during her cross examination held shortly after just five months since that marriage, she feigned ignorance about the gold ornaments given to her in that marriage. But, at the same she deposed regarding very same aspect in connection with her marriage with the petitioner which was performed as far back on 18.10.1998 in detail. Hence, her evidence has to be scanned with circumspection and caution. The first respondent tendered oral evidence through PW3 and documentary evidence of Exts.P6 to P10 and P11 as also Ext.P12 series of photographs to establish that at the time of her marriage with the petitioner on 18.10.1998 she was given 80 sovereigns of gold ornaments. According to her, she was decked with those gold ornaments at the time of marriage and she brought them to the matrimonial home and then entrusted them with the petitioner. First respondent further deposed that extreme discordancy and constant bickering made her to return to her parental home on 16.7.2002 and that too, without taking any gold ornaments. To know the reasons that persuaded the learned Sessions Judge to interfere with the findings of the learned Magistrate and to order for the return of 80 sovereigns of gold ornaments, paragraphs 15 to 18 of Annexure-A order are to be seen and screened. Paragraph 15 of the order of the learned Sessions Judge would reveal that the aforementioned testimony was taken as credible by the learned Sessions Judge in the backdrop of Ext.P12 series of photographs and Ext.P4. It was held therein thus:- "If the photos are relied upon, there is no difficulty in coming to a conclusion that the petitioner was in possession of 80 sovereign of gold ornaments as on the date of marriage."

12. A further scanning of the order would reveal that the learned Sessions Judge found that the petitioner herein got no contention that the bejewelled bride seen in Ext.P12 series is not his former wife. The oral testimonies of PW1 and PW3 along with Ext.P12 series and Ext.P4 evidently constrained the learned Sessions Judge to come to the conclusion that the first respondent had worn 80 sovereigns of gold ornaments at the time of marriage and the said conclusion coupled with the admission from the part of the petitioner that on 16.7.2002, the first respondent went to her paternal home without taking any gold ornaments made the learned Sessions Judge to find that the first respondent is entitled to get returned 80 sovereigns of gold ornaments. In the circumstances, a scrupulous scanning of the oral testimonies of PW1 and PW3 become essential. PW1, the first respondent, would depose that all the gold ornaments were purchased from Bismillah jewellery and for that purpose 70 gold coins were given. Ext.P4 is marked through the first respondent as the bill for the purchase of gold ornaments issued from Bismillah Jewellery belonging to PW3. It is to be noted that during cross- examination, PW3 was asked about the entry of the name ‘Raihanath’ in Ext.P4. In Ext.P4 bill, the name of one Raihanath and the date 17.10.1998 were made with different inks and that apart, Ext.P4 would not reveal that the person whose name had been entered therein as Raihanath and the first respondent is one and the same person. No details with respect to such person viz., father’s name, address etc. were given thereunder. As a matter of fact, a perusal of Ext.P4 would reveal that it cannot be treated at all, as a bill issued from Bismillah Jewellery by PW3 towards the purchase of gold ornaments. PW3 himself deposed to the effect that it was not a bill issued towards the purchase of gold ornaments whilst it is only a bill evidencing the making of gold ornaments based on an order placed by the first respondent. Apart from the oral testimony of PW3 that he started Bismillah Jewellery in the year 1995, there is absolutely no document which would reveal that the said jewellery commenced its functioning in 1995 and was in existence on 17.10.1998, the date shown in Ext.P4. The first respondent has produced a registration certificate relating Bismillah Jewellery viz., Ext.P11 dated 2.9.2002 issued from the Assistant Labour Office, Feroke and it carries an entry as follows:- ( x<_Xmgd?WX XVG_K_Ax_Hm 2001 A_X" LV N^X" 31_" D`OD_eUfx dI^L\c" )I^O_x_AaKD^Cm.

13. It would also reveal that the said certificate was renewed on 16.7.2003, 8.3.2004, 23.12.2004 and it was finally renewed up to 31.12.2006 on 8.12.2005. No competent authority from the Assistant Labour Office, Feroke was examined to prove the said document. Even otherwise Ext.P11 would not disclose the date on which Bismillah Jewellery started its functioning and more importantly, it would not indicate or establish that Bismillah Jewellery commenced its functioning prior to 17.10.1998 or even on that day. Exts.P6, P7, P8, P9 and P10 series were produced in a bid to establish that the said Jewellery was in existence in the year 1998. At the same time, a perusal of Exts.P6 to P10 would reveal that apart from Ext.P8, all the other letters addressed to PW3 were of the year 1999. True that in Ext.P8, the date is shown as 11.3.1996 and the name of the addressee is Abdulla, Bismillah Jewellery. The author of the said letter was not examined and no other document was produced from the side of the first respondent to show that the said jewellery was functioning on 17.10.1998 and it was engaged in the sale of gold ornaments. If any registration certificate issued from the office of the Assistant Labour Officer to Bismillah Jewellery covering the period 18.10.1998 was available, it could have been produced by the first respondent in the M.C through PW3. In short, no document from Assistant Labour Office evidencing its registration from any earlier period upto the date of Ext.P4 was produced. It is in this context that the evidence tendered by RW3 assumes relevance. The precise case of the petitioner while being examined as RW1, is that in Ramanattukara no jewellery by name Bismillah Jewellery was in existence in the year 1998. It is to substantiate the said contention that the petitioner got examined RW3, the Secretary of Ramanattukara Panchayat and he deposed that no jewellery by name Bismillah Jewellery was functioning within the limits of Ramanattukara panchayat during the year 1998. It is to substantiate the same that Exts.D1 to 3 were produced. Evidently, the first respondent herein (PW1) or PW3 had not produced any evidence for establishing that Bismillah Jewellery was functioning with valid licence to effect sale of gold ornaments during the relevant period in the year 1998. As noticed hereinbefore, Ext.P4 was got marked as a bill issued from Bismillah Jewellery for the purchase of 80 sovereigns of gold though PW3 stated that it is only a bill evidencing making of the gold ornaments and not one relating purchase of gold. Despite the inter se contradiction between the versions of PW1 and PW3, I think it only appropriate to go on with the consideration of Ext.P4. A perusal of the same would reveal that it cannot be construed as a bill in the strict sense and in fact, it is nothing but a scribble relating the gold used for making certain ornaments. Even if Ext.P4 is taken as a bill or a receipt issued by PW3, entries therein are not conclusive enough to establish that it was issued in favour of the first respondent or even in respect of the quantum of gold ornaments allegedly given to the first respondent at the time of her marriage with the petitioner. When the existence of the very jewellery by name Bismillah as also the correctness and admissibility of Ext.P4 are under challenge, the burden to establish the verity of the contentions based on them was on the first respondent. It cannot be said that the first respondent has discharged the said burden successfully by examining PW3 and by producing Exts.P4, P6 to P10 and P12 series of photographs. During the chief examination, the first respondent deposed as follows in relation to Ext.P4:- "U_U^YXNO" XbVH^MxCBZ U^B_OD_HaU bill &Cm 5^C_:nDm."
During the cross examination in respect of the same she deposed:- ".D_V5f_OaN^OaU U_U^YJ_f\ 80 IUX XbVH^MxCBZ YV<_ f5^?aAagO^Z .U_f? H_Ka" U^B_ .fKH_Ay_O^". YV<_f5^?aAagO^Z XbVH^MxCBZ U^B_O bill h5UV" )I^O_xaKa.eYV<_ f5^?aAagO^Z &ebillg5^?D_O_W Y^<x^A^D_x_A^X 5^xC" ‘\o.eL_XmN_\o^ <b\oy_O_W H_Ka" XbVH^MxCBZ U^B_:na.e1998 5^\JmeBismillah Jewellery O_W XbVH^MxC 5:nU?" ‘\o .Km IyE^W Vx_O\o.e.fa U_U^YgJ^?HaLt_:naU &MxCBZ U_U^Y Dg\Km U^B_.e>^X gN^AW 5^C_A^X gI^O_xaKa.e%Dm .gM^]^Cm.gK^VNO_\o.e XbVHee coins f5^?aJ^CmeeBismillah Jewellery O_W H_Ka" &MxC" U^B_ODm.e70 IUfae coins e f5^?aJa.e coins e .U_f? H_Ka" 5_G_ .Ky_O_\o.e’D^gC^ XbVH^MxCBZ U^B_OD_Hm 5_G_Oe bill e.Ky_O_\o."

14. Thus, the first respondent (PW1) who testified Ext.P4 as the bill issued for the purchase of gold ornaments from Bismillah Jewellery in connection with her marriage with the petitioner in her chief examination deposed that she did not know as to whether it is the bill obtained for the purchase of gold ornaments during her cross examination. That apart, her evidence would reveal that she asserted that gold ornaments were purchased from Bismillah Jewellery on the previous day of the marriage, i.e., on 17.10.1998 after giving 70 sovereigns of gold coins. Furthermore, she stoutly denied the suggestion that during 1998 there was no sale of jewellery in Bismillah Jewellery. It is pertinent to note that she deposed that she did not know from where those gold coins were obtained. PW4 is the brother of the first respondent. He would depose that at the time of marriage, 80 sovereigns of gold ornaments were given to the first respondent and those gold ornaments were purchased from Bismillah Jewellery. But, what he would depose is that 70 sovereign of gold ornaments were made from that jewellery. PW3 who claims to be the owner of the Bismillah Jewellery, apart from the matters noted hereinbefore, deposed further that Ext.P4 would reveal the quantity of gold handed over to him by the party as 560.460 and the name of the party has been shown there as one Raihanath. The date on which the gold coins were handed over for making gold ornaments is not revealed either by PW1 or by PW3. Whether the unit is in grams or sovereigns is not discernible from it. But, if it is taken as grams the weight of gold ornaments will be slightly above 70 sovereigns. Ext.P4 is dated 17.10.1998. If such quantity of gold coins were handed over for the purpose of making gold ornaments, taking into account the fact that the marriage was on 18.10.1998 it could not be believed that they were handed over, for that purpose, on the previous day of the marriage. In such circumstances, the question is what persuaded PW1 to obtain and what made PW3 to give Ext.P4 on 17.10.1998? In this context, it is also to be noted that in Ext.P4 the name Raihananth and the date 17.10.1998 were written with different inks. Even if gold coins worth 70 sovereigns were handed over to PW4 how could gold ornaments worth 560.460 gms, if the unit mentioned in Ext.P4 is gms, be made out of it? When gold ornaments are made out of gold coins, be it with the help of machines or manually, loss of gold would undoubtedly occur and at any rate, gold ornaments weighing more than 70 sovereigns could not have been made out of gold coins weighing 70 sovereigns. Loss of a minimal quantity would invariably take place during the making and such an allowance is permissible in the matter of making of gold ornaments which is commonly called "IC_Aax"" (panikuttam). Even if, for argument sake, it is taken that no loss of gold took place in the instant case and gold coins worth 70 sovereigns were used for making gold ornaments weighing 70 sovereigns, there is no explanation with respect to the purchase of 10 more sovereigns from Bismillah Jewellery. Even if it is taken that for making ornaments using such gold coins some other metalor material was to be used and therefore, it is possible to make ornaments weighing 70 sovereigns or more than that no such evidence was adduced despite the examination of PW3 who allegedly made such ornaments. While PW1 categorically stated that 80 sovereigns were purchased from Bismillah Jewellery after providing gold coins worth 70 sovereigns on 17.10.1998, the version of PW4, her own brother, is that 80 sovereigns were made at the said jewellery with the gold coins supplied by the family. PW3 did not support the sale of gold ornaments from his jewellery during the said period and he would say that gold ornaments were made with the gold coins supplied by the petitioner therein viz., the first respondent herein. If so, where is the question of giving 80 sovereigns gold ornaments from Bismillah Jewellery by PW3 or purchase of 80 sovereigns of gold ornaments from there. There is absolute absence of any explanation in that regard from the first respondent. There was no consideration of such aspects in the impugned common order. Yet another aspect also calls for consideration in these cases. How can a claim of entrustment of 70 sovereigns of gold coins for the purchase/making of gold ornaments worth 80 sovereigns be simply swallowed when PW1, the first respondent herself deposed that she did not know from where such gold coins were obtained. During the cross-examination she had only deposed thus:- XbVHecoins f5^?aJ^Cme Bismillah JewelleryeO_WH_Ka" &MxC" U^B_ODm.e70 IUfae f5^?aJa.ee coins .U_f? H_Ka" 5_G_ .Ky_O_\o.

15. Whether the version of possession of gold coins worth 70 sovereigns could be believed and accepted based on the evidence of PW1 and PW4 in the circumstances mentioned above, especially PW1 is absolutely unaware of its source? Collection gold coins in such large numbers cannot simply be accepted based on a mere oral testimony especially when the trustworthiness of the testifier itself is under cloud. How can the version of PW1, the first respondent be believed without proper corroboration when she gave evidence regarding the purchase of gold ornaments from Bismillah Jewellery by giving gold coins only and when she gave evidence that only gold coins worth 70 sovereigns were given and at the same time maintained the stand that the entire 80 sovereigns were thus purchased from Bismillah Jewellery. Going by the evidence of PW4 also only that much gold coins were provided to PW3 for making gold ornaments. PW4 did not reveal how gold coins in such large numbers were obtained. PW3 did not depose that he sold 10 more sovereigns of gold from his jewellery on 17.10.1998. In this context it is also to be noted that the first respondent (PW1) did not adduce any evidence relating the purchase of even a single gold coin. In such circumstances, it can only be said that there was no evidence whatsoever for accepting the version regarding handing over of gold coins worth 70 sovereigns to PW3 even if it is believed that during that time PW3 had been engaged in the making of gold ornaments. At any rate, purchase of gold coins in such large numbers without any document relating purchase of even a single gold coin cannot be the basis for ordering return of 80 sovereigns of gold ornaments based on the oral testimonies of PW1, PW3 and PW4 and Ext.P4.

16. I may now, consider the tenability of the reliance placed on Ext.P12 photographs by the learned Sessions Judge. As noticed hereinbefore, the learned Sessions Judge held that if the photos were relied on there would be no difficulty in coming to the conclusion that the first respondent (the petitioner therein) was in possession of 80 sovereigns of gold ornaments as on the date of marriage with the petitioner. Nowadays, it is a fact that imitation gold ornaments made of other metals and ornaments plated with gold are available in market and it will not be able to distinguish and identify such ornaments if worn together with original gold ornaments and photographed, with naked eye. In such circumstances, blind acceptance of all photographed ornaments as pure gold ornaments and further, making calculation regarding the weight of each of such ornaments for the purpose of finding the verity of the claim made for the return of gold ornaments given to the bride at the time of marriage without any other reliable proof would be extremely unsafe. Hitherto no technology has been developed to identify whether an ornament appearing in a photograph is gold or not.

17. Considering the present day value of gold such blind acceptance and ordering for the return of gold ornaments based on determination made purely relying on such photographs might put the person called upon to return the same in indebtedness and to toil and moil throughout the rest of the life for none of his faults, to redeem from it. It is also to be noted in this context that on account of of dexterity and peculiarity in the making of a gold ornament it may appear to have more weightier than its original weight. In such circumstances, the very practice of passing orders for returning of gold ornaments merely by looking at photographs and assessing its weight for the purpose of passing orders to return gold ornaments without considering the question whether the claim is plausible can only be a perverse appreciation of evidence. The discussions made by the learned Sessions Judge in the impugned order for reversing the findings of the learned Magistrate would reveal that Ext.P12 series were heavily relied on and the same reads thus:- "The photos explicitly depicts the gold ornaments worn by the petitioner. I gone through Ext.P4 and found that almost all the gold ornaments described in Ext.P4 is found worn by the petitioner. Therefore, Ext.P4 can be relied upon to gather the truth of the fact that PW1 received gold ornaments worn by her. If the photos are relied upon, there is no difficulty in coming to a conclusion that the petitioner was in possession of 80 sovereigns of gold ornaments as on the date of marriage."

18. I have already found that Ext.P4 could not have been relied on as a piece of reliable, corroborative evidence. In short, I have no hesitation to hold that the learned Sessions Judge went wrong in interfering with a merited consideration of the matter by the trial court. With respect to the question regarding the prayer of the first respondent for mahar to the tune of 5= sovereigns of gold or its value, evidently, that prayer was declined by the learned Magistrate. However, the same was allowed by the learned Sessions Judge in R.P. 29 of 2011. In that context, it is to be noted that the first respondent while being examined as RW1 categorically deposed that at the time of marriage she was given gold chain having 5= sovereigns as mahar. While being examined as RW1 the petitioner herein would also admit the fact that what was given as mahar was a chain having 5= sovereigns. The evidence of the petitioner would reveal that while returning to the paternal home, the first respondent had not taken any gold ornaments with her. In such circumstances and in the absence of any reasons in the order in the M.C for declining it by the learned Magistrate no flaw could be found for the interference with that part of the order. Section 3(3) of the Act reads thus:- 3.3. Where an application has been made under sub-section (2) by a divorced woman, the Magistrate may, if he is satisfied that- (a) her husband having sufficient means, has failed or neglected to make or pay her within the iddat period a reasonable and fair provision and maintenance for her and the children; or (b) the amount equal to the sum of mahr or dower has not been paid or that the properties referred to in clause (d) of sub-section (1) have not been delivered to her. make an order, within one month of the date of filing of the application directing her former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may determine as fit and proper having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of her former husband, or as the case may be, for the payment of such mahr or dower or the delivery of such properties referred to in clause (d) of sub-section (1) to the divorced woman: Provided that if the Magistrate finds, it impracticable to dispose of the application within the said period, he may, for reasons to be recorded by him, dispose of the application after the said period.

19. In such circumstances, Annexure-A order of the learned Sessions Judge with respect to mahar calls for no interference. At the same time, it is evident that in the M.C the petitioner claimed only `17600/- as the amount equal to mahar. As against the said claim, as per the impugned judgment, the learned Sessions Judge had ordered for the return of `115500/- reckoning rate of one sovereign of gold prevailing at the relevant point of time. The petitioner shall either return 5= sovereigns of gold or its equivalent value viz.,`104500/- reckoning the rate of one sovereign at `19000/- to the first respondent. With respect to the return of fridge and mixer, `12450/- was claimed by the first respondent in the M.C. Evidently, the learned Magistrate declined to grant the said relief. However, the same was also reversed in the order in the revision petition by the learned Sessions Judge. The learned Magistrate as per Annexure-B judgment considered certain circumstances to grant the said prayer as is evident from paragraph 10 of the said judgment. It is stated therein thus:- "As a part of custom prevailing among Muslims a fridge and mixy were also given to the respondent at that time. It has come out in evidence that the delivery of PW1 was on 7.9.99. She was taken to the house of the respondent after 90 days from the date of delivery. The claim of PW1 that the articles were purchased much earlier for giving to the respondent is not so believable. There was no necessity for PW1 or her relatives to purchase the fridge and mixy some 7 months prior to the giving the same to the respondent. On the other hand brand now (sic. New) articles are expected to be given to respondent. The above being the case one cannot rule out the submission of defence counsel that fridge and mixy might have purchased by PW1 or her relatives for some other purpose. However, the evidence adduced on the side of petitioner is not sufficient to hold conclusively that a fridge and mixy were given to respondent while taking PW1 to his house after delivery. So I find this point accordingly." http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

20. Though it could not be said that there is a custom prevailing among the Muslims to give fridge and mixy, the other reasoning by the learned Magistrate appears to be the only plausible view available in the facts and circumstances. Evidence in this case would reveal that the delivery of PW1, first respondent was on 7.9.1999 and she was taken to the house of the petitioner after 90 days from the date of delivery. Her claim was founded on bills dated 22.5.1999. It was therefore, found that the fridge and mixy were purchased 7 months prior to the arrival of PW1 in her matrimonial home after delivery. What is the necessity of PW1 or her relatives to purchase fridge and mixer prior to 7 months of handing over of the same? The learned Magistrate also observed that normally only branded new articles alone would be expected to be given in connection with such custom. It is taking into account the fact that the fridge and mixer claimed to have been given to the petitioner were purchased about 7 months prior to the occasion for handing over the same that the learned Magistrate declined to believe the version of the first respondent. That apart, it is hard to believe that used articles were given as part of such custom, if at all there is such a custom. It is to be noted that to reverse the said finding, the learned Sessions Judge in paragraph 19 of Annexure- A judgment held that Exts.P2 and P3 documents would reveal that she purchased the same before her arrival at the husband’s house. No reason whatsoever has been assigned by the learned Sessions Judge in reversing the findings of the learned Magistrate relating the aforesaid point. When the conclusions and findings of the learned Magistrate was a plausible view in the matter without assigning any sustainable reason the said finding ought not to have been interfered with, that too, without assigning any reason. In such circumstances, order of the learned Sessions Judge for the return of fridge and mixer or an amount of `10950/- cannot be sustained and the order of the learned Magistrate has to be restored. As noticed hereinbefore, the learned Magistrate found that the petitioner is liable to give an amount of `56000/- towards fair and reasonable provision and maintenance. That order was not interfered with by the learned Sessions Judge in the common order. As noticed hereinbefore, R.P.No.29/11 was filed by the first respondent against the judgment in M.C.No.11 of 2006 and R.P.No.31/2011 was filed by the petitioner herein against the judgment in M.C.11/06. As per Annexure-A order, the learned Sessions Judge dismissed R.P.No.31 of 2011 and R.P.No.29 of 2011 was allowed in part. In view of aforesaid findings, both Crl.R.P.No.1920 of 2012 and CRL.M.C.No.3028 of 2012 are allowed in part as hereunder:- The direction of the learned Sessions Judge to return 80 sovereigns of gold ornaments exhibited in Ext.P4 or to pay an amount of `16,80,000/- (at the rate of `21,000/- for one sovereign) is set aside and the direction of the learned Magistrate regarding return of 25 sovereigns of gold ornaments is retained fixing the rate of one sovereign at `19,000/-. Accordingly, it is ordered that the petitioner shall return 25 sovereigns or pay its value viz., `4,75,000/- to the first respondent. With regard to mahar, the petitioner shall either return 5= sovereigns or pay `1,04,500/-. The order with respect to the return of fridge and mixer passed by the learned Sessions Judge in Annexure-A is vacated and the order of the learned Magistrate that the first respondent is not entitled to get return of fridge and mixer is restored. Order to pay an amount of `56,000/- towards fair and reasonable provision is also retained.

Sd/-

C.T. RAVIKUMAR (JUDGE) spc/

C.T. RAVIKUMAR, J.

JUDGMENT September,2010

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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.
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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

AP minister’s son booked NOT arrested for molesting accusation ! He claims innocence, says case politically mo tivated !!

Andhra Pradesh minister’s son booked for allegedly molesting teacher

The woman claimed that she raised an alarm following which her husband, who was nearby, and some locals gathered at the spot and beat up the accused

Claiming innocence, Susheel, in a post on a social networking website said he had stopped the car to pick up a puppy on the road and suddenly “without any provocation” the teacher created a scene and they were manhandled. (Source: ANI photo).

Claiming innocence, Susheel, in a post on a social networking website said he had stopped the car to pick up a puppy on the road and suddenly "without any provocation" the teacher created a scene and they were manhandled. (Source: ANI photo) Claiming innocence, Susheel, in a post on a social networking website said he had stopped the car to pick up a puppy on the road and suddenly “without any provocation” the teacher created a scene and they were manhandled. (Source: ANI photo)

Andhra Pradesh Minister Ravela Kishore Babu’s son and his driver were on Saturday booked for allegedly molesting a 20-year-old woman teacher in Banjara Hills in Hyderabad, police said. It is alleged that the AP Social Welfare Minister’s son Susheel and his driver M Ramesh followed the victim in their car, passed lewd comments and tried to pull her inside the vehicle on Thursday evening.

The woman claimed that she raised an alarm following which her husband, who was nearby, and some locals gathered at the spot and beat up the accused. After a complaint by the teacher, police had registered a case related to eveteasing against the car driver though she had on Friday accused both the minister’s son and the driver of misbehaving with her. Police on Saturday said the accused were later also booked under section 354 of IPC related to molestation following recording of statements.

Deputy Commissioner of Police (West Zone) A Venkateshwera Rao told reporters that the case was registered under sections 354 (assault or criminal force to woman with intent to outrage her modesty) and 509 (word, gesture or act intended to insult the modesty of a woman) of IPC against Susheel and his driver M Ramesh.

While Susheel claimed innocence and alleged that the case was “politically motivated”, his father said police probe will reveal the truth and he will “not interfere” in the matter. The complainant had alleged that a car with ‘MLA’ sticker followed her when she was passing through Road No 13 while on her way to school on Thursday evening.

The driver of the car and another occupant, who were drunk, passed remarks and asked her to come inside the car while one person with a tattoo on his hand tried to pull her inside the vehicle, she alleged. On Friday, the woman also claimed to have identified the photo of the minister’s son as the one who held her hand and tried to pull her inside the car.

“Initially, the woman in her complaint to police named the car driver as Appa Rao, but his name is actually M Ramesh, who was thrashed by the locals along with another occupant (Susheel) and he was in a state of unconsciousness and injured,” Rao said. During course of investigation and after recording statements, the sections have been altered to 354 and 509 of IPC, the DCP said adding notices have already been served to the duo asking them to appear before police in the next 48 hours.

During the probe, the name of the second occupant of the car was revealed as Susheel, son of AP Minister Ravela Kishore Babu, he said. “We will question him”. The car driver too had lodged a complaint with police after he and Susheel were “manhandled” by the locals.

“Our police team went to the spot after coming to know that two people were being beaten up by local residents,” Rao said adding police will act as per law and proceed accordingly. There is no political interference, he said.

Claiming innocence, Susheel, in a post on a social networking website said he had stopped the car to pick up a puppy on the road and suddenly “without any provocation” the teacher created a scene and they were manhandled. “The incident is a cruel act by our political opponents and it is politically motivated,” Susheel added.

Meanwhile, AP Minister Kishore Ravela, in a statement, said a case has been registered against his son in Banjara Hills Police Station and Telangana police are investigating the case. “We will not interfere in the case. We (our family) have utmost respect for law and Constitution. Police investigation will reveal whether any crime took place or not,” the minister said.

source :Indian Express

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

False rape cases are TRAVESTY of justice.. what about false DOWRY cases, False DV cases ?

False rape cases are TRAVESTY of justice.. what about false DOWRY cases, False DV cases ?

Recently Bombay HC has called false rape cases and incarceration due to false rape a traversty of justice

What about all other false cases filed by women ? are those NOT travesty of justice ? are they NOT making a mockery of courts and the process of law ? is arresting elders, abusing and throwing them out of house a simple matter ??

We hope courts will wake up to the enormity of the false case epidemic, punish false case filing women and uphold the law

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

Wedding picture no proof of dowry, says Kerala High Court. Don’t order return of ornaments based on photos !!

Wedding picture no proof of dowry, says Kerala High Court

DECCAN CHRONICLE.Published Feb 20, 2016, 6:11 am IST
Updated Feb 20, 2016, 8:31 am IST

Hitherto no technology has been developed to identify whether an ornament appearing in a photograph is gold or not.

Representational image

Kochi: Kerala High Court has held that much reliance can’t be put on wedding photographs to decide on returning the gold ornaments to the wife by the husband while settling divorce cases.

“The very practice of passing orders for returning gold ornaments merely by looking at photographs and assessing their weight without considering whether the claim is plausible can only be a perverse application of evidence,” Justice C.T. Ravikumar held.

The court was considering a petition filed by Mohammadali of Ferook College PO, Kozhikode, against a lower court order asking him to return the gold ornaments he had received after his marriage to Rahiyanath, his former wife.

The family court found that there would be no difficulty in concluding that the bride was in possession of 80 sovereigns of gold ornaments on the date of marriage.

The High Court observed, “nowadays it is a fact that imitation gold ornaments made of other metals and ornaments plated with gold are available in the market. It is hard to distinguish and identify such ornaments if worn together with original ornaments when photographed.”

“In such circumstances, blind acceptance of all photographed ornaments as pure gold ornaments and further making calculation regarding the weight of each such ornament without any other reliable proof would be unsafe,” the court held.

“Hitherto no technology has been developed to identify whether an ornament appearing in a photograph is gold or not,” it said.

Considering the present-day value of gold, such blind acceptance and ordering the return of gold ornaments might put the person called upon to return the same in indebtedness, it said.

source

http://www.deccanchronicle.com/nation/current-affairs/

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

No decree for 2 years because family court judge is on leave! Madras HC says “ok finish case in 2 months”

Married in 2008, fighting court cases since 2010, these couple are at the first run / starting stage of the battle, i.e. they are at the Family court. It has taken four years from 2010 to 2014 for the case to reach “order” stage, but NO decree has been passed till 2016 (i.e.) for two years. So the parties reach the Madras HC !! One of the reasons cited by the counsel for the petitioner is that the judge is continuously on leave ! So, Hon Madras HC says ok finish the case in 2 more months ! God know when this case will be ordered and when the parties will put an end to their fights, because should one of the parties proceed on appeal to the HC that may take another 5 to 7 years !!

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 12.01.2016

CORAM

THE HONOURABLE MS.JUSTICE R.MALA

CRP [PD] No.45 of 2016

R.Preetha                            .. Petitioner

Vs.

Udayarajan                            ..  Respondent

Civil Revision Petition filed under Article 227 of the Constitution of India praying to issue direction to the I Additional Family Court, Chennai to pass orders on O.P.No.200 of 2010 within a stipulated time fixed by this Hon’ble Court.

For Petitioner    :  Ms.Arulmozhi

ORDER

The petitioner has filed OP.No.200/2010 under section 13[1][ia] and section 25 of the Hindu Marriage Act, 1955, seeking for dissolution of the marriage solemnised on 30.11.2008 on the ground of cruelty and to direct the respondent herein to pay permanent alimony of Rs.20 lakhs to her. Resisting the allegations made in OP.No.200/2010, the respondent has filed his counter affidavit and he has also filed OP.No.3035/2011 under section 9 of the Hindu Marriage Act for restitution of conjugal rights. Both the petitions were tried jointly on the file of the learned I Additional Judge, Family Court, Chennai and the same were posted for orders on 29.04.2014. But, as on date, the orders are yet to be pronounced. Hence, the present Civil Revision Petition at the instance of the petitioner.

2 Since the Civil Revision Petition is disposed of at the admission stage as the prayer sought for by the petitioner is limited in nature, notice to the respondent is hereby dispensed with.

3 Learned counsel for the petitioner would submit that the Presiding Officer, I Additional Family Court, Chennai is on continuous leave and that the Presiding Officer, II Additional Family Court, Chennai is in-charge and hence, suitable direction may be given to the Presiding Officer concerned for earlier disposal of OP.Nos.200/2010 and 3035/2011.

4 Considering the argument advanced by the learned counsel for the petitioner and also perusal of the typed set of papers, this Court is of the view that the relief sought for by the petitioner is limited in nature and it is fit case to direct the Court concerned to dispose of the petitions in OP.Nos.200/2010 and 3035/2011 as expeditiously as possible.

5 Accordingly, the learned I Additional Judge, Family Court, Chennai or the Presiding Officer [In-charge] of the said Court, is directed to dispose of the cases in OP.Nos.200/2010 and 3035/2011 within a period of two months from the date of receipt of a copy of this order, after giving fair opportunity to both sides.

6 The Civil Revision Petition is disposed of with the above direction. No costs.

12.01.2016 AP To

1.The I Additional Judge Family Court, Chennai.

R.MALA, J.

AP CRP [PD] No.45/2016 12.01.2016

A wife who says “father in law used to force himself on her after drinking..” takes 5 lakhs to quash case !! Delhi HC

A wife who claims all sorts of ill treatment, including that her father in law used to force himself on her after getting drunk accepts to quash everything for just 5 lakhs !! Whom should we pity now ??

The Wife initially makes very serious claims. A sample of the same can be see in the enclosed order which states “….After a week of marriage, the complainant/respondent no.2 was subjected to torture, harassment and other violence by her in-laws for not giving sufficient dowry to their satisfaction. The accused persons, committed various offences including unlawful demand of dowry, ill- treating, calling by bad names, forcing to entertain strange people, using abusive language and threatening to kill the complainant. The husband of the complainant used to beat her mercilessly. Soon after the marriage, the husband of the complainant went to Indonasia and in his absence, the mother-in-law of the complainant started to harass and misbehave with the complainant. The mother-in-law of the complainant even threw a plate full of vegetables at her face and since then she was not provided with food and she had to survive of stale food and water. The father-in-law of the complainant also used to force himself on her after getting drunk. Even during the pregnancy, the complainant was forced to do all the household chores. ….”

But suddenly when it comes to mutual consent divorce WITHOUT the kid, poor wife now accepts 5 lakhs and all complaints are quashed !! “…As per the compromise deed, it has been agreed between the parties that they shall take divorce by way of mutual consent. It is agreed that both parties shall mutually get the FIR in question quashed before this Court. It is further agreed that an amount of Rs.5,00,000/- shall be payable in two installments by petitioner no.1 to respondent no.2. It is agreed that the schedule of payment of the aforesaid amount shall be done as enunciated in the compromise deed. …..”

The custody of the kid remains with the dad though wife gets moolah !!

What should we say …. should we say “….Justice SHALL prevail !!..”


IN THE HIGH COURT OF DELHI AT NEW DELHI

CRL.M.C. 5047/2015 & Crl. M.A. 18870/2015

Date of Decision : February 12th, 2016

NAVEEN KALRA & ORS                              ….. Petitioners
Through      Mr. K.G. Gopalakrishnan and Ms. Zeba Khair, Advs.

versus

STATE                                             ….. Respondent
Through    Ms. Manjeet Arya, APP for State

Mr. Prakash Kumar, Adv. for R-2 alongwith respondent No.2 in person

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 petitioners, namely, Sh. Naveen H. Kalra, Sh. Harish S. Kalra, Smt. Kiran Kalra and Smt. Pooja Darira for quashing of FIR No.161/2012 dated 04.08.2012, under Sections 498A/406/506/509/34 IPC registered at Police Station Dwarka South on the basis of the compromise deed arrived at between the petitioner no.1 and respondent No.2, namely, Smt. Manveer Kaur Anand on 25.11.2015.
  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 of the FIR in question by her counsel.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  3.  The factual matrix of the present case is that the marriage between the petitioner no.1 and respondent no.2 was solemnized in April, 2008 according to proper rites and ceremonies under the HMA. After a week of marriage, the complainant/respondent no.2 was subjected to torture, harassment and other violence by her in-laws for not giving sufficient dowry to their satisfaction. The accused persons, committed various offences including unlawful demand of dowry, ill- treating, calling by bad names, forcing to entertain strange people, using abusive language and threatening to kill the complainant. The husband of the complainant used to beat her mercilessly. Soon after the marriage, the husband of the complainant went to Indonasia and in his absence, the mother-in-law of the complainant started to harass and misbehave with the complainant. The mother-in-law of the complainant even threw a plate full of vegetables at her face and since then she was not provided with food and she had to survive of stale food and water. The father-in-law of the complainant also used to force himself on her after getting drunk. Even during the pregnancy, the complainant was forced to do all the household chores. On the eve of Lohri, the sister-in-law of the complainant demanded many valuable things as shagun and Rs. 1 lacs too from the complainant. In January, 2009, Mrs. Pooja Darira abused the complainant by saying that her father is a liar. In the month of June, 2009 at Delhi, the husband of the complainant again picked up a fight with her in front of her father and gave her beatings while she was pregnant. One day, the accused persons tried to pour phenyl in the mouth of the complainant forcefully. On 08.09.2011, the accused persons threatened the complainant and asked her to divorce her husband. One day, the husband of the complainant asked her to call her father and ask him to take her away. The complainant left with no option, called her father and he came to Bangalore to amicably sort out all the issues but to no avail and thus they finally left Bangalore on 16.10.2011. Thereafter, the complainant lodged the FIR in question against the accused persons/petitioners. The petitioner no.1 approached this Court for the grant of bail and the same was granted to him. Later on, with the intervention of the common friends and relatives etc. the parties reached at an amicable settlement.
  4.  Respondent No.2, present in the Court, submitted that the dispute between the parties has been amicably resolved. As per the compromise deed, it has been agreed between the parties that they shall take divorce by way of mutual consent. It is agreed that both parties shall mutually get the FIR in question quashed before this Court. It is further agreed that an amount of Rs.5,00,000/- shall be payable in two installments by petitioner no.1 to respondent no.2. It is agreed that the schedule of payment of the aforesaid amount shall be done as enunciated in the compromise deed. It is agreed that respondent no. 2 shall withdraw all the cases filed by her that are pending before the Courts concerned. It is agreed that the permanent custody of the child Jai would be with petitioner no.1 and that respondent no.2 would have visitation rights as per the convenience of both parties and the child. It is also agreed that respondent no. 2 shall have the freedom to take the child on one vacation in a year and as many thereafter on mutual co-ordination. It is agreed that respondent no.2 shall not claim for maintenance, permanent alimony or istridhan etc. from petitioner no.1 and that they both shall not stake any claim or share in the movable and immovable properties of each other or their family members for all times, henceforth. It is further agreed that they shall not file any claim, complaint or any other proceedings, civil or criminal, against each other or their family members before any Court of law or before any authority, instrumentality, forum or agency of State or otherwise with respect to any cause of action arising out of the marriage. It is further agreed that in case either party fails to appear before this Court for the quashing petitions or to execute any of the terms and conditions of the present compromise, the parties will rescind the terms and conditions and revert back to the original position as if no such terms and conditions were entered upon. Respondent No.2 affirms the contents of the aforesaid settlement and of her affidavit dated 08.12.2015 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 http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  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 agrees 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 tranquillity 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 over burdened 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 an FIR No.161/2012 dated 04.08.2012, under Sections 498A/406/506/509/34 IPC registered at Police Station Dwarka South the proceedings emanating therefrom are quashed against the petitioners.
  15.  This petition is accordingly disposed of.
  16.  Application Crl. M.A. 18870/2015 is also disposed of.

(P.S.TEJI) JUDGE FEBRUARY 12, 2016/dd

*****************************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 appeals exparte decree 10 years later & gets 82 lakhs alimony. Total 23 years marital bliss! Orissa HC case

Married in 1993, trouble starts soon after birth of kid circa 1996. There are claims of extra marital affairs etc. Wife leaves husband in 2000 and never returns. Husband wins ex parte divorce in 2003 (wife hasn’t appeared in spite of being served is what is said) . Wife stays silent till 2013 and then starts a case for divorce on grounds of cruelty !! In 2014 she claims that she NEVER knew of the earlier decree dated 2003 (i.e. for 11 years) !! Lower court dismisses wife’s claim. Matter reaches Orissa HC where HC says “Pay” because reconciliation is NOT possible !! Husband and his dad end by paying approx 62 lakhs !! Meanwhile the daughter is a major etc etc, still husband pays


ORISSA HIGH COURT, CUTTACK

MATA No.118 of 2014 & MATA No.125 of 2014

Appeals under Section 19 of the Family Courts Act, 1984 challenging the order dated 10.9.2014 passed by the Judge, Family Court, Bhubaneswar in C.P. No.460 of 2013 and the order dated 22.8.2003 passed by the Judge, Family Court, Cuttack in C.P. No.781 of 2002.

MATA No.118 of 2014
Madhusmita Pujari @ Mishra and another              ……      Appellants
-Versus-
Partha Sarathi Mishra                               ……    Respondent
For Appellants:      M/S. Bipin Bihari Jena, J.Bhagat, D.Pradhan and T.K.Jena
For Respondent : Mr. Rakesh Sahu

MATA No.125 of 2014
Madhusmita Pujari @ Mishra              ……          Appellant
-Versus-
Partha Sarathi Mishra                     ……      Respondent
For Appellant:      M/S. Bipin Bihari Jena, J.Bhagat, D.Pradhan and T.K.Jena
For Respondent : M/s.Rakesh Sahu, A.R.Panigrahi & Rajesh Sahu


Date of Order: 22.02.2016


P R E S E N T:
THE HONOURABLE MR. JUSTICE VINOD PRASAD
AND
THE HONOURABLE MR. JUSTICE BISWAJIT MOHANTY

BISWAJIT MOHANTY, J.

Since both the above noted appeals were taken up analogously, this common order is being passed to dispose of both the appeals. The factual matrix of both the appeals are as follows:

2.          Madhusmita Pujari @ Mishra is appellant No.1 in Mata No.118 of 2014 and the sole appellant in MATA No.125 of 2014. Partha Sarathi Mishra is the sole respondent in both the above noted appeals. Their daughter-Anmol Mishra is appellant No.2 in MATA No.118 of 2014. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

3.          A perusal of record shows that the marriage between Madhusmita Pujari @ Mishra and Partha Sarathi Mishra was solemnized on 11.07.1993. Out of the wedlock, daughter, Anmol Mishra was born on 3.6.1996. Trouble started brewing between the spouses even before the daughter was born and got aggravated after the birth of the daughter. Dispute arose between the spouses due to alleged extra marital affairs. Thereafter, the allegation is that Madhusmita Pujari @ Mishra went back to her father’s house in November, 2000 and never returned. In such background, theatre of action got shifted to Court rooms and that Partha Sarathi Mishra filed C.P. No.781 of 2002 under Sections 13 and 26 of the Hindu Marriage Act, 1955 for dissolution of marriage and for custody of their minor daughter, Anmol Mishra in the Family Court, Cuttack. Despite summons, Madhusmita Pujari @ Mishra did not appear and accordingly, on 22.8.2003, the learned Judge, Family Court, Cuttack decreed Civil Proceeding No.781 of 2002 ex parte against Madhusmita Pujari @ Mishra and dissolved their marriage by passing a decree of divorce. The learned Judge, Family Court, Cuttack further directed to give the custody of the then minor daughter, Anmol Mishra to Partha Sarathi Mishra. In 2013, Madhusmita Pujari @ Mishra filed Civil Proceeding No.460 of 2013 before the Judge, Family Court, Bhubaneswar for dissolution of marriage on the ground of cruelty and desertion. She also filed Interlocutory Application No.118 of 2013 claiming interim maintenance for herself and for her minor daughter, Anmol Mishra in Family Court, Bhubaneswar. During pendency of Civil Proceeding No.460 of 2013, Anmol Mishra became a major on 3.6.2014. According to Madhusmita Pujari @ Mishra, she came to know about order dated 22.8.2013 passed in Civil Proceeding No.781 of 2002 on 16.8.2014. However, on 10.9.2014, Civil Proceeding No.460 of 2013 was disposed of along with I.A. No.118 of 2013 by the learned Judge, Family Court, Bhubaneswar holding that the cases were not at all maintainable in the background of order dated 22.8.2003 passed in Civil Proceeding No.781 of 2002. Challenging the said order dated 10.09.2014, Madhusmita Pujari @ Mishra and Anmol Mishra filed MATA No.118 of 2014 on 14.10.2014. Thereafter, on 22.10.2014, Madhusmita Pujari @ Mishra filed MATA No.125 of 2014 challenging the order dated 22.8.2003 passed in Civil Proceeding No.781 of 2002. On 20.4.2015, Madhusmita Pujari @ Mishra, Anmol Mishra and Partha Sarathi Mishra appeared in Court along with their respective counsel. When this Court realized that the re-union was not possible, it went into the question with regard to quantum of permanent alimony. In order to give the parties a chance regarding settlement relating to permanent alimony, MATA No.118 of 2014 was directed to be taken up on 22.4.2015 along with MATA No.125 of 2014. On 22.4.2015, all the parties along with their respective counsel presented themselves before this Court and the matter was taken up in the Chambers. After a long deliberation, the parties came to an amicable settlement on following terms and conditions relating to all the disputes between them. The terms of settlement were as follows:-

  1. “That the two Federal Bank Limited Certificates issued by Cuttack
    Branch from Account No.13770300116517 dated 6.8.2011 and Account
    No.13770300116012 dated 12.7.2011, both standing in the joint names
    of Sri Parthasarathi Mishra and Anmol Mishra, wherein it is mentioned
    that either or survivor can get them encashed, the first certificate
    having maturity value of Rs.7,44,274.00 and the subsequent having
    maturity value of Rs.7,07,317.00 be handed over to Anmol Mishra who
    is entitled to get them encahsed on maturity. The said certificates
    have been handed over to Anmol Mishra in presence of the counsel for
    both sides as well as the father and she is directed to make an
    endorsement regarding receipt thereof on the order-sheet of this
    Matrimonial Appeal.
  2. That the bank account in the Federal Bank Limited opened in the
    name of Anmol Mishra, being bank Account no.125 (New No.1257) will
    continue with Anmol Mishra and the father will hand over the passbook
    of the said bank account to Anmol Mishra on 12.5.2015, when this
    matter shall come up again.
  3. That the father Parthasarathi Mishra will give a draft of
    Rs.20,00,000/- (Rupees twenty lakhs) in the name of Anmol Mishra on
    12th May, 2015.
  4. That the father will come with a draft of Rs.20,00,000/-(Rupees
    Twenth lakhs) on 3rd of July, 2015 in the name of Madhusmita Pujari @
    Mishra.
  5. That the father Parthasarathi Mishra will come with another bank
    draft of Rs.28,00,000/- (Rupees Twenty Eight lakhs) in the name of
    Madhusmita Pujari @ Mishra on 5th January, 2016.The above five terms and conditions have been accepted and agreed to
    by both the sides in presence of their respective counsel on their
    own volition without any threat, force, coercion or mis-
    representation. This is in full and final settlement. These terms and
    conditions, we repeat, are in full and final settlement of all the
    disputes of any nature between the parties.”

4.           The matter was further taken up on 12.5.2015, 3.7.2015, 10.12.2015 and finally on 5.1.2016. By 5.1.2016 the terms of settlement as delineated on 22.4.2015 have been implemented. Accordingly, this Court recorded that there remained no other dispute between the parties. In such background, nothing remains to be decided in both the appeals. However, before giving a quietus to the matter, it is directed that since the matters have ended in compromise, all the allegations and counter allegations made by the parties should be ignored and should have no effect in future, so that the future lives of the parties, particularly, that of the daughter, Anmol Mishra would in no way be affected. However, we make it clear that we have not interfered with the order dated 22.8.2003 of the learned Judge, Family Court, Cuttack dissolving the marriage between Madhusmita Pujari @ Mishra and Parthasarathi Mishra passed in C.P. No.781 of 2002. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

Both the above noted appeals are accordingly disposed of.

Biswajit Mohanty, J.
Vinod Prasad, J. I agree.
Vinod Prasad, J.

High Court of Orissa, Cuttack

Dated 22nd February, 2016

bns

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


Many lakhs alimony and NO contact with son ! Today’s women are worse than British rulers

During the initial days of the British conquest of India we’ll heard of brutal stories where Kings had to pawn their own sons to the British in return for peace

One such instance comes to light in the life of TIPPU SULTAN the great king of Mysore

His two sons were captured by the British and kept as hostages in exchange for respite from attacks on Tippu’s kingdom

Tippu was supposed to have been heartbroken after losing his sons

In today’s flights wives often act worse then the British rulers

They take away money and the children and in some cases even insist that the surname of children be changed

Here is one such case in which the wife in addition to taking money also insists that the family name of the son be changed

This is a reported case taken from public records on the Internet and shared here for the benefit of fellow leaders

We present this case with a very heavy heart but at the same time we all need to know the stark reality that is staring at a married Indian Male !!


Punjab-Haryana High Court

_______ Singh vs _______ Arora on 15 February, 2016

FAO-52-M-2015

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Sr. No.236

FAO-52-M-2015(O&M) Decided on : 12th February, 2016

________ Singh … appellant. VERSUS

__________ Arora …. Respondent.

CORAM:

HON’BLE MR. JUSTICE RAJIVE BHALLA

HON’BLE MS. JUSTICE LISA GILL

Present: Mr. Rajeev Sharma, Advocate for Mr. J.S. Dadwal, Advocate for the appellant.

Mr. Ashwani Sharma, for the Respondent

RAJIVE BHALLA, J. (Oral)

The appellant challenges judgment and decree dated 04.12.2014 passed by the Additional District Judge, SAS Nagar (Mohali). The parties were referred to mediation where they have settled their dispute in the following terms:

‘1. That both the parties have agreed to divorce each other and agreed to accept the judgment and decree dated 04.12.2014 passed by the Court of Ld. Additional District Judge, SAS Nagar Mohali, granting divorce to the parties.

2. That _________ Arora-Husband has agreed to give Rs.13.5 lacs as permanent alimony and maintenance to his wife _______ Chugh in lieu of divorce and the same offer has been accepted by wife _______ Chugh in full and final.

3. That ________ Arora-husband has brought two demand drafts in the names and amounts as mentioned below and has given the same to the wife _______ Chu gh, which she has accepted:- a) Demand Draft of Rs.3,50,000/- in the name of wife ________ Chugh Demand Draft No. 091029 dated 11.07.2015 is of State Bank of India, Palampur Branch (Himachal Pradesh). b) Demand Draft of Rs.10,00,000/- in the name of son Bhavya Demand Draft No. 091028 dated 11.07.2015 is of State Bank of India, Palampur Branch (Himachal Pradesh).

4. That it has been further agreed that no further maintenance and arrears of maintenance etc. in future shall be claimed by _______ Chugh- wife and her son ‘Bhavya’.

5. That it has been further agreed that ______ Chugh-wife shall not lay any claim in future with regard to her son against _______ Arora-husband of any kind or in property of ________ Arora.

6. That it has been agreed between the parties that _______ Chugh-wife will withdraw the present FAO No. M-52 of 2015 and also withdraw the maintenance suit as well as complaint pending before the Women Cell Mohali. It has also been agreed that the husband ________ Arora will withdraw all the complaints before the courts and banks as well as any other litigation filed by him against his wife-______ Chugh.

7. It has been further agreed between the parties that neither party will indulge in filing any sort of complaint in future against each other or family members.

8. It has been further agreed between the parties that the husband _______ Arora will have no objection to the removal of surname ‘Arora’ after the name of his son ‘Bhavya’ and he also will have no objection in correction of the name of Grandfather of son ‘Bhavya from ‘Sham Arora’ to ‘Radhey Shyam Arora’. The husband ________ Arora will cooperate and shall hand over the necessary documents in this regard to wife-_______ Chugh.

9. It has been further agreed between the parties that the custody of their child Bhavya will remain with the wife-_______ Chugh and the husband- _______ Arora will not claim the custody of the child in future in any manner whatsoever. Further it has been agreed that the husband-________ Arora will not have any visiting rights to see his child ‘Bhavya’.

10. The parties to the dispute undertake not to institute any unwanted litigation against each other. With the execution of the present compromise, entire dispute between the parties shall stand settled and both the parties shall be free to lead their life as per their own wishes.

Counsel for the appellant states that he has instructions to withdraw the appeal but the respondent may be directed to withdraw a complaint that he has filed against the appellant in the Bank, where she is employed.

Counsel for the respondent states that the respondent shall forthwith, within a week withdraw the appeal.

In view of the settlement and the statement made by counsel for the parties, the appeal is dismissed as withdrawn by affirming judgment and decree dated 04.12.2014 passed by the Additional District Judge, SAS Nagar (Mohali).

In case the respondent does not withdraw the complaint, the appellant would be at liberty to approach this Court for further directions.

(RAJIVE BHALLA) JUDGE

(LISA GILL) JUDGE

12th February, 2016

Divorce 42 years after marriage. Wife seeks 1.5crore from 75 yr old hubby while she has crores. Bangalore HC

Divorce granted 42 years after marriage. Wife seeks 1.5crore from 75 yr old hubby while she has crores in shares and property. Classic Bangalore HC divorce case which husband WINS on grounds of cruelty and desertion by wife !!

In this sad case, a 75 year old man in his advanced age is fighting against his wife’s appeal (at HC) seeking 1.5 crores as permanent alimony. There are claims and counter claims, but it is on record that (a) wife has filed (MC) cases alleging that husband had illicit relations with his own employee and (b) she has made a suicide attempt and had to be hospitalised after consuming huge dose of sleeping tablets. Husband also alleges that she was the cause of his business failure. Wife cross-alleges husband sold his ancestral house and took away part of the proceeds, but the wife is not convincing in her cross examination replies as well, leading the Hon HC to doubt her claims of living under one roof with this husband (i.e.) thus accepting husband’s claim of desertion. Finally the Hon Bangalore HC confirms the divorce and directs her to approach lower court for maintenance

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 17TH DAY OF FEBRUARY 2016

PRESENT

      THE HON’BLE MR.JUSTICE N K PATIL
AND
      THE HON’BLE MRS.JUSTICE S SUJATHA

MFA No.10709/2011 (FC)

BETWEEN

Rupa Mahajan
W/o Satish Mahajan
Aged 57 years
Presenty Residing at
No.011, ‘B’ Block
Sterling park Apartments
Kodigehalli Main Road
Sanjeevinagar
Bangalore-560 092.                     ….Appellant
(By Sri.S.S.Ramdas, Senior Advocate for M/s. Sundara swamy & Ramdas Associates)

AND

Satish Mahajan
S/o Late D.R.Mahajan
Aged 67 years
Residing at
No.603 B St Johns Woods Apartments
80St John Cross Road
Bangalore-560 029.                …Respondent
(By Sri.J.Kanikaraj, Advocate)

This Appeal is filed under Section 19(1) of Family Courts Act, against the Judgment and Decree dated 30.06.2011 passed in M.C.No.1933/2008 on the file of 4th Additional Principal Judge Family Court, Bangalore, allowing the petition filed under Section 13(1) (ia) (ib) of Hindu Marriage Act for divorce and rejecting the prayer filed under Section 3.

This Appeal having been heard and reserved for Judgment on 05th February 2016, coming on for pronouncement of Judgment this day, S.Sujatha J., delivered the following

JUDGMENT

  1. This appeal is directed against the judgment and decree dated 30.06.2011 passed by the 4th Addl. Principal Judge, Family Court, Bangalore in M.C.No.1933/2008, allowing the petition filed by the respondent for dissolution of marriage.
  2. The facts in brief are:- that the marriage between the appellant and respondent was solemnized as per Hindu Rites on 18.01.1974 at Chennai. It transpires that after their marriage, the respondent and appellant lived at No.58, Cunningham Road, Bangalore happily for a period of 16 years upto 1990. Their marriage was consummated and the couple were blessed with twins (sons) named Gaurav and Vaibhav in the year 1980. It is stated that both the appellant and respondent jointly purchased a land situated at No.328, 5th Main, 1st Block, Koramangala in the year 1990 and after constructing a house on the said land, they shifted their residence to the newly built house in 1990 and were residing therein. When the relationship between the parties was amicable, respondent along with his brother for the purpose of running a business, floated a company in the name of M/s Garments International Pvt. Ltd. Respondent along with his brother were the directors of the said company. However, subsequently, appellant, Gaurav and Vaibhav (sons) were inducted as Directors in the years 1990, 1998 and 2000 respectively. Due to the differences that developed between the appellant and respondent, the respondent filed M.C.No.1933/2008 before the 4th Addl. Principal Judge, Family Court seeking a decree of divorce under Section 13(1) (1a) and 13(1b) and (iii) of the Hindu Marriage Act, 1955 (the ‘Act’ for short). Appellant contested the matter. After considering the evidence placed by the parties, the Family Court allowed the petition under Section 13(1)(ia) and (ib) of the Act and rejected the petition under Section 13(1)(iii) of the Act. Being aggrieved by the said judgment and decree passed by the Family Court, the appellant is before this Court.
  3. Heard Learned Senior Counsel Sri. Ramdas for appellant as well as Sri.Kanikraj for respondent. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  4. The learned counsel for appearing for the appellant would contend that the Family Court failed to consider the evidence on record in a right perspective. Appellant herein had placed Exhibits R.1 to R.17 but the Family Court, ignoring the said documentary evidence has wrongly held that no appropriate evidence was placed by the appellant herein to discard the evidence of the respondent. The Family Court has not appreciated the true nature of cruelty and desertion alleged by the respondent to claim the decree of divorce under Section 13(1)(ia) and (ib) of the Act. Though the ground of mental disorder is held to be not proved, granting the decree of divorce to a marriage which subsisted for more than 33 years is totally unjustifiable and contrary to the well established principles of law enunciated by the Apex Court.
  5. It is submitted that the petition filed by the appellant seeking decree of divorce against the respondent in M.C.No.1325/1999, was only with an intention to draw the attention of the respondent towards her, in view of the assurances made by the respondent to take good care of her, the petition was unconditionally withdrawn in the year 2000 and pursuant to which both the parties lived together as husband and wife. The subsequent events which transpired pursuant to withdrawal of the petition MC.No.1325/1999 having been completely overlooked by the Family Court, proceeded to hold that the act of the appellant in filing M.C.No.1325/1999 against the respondent seeking decree of divorce, amounted to cruelty.
  6. It is further submitted that though initially, the company M/s Garments International Pvt. Ltd. was floated by the respondent for the purpose of running a business in exporting garments, the appellant and children were inducted as directors in the company who held their proportionate share in the company. The respondent without any reason borrowed huge amounts from banks, financial institutions and also from private parties which resulted in financial instability affecting the entire family. In order to have a hold in the financial transactions of the company, the appellant along with her children was constrained to interfere with the company’s financial affairs. Such action of the appellants was indeed in the interest of the family and to safeguard and protect the company’s interest which cannot be termed as mental cruelty against the respondent. The trial Court overlooking the rationale behind such acts, wrongly held such acts of the appellant has caused mental agony to the respondent.
  7. It is further submitted that the submission of the respondent that the parties lived separately since November 1999 is totally against the documents placed on record by the appellant. The appellant having led a happy marital life with the respondent for more than 33 years, had no intention to desert the respondent. Exhibits R1 to R17 placed on record proves that the appellant resided with the respondent. The respondent has not taken any interest in the family. The appellant alone out of her savings performed the marriage of their sons and the respondent had no courtesy even to participate in the marriage ceremonial functions. It is in fact, the respondent who has deserted the appellant and the family and not the appellant. The matrimonial house at Koramangala, Bangalore which was owned jointly by the parties was sold in the year 2007 for a consideration of Rs.3,52,00,000/- out of which only a meager sum of Rs.50,00,000/- was paid to the appellant and Rs.11,00,000/- to each of their children. No cogent evidence is placed on record by the respondent to establish the factum of desertion as claimed. The allegations made against the appellant that she is suffering from mental disorder is an act of the respondent to bring the institution of marriage to an end and to ruin the entire life of the appellant. Such a false allegation of mental disorder made by the respondent ipso facto proves the cruelty made by the husband towards the wife. No appeal is filed by the respondent on the dismissal of the petition under this ground. No desertion as required under the Act is proved by the respondent. In such circumstances, the Family Court allowing the petition filed by the respondent and granting a decree of divorce is totally unsustainable and seeks to set- aside the said judgment and decree of the Family Court.
  8. Learned counsel appearing for the appellant/wife has filed an application I.A.I/2015 seeking for maintenance in a sum of Rs.60,000/- per month from January 2007 till date and for future periods during the appellant’s life time or in the alternative to direct the respondent to pay the appellant permanent alimony in a sum of Rs.1.50 crores in the interest of justice. Placing arguments on this application filed under Section 25 of the Act, learned counsel would submit that during 2005 the mother-in-law of the appellant Smt.Leela Mahajan gifted her late husband’s house bearing No,58, Cunningham Road to the respondent. Immediately after receiving the gift the respondent negotiated to sell the said house and sold for about 2.25 crores. Thereafter, respondent had formed a private trust by name Satish Mahajan Family Welfare Trust, purchased an apartment in Prestige St.John’s wood Koramangala. A sum of Rs.60,00,000/- was paid for the purchase of the said apartment from out of the said sale proceeds of Cunningham Cross Road house. The balance of nearly Rs.1.65 crores is unaccounted and untraceable. The respondent though floated Satish Mahajan Family Welfare Trust for the benefit of the sons of the parties, till date no benefit has been extended despite the trust having money and securities in multiple crores, in ING Vysya Bank now known as Kotak Mahendra Bank, Koramangala, Bangalore. The respondent being a prudent businessman hailing from a business family, being in business for nearly 45 years and being a promoter/partner in Mahajan Borewell Company – a renowned borewell drilling Company in Karnataka, cannot now plead that he has married the second wife who is a doctor at St.John’s Hospital at Koramangala and is living on her money. The respondent has failed to discharge the responsibilities of a husband and as a father to his children. He has also not participated in any manner in the marriages of their sons Vaibhav’s in 2007 and Gaurav’s in 2013. The respondent has the benefit of nearly Rs.4.45crores being the balance from the sale of two houses, right form 2005 to 2007, till date. The respondent has earned interest and income from the said money for all these years.
  9. It is further submitted that the appellant is completely dependent on her dividend income accruing from the shares and securities amounting to Rs.12.00 lakhs as evident from the income tax returns and she has no other source of income. It is also submitted that with all the hope of getting re- united with the respondent, no maintenance application was filed during the petition proceedings. It is only after realizing that the respondent has contracted second marriage the application is filed in appeal proceedings. Accordingly, seeks to allow the application and to direct the respondent to make the payment towards the maintenance as claimed.
  10. In support of his contentions, learned counsel has placed reliance on the following Judgments: (1) Naveen Kohli vs. Neelu Kohli ((2006) 4 SCC 558) (2) A.Jayachandra vs Aneel Kaur ((2005) 2 SCC (3) Savitri Pandey vs.Prem Chandra Pandey (AIR 2002 SC 591) (4) Samar Ghosh vs. Jaya Ghosh ((2007) 4 SCC 511)
  11. Learned counsel appearing for the respondent justifies the judgment and decree passed by the Family Court and contends that the appellant filing M.C.No.1325/1999, seeking for divorce against the respondent making false allegations that the respondent had an affair with Smt.Geetha Srinivasan, an employee of M/s Garments International Company, had lowered the status of the respondent in the society besides causing mental trauma and agony. Such wild allegations made against the respondent were baseless.
  12. Further, the appellant interfering with the financial matters of the company, fabricating a resolution and freezing the bank accounts has caused financial instability to the business as well as to the family. The respondent was mainly engaged in the export business, due to the inconvenience caused by the appellant in sabotaging the business, in order to honour the agreements/contracts entered into between the foreign buyers within the time frame, the consignments were air-lifted. Such an action has caused huge loss in his business. The entire family properties came to be sold to make the payment of loan raised towards the business commitments. The indifferent attitude of the appellant, in ruining the respondent mentally and financially amounts to cruelty which has been rightly considered by the Family Court. The appellant has left the matrimonial home in November 1999. She returned back in the year 2000 and stayed with the respondent only for 2-3 days. At that time, she consumed 235 sleeping tablets and attempted to commit suicide in the matrimonial home. Noticing the same, the respondent rushed her to St.John’s Medical Hospital, Bangalore and provided her the medical treatment. Immediately after discharge from the hospital, she left the matrimonial home and started residing at Jalandhar at her parental house. The appellant had obtained a separate phone number 9888854456 at Jalandhar which proves that she had deserted the respondent from November 1999. The desertion is further proved by the action of the appellant purchasing the flat in the year 2002 at Bangalore whereby she had the intention to stay away from the respondent separately. The dividend warrants showing the address of the appellant with the Koramangala address would not establish the factum of residence of the appellant with the respondent. It is known fact that unless the change of address is made with the companies holding the shares, the dividend vouchers would be sent to the address available on the company’s register. In fact, the appellant was collecting the dividend warrants from one of their son’s or through servants. Since November 1999, the respondent and petitioner have not lived together under one roof as husband and wife. It is submitted that after the grant of decree of divorce by the Family Court on 30.6.2011, the respondent contracted the second marriage on 10.11.2011 and that the said marriage is registered on 13.02.2012, he has been living with his wife ever since then. On this ground alone, the judgment and decree of the Family Court is not liable to be disturbed.
  13. The respondent himself being advanced in age, presently aged about 75 years, has no avocation nor any source of income and is fully dependent on his wife who is a qualified medical practitioner, having source of income from her practice. During the subsistence of the marriage between the appellant and the respondent, the site at Koramangala was purchased in the joint name of the appellant and respondent out of his own funds, there being no financial participation by the respondent in the purchase of construction. Due to the action of the appellant of forging and fabricating a board resolution, removing the respondent as Managing Director of the Company and withdrawing all banking powers of the Company, the Company which was financially sound and flourishing in the Garment export trade, suddenly suffered losses as export shipment could not be made within the stipulated time resulting in huge forfeiture for non performance by the export council and loss of credibility in the market with the suppliers, bankers and workers, over all image of the company was totally ruined. In order to set-right the things, the respondent was constrained to move the City Civil Court and succeeded in bringing restraining orders and got the Board resolution stayed and tried to salvage the Company’s business, despite which the Company could not survive. Out of the sale proceeds of the house at Koramangala, Rs.50.00 lakh was paid to the appellant and Rs.11.00 lakh each to the children and from the balance amount, bank liability was cleared, no amount was left in the hands of the respondent. After discharging the liabilities, the respondent was himself reduced to penury with no amount left with him nor having independent source of income. Even regarding the gift made by the respondent’s mother with respect to a house on Cunningham Road, Bangalore, the said property being attached for auction and proclamation notices were issued on various bank loans availed by Mr.Ashok Mahajan with their mother as a co-obligant, in order to prevent the creditors from auctioning the same, the said property was sold to discharge the loans who had funded payment to the debtor banks of Mahajan Borewell Company. From the remaining amount, respondent purchased a Two BHK Flat and is residing there with his mother.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  14. The appellant owns the flat valued about Rs.70.00 lakhs apart from holding shares valued about Rs.1.18 crores and liquid cash in the form of deposits. As such, there is no dearth of money for the appellant and she is living in luxury. No such plea being made by the appellant before the trial Court for maintenance, the application filed in the appeal proceedings is not maintainable. Accordingly, it is contended that the judgment and decree passed by the Family Court is after considering the material evidence available on record. The respondent has proved the ingredients of Section 13(1)(i-a) and 13(1)(i-b) of the Act. Appreciating the same, the Family Court has granted a decree of divorce which does not call for any interference at this stage. Accordingly, respondent seeks to dismiss the appeal and the application filed by the wife for maintenance/permanent alimony filed under Section 25 of the Act.
  15. We have carefully considered the rival submissions made by the parties and perused the material on record. The respondent has filed the petition before the Family Court under Section 13(1)(i-a), 13(1)(i-b) and 13(1)(iii) of the Act seeking a decree of divorce, dissolving the marriage solemnized between the parties on 18.01.1974. Family Court though dismissed the petition on the ground of mental disorder i.e., under Section 13(1)(iii) of the Act, allowed the petition under Sections 13(1)(i-a) and 13(1)(i-b) of the Act. The Family Court after considering the pleadings of the parties has framed five issues. The respondent himself was examined as PW1 and marked documents Exs.P.1 to P.8. Appellant is examined as RW1 and marked exhibits R.1 to R.17. The main grounds urged by the respondent to prove the cruelty are: (1) Filing of M.C.No.1331/1999 by the appellant seeking decree of divorce against the respondent and making false allegations against the respondent of having an affair with Smt.Geetha Srinivasan – an employee of the Company. (2) Fabricating the resolution of the Company and freezing the bank accounts by which the respondent was constrained to obtain an interim injunction against the appellant before the city Civil Court which affected the business of the respondent in its entirety, causing financial loss and damage to the reputation of the company as well as to the respondent. In the result, the respondent was finally forced to shut down the business.
  16. We have examined the evidence available on record. It is seen from the records, that on the allegation that the respondent had some relationship with an employee of the Company i.e., Smt. Geetha Srinivasan, M.C. petition was filed by the respondent seeking for decree of divorce. No-doubt the same was withdrawn by the petitioner on 27.03.2000, such an act of the respondent, filing of the petition for divorce indicates the intention of the appellant to dissolve the marriage. Indeed it is contended by the appellant that subsequent to the withdrawal of the petition, both the parties lived together as husband and wife under one roof which is categorically denied by the respondent. Exs.R.1 to R.16 are relating to the year 2000 to 2004. Ex.R.17 is the copy of the sale deed dated 18.01.2007. The address of the parties shown in the said sale deed is 720,2nd “B” Main, 2nd B” Cross, 8th Block, Koramangala, Bangalore. In the cross examination of R.W.1 – the witness has deposed that she does not remember, the number of rooms and floors of the said property and it is admitted that the said house described in Ex.R.17 is the rented house and she does not remember when that house was taken for rent and how many years she stayed with her husband in the said house. The said evidence available on record indicates that the respondent is not having the correct picture of the house in which she claims to have resided with her husband – appellant in the year 2007. It is further deposed by RW.1 that she cannot remember the address given in the passport as well as Driving Licence , whether it relates to the Flat at Kodigehalli. It is also deposed that she does not remember the address shown in the passbook relating to her Account in State Bank of Mysore, Sahakarnagar. Hence, no credence would be given to this document – Ex.R.17 to accept the contention of the respondent that the parties lived together till 2007. As already discussed Exs.R.1 to R.7 are the dividend warrants of different Companies. These documents do not prove that the parties were residing together as husband and wife after November 1999. Hence, desertion of statutory period of 2 years before filing of the petition as contemplated under Section 13(1)(i-b) of the Act is proved by the appellant. It is strongly contended by the learned counsel appearing for the appellant that this material evidence which discloses that the appellant was residing with her husband at the matrimonial house was totally ignored by the Family Court. Generally, dividends are sent to the address of the share holders, as maintained in the Register of the company, unless the change of address is incorporated in the Register. It is the case of the respondent that Exhibits P-4 to 8, unopened covers of dividends remained with him which indicates that the appellant was not residing with him after November 1999. It may be true that after the withdrawal of the M.C. petition filed by the appellant, there was a long gap in filing the petition by the husband alleging cruelty, desertion and mental disorder. However, it cannot be ruled out that the respondent was subjected to cruelty in view of the alleged allegations of having relationship with an employee of the company and the M.C. petition filed on that ground. Interference of the appellant in the financial affairs of the Company by passing a fabricated resolution and freezing the bank accounts may be even to safeguard the interest of the family and the Company as narrated by the appellant but however, the said interference has caused damage to the business and the reputation of the Company resulting in financial loss to the Company and causing mental agony to the respondent which cannot be brushed aside and no cogent evidence is led by the appellant to discard the evidence of the respondent in this regard. The impact of these two incidents are suffice to establish the cruelty.
  17. The submission of the appellant that the husband has not participated even in the marriage functions of their children, in any manner would indicate the grave and serious nature of strained relationship between the appellant and the respondent. This would be indicative of the fact that now the parties have no emotions, sentiments or feelings for each other. This is not an ordinary case of wear and tear of married life but a clear case of irretrievable break down of marriage. The word ‘cruelty’ though not defined under the Act is well interpreted by the Courts from time to time. It is often cautioned by the Apex Court that no Court should even attempt to give a comprehensive definition of ‘mental cruelty’ in which all kinds of cases of ‘mental cruelty’ can be covered.
  18. The Apex Court in the case of Shobha Rani vs. Madhukar Reddi (1988) 1 SCC 105 has held Thus:
    • ” To constitute cruelty, the conduct complained of should be “gave and weighty” so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than “ordinary wear and tear of married life”. Conduct has to be considered in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce.”
  19. The Apex Court in A. Jayachandra (supra) has held thus:
    • “10. The expression “cruelty” has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of his spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, a proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes.
    • 11. The expression ‘cruelty’ has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the Court will have no problem in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the enquiry must begin as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other.
    • 12. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted (See Sobh Rani v. Madhukar Reddi, AIR 1988 SC 121).
    • 13. The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse’s conduct have to be borne in mind before disposing of the petition for divorce. However insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent.
  20. In the case of Naveen Kohli vs. Neelu Kholi (supra) the Apex Court observed as under: 
    • “74. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.
    • 75. Public interest demands not only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact.  76. Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied for ever to a marriage that in fact has ceased to exist.
    • 77.   Some     jurists  have     also expressed     their   apprehension     for  introduction of irretrievable breakdown of marriage as a ground for grant of the decree of divorce. In their opinion, such an amendment in the Act would put human ingenuity at a premium and throw wide open the doors to litigation, and will create more problems then are sought to be solved.
    • 78. The other majority view, which is shared by most jurists, according to the Law Commission Report, is that human life has a short span and situations causing misery cannot be allowed to continue indefinitely. A halt has to be called at some stage. Law cannot turn a blind eye to such situations, nor can it decline to give adequate response to the necessities arising  therefrom.
    • 79. When we carefully evaluate the judgment of the High Court and scrutinize its findings in the background of the facts and circumstances of this case, it becomes obvious that the approach adopted by the High Court in deciding this matter is far from satisfactory.”
  21. Applying the principles of law enunciated by the Apex Court as discussed above, we have analyzed the case on hand in the backdrop of the facts of cruelty alleged by the respondent and denied by the appellant. It is well settled that the concept of ‘cruelty’ differs from person to person depending on various factors like geographical and cultural background, education, customs, religion, traditions, values etc.
  22. It is true that ‘cruelty’ said to have been experienced by a person cannot be viewed in the same perspective at all times. It has also come on record that the appellant attempted to commit suicide by consuming 235 sleeping tablets in the matrimonial home in the year 2000 and was provided with medical treatment at St. John’s Hospital, Bengaluru, by the respondent. These are all admitted facts which creates apprehension of leading a cordial martial life together. In our opinion, it is not significant to save the marriage when the relationship between the parties is strained, rupturing matrimonial bond beyond repair as the respondent has contracted second marriage. Even on the ground of desertion, it is well established principle that mere desertion would not be a ground for divorce unless two important ingredients, namely, [a] factum of desertion, [b] animus deserendi – intention to desert the spouse; to bring an end to cohabitation or marital life are proved.
  23. The Apex Court in the case of Savitri Pandey [supra] has held thus:
    • “7A. “Desertion”, for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations, i.e., not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case.”
  24. It is the specific contention of the appellant that till the year 2007, the parties resided together and as such statutory period of desertion is not proved. As discussed earlier, it is not so. Even assuming for a moment, if we accept the arguments of the learned Counsel for the appellant that no desertion is proved, no purpose would be served in keeping this marriage alive which has already become a dead wood, in view of the subsequent development, the respondent having contracted the second marriage on 10.11.2011 and the same being registered on 13.02.2012 before the jurisdictional Sub-Registrar.
  25. As regards the application filed by the appellant seeking maintenance/permanent alimony, both the parties have made allegations and counter allegations against each other. Our best efforts made to see that the matter gets amicably settled between the parties, has not yielded any positive results. Contracting a second marriage, after waiting period, would not absolve the husband from paying the permanent alimony and maintenance to the wife in terms of Section 25 of the Act.
  26. Section 25[1] of the Act contemplates that any court exercising jurisdiction under the Act may at the time of passing of any decree or at any time subsequent to the application made to it for the purpose by either the wife or the husband order for maintenance or support of either of the spouse depending on the income and other property of the applicant and the respondent and other circumstances of the case.
  27. Admittedly, the appellant herein has filed application under Section 25 of the Act in this appeal proceedings before this Court. The appellant is alleging that the respondent has not taken any interest in the family and not discharged his responsibilities as dutiful husband. It is averred that the respondent owns the properties and huge amount of liquid cash besides the fixed deposits in various banks whereas the respondent has filed affidavit denying the same and he contends that he has no source of income and that at this advanced age, he is depending on the income of his second wife. This complex issue of facts requires to be decided on the established evidence, regarding status and income of the parties. In the appeal proceedings, the entitlement and quantum of maintenance cannot be decided unless any cogent evidence is available on record. Hence, we are not inclined to adjudicate on the application IA No.1/2015 filed by the appellant seeking for maintenance/permanent alimony.
  28. For the foregoing reasons, the appeal and IA No.1/2015 stands dismissed. Judgment and decree passed by the Family Court in M.C.No.1933/2008 dated 30.06.2011 is confirmed.
  29. It is made clear that dismissing of this appeal or application for maintenance/permanent alimony shall not come in the way of the appellant to move the appropriate application before the jurisdictional Court, if advised.

Sd/-

JUDGE Sd/-

JUDGE Brn, AN/-

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Wife says ” I want to marry an old boyfriend”, husband wins divorce 28 years later !

Husband goes to USA in search of greener pastures. Wife sends him a nasty latter saying that she wants divorce and wants to get married to her ex boyfriend !! Not only that she NEVER makes any attempt to live with him the next five years. At the court she claims that the letter was a bluff to force him to come back !! The HC grants grants the husband divorce …ableit 28 years later


Wife’s letter talking of divorce, remarriage an act of cruelty: HC

Abhinav Garg | TNN | Feb 22, 2016, 03.15 AM IST

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NEW DELHI: A single letter can constitute an act of cruelty, the Delhi high court has said, granting divorce to a man living separately from his estranged wife for the past 28 years.

The missive in question: a declaration by his angry wife in 1990 when he was stationed abroad that she wanted to divorce him and that she had found an old friend who wanted to marry her and accept her with their young daughter.

It was only in 1995, when the case came up in trial court, that she admitted the letter didn’t contain a grain of truth and was only meant to jolt the husband out of his complacency. But Justice Najmi Waziri of the high court pointed out the mental agony caused to the husband due to “this sole act of cruelty that continued for a period of 4-5 years”.

Upholding the decision of the trial court to dissolve the marriage on ground of cruelty, Justice Waziri noted, “For a husband living away from his wife since 1987, to have received a letter from her intimating him about her unequivocal decision to dissolve the marriage and marry another man would have been a pain as grievous as any to endure. Such an element of rejection, coupled with brunt of emotional infidelity by the wife, can break the spirit of the husband to continue marital ties.”

Challenging the decision in high court, the wife argued that the letter was a “one-off, stray incident and could not be a ground for divorce”. She said it was an act of despair, the letter was written in sheer frustration since she had been waiting for many years to live with her husband again, abroad or back home. There was no friend, no prospect of marriage; in fact, she had made up a fictional name just to “shake up” her husband. Besides, she argued, there was not a single act of violence on her part for the charge of cruelty to pass muster.

Appearing for the husband, advocate Manjit Singh Ahluwalia countered her argument, saying she did think of divorce as she drew up an affidavit to finalise her legal plan. The high court highlighted that the letter was written in 1990 while the divorce was granted five years later but during this period she never tried to explain to her husband why she had written the latter.

The high court said the husband would have suffered acute mental agony by the letter “that the wife had found someone to replace him as her husband”. It took into account the stand of the wife that the letter was a mere threat but said its import “could only evoke pain, distress, rejection and self-doubt in any reasonable husband” and termed it as a “telling testimony of cruelty”.

 

source

times of India