10 lakhs for a 8 month marriage.

Australia based NRI gets 498a quash after 10 lakhs payment when the marriage lasted just 8 months. 10 Lakhs on paper… what would it be outside?

facts

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* marriage was registered on 13.03.2008

* Complainant stayed at the applicant’s house till 15.01.2009

* Thereafter, Anila (wife) went to Australia, where also she was harassed by her husband i.e. applicant No.1 for dowry and thus the impugned complaint is registered!!

* Now "…….and amount of Rs. 10 lakhs as and by way of fixed deposit in the name of Anila Bhagvandas Barot has been made and given to me fully and finally towards the settlement without any other and further claim….."

Matter ends !!

*****************************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 Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr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.

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 2783 of 2015

BRAHMABHATT JIGNESHKUMAR JAGDISHKUMAR & 3….Applicant(s)

Versus

STATE OF GUJARAT & 1….Respondent(s)

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Appearance:

MR KV SHELAT, ADVOCATE for the Applicant(s) No. 1 – 4

MR VIRAL K SALOT, ADVOCATE for the Respondent(s) No. 2

MR LB DABHI, ADDITIONAL PUBLIC PROSECUTOR for the Respondent(s) No. 1

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CORAM: HONOURABLE MR.JUSTICE A.J.DESAI

Date : 26/02/2015

ORAL ORDER

1 With the consent of the learned advocates appearing on behalf of the respective parties, the matter is taken up for final hearing today since the matter is amicably settled between the parties.

2 By way of the present application under Section 482 of the Code of Criminal Procedure, 1973, the applicants original accused, have prayed to quash and set aside the complaint being Criminal Case No.7893 of 2012 registered with the 4th Additional Judicial Magistrate Court, Ahmedabad (Rural) for the offence punishable under Sections 498A, 506(2), 114 of the Indian Penal Code and Sections 3 and 7 of the Dowry Prohibition Act, on the ground that the dispute has been amicably settled between them outside the court and, therefore, the complainant has no objection for quashing of the impugned FIR and all other proceedings initiated pursuant thereto.

3 Brief facts arise from the record are that the complainant’s daughter namely Anila got marriage with the son of accused no.2 of the Criminal Case No.7893 of 2012 registered with the 4th Additional Judicial Magistrate Court, Ahmedabad (Rural) and marriage was registered on 13.03.2008. It is alleged in the complaint that the daughter of the complainant stayed at the applicant’s house till 15.01.2009 and during that period, on 08.01.2009, applicant No.1 went Australia and gave assurance that he shall take Anila with him. It is alleged that from 15.1.2009 to 30.01.2009, Anila stayed at the complainant’s house and thereafter, she went to the house of the applicants and the applicants started harassing and pressuring Anila for dowry before three and half years and thereafter, Anila went back to the complainant’s house and returned back to the house of the applicants on 11.05.2009. Thereafter, Anila went to Australia, where also she was harassed by her husband i.e. applicant No.1 for dowry and thus the impugned complaint is registered by respondent No.2 – original complainant.

4 Mr. K.V. Shelat, learned advocate appearing for the applicants placed reliance on the decision of the Honble Apex Court in case of Gian Singh versus State of Punjab & Anr. reported in 2012(10)SCC 303 and submitted that since the matter is settled and all the grievance raised in the FIR do not exist, there is no need to proceed further with the trial with regard to the FIR.

5 Mr. Viral Salot, learned advocate appearing on behalf of the original complainant, on instruction received from the original complaint, who is present in the Court and who has been identified by him, states that whatever submissions have been made by the applicants, are true and affidavit on behalf of the original complainant has been filed. The affidavit of the daughter of the original complainant has also been filed. He states that the original complainant has no objection, if the impugned FIR is quashed. http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

6 Mr. L.B. Dabhi, learned Additional Public Prosecutor appearing for respondent­ State of Gujarat would submit that even though settlement/compromise has been arrived at between the parties, the FIR cannot be quashed. He has relied upon the judgement delivered in the case of Gian Singh (supra) and submitted that the Court should not exercise the power u/s.482 of the Code. Hence, the present application may be dismissed.

7 I have heard learned advocate appearing on behalf of the respective parties and perused the FIR, papers of investigation and the affidavit dated 29.01.2015 filed by the original complainant, namely Bhagwandas alias Bhagawatprasad Khodidas Barot, which reads as under:

"1. That I the complainant on behalf of my daughter Anila Bhagwandas Barot in Criminal Case No.7893 of 2012 (u/s. 498A(A), 506(2), 114 of IPC and Sec. 3 & 7 of Dowry Prohibition Act) pending before Ahmedabad (Rural) 4th Additional Judicial Magistrate’s Court, Mirzapur, Ahmedabad, state that on account of out of court settlement with the accused no.1 to 4, a consent divorce petition was filed by Jigneshkumar J Bhrambhatt – accused no.1 and my daughter Anila Bhagwandas Barot before the Family Court, Ahmedabad having H.M.P. No.1772 of 2013 under Section 13(b) of the Hindu Marriage Act, 1955 and the consent terms are a part of the said petition. I state that the said consent divorce petition is allowed and judgment and decree are drawn on 4/8/2014 and therefore my daughter Anila and Jigneshkumar are divorced with effect from 4/8/2014. I state that another complaint having Criminal Misc. Applicatio No.816 of 2013 is withdrawn on 14//4/2014 before 7th Addl. JMFC Mehsana, by my daughter Anila Bhagwandas Barot on account of out of court settlement and I state that complaint having Criminal Case No.7893 of 2012 (u/s. 498(A), 506(2), 114 of IPC and Sec. 3 & 7 of Dowry Prohibition Act) was filed by me on behalf of my daughter Anila Bhagwandas Barot, on account of misunderstandings and on relatives coaxing and therefore I do not want to continue this complaint and the said be quashed under Section 482 of the Criminal Procedure Code in view of the compromise between the parties."

7.1 The affidavit dated 29.01.2015 filed by the daughter of the original complainant, namely, Anila, who has taken divorced from applicant No.1 herein, which reads as under:

"1. That my father Bhagwandas Khodidas Barot had filed complaint on my behalf having Criminal Case No.7893 of 2012 (u/s. 498(A), 506(2), 114 of IPC and Sec. 3 & 7 of Dowry Prohibition Act) pending before Ahmedabad (Rural) 4th Additional Judicial Magistrate’s Court, Mirzapur, Ahmedabad, state that on account of out of court settlement with accused no.1 to 4, a consent divorce petition was filed by Jigneshkumar J Bhrahmbhatt – accused no.1 (husband) and I – Anila Bhagwandas Baot before the Family Court, Ahmedabad having H.M.P. No.1772 of 2013 under Section 13(b) of the Hindu Marriage Act, 1955 and the consent terms are a part of the said petition. I state that the said consent divorce petition is allowed and judgment and decree are drawn on 4/8/2014 and therefore I and Jigneshkumar are divorced with effect from 4/8/2014. I state that another complaint having Criminal Misc. Application No.816 of 2013 is withdrawn on 14/4/2014 before 7th Addl. JMFC Mehsana, by me on account of out of Court settlement and I state that complaint having Criminal Case No.7893 of 2012 (u/s. 498(A), 506(2), 114 of IPC and Sec. 3 & 7 of Dowry Prohibition Act) was filed by my father Bhagwandas Khodidas Barot on my behalf, on account of misunderstandings and on relatives coaxing and therefore I do not want to continue this complaint and the said be quashed under Section 482 of the Criminal Procedure Code in view of the compromise between the parties and the conditions mentioned in paragraph 10 of the consent divorce petition and the order below it has been complied with and amount of Rs. 10 lakhs as and by way of fixed deposit in the name of Anila Bhagvandas Barot has been made and given to me fully and finally towards the settlement without any other and further claim. The copy of the fixed deposit receipt given to me is produced herewith.’

8 Considering the aforesaid aspects that the dispute between the parties has been settled amicably between the parties and the complainant does not want to pursue the complaint any more and in view of the decisions of the Hon’ble Apex Court in the case of Gian Singh vs. State of Punjab and Anr, as reported in (2012) 10 SCC 303, in my opinion, the present application requires consideration. Hence, the present application is allowed. The impugned complaint being Criminal Case No.7893 of 2012 registered with the 4 th Additional Judicial Magistrate Court, Ahmedabad (Rural) for the offence punishable under Sections 498A, 506(2), 114 of the Indian Penal Code and Sections 3 and 7 of the Dowry Prohibition Act and all other proceedings initiated pursuant thereto are hereby quashed and set aside qua the present applicants. Rule is made absolute accordingly. Direct Service is permitted.

(A.J.DESAI, J.)

Chandresh

Tags :

#quash_after_payin_moolah!!

#Pay_and_quash

#Ranson

#Settlement

#498a_quash_after_payment

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regards

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

Apex court defines Dowry !

In this classic case, the Hon Apex court has defined Dowry as “…property or valuable security, given or even agreed to be given, directly or indirectly, not only by one party to a marriage to the other but also by the parents of either party or by any other person, before, or at any time after the marriage, be in connection with the marriage of the parties …”

We expect this omnibus definition to be widely used in the near future.

While the efforts of the Hon court(s) are laudable and may be for rendering justice, looking at the dismal record of false cases on the ground, such broad and inclusive definitions will lead to more men, mothers and sisters being victimised, falsely arrested and fleeced.

Jai Hind !!

*****************************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.

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.2321 OF 2009

RAJINDER SINGH …APPELLANT

VERSUS

STATE OF PUNJAB …RESPONDENT

J U D G M E N T

R.F.Nariman, J.

1. The facts of this case raises questions relating to one of the two great social evils practiced against the women of this country for centuries. In the facts presented before us, a young woman consumes pesticide having been driven to do so by repeated demands being made on her for money by the family into which she is supposed to merge her identity. Sati and dowry deaths have plagued this nation for centuries. Sati – the practice of sending a widow to her husband’s funeral pyre to burn in it – was first outlawed under British Rule in 1829 and 1830 under the Governor Generalship of Lord William Bentinck in the Bengal, Madras and Bombay Presidencies. General Sir Charles Napier, the Commander-in-Chief of the British Forces in India between 1859 and 1861, is supposed to have said to the Hindu Priests who complained to him about the prohibition of Sati that "the burning of widows is your custom but in my country, when a man burns a woman alive, we hang them and confiscate all their property. Let us both, therefore, act in accordance with our national customs."

2. It took free India many years before the Commission of Sati (Prevention) Act, 1987 was passed by Parliament setting down various offences relating to the commission of Sati and the trial of such offences by special courts. In this appeal, however, we are confronted with the other major problem, namely, dowry deaths. Parliament responded much earlier so far as the prohibition of dowry is concerned by enacting the Dowry Prohibition Act, 1961 under which minimum sentences were prescribed as penalty for the giving or taking of dowry. The specific menace of dowry deaths, however, was tackled by the introduction of a new provision in 1986 – Section 304B in the Penal Code together with another new provision Section 113B of the Evidence Act. These two Sections read as follows:

"304-B. Dowry death.-(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.

Explanation.-For the purpose of this sub-section, "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."

"113-B. Presumption as to dowry death.-When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.

Explanation.-For the purposes of this section, "dowry death" shall have the same meaning as in Section 304-B of Indian Penal Code (45 of 1860)."

3. Coming back to the facts of the present appeal, a young woman, namely, Salwinder Kaur was married to the appellant Rajinder Singh sometime in the year 1990. On 31st August, 1993, within four years of the marriage, Salwinder Kaur consumed Aluminium Phosphide, which is a pesticide, as a result of which her young life was snuffed out. On the same day, an FIR was lodged against the husband, his older brother and the older brother’s wife. The trial court after examining the evidence of the prosecution and the defence, acquitted the appellant’s older brother and his wife but convicted the appellant under Section 304B and sentenced him to undergo rigorous imprisonment for seven years, which is the minimum sentence that can be pronounced on a finding of guilt under the said Section. This was done after examining in particular the evidence of PW.2 – Karnail Singh, the father of the deceased woman, PW-3 – Gulzar Singh, his elder brother and PW-4 – Balwinder Singh, Sarpanch of the village. The High Court of Punjab and Haryana confirmed the conviction and the sentence vide the impugned judgment. http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

4. For the purpose of this appeal it is sufficient to set out the dead woman’s father’s evidence which has been accepted by the two courts below.

"I have three daughters and two sons, Paramjit Kaur, Manjit Kaur and Salwinder Kaur are my daughters. Salwinder Kaur my daughter was married to Rajinder Singh r/o Bathwala. She was married to Rajinder Singh four years prior to her death. After one year of the marriage, my daughter came to me and told that her husband Rajinder Singh, the brother-in-law Davinder Singh and Gurmit Kaur, present in court, are demanding money for constructing a house. She also informed me that they were quarrelling with her for the said demand of money. At the time of marriage of my daughter, I had given sufficient dowry according to my status. I told my daughter that at that moment I am not in possession of money. However, I gave she-buffalo to my daughter for taking the same to her in-laws’ house and asked her to pull on with the parents-in-law. After 7/8 months, when my daughter was again ill-treated by the accused, she came to me and again demanded money. The accused, present in court, were demanding and compelling my daughter to back with a promise that I would visit her shortly and on the following day, I alongwith my brother Gulzar Singh, the then Sarpanch Balwinder Singh and Ex-Sarpanch Hazura Singh went to the house of the accused in village Bathawals. On arrival at the house of the accused, the accused, present in court, along with father-in-law of my daughter were present at their house. Harjinder Singh, my son-in-law along with Gurmit Kaur and Davinder Singh were also present. I requested all of them not to quarrel with my daughter on account of demand of money. I also assured the accused that I would pay them the said amount at the time of harvesting the crop. The accused insisted about the demand of money. My daughter Salwinder Kaur visited my house 15 days prior to her death. I again pacified my daughter that I would definitely pay the amount after harvesting the crop. Salwinder Kaur was not happy for not getting the money from me. She was maltreated by the accused. After the death of Salwinder Kaur, member panchayat Harbhajan Singh of V. Bathwala and Davinder Singh accused came to my house and informed that my daughter has died after consuming some poisonous substance and I was asked to accompany them for cremating the dead body."

5. We have heard learned counsel for the parties. Counsel for the appellant relied upon the cross-examination of Karnail Singh which is set out hereinbelow:-

"I do not know if Devinder Singh had separate portion. My daughter had come to me for the first time 5/6 months after her marriage, but she did not make any complaint to me regarding the conduct of the accused persons. She complained to me only after about a year and she had told me that they wanted to build a joint house and asked her to bring money for that purpose. I however did not give any money to her for this purpose. No written complaint was ever made to the panchayat. I never talked about it to Balwinder Singh. It is incorrect to suggest that no demand of money was ever made from my daughter or that I have deposed falsely."

6. Based on this, learned counsel argued that the link required between the demand made being connected with the marriage was snapped as also the fact that since initially, the complaints were made at long intervals, no offence under Section 304B could be said to be made out. Counsel for the State of Punjab reiterated the findings of both courts and argued in support of the judgment of the High Court.

7. The primary ingredient to attract the offence under Section 304B is that the death of a woman must be a "dowry death". "Dowry" is defined by Section 2 of the Dowry Prohibition Act, 1961, which reads as follows:

"2. Definition of "dowry".-In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly-

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before [or any time after
the marriage] [in connection with the marriage of the said parties, but does
not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

Explanation I.- [***] Explanation II.-The expression "valuable security" has the same meaning as in Section 30 of the Indian Penal Code (45 of 1860)."

8. A perusal of this Section shows that this definition can be broken into six distinct parts.

1) Dowry must first consist of any property or valuable security

– the word "any" is a word of width and would, therefore, include within it property and valuable security of any kind whatsoever.

2) Such property or security can be given or even agreed to be given. The actual giving of such property or security is, therefore, not necessary.

3) Such property or security can be given or agreed to be given either directly or indirectly.

4) Such giving or agreeing to give can again be not only by one party to a marriage to the other but also by the parents of either party or by any other person to either party to the marriage or to any other person. It will be noticed that this clause again widens the reach of the Act insofar as those guilty of committing the offence of giving or receiving dowry is concerned.

5) Such giving or agreeing to give can be at any time. It can be at, before, or at any time after the marriage. Thus, it can be many years after a marriage is solemnised.

6) Such giving or receiving must be in connection with the marriage of the parties. Obviously, the expression "in connection with" would in the context of the social evil sought to be tackled by the Dowry Prohibition Act mean "in relation with" or "relating to".

9. The ingredients of the offence under Section 304B have been stated and restated in many judgments. There are four such ingredients and they are said to be:

(a) death of a woman must have been caused by any burns or bodily injury or her death must have occurred otherwise than under normal circumstances;

(b) such death must have occurred within seven years of her marriage;

(c) soon before her death, she must have been subjected to cruelty or harassment by her husband or any relative of her husband; and

(d) such cruelty or harassment must be in connection with the demand for dowry.

10. This has been the law stated in the following judgments:

Ashok Kumar v. State of Haryana, (2010) 12 SCC 350 at pages 360-361; Bachni Devi & Anr. v. State of Haryana, (2011) 4 SCC 427 at 431, Pathan Hussain Basha v. State of A.P., (2012) 8 SCC 594 at 599, Kulwant Singh & Ors. v. State of Punjab, (2013) 4 SCC 177 at 184-185, Surinder Singh v. State of Haryana, (2014) 4 SCC 129 at 137, Raminder Singh v. State of Punjab, (2014) 12 SCC 582 at 583, Suresh Singh v. State of Haryana, (2013) 16 SCC 353 at 361, Sher Singh v. State of Haryana, 2015 1 SCALE 250 at 262.

11. This Court has spoken sometimes with divergent voices both on what would fall within "dowry" as defined and what is meant by the expression "soon before her death". In Appasaheb v. State of Maharashtra, (2007) 9 SCC 721, this Court construed the definition of dowry strictly, as it forms part of Section 304B which is part of a penal statute. The court held that a demand for money for defraying the expenses of manure made to a young wife who in turn made the same demand to her father would be outside the definition of dowry. This Court said:

"A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. The evidence adduced by the prosecution does not, therefore, show that any demand for "dowry" as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure." (at page 727)

12. This judgment was distinguished in at least four other judgments (see: Bachni Devi v. State of Haryana (2011) 4 SCC 427 at pages 432 to 434; Kulwant Singh & Ors. v. State of Punjab, (2013) 4 SCC 177 at page 185; Surinder Singh v. State of Haryana (2014) 4 SCC 129 at pages 139 to 141 and Raminder Singh v. State of Punjab (2014) 12 SCC 582 at page 586. http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

The judgment was, however, followed in Vipin Jaiswal v. State of Andhra Pradesh, (2013) 3 SCC 684 at pages 687-688.

13. In order to arrive at the true construction of the definition of dowry and consequently the ingredients of the offence under Section 304B, we first need to determine how a statute of this kind needs to be interpreted. It is obvious that Section 304B is a stringent provision, meant to combat a social evil of alarming proportions. Can it be argued that it is a penal statute and, should, therefore, in case of ambiguity in its language, be construed strictly?

14. The answer is to be found in two path-breaking judgments of this Court. In M. Narayanan Nambiar v. State of Kerala, 1963 Supp. (2) SCR 724, a Constitution Bench of this Court was asked to construe Section 5(1)(d) of the Prevention of Corruption Act, 1947. In construing the said Act, a penal statute, Subba Rao,J. stated:

"The preamble indicates that the Act was passed as it was expedient to make more effective provisions for the prevention of bribery and Corruption. The long title as well as the preamble indicate that the Act was passed to put down the said social evil i.e. bribery and corruption by public servant. Bribery is form of corruption. The fact that in addition to the word "Bribery" the word "corruption" is used shows that the legislation was intended to combat also other evil in addition to bribery. The existing law i.e. Penal Code was found insufficient to eradicate or even to control the growing evil of bribery and corruption corroding the public service of our country. The provisions broadly include the existing offences under Sections 161 and 165 of the Indian Penal Code committed by public servants and enact a new rule of presumptive evidence against the accused. The Act also creates a new offence of criminal misconduct by public servants though to some extent it overlaps on the pre-existing offences and enacts a rebuttable presumption contrary to the well known principles of Criminal Jurisprudence. It also aims to protect honest public servants from harassment by prescribing that the investigation against them could be made only by police officials of particular status and by making the sanction of the Government or other appropriate officer a pre-condition for their prosecution. As it is a socially useful measure conceived in public interest, it should be liberally construed so as to bring about the desired object, i.e. to prevent corruption among public servants and to prevent harassment of the honest among them.

A decision of the Judicial Committee in Dyke v. Elliott, cited by the Learned Counsel as an aid for construction neatly states the principle and therefore may be extracted: Lord Justice James speaking for the Board observes at page 191:

"No-doubt all penal Statutes are to be construed strictly, that is to say, the Court must see that the thing charged as an offence is within the plain meaning of the words used, and must not strain the words on any notion that there has been a slip, that there has been a casus omissus, that the thing is so clearly within the mischief that it must have been intended to be included if thought of. On the other hand, the person charged has a right to say that the thing charged although within the words, is not within the spirit of the enactment. But where the thing is brought within the words and within the spirit, there a penal enactment is to be construed like any other instrument, according to the fair commonsense meaning of the language used, and the Court is not to find or make any doubt or ambiguity in the language of a penal statute, where such doubt or ambiguity would clearly not be found or made in the same language in any other instrument."

In our view this passage, if we may say so, restates the rule of construction of a penal provision from a correct perspective."

15. In Standard Chartered Bank v. Directorate of Enforcement, (2005) 4 SCC 530 at page 547, another Constitution Bench, 40 odd years later, was faced with whether a corporate body could be prosecuted for offences for which the sentence of imprisonment is mandatory. By a majority of 3:2, the question was answered in the affirmative. Balakrishnan,J. held:

"23. The counsel for the appellant contended that the penal provision in the statute is to be strictly construed. Reference was made to Tolaram Relumal v. State of Bombay [(1955) 1 SCR 158 : 1954 Cri LJ 1333] , SCR at p. 164 and Girdhari Lal Gupta v. D.H. Mehta [(1971) 3 SCC 189 : 1971 SCC (Cri) 279] . It is true that all penal statutes are to be strictly construed in the sense that the court must see that the thing charged as an offence is within the plain meaning of the words used and must not strain the words on any notion that there has been a slip that the thing is so clearly within the mischief that it must have been intended to be included and would have been included if thought of. All penal provisions like all other statutes are to be fairly construed according to the legislative intent as expressed in the enactment. Here, the legislative intent to prosecute corporate bodies for the offence committed by them is clear and explicit and the statute never intended to exonerate them from being prosecuted. It is sheer violence to common sense that the legislature intended to punish the corporate bodies for minor and silly offences and extended immunity of prosecution to major and grave economic crimes.

24. The distinction between a strict construction and a more free one has disappeared in modern times and now mostly the question is "what is true construction of the statute?" A passage in Craies on Statute Law, 7th Edn. reads to the following effect:

"The distinction between a strict and a liberal construction has almost disappeared with regard to all classes of statutes, so that all statutes, whether penal or not, are now construed by substantially the same rules. ‘All modern Acts are framed with regard to equitable as well as legal principles.’ ‘A hundred years ago,’ said the court in Lyons’ case [Lyons v. Lyons, 1858 Bell CC 38 : 169 ER
1158] , ‘statutes were required to be perfectly precise and resort was not had to a reasonable construction of the Act, and thereby criminals were often allowed to escape. This is not the present mode of construing Acts of Parliament. They are construed now with reference to the true meaning and real intention of the legislature."

At p. 532 of the same book, observations of Sedgwick are quoted as under:

"The more correct version of the doctrine appears to be that statutes of this class are to be fairly construed and faithfully applied according to the intent of the legislature, without unwarrantable severity on the one hand or unjustifiable lenity on the other, in cases of doubt the courts inclining to mercy."

16. Concurring with Balakrishnan,J., Dharmadhikari,J. added:

"36. The rule of interpretation requiring strict construction of penal statutes does not warrant a narrow and pedantic construction of a provision so as to leave loopholes for the offender to escape (see Murlidhar Meghraj Loya v. State of Maharashtra [(1976) 3 SCC 684 : 1976 SCC (Cri) 493] ). A penal statute has to also be so construed as to avoid a lacuna and to suppress mischief and to advance a remedy in the light of the rule in Heydon’s case [(1584) 3 Co Rep 7a
: 76 ER 637] . A common-sense approach for solving a question of applicability of a penal statute is not ruled out by the rule of strict construction. (See State of A.P. v. Bathu Prakasa Rao [(1976) 3 SCC 301 : 1976 SCC (Cri) 395] and also G.P. Singh on Principles of Statutory Interpretation, 9th Edn., 2004, Chapter 11, Synopsis 3 at pp. 754 to 756.)"

17. And Arun Kumar,J., concurring with both the aforesaid Judges, followed two earlier decisions of this Court as follows:-

"49. Another three-Judge Bench of this Court in a judgment in Balram Kumawat v. Union of India [(2003) 7 SCC 628] to which I was a party, observed in the context of principles of statutory interpretation: (SCC p. 635, para 23)

"23. Furthermore, even in relation to a penal statute any narrow and pedantic, literal and lexical construction may not always be given effect to. The law would have to be interpreted having regard to the subject-matter of the offence and the object of the law it seeks to achieve. The purpose of the law is not to allow the offender to sneak out of the meshes of law. Criminal jurisprudence does not say so."

50. In M.V. Javali v. Mahajan Borewell & Co. [(1997) 8 SCC 72 : 1997 SCC
(Cri) 1239]
this Court was considering a similar situation as in the present case. Under Section 278-B of the Income Tax Act a company can be prosecuted and punished for offence committed under Section 276-B; sentence of imprisonment is required to be imposed under the provision of the statute and a company being a juristic person cannot be subjected to it. It was held that the apparent anomalous situation can be resolved only by a proper interpretation of the section. The Court observed: (SCC p. 78, para 8)

"8. Keeping in view the recommendations of the Law Commission and the above principles of interpretation of statutes we are of the opinion that the only harmonious construction that can be given to Section 276-B is that the mandatory sentence of imprisonment and fine is to be imposed where it can be imposed, namely on persons coming under categories (ii) and

(iii) above, but where it cannot be imposed, namely on a company, fine will be the only punishment."

18. In keeping with these principles, in K. Prema S. Rao and another v. Yadla Srinivasa Rao and others, (2003) 1 SCC 217, this Court said:

"The legislature has by amending the Penal Code and the Evidence Act made penal law more strident for dealing with and punishing offences against married women."

19. In Reema Aggarwal v. Anupam, (2004) 3 SCC 199, in construing the provisions of the Dowry Prohibition Act, in the context of Section 498A, this Court applied the mischief rule made immortal by Heydon’s case and followed Lord Denning’s judgment in Seaford Court Estates Ltd. v. Asher, where the learned Law Lord held:

"He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give ‘force and life’ to the intention of the legislature." (at page 213)

The Court gave an expansive meaning to the word `husband’ occurring in Section 498A to include persons who entered into a relationship with a woman even by feigning to be a husband. The Court held:

"….It would be appropriate to construe the expression ‘husband’ to cover a person who enters into marital relationship and under the colour of such proclaimed or feigned status of husband subjects the woman concerned to cruelty or coerce her in any manner or for any of the purposes enumerated in the relevant provisions Sections 304B/498A, whatever be the legitimacy of the marriage itself for the limited purpose of Sections 498A and 304B IPC. Such an interpretation, known and recognized as purposive construction has to come into play in a case of this nature. The absence of a definition of ‘husband’ to specifically include such persons who contract marriages ostensibly and cohabitate with such woman, in the purported exercise of his role and status as ‘husband’ is no ground to exclude them from the purview of Section 304B or 498A IPC, viewed in the context of the very object and aim of the legislations introducing those provisions." (at page 210)

20. Given that the statute with which we are dealing must be given a fair, pragmatic, and common sense interpretation so as to fulfill the object sought to be achieved by Parliament, we feel that the judgment in Appasaheb’s case followed by the judgment of Kulwant Singh do not state the law correctly. We, therefore, declare that any money or property or valuable security demanded by any of the persons mentioned in Section 2 of the Dowry Prohibition Act, at or before or at any time after the marriage which is reasonably connected to the death of a married woman, would necessarily be in connection with or in relation to the marriage unless, the facts of a given case clearly and unequivocally point otherwise. Coming now to the other important ingredient of Section 304B – what exactly is meant by "soon before her death"? http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

21. This Court in Surinder Singh v. State of Haryana (2014) 4 SCC 129, had this to say:

"17. Thus, the words "soon before" appear in Section 113-B of the Evidence Act, 1872 and also in Section 304-B IPC. For the presumptions contemplated under these sections to spring into action, it is necessary to show that the cruelty or harassment was caused soon before the death. The interpretation of the words "soon before" is, therefore, important. The question is how "soon before"? This would obviously depend on the facts and circumstances of each case. The cruelty or harassment differs from case to case. It relates to the mindset of people which varies from person to person. Cruelty can be mental or it can be physical. Mental cruelty is also of different shades. It can be verbal or emotional like insulting or ridiculing or humiliating a woman. It can be giving threats of injury to her or her near and dear ones. It can be depriving her of economic resources or essential amenities of life. It can be putting restraints on her movements. It can be not allowing her to talk to the outside world. The list is illustrative and not exhaustive. Physical cruelty could be actual beating or causing pain and harm to the person of a woman. Every such instance of cruelty and related harassment has a different impact on the mind of a woman. Some instances may be so grave as to have a lasting impact on a woman. Some instances which degrade her dignity may remain etched in her memory for a long time. Therefore, "soon before" is a relative term. In matters of emotions we cannot have fixed formulae. The time-lag may differ from case to case. This must be kept in mind while examining each case of dowry death.

18. In this connection we may refer to the judgment of this Court in Kans Raj v. State of Punjab [(2000) 5 SCC 207 : 2000 SCC (Cri) 935] where this Court considered the term "soon before". The relevant observations are as under: (SCC pp. 222- 23, para 15) "15. …

‘Soon before’ is a relative term which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time-limit. This expression is pregnant with the idea of proximity test. The term ‘soon before’ is not synonymous with the term ‘immediately before’ and is opposite of the expression ‘soon after’ as used and understood in Section 114, Illustration (a) of the Evidence Act. These words would imply that the interval should not be too long between the time of making the statement and the death. It contemplates the reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be ‘soon before death’ if any other intervening circumstance showing the non-existence of such treatment is not brought on record, before such alleged treatment and the date of death. It does not, however, mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough."

Thus, there must be a nexus between the demand of dowry, cruelty or harassment, based upon such demand and the date of death. The test of proximity will have to be applied. But, it is not a rigid test. It depends on the facts and circumstances of each case and calls for a pragmatic and sensitive approach of the court within the confines of law."

22. In another recent judgment in Sher Singh v. State of Haryana, 2015 (1) SCALE 250, this Court said:

"We are aware that the word ‘soon’ finds place in Section 304B; but we would prefer to interpret its use not in terms of days or months or years, but as necessarily indicating that the demand for dowry should not be stale or an aberration of the past, but should be the continuing cause for the death under Section 304B or the suicide under Section 306 of the IPC. Once the presence of these concomitants are established or shown or proved by the prosecution, even by preponderance of possibility, the initial presumption of innocence is replaced by an assumption of guilt of the accused, thereupon transferring the heavy burden of proof upon him and requiring him to produce evidence dislodging his guilt, beyond reasonable doubt." (at page 262)

23. We endorse what has been said by these two decisions. Days or months are not what is to be seen. What must be borne in mind is that the word "soon" does not mean "immediate". A fair and pragmatic construction keeping in mind the great social evil that has led to the enactment of Section 304B would make it clear that the expression is a relative expression. Time lags may differ from case to case. All that is necessary is that the demand for dowry should not be stale but should be the continuing cause for the death of the married woman under Section 304B. http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

24. At this stage, it is important to notice a recent judgment of this Court in Dinesh v. State of Haryana, 2014 (5) SCALE 641 in which the law was stated thus:

"The expression "soon before" is a relative term as held by this Court, which is required to be considered under the specific circumstances of each case and no straight jacket formula can be laid down by fixing any time of allotment. It can be said that the term "soon before" is synonyms with the term "immediately before". The determination of the period which can come within term "soon before" is left to be determined by courts depending upon the facts and circumstances of each case." (at page 646)

25. We hasten to add that this is not a correct reflection of the law. "Soon before" is not synonymous with "immediately before".

26. The facts of this appeal are glaring. Demands for money were made shortly after one year of the marriage. A she-buffalo was given by the father to the daughter as a peace offering. The peace offering had no effect. The daughter was ill-treated. She went back to her father and demanded money again. The father, then, went along with his brother and the Sarpanch of the village to the matrimonial home with a request that the daughter be not ill-treated on account of the demand for money. The father also assured the said persons that their money demand would be fulfilled and that they would have to wait till the crops of his field are harvested. Fifteen days before her death, Salwinder Kaur again visited her parents’ house on being maltreated by her new family. Then came death by poisoning. The cross-examination of the father of Salwinder Kaur has, in no manner, shaken his evidence. On the facts, therefore, the concurrent findings recorded by both the courts below are upheld.

The appeal is dismissed.

*********************J. (T.S. Thakur)

*********************J. (R.F. Nariman)

*********************J. (Prafulla C. Pant)

New Delhi,

February 26, 2015

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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

498a etc Quash only AFTER divorce. Bom HC !

What should paying / settling husbands do now ?

In the instant case, the wife has filed 498 (A), 323, 504, 506 and 34 package. There seems to be some compromise and parties reach HC for quash of 498A etc. The wife is present during the proceedings at HC. However the Hon HC refuses to quash

The Hon says, "….we are of the firm opinion that in such cases of matrimonial disputes, if FIR/chargesheet are sought to be quashed under inherent powers, ordinarily, this Court should not entertain the application under section 482 Cr. P. C. for quashment of FIR/chargesheet until the decree is passed by a competent matrimonial court and certified copy thereof is placed on record along with the application. We clarify this position in order to avoid any chaos in such type of matters….."

so, what happens in future ?? should ppl finish the civil decree, meaning divorce and then go for 498a Quash ? But by then the ablaa would have taken her money, and what IF she does NOT come to quash ?? So what happens to husbands who want a "quick" exit ??

*****************************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.

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Bombay High Court

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH AT NAGPUR

CRIMINAL APPLICATION NO. 53/2015

1. Swapnil s/o Rajendra Dikholkar,

aged 33 years, Occ. Service,

2. Smt. Rajendra s/o Rambhau

Dikholkar, aged 62 years, Occ. Retd.

3. Smt. Sanjeevani w/o Rambhau

Dikholkar, aged 57 years, Occ. Household.

All of the applicants are r/o B­404, Green Crest, Opposite Power House,

Bhosale Village, Fursungi, Pune­412308 … APPLICANTS

…V E R S U S…

1. Smt. Neha w/o Swapnil Dikholkar,

aged 27 years, Occ. Now known,

r/o c/o M. N. Pote, Manishnagar,

Somalwada, Nagpur.

2. State of Maharashtra, through

Police Station Officer, Loni,

Kadbhor (Pune) … RESPONDENTS

Mrs. A. A. Joshi, Advocate for applicants.

Ms A. A. Deshmukh, A.P.P. for respondent­State.

CORAM:­ A. B. CHAUDHARI & P. N. DESHMUKH, JJ.

DATED :­ FEBRUARY 18, 2015

J U D G M E N T

(Per : A. B. Chaudhari, J.)

1. Rule. Rule returnable forthwith. Heard finally by consent of the parties.

2. By the present application, applicant no.1­husband, applicant nos. 2 and 3 father and mother­in­law of non applicant no.1 have invoked the power of this court under Section 482 of the Code of Criminal procedure for quashing of the criminal proceedings under Section 498­A, 323, 504, 506, read with Section 34 of the Indian Penal Code in Regular Criminal Case No. 0404538/2013 pending before the Judicial Magistrate First Class, Chandrapurupon its transfer from Judicial Magistrate First Class, Pune to Judicial Magistrate First Class, Chandrapur, pursuant to the order dated 20.08.2014 in Criminal Application No. 1/2014 decided by this Court.

3. In support of the present application, Mrs. Anjali Joshi, learned counsel for the applicants, submitted that non applicant no.1 had lodged FIR with Police Station, Loni Kadbhor, Pune and as such upon investigation, the said Police Station had filed chargesheet in the court of J.M.F.C. Pune. Therefore, Criminal Application No.1/2014 was made by non applicant no.1 in this Court for transfer of the said Criminal Case from Pune Court to Chandrapur Court and this Court by a reasoned order, allowed the transfer of said Criminal Case from Pune to Chandrapur and accordingly, now J.M.F.C. Chandrapur is in seisin of the said criminal case. Mrs. Joshi submitted that non applicant no.1­wife is present in the Court today and she has no objection for quashing the FIR as well as present criminal case above mentioned. In addition, she invited our attention to the draft consent terms which were drawn before the Mr. Abhay Bhide, Mediator at this Bench, and submitted that even as per the said draft consent terms and in particular, clause (4) in it is stated that FIR as well as Criminal Case will have to be quashed since the parties have amicably settled the matrimonial dispute. She submitted that as per the draft consent terms, the petition for divorce for mutual consent was also filed before the Family Court at Nagpur and is pending for hearing before the said Court. She submitted that a Demand Draft in the sum of Rs.6,00,000/­ towards full and final settlement for mutual divorce has also been deposited with the Family Court for being paid to non applicant no.1­wife. She invited our attention to the decision of the apex Court in Gian Singh..vs..State of Punjab and another;(2012) 10 SCC 303.

4. Non applicant no.1­wife is present before this Court and was identified by Mrs. Joshi, learned counsel for the applicants. Heard learned counsel for the rival parties. Perused the record.

5. Section 482 of the Criminal Procedure Code reads thus:

“ 482. Saving of inherent power of High Court: Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. ”

The Larger Bench i.e. a Three Judge Bench of the Apex Court in the case of Gian Singh (supra) considered the provision of Section 482 of the Cr. P. C. in paragraphs 52, 53, 54, 55, 56, 57 and 58, stated thus:

“52. The question is with regard to the inherent power of the High Court in quashing the criminal proceedings against an offender who has settled his dispute with the victim of the crime but the crime in which he is allegedly involved is not compoundable under Section 320 of the Code.

53. Section 482 of the Code, as its very language suggests, saves the inherent power of the High Court which it has by virtue of it being a superior court to prevent abuse of the process of any court or otherwise to secure the ends of justice. It begins with the words, “nothing in this Code” which means that the provision is an overriding provision. These words leave no manner of doubt that none of the provisions of the Code limits or restricts the inherent power.The guideline for exercise of such power is provided in Section 482 itself i.e., to prevent abuse of the process of any court or otherwise to secure the ends of justice. As has been repeatedly stated that Section 482 confers no new powers on High Court; it merely safeguards existing inherent powers possessed by High Court necessary to prevent abuse of the process of any Court or to secure the ends of justice. It is equally well settled that the power is not to be resorted to if there is specific provision in the Code for the redress of the grievance of an aggrieved party. It should be exercised very sparingly and it should not be exercised as against the express bar of law engrafted in any other provision of the Code.

54. In different situations, the inherent power may be exercised in different ways to achieve its ultimate objective. Formation of opinion by the High Court before it exercises inherent power under Section 482 on either of the twin objectives, (i) to prevent abuse of the process of any court or (ii) to secure the ends of justice, is a sine qua non.

55. In the very nature of its constitution, it is the judicial obligation of the High Court to undo a wrong in course of administration of justice or to prevent continuation of unnecessary judicial process. This is founded on the legal maxim quando lex aliquid alicui concedit, conceditur et id sine qua res ipsa esse non potest. The full import of which is whenever anything is authorised, and especially if, as a matter of duty, required to be done by law, it is found impossible to do that thing unless something else not authorised in express terms be also done, may also be done, then that something else will be supplied by necessary intendment. Ex debito justitiae is inbuilt in such exercise; the whole idea is to do real, complete and substantial justice for which it exists. The power possessed by the High Court under Section 482 of the Code is of wide amplitude but requires exercise with great caution and circumspection.

56. It needs no emphasis that exercise of inherent power by the High Court would entirely depend on the facts and circumstances of each case. It is neither permissible nor proper for the court to provide a straitjacket formula regulating the exercise of inherent powers under Section 482. No precise and inflexible guidelines can also be provided.

57. Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence. They are different and not interchangeable. Strictly speaking, the power of compounding of offences given to a court under Section 320 is materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. In compounding of offences, power of a criminal court is circumscribed by the provisions contained in Section 320 and the court is guided solely and squarely thereby while, on the other hand, the formation of opinion by the High Court for quashing a criminal offence or criminal proceeding or criminal complaint is guided by the material on record as to whether the ends of justice would justify such exercise of power although the ultimate consequence may be acquittal or dismissal of indictment.

58. Where High Court quashes a criminal proceeding having regard to the fact that dispute between the offender and victim has been settled although offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored securing the ends of justice being the ultimate guiding factor. No doubt, crimes are acts which have harmful effect on the public and consist in wrong doing that seriously endangers and threatens well­being of society and it is not safe to leave the crime­ doer only because he and the victim have settled the dispute amicably or that the victim has been paid compensation, yet certain crimes have been made compoundable in law, with or without permission of the Court. In respect of serious offences like murder, rape, dacoity, etc; or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between offender and victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to victim and the offender and victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or F.I.R if it is satisfied that on the face of such settlement, there is hardly any likelihood of offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated. The above list is illustrative and not exhaustive. Each case will depend on its own facts and no hard and fast category can be prescribed.”

The Supreme Court, by way of conclusion, added paragraph 61, which reads thus:

“61. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz; (i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim’s family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and pre­dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. 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 proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and 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 affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding."

6. From the reading of Section 482 of the Cr. P. C. and the ratio decidendi above, we find that it is a settled legal position that the inherent powers of the High Court are required to be exercised to prevent abuse of process of the Court or otherwise to secure the ends of justice. This power is to be exercised sparingly and not in a mechanical manner. After the aforesaid decision was rendered by the Supreme Court in Gian Singh (supra), this Court is flooded with applications under section 482 Cr. P. C. Be that as it may, insofar as the present case is concerned, we find that the following portion extracted from paragraph (4) of the draft consent terms are objectionable and is in the nature of dictate to the High Court to exercise power under section 482 of Cr. P. C.

“(4) The applicant has filed complaint against the respondent under section 498 (A), 323, 504, 506 and 34 of the Indian Penal Code before the Police Station Loni Kadbor, Pune bearing F.I.R. No. 332/2012 and accordingly R. C. C. No. 0404538/2013 is pending before the learned Judicial Magistrate First Class, Court No. 7, Pune likely to be transferred at Chandrapur. It is hereby agreed that, the respondent shall file a petition under section 482 of the Code of Criminal Procedure before the Hon’ble Nagpur Bench of the Bombay High Court seeking to quash R.C.C.No. 0404588/2013 after its transfer from Pune to Chandrapur. All the expenses of this proceedings of S.482, will be borne by respective parties. It is further agreed that, the applicant will give her No Objection for quashing complaint filed by applicant under section 498 (A), 323, 504, 506 and 34 of Indian Penal Code bearing R.C.C.No. 040/588/12 which is pending before the learned Judicial Magistrate First Class Court No.7, Pune. It is hereby agreed that, the respondent will start the proceeding for quashing of the said complaint after filing of the petition under Section 13B of the Hindu Marriage Act, 1956 after transfer of R.C.C. No. 0404588/13 at Chandrapur. "

7. Apart from the above, what we find is that terms 8 and 9 are also not happily worded and are again in the nature of making compulsion on the Court to quash the FIR as well as chargesheet or proceedings under the Domestic Violence Act by exercising inherent jurisdiction under Section 482 of the Code of Criminal Procedure.

Terms 8 and 9 read thus:

“(8) All these procedures of withdrawal of cases by wife under Sec.498­A IPC and Domestic Violence Act and quashing of proceeding under Sec.482 etc. will be done before passing of the decree for mutual divorce and no proceeding will remain pending before passing of the decree.

(9) In the event the terms of compromise are not implemented, for any reason, whatsoever, both parties shall be entitled to prosecute proceedings against each other in accordance with law.”

Insofar as the criminal proceedings are concerned, the parameters laid down by the apex Court in the case of Gian Singh (supra) do not allow such type of course as is adopted in the present case.

8. There is an important facet, particularly in matrimonial disputes between husband and wife and others namely; even before a decree for mutual divorce is actually passed by competent court or civil court, the parties approach this Court for quashing the FIR, chargesheet and criminal proceedings in exercise of powers under section 482 of the Cr. P. C. Not only that, as in the present case, term (9) shows that if terms of compromise are not implemented for any reason whatsoever, both parties shall be entitled to prosecute proceedings against each other in accordance with law, which is wholly unsustainable. Once the proceedings, FIR and chargesheet are quashed by the High Court in exercise of powers under section 482 of the Cr. P. C. and if proceedings for mutual divorce etc. do not actually culminate into final decree by the competent court or that the parties to such a decree take a somersault after quashment of the proceeding, it is difficult to understand as to how the criminal proceedings, which are quashed by the High Court can be restored again.

9. In the light of the above discussion, we are of the firm opinion that in such cases of matrimonial disputes, if FIR/chargesheet are sought to be quashed under inherent powers, ordinarily, this Court should not entertain the application under section 482 Cr. P. C. for quashment of FIR/chargesheet until the decree is passed by a competent matrimonial court and certified copy thereof is placed on record along with the application. We clarify this position in order to avoid any chaos in such type of matters.

10. In view of above, we pass the following order.

ORDER

Criminal Application (APL) No. 53/2015 is disposed of reserving liberty in favour of the applicants as well as non applicant no.1­wife to file fresh application only after culmination of matrimonial proceedings of divorce/mutual divorce, as the case may be, by placing certified copy of the decree on record.

Rule discharged.

JUDGE

JUDGE

Kahale

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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

Organised gangsterism & sex trade with police nexus ?

A 22 year old’s sad tale. Police inaction and nexus alleged in a rape & sex trade complaint

We believe the police department is to protect us. We also see the police quick to arrest husbands accused of domestic violence, dowry and many other gender / matrimonial crimes. However here is a 22 year old girl’s horrible tale of abduction and rape to sell her into flesh trade. The UP police have NOT taken much action in over two years in spite of very serious and specific allegations!

The Hon. Supreme court says "….The victims of the trap are the poor, illiterate and ignorant sections of the society and are the target group in the flesh trade; rich communities exploit them and harvest at their misery and ignominy in an organised gangsterism, in particular, with police nexus. It is of grave social concern, increasingly realised by enlightened public spirited sections of the society to prevent gender exploitation of girl children……"

Readers are advised to proceed with caution as some of the statements / material herein may be graphic !!

*****************************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.

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (Crl.) NO. 218 OF 2013

Rashmi Behl…..Petitioner(s)

versus

State of Uttar Pradesh and others…..Respondent(s)

J U D G M E N T

M.Y.Eqbal, J.

Petitioner, a young girl of 22 years who hails from the State of Uttar Pradesh, has filed this writ petition under Article 32 of the Constitution of India for the enforcement of her fundamental rights guaranteed under Articles 14 and 21 of the Constitution of India inasmuch as even though her FIR was registered on 21.1.2013 neither statements of the petitioner or her witnesses had been recorded nor her medical examination under Section 164A of the Criminal Procedure Code had been done by the Uttar Pradesh Police despite repeated notices and reminders sent to the authorities. Petitioner has alleged to the extent that she was abducted, repeatedly assaulted and raped by her own father and his accomplices for not accepting their demand to enter the flesh trade in which her family is actively involved.

2. The writ petition before us shows that the ordeal of the petitioner began in the year 2010 when the father and her family alleged to have started coercing her to join the flesh trade/prostitution. Upon realizing petitioner’s unwillingness, father and the family tried to sell her off to an elderly man of about 65 to 70 years in Punjab. Upon becoming aware of the nefarious designs of the accused persons, petitioner somehow managed to escape from her parental home in Meerut and escaped to Haridwar, from where she was brought back by some Samaritans to the office of DIG Meerut, where she narrated her ordeal. Petitioner was sent to the custody of her parents with a stern warning, which was not complied. As such, she was then given into the custody of Ms. Asha Madho, who was an ex-teacher of the petitioner. However, in the midnight of 1/2.9.2011 in the absence of the custodian, her parents along with their relatives with police assistance said to have forcibly took her away. Thereafter, petitioner complained to the Police that she was held in captivity by her father and anything can happen to her in such circumstances. Taking action on the said letter, the SHO produced the petitioner before the City Magistrate on 5.9.2011, where the petitioner stated that she was a major and should be allowed to stay free as per her wishes and her custody should not be given to her father and family. Father of the petitioner also moved an application before the City Magistrate stating that his daughter was mentally unstable on which an order was passed to refer the petitioner to a hospital for mental medical examination, in which she was declared mentally sound. The City Magistrate passed an order giving the custody of the petitioner to Ms. Asha Madho. It was also ordered that Ms. Asha Madho will produce the petitioner before the Court as and when required.

3. Aggrieved by the order, father of the petitioner preferred a Revision Petition before the Additional District Judge, Meerut seeking custody of the petitioner. Petitioner was produced before the court and when being asked about her choice, she refused to go with her father and told the court that her father had earlier raped her and wanted to sell her. By way of a letter Ms. Asha Madho showed her unwillingness to take custody of the petitioner on the ground of her own sickness and criminal background of petitioner’s parents. Hence, the petitioner further showed her desire to go along with Ms. Aparna Gautam, sister-in-law of Ms. Asha Madho. On 15.10.2011, the Additional District Judge partly allowed the revision petition and set aside order dated 16.9.2011 regarding the custody of the petitioner being given to Ms. Asha Madho and held that the petitioner being an adult is free to reside wherever she decides to live. http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

4. It is alleged by the petitioner that after the Court had risen, accused persons forcibly dragged her out of the Court and took her to various places within Meerut and thereafter to Ludhiyana, Punjab, and throughout this period the petitioner was repeatedly assaulted and raped by her father and his accomplices. Subsequently, in November 2011, Mrs. Aparna Gautam filed a writ of Habeas Corpus before the Allahabad High Court. Consequently, the petitioner was produced before the High Court on 16.1.2012, where she gave details of assault, rape and abduction. On 30.1.2012, consequent to petitioner’s statement, learned Single Judge of the High Court disposed of the writ petition setting her at liberty to go anywhere including the opportunity to go along with Mrs. Aparna Gautam.

5. On several occasions the petitioner tried to lodge a FIR with regard to abduction, repeated assault and rape while she was in illegal custody of the respondents. On 16.1.2013, the petitioner wrote a complaint to the SSP Meerut, Uttar Pradesh for registering her FIR against the respondents. On 21.01.2013, finally FIR No.31/2013 was registered against the respondents under Sections 366, 323, 504 and 376 of IPC at Lisadi Gate Police Station, Meerut instead of Civil Lines Police Station.

6. Mr. P.H. Parekh, learned senior counsel appearing for the petitioner, contended that all the relevant sections applicable to the present case have not been applied by the police and neither statement of the petitioner had been recorded nor medical examination was done as per mandate of Section 164A, Cr.P.C. Since no action had been taken by the police against the named accused nor any security had been provided to the petitioner despite grave and imminent threat to her life and liberty and she being not in a position to approach Allahabad High Court by way of writ petition under Article 226, the petitioner has approached this Court seeking indulgence under Article 32 read with 142 of the Constitution of India.

7. We have elaborately heard learned counsel for the parties. Mr. P.H. Parekh, learned senior counsel appearing for the petitioner, submitted that the petitioner was first abducted from the house of the custodian Ms. Asha Madho and second time from the court premises with the active connivance of the police officials. The accused persons are influential people and certain police officers (who are also named in FIR) are also actively involved with the family. The influence of the father and family is so much that although the petitioner was abducted from the Court premises situated under the jurisdiction of Civil Line Police Station, Meerut, yet the accused managed to get the FIR recorded not in the Civil Line Police Station but at the Lisadi Gate Police Station, Meerut, within jurisdiction of which most of the accused reside.

8. Mr. Parekh further contended that due to the influence of the accused persons, the investigation in the case has not even begun, which has resulted in disappearance of material evidence including medical examination report under 164A of Cr.P.C. which ought to have been done after being raped. Learned senior counsel further contended that accused persons are roaming free influencing and delaying investigation and threatening witnesses and have been on the look out of the petitioner since the date of lodging of the FIR forcing the petitioner to be in hiding under imminent threat to her life and liberty. On account of this, the petitioner is hiding in Delhi, but is prevented from freely going out in Delhi or going to place of lodging of FIR (Meerut) and it has forced her to knock the doors of the Apex Court by hiding her in Delhi.

9. After the notice was served upon the respondents, learned counsel for the State of Uttar Pradesh and other respondents appeared and the matter was heard. From the side of the petitioner, it was submitted that no steps have been taken for recording the statement of the petitioner under Section 164, Cr.P.C. Whereas learned senior counsel appearing for the State of Uttar Pradesh contended that despite all efforts, the petitioner is not making her appearance for the purpose of recording statements. Hearing submissions, this Court vide order dated 30.1.2015 directed the petitioner/prosecutrix to appear before the Chief Judicial Magistrate, Saket Courts, Saket, New Delhi along with her photograph and one person to identify her on 31.1.2015 so that her statement shall be recorded by the Chief Judicial Magistrate, who shall forward the same to this Court.

10. In compliance of the aforesaid order, the petitioner appeared before the Chief Judicial Magistrate and her statement was recorded and the same was forwarded to this Court. We have gone through the statement made by the petitioner before the Chief Judicial Magistrate. In her statement, she has made serious allegations against her father allegedly committing rape since 2007. She also stated that when she was residing with her Asha Madam, her parents along with many persons including Police personnel (which did not have any lady police) forcibly took her away from there to the Police Station, from where she was handed over to her parents. She stated that her parents used to misbehave with her. She has also stated that on 15.10.2011, after the decision of the Magistrate declaring her major and could reside at her will, her aunt Anjana Malik and Ranjana Vasudeva dragged her outside Court, where more than 15 persons were present including her father Ravinder Behl, Safar Borga, Ravinder Singh, Advocate, Tarun Behl, Reeta Behl, Roma Behl, Sanjay Aggarwal, Dharamveer Narang, Inderjeet, Harvinder Singh, Harsh Behl, Rakesh Vasudeva and all of them including police personnel took her dragging up to the main door of the Court and put her in white colour Santro Car, which had been driven by Pawan Malik.

11. In her statement she has alleged that she was kidnapped and taken to the house of her aunt (Bhuwa) and then to the house of Harsh Behl, where she was abused and her father forcing her for prostitution told that in their business goods once sold is never taken back and they are bound to hand it over dead or alive. Harsh Behl stated to her that they would have also kidnapped Aparna Gautam if gathering would not have saved her. Thereafter, Harsh Behl raped her. She has also alleged sexual assault by Dharamveer Narang, Constable Dayashankar, DIG Prem Prakash, Manish Mishra, Sunny Ahuja, Deshraj Ahuja, Tilak Narang and Toofan alias Raj Kumar. She amended her statement saying that name of Manish Mishra was taken by mistake as he was not present there and the name of the man was Dr. B.P. Ashok. She has also alleged that on 17.10.2010 Inderjeet and Harvinder raped her in the presence of Preety Khurana and Urmila Kathuria, who did not save her despite repeated prayer. Thereafter, she was taken to Ludhiyana, where as alleged by her, father used to rape her. Upon filing of Habeas Corpus petition by Aparna Gautam, she was produced by her parents in the High Court, where she stated that she did not want to go with her parents since she was being raped by her father and his accomplices. She has also alleged that when Aparna Gautam had gone to DIG with a request letter to meet petitioner, DIG physically assaulted her and when she was conversing with Media at the Commissioner Square, she was taken away by the police and implicated her in false case and was also imprisoned. She has submitted that many I.Os. have changed and despite various letters written by her, no I.O. turned up even on 18.3.2014, when she was sitting in the Chambers of her advocate in the Saket Courts. However, when her advocate had gone to attend other case, her parents entered into the Chamber and threatened her to keep quite. She stated that her Parvikar Aparna Gautam is being harassed since she helped her. http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

12. As noticed above, as against the order passed by the City Magistrate on 5.9.2011, before whom the petitioner has stated that she was a major and should be allowed to stay free as per her wishes, the father of the petitioner filed a revision petition before the Additional District Judge,Meerut seeking custody of the petitioner on the ground that she was mentally unstable. The Additional District Judge by setting aside the order of the City Magistrate regarding custody of the petitioner being given to Mrs. Asha Madho held that the petitioner being an adult is free to reside where she decides to live. The City Magistrate, before passing the aforesaid order, got the petitioner medically examined in which she was declared mentally sound. The Additional District Judge in revisional order had observed that the father of the petitioner made a false statement that the petitioner was mentally unfit.

13. A perusal of the counter affidavit filed on behalf of Respondents nos.1 to 4 – State of Uttar Pradesh, Director General of Police, Deputy General of Police and Senior Superintendent of Police would show that after the case was registered being Crime Case No.31/2013, one Rajbir Singh, SI Lisadi Gate Police Station, Meerut, was entrusted with the case for investigation. So far the serious allegations made by the petitioner against the respondents including the police officials are concerned, it is stated in the counter affidavit that those allegations are subject matter of investigation. Admittedly, no action was taken against the persons who have allegedly committed crime. On the basis of complaint, in March, 2013, the investigation was entrusted to another SI Janak Singh Pundir, SIS Cell, Meerut. Two months thereafter, the said I.O. Janak Singh was transferred and in his place one Pramod Kumar Singh, S.I., Crime Branch, Meerut was entrusted with the case for investigation in June, 2013. Again in August, 2013, the investigation was entrusted to another SI Yogender Dikshit, Crime Branch, Meerut. It is stated in the counter affidavit that the Investigating Officer was transferred from Crime Branch to Police Station Durala, District Meerut. This itself shows that the allegations made by the petitioner in the FIR followed by several complaints was never taken seriously by the police authorities and in a routine manner the investigation was entrusted to SI police one after another. Moreover, the respondents in the counter affidavit tried to justify the reason for not taking steps for the purpose of recording the statement of the petitioner victim under Section 164, Cr.P.C. and also failure in medically examining the petitioner as required under Section 164A of the Code of Criminal Procedure.

14. One cannot ignore the fact that still, a class of women is trapped as victims of circumstances, unfounded social sanctions, handicaps and coercive forms in the flesh trade, optimised as `prostitutes’. The victims of the trap are the poor, illiterate and ignorant sections of the society and are the target group in the flesh trade; rich communities exploit them and harvest at their misery and ignominy in an organised gangsterism, in particular, with police nexus. It is of grave social concern, increasingly realised by enlightened public spirited sections of the society to prevent gender exploitation of girl children.

15. Having regard to the facts, sequence of events and inordinate delay in the investigation of the case, it would show that the investigation by the State police authorities is not being conducted in a proper direction. More than two years have passed but the police failed to conclude the investigation, which itself goes to show that police have not acted in a forthright manner in investigating the case. Prima facie the police has acted in a partisan manner to shield the real culprits and the investigation of the case is not being conducted in a proper and objective manner. Since local police is allegedly involved as per the statement of the petitioner recorded under Section 164, there may not be fair investigation. In R.S. Sodhi vs. State of U.P., 1994 Supp (1) SCC 143, this Court in such a case observed that however faithfully the local police may carry out the investigation, the same may lack credibility since the allegations are against them.

16. Taking into consideration the entire facts of the case and very serious allegations made against all the respondents including police officers, it is a fit case where the investigation has to be handed over to an independent agency like CBI for the purpose of fair and unbiased investigation.

17. We, therefore, allow this petition and direct the Central Bureau of Investigation to investigate the case independently and in an objective manner and to conclude the same in accordance with law.

************J.(M.Y. Eqbal)

************J.(Shiva Kirti Singh)

New Delhi

February 17, 2015

ITEM NO.1B COURT NO.11 SECTION X

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Writ Petition(s)(Criminal) No(s). 218/2013

RASHMI BEHL Petitioner(s)

VERSUS

STATE OF U.P & ORS Respondent(s)

[HEARD BY HON'BLE M.Y.EQBAL AND HON'BLE SHIVA
KIRTI SINGH, JJ.]

Date : 17/02/2015 This petition was called on for judgment today.

For Petitioner(s)

Mr. P.H. Parekh, Sr. Adv.

for M/s. Parekh & Co.

For Respondent(s)

Mr. Dinesh Kr. Tiwari, Adv.

Mr. Amit Srivastava, Adv.

Mr. Pavitra Mohan Sharma, Adv.

Mr. Chandan Vir, Adv. for Mr. Praneet Ranjan,AOR

Mr. Som Raj Choudhury, Adv. for Mr. Abhisth Kumar,AOR

Ms. Ranjana Narayan, Adv. for Mr. B.V. Balaram Das, AOR

Hon’ble Mr. Justice M.Y.Eqbal pronounced the judgment of the Bench comprising His Lordship and Hon’ble Mr. Justice Shiva Kirti Singh.

The writ petition is allowed in terms of the Reportable judgment, which is placed on the file.

(Parveen Kr. Chawla) (Indu Pokhriyal)

Court Master Court Master

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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

Father looses custody of Kid < 5 years old

Sad to see warring couple fight for custody of a kid. Mother alleged to have Bi polar disorder. But, finally @ Supreme court, the Father looses custody of kid to the mother

Hon court refers to HMG act, mother’s superior qualifications, father earning lesser, not being an Income Tax assessee etc etc.

Also a social worker supervising visits casts indirect aspersions of the dad ! Mother restrained from moving out of India to avoid father loosing visiting rights

Married men beware !!

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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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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 1966 OF 2015

(Arising out of SLP © No. 31615 of 2014)

ROXANN SHARMA .….. APPELLANT

Vs.

ARUN SHARMA .…..RESPONDENT

WITH CIVIL APPEAL No. 1967 OF 2015

(Arising out of SLP © No. 32581 of 2014)

J U D G M E N T VIKRAMAJIT SEN, J.

1 Leave granted in both the Special Leave Petitions.

2 Civil Appeal of 2015 arising out of SLP(C) No.31615 of 2014 assails the Judgment dated 2nd August, 2014 passed by the High Court of Bombay at Goa in Writ Petition No.79 of 2014, which in turn questioned the Order dated 31.1.2014 passed by the IInd Additional Civil Judge, Senior Division at Margao, Goa (hereafter also referred to as the Civil Judge) in Matrimonial Petition No. 15/2013/II filed on 18.5.2013 before us, by the Respondent, Shri Arun Sharma (hereafter referred to as ‘Father’) under Section 6 of the Hindu Minority and Guardianship Act, 1956. In this petition the Father has prayed inter alia that (a) the custody of the minor child, Thalbir Sharma be retained by him and that (b) by way of temporary injunction, the Appellant before us (hereinafter referred to as the Mother) be restrained from taking forcible possession of the minor child Thalbir from the custody of the Applicant. These proceedings were initiated and are pending in Goa at the instance of the father; at that time when all three persons were residents of Goa. After a detailed discussion of facts, as well as of law, the IInd Additional Civil Judge, Senior Division Margao, Goa ordered that "pending final disposal of the petition on merits, the respondent, Roxann Sharma is granted interim custody of minor child Thalbir Sharma. The applicant shall have visitation rights to the child. He shall inform about his visit to the child in advance to the respondent upon which she shall allow applicant to visit the child". A reading of this order discloses that the learned Civil Judge favoured the opinion that the custody of Thalbir, a child of tender years should remain with the Mother and thereby the child’s paramount interests would be subserved and safeguarded; that the Mother holds a Master of Arts degree from Howard University, Washington D.C. and is a Tenured College Professor in Los Angeles Mission College, California; that the allegation of her suffering from Bi-polar disorder had not been persuasively proved and in any event, did not disqualify her to the custody of her son; that the Father is allegedly an alcoholic and a drug-addict who had joined a drug rehabilitation clinic, and was also a member of Narcotics Anonymous (N.A); that Father had been previously married; and that he was not gainfully employed. The Impugned Order is also a detailed one in which the facts have been noted and the statutory laws as well as precedents, have been discussed.

3. However, in sharp divergence to the conclusion arrived at by the learned Civil Judge, the learned Single Judge of the High Court of Bombay at Goa has opined that "it cannot be disputed that for upbringing the child, love of the petitioner as well as the respondent who is the mother is very much essential for the healthy growth of such child. In such circumstances, though the custody would continue with the petitioner nevertheless, the respondent being the mother would definitely have frequent visitation rights of the minor child. Such visitation rights shall tentatively be for at least 3 days in a week. The parties are at liberty to fix such days before the learned Judge at a mutual agreeable place preferably within the jurisdiction of the Court". The Court, we must immediately underscore is located in Goa and not in Mumbai. These directions have attained finality against the Father; the Mother would have been entitled to visitation rights for at least three days and equally importantly in Goa.

4 Before us, it has been narrated by the Mother that consequent upon her frantic searches for her son, Thalbir, she had came to learn in August, 2013, that the Father along with Thalbir was in Mumbai. She filed Criminal Writ Petition No.87 of 2013 which had been disposed of by Orders dated 26.8.2013 noticing that proceedings under the Hindu Minority and Guardianship Act, 1956 (HMG Act) were pending in Goa and directing that the Mother should have access to Thalbir in Mumbai at a place near the residence of the Father. Thereafter, as already mentioned above on 31.1.2014, the Order by which the arrangement was reversed in the Impugned Order, came to be passed by the learned Civil Judge, Senior Division, Margao granting custody to the Mother and visitation to the Father in Goa.

5 We shall consider the import and amplitude of the legal concept of Guardianship on first principles. Black Law Dictionary 5th Edition contains a definition of Guardianship which commends itself to us. It states that - "A person lawfully invested with the power, and charged with the duty, of taking care of the person and managing the property and rights of another person, who, for defect of age, understanding, or self control, is considered incapable of administering his own affairs. One who legally has the care and management of the person, or the estate or both, of a child during its minority". Thereafter there are as many twelve classifications of a guardian but we shall reproduce only one of them, which reads – " a general guardian is one who has the general care and control of the person and estate of his ward; while a special guardian is one who has special or limited powers and duties with respect to his ward, e.g., a guardian who has the custody of the estate but not of the person, or vice versa, or a guardian ad litem". Black’s Law Dictionary also defines ‘Custody’ as the care and control of a thing or person. The keeping, guarding, care, watch, inspection, preservation or security of a thing, carrying with it the idea of the thing being within the immediate personal care and control of the person to whose custody it is subjected. Immediate charge and control, and not the final, absolute control of ownership, implying responsibility for the protection and preservation of the thing in custody. In terms of Black’s Law Dictionary, Tenth Edition, ‘Visitation’ means a non-custodial parent’s period of access to a child. Visitation right means a non-custodial parent’s or grandparent’s Court ordered privilege of spending time with a child or grandchild who is living with another person, usually the custodial parent. A visitation order means an order establishing the visiting times for a non-custodial parent with his or her children. Although the non-custodial parent is responsible for the care of the child during visits, visitation differs from custody because non-custodial parent and child do not live together as a family unit. In our opinion, visitation rights have been ascribed this meaning – In a dissolution or custody suit, permission granted to a parent to visit children. In domestic relations matters, the right of one parent to visit children of the marriage under order of the court.

6 Several other statutes also contain definitions of ‘guardian’ such as The Juvenile Justice (Care & Protection) Act, 2000 which in Section 2(j) states that "guardian", in relation to a child, means his natural guardian or any other person having the actual charge or control over the child and recognized by the competent authority as a guardian in course of proceedings before that authority." Since the Juvenile Act is principally concerned with the welfare of the juvenile the accent understandably and correctly is on the "person" rather than the estate. The Tamil Nadu Elementary Education Act, 1994 defines the term guardian as – "any person to whom the care, nurture or custody of any child falls by law or by natural right or by recognized usage, or who has accepted or assumed the care, nurture or custody of any child or to whom the care, nurture or custody of any child has been entrusted by any lawful authority".

7 The Guardianship postulates control over both the person as well as the assets of a minor or of one and not the other. This is obvious from a reading of the definitions contained in Section 4 (2) of the Guardians & Wards Act, 1890 (G&W Act) and Section 4(b) of the HMG Act which clarifies that "Guardian" means a person having the care of the person of a minor or of his property or of both his person and property. Section 9 contemplates the filing of an application in respect of the guardianship of the person of the minor and Section 10 specifies the form of that application. Section 12 deals with the power to make interlocutory order for protection of the minor and interim protection of his person and property. Section 14 is of importance as its tenor indicates that these controversies be decided by one court, on the lines of Section 10 of the CPC which imparts preference of jurisdiction to the first court. Section 17 gives primacy to the welfare of the minor. Sub section 2 thereof enjoins the court to give due consideration to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor. Since Thalbir is of a very tender age, the advisability of determining his wishes is not relevant at the present stage; he is not old enough to form an intelligent reference. Section 25 covers the custody of a ward being removed from the custody of the guardian of his person, and adumbrates that if the Court is of the opinion that it will be for the welfare of the ward to return to the custody of his guardian shall make an order of his return.

8 Section 26 is of special significance in that it casts an omnibus embargo even on a guardian of a person appointed or declared by the Court from removing the ward from the limits of its jurisdiction. This is because when a dispute arises between the parents of a minor, the court steps in as parens patriae and accordingly appropriates or confiscates to itself the discretion earlier reposed in the natural parents of the minor. This provision appears to have been violated by the Father. These provisions continue to apply in view of the explicit explanation contained in Section 2 of the HMG Act.

9 Section 3 of the HMG Act clarifies that it applies to any person who is a Hindu by religion and to any person domiciled in India who is not a Muslim, Christian, Parsi or Jew unless it is proved that any such person would not have been governed by Hindu Law. In the present case, the Mother is a Christian but inasmuch as she has not raised any objection to the applicability of the HMG Act, we shall presume that Thalbir is governed by Hindu Law. Even in the proceedings before us it has not been contested by the learned Senior Advocate that the HMG Act does not operate between the parties. Section 6 of the HMG Act is of seminal importance. It reiterates Section 4(b) and again clarifies that guardianship covers both the person as well as the property of the minor; and then controversially states that the father and after him the mother shall be the natural guardian of a Hindu. Having said so, it immediately provides that the custody of a minor who has not completed the age of 5 years shall ordinarily be with the mother. The significance and amplitude of the proviso has been fully clarified by decisions of this Court and very briefly stated, a proviso is in the nature of an exception to what has earlier been generally prescribed. The use of the word "ordinarily" cannot be over-emphasised. It ordains a presumption, albeit a rebuttable one, in favour of the mother. The learned Single Judge appears to have lost sight of the significance of the use of word "ordinarily" inasmuch as he has observed in paragraph 13 of the Impugned Order that the Mother has not established her suitability to be granted interim custody of Thalbir who at that point in time was an infant. The proviso places the onus on the father to prove that it is not in the welfare of the infant child to be placed in the custody of his/her mother. The wisdom of the Parliament or the Legislature should not be trifled away by a curial interpretation which virtually nullifies the spirit of the enactment.

10 We shall now consider the relevance of the precedents cited before us by the learned Senior Counsel for the Father. In Sarita Sharma vs. Sushil Sharma (2000) 3 SCC 14, in defiance of the orders passed by the Jurisdictional Court in the U.S., the mother, Sarita, had returned to India with two children from their matrimonial relationship. The High Court viewed that the divorce decree and custodial directions having emanated from a competent Court deserve to be honoured, and accordingly allowed the Habeas Corpus Petition and directed the mother to return the custody of the children to the father, Sushil. This Court was not persuaded that further consideration by Courts in India as to whether the interests of the children, which were paramount, stood foreclosed and could not be cogitated upon again. As regards Section 6 of the HMG Act, it opined that although it constitutes the Father as a natural guardian of a minor son it could not be considered as superseding its paramount consideration as to what is conducive to the welfare of the minor. These observations were reiterated and this Court reversed the decision of the High Court holding that the interests and welfare of the children dictated that the custody should be with their mother. This case, therefore, militates against the legal and factual position which the Father seeks to essay before us. It is also important to underscore the fact that both the children were over the age of five, a fortiori, the custody should not have been reversed in the case in hand by the High Court from the Mother to the Father since Thalbir was then around one year old and is presently still less than three years old.

11 Learned Senior Counsel has next drawn our attention to Mausami Moitra Ganguli vs. Jayant Ganguli, (2008) 7 SCC 673. In this case also, this Court was confronted with the custody conflict over 10 year male child. We must be quick to point out that the Court did not consider Section 6 of the HMG Act after detailing the factors which were indicative of the position that the welfare of the child lies with continuing the custody with the father, this Court dismissed the mother’s appeal. The facts are totally distinguishable. The ratio continues to be that it is the welfare of a minor which has paramount importance.

12 The HMG Act postulates that the custody of an infant or a tender aged child should be given to his/her mother unless the father discloses cogent reasons that are indicative of and presage the livelihood of the welfare and interest of the child being undermined or jeopardised if the custody retained by the mother. Section 6(a) of HMG Act, therefore, preserves the right of the father to be the guardian of the property of the minor child but not the guardian of his person whilst the child is less than five years old. It carves out the exception of interim custody, in contradistinction of guardianship, and then specifies that custody should be given to the mother so long as the child is below five years in age. We must immediately clarify that this Section or for that matter any other provision including those contained in the G&W Act, does not disqualify the mother to custody of the child even after the latter’s crossing the age of five years.

13 We must not lose sight of the fact that our reflections must be restricted to aspects that are relevant for the granting of interim custody of an infant. The Trial is still pending. The learned Single Judge in the Impugned Order has rightly taken note of the fact that the Mother was holding a Tenured College Professorship, was a post-graduate from the renowned Haward University, receiving a regular salary. Whether she had a Bi-polar personality which made her unsuitable for interim custody of her infant son Thalbir had not been sufficiently proved. In the course of present proceedings it has been disclosed that the Father has only passed High School and is not even a graduate. It has also not been denied or disputed before us that he had undergone drug rehabilitation and that he was the member of Narcotics Anonymous. This is compounded by the fact that he is not in regular employment or has independent income. As on date he is not an Income tax assessee although he has claimed to have earned Rupees 40,000 to 50,000 per month in the past three years. We must again clarify that the father’s suitability to custody is not relevant where the child whose custody is in dispute is below five years since the mother is per se best suited to care for the infant during his tender age. It is for the Father to plead and prove the Mother’s unsuitability since Thalbir is below five years of age. In these considerations the father’s character and background will also become relevant but only once the Court strongly and firmly doubts the mother’s suitability; only then and even then would the comparative characteristic of the parents come into play. This approach has not been adopted by the learned Single Judge, whereas it has been properly pursued by the learned Civil Judge.

14 In the course of the hearings before us temporary visitation rights were granted to the Mother under the provision of a social worker who had been appointed by the Maharashtra State Legal Service Authority. We have had the advantage of perusing her very diligent and detailed Reports which vividly recount the initial reluctance and antipathy of Thalbir to his Mother, which very quickly came to be naturalised because of the maternal affection of the Mother. The Reports of the Social Worker lucidly indicate that at present Thalbir is extremely comfortable and happy in the company of his Mother but becomes agitated at the sight of his Father when he has to return to him. The Social Worker has also fervently pleaded that her Reports should be kept sealed for fear of the Father. This is extremely disturbing to us just as we expect it should be to the Father also.

CIVIL APPEAL No. 1967 OF 2015
(Arising out of SLP © No. 32581 of 2014)

15 After the passing the Impugned Order in WP 79 of 2014, the Mother filed an application dated 20.08.2014, for grant of visitation rights. Her suggestion was that she should have custody of Thalbir from Monday to Friday at Dona Paula, Goa, to be returned to the Father on Fridays at 5.00 pm; thereafter, custody of Thalbir be restored to the Mother at 10.00 A.M. on Monday morning in the Trial Court. The Father resisted the application by stating that he had no objection to the Mother visiting the child on three continuous days in each week between 4.00 p.m. and 5.00 p.m. However, he pleaded that since June, 2013, he along with Thalbir were residing in Flat No.2, Aashirvad Building, Sidhi Sadan Colony, Borivali West, Mumbai. By Orders dated 6.9.2014, the Trial Court ordered that Thalbir should be brought to the Court every Saturday at 9.30 A.M. to be handed over to the Mother who would in turn produce the child in the Court at 5.00 p.m. on the following Monday. It is this Order which was challenged in W.P.No. 576 of 2014. The second learned Single Judge has undertaken a discussion on meaning of ‘frequent’, concluding that it cannot be continuous; that the previous Order could not have meant that Thalbir would remain exclusively with his Mother for three days. On this dialectic the second learned Single Judge found error in the Trial Court’s Orders dated 6.9.2014. The Impugned Order goes on to note that the Mother has no permanent residence in India and that she had not disclosed any fixed address in Goa and the Mother was suffering from Bi-polar disorder. Inexplicably, the second learned Single Judge found fault with the Order granting weekend visitation to the Mother, ignoring the reality that Trial Court was only implementing the directions given by the previous learned Single Judge. It seems plain to us that it was not open to the Trial Court to venture afresh on the question of the welfare of Thalbir when the matter stood concluded against the Father who had not filed any Appeal against the Order of the previous learned Single Judge. All that the Trial Court was expected to do was to allocate three days custody for the Mother. In effect the second learned Single Judge has given his own understanding and meaning to the previous Order of a coordinate Bench of the High Court, which we find to be diametrically opposite to what stood articulated by the High Court in the previous writ proceedings. In paraphrasing the Order, the learned Single Judge in the Impugned Order has added the word "preferably" within the jurisdiction of the Court, but the word "preferably" has not been used in the previous Order. The Impugned Order also appears to lose sight of the fact that all three persons were residing in the United States and have only recently shifted to Goa which was, therefore, at that time, the only abode of the parties. It has also not given due weightage to the asseverations of the Mother that she had invested her savings in purchasing property in Goa, as well as in Mumbai in the joint names. Keeping in view the fact that Father has not been able to satisfactorily show that he had any income, prima facie, the Mother’s statement has credibility. Most importantly, it was the Father who initiated proceedings in Goa, which jurisdiction has not been opposed by the Mother and, therefore, to hold against the Mother at the initial stages is neither just nor proper. Given the protracted litigation which has already transpired between the parties it seems to us that the second learned Single Judge was derelict in not deciding the issues and instead merely setting aside the Order dated 6.9.2014 assailed before him for an adjudication de novo. The directions previously passed by a coordinate Bench have been nullified and miscarriage of justice has resulted.

16 The learned Single Judge in Writ Petition 79 of 2014 has categorically ordered that whilst the custody of Thalbir shall continue with the Father, the Mother shall get "visitation rights" which he temporarily fixed at least three days in a week "at a mutual agreeable place preferably within the jurisdiction of the Court," situate in Goa; the Trial is continuing in Goa. We fail to locate or appreciate any reason or justification for the intervention of the High Court in Writ Petition 576 of 2014 which is the subject matter of Civil Appeal of 2015 arising out of SLP (C) 32581 of 2014 by a different learned Single Judge. We have already noticed the intendment of Section 14 of the G&W Act which acknowledges the salutary necessity of only one court in dealing with the guardianship or custody disputes pertaining to the minor. This petition challenged the proprietary of the Order dated 6.9.2014 passed by the learned Civil Judge which in turn was in compliance with the Order dated 2.8.2014, which it may be recalled granted visitation rights to the Mother for at least three days in a week within the jurisdiction of the Court. The annals of the turbulent marriage of the parties, the IVF conception of Thalbir etc., have been duly noted by the first learned Single Judge and the learned Civil Judge. The learned Single Judge has then questioned the very applicability of HGM Act as well as G&W Act in the State of Goa, an aspect which had not been agitated by either the Mother or the Father in any of the earlier proceedings. There can be no cavil that when a Court is confronted by conflicting claims of custody there are no rights of the parents which have to be enforced; the child is not a chattel or a ball that is bounced to and fro the parents. It is only the child’s welfare which is the focal point for consideration. Parliament rightly thinks that the custody of a child less than five years of age should ordinarily be with the Mother and this expectation can be deviated from only for strong reasons. The need to have a continuity in adjudication ought to have persuaded the second learned Single Judge to have recused himself in preference to his learned Brother who decided the previous Writ Petition.

17 We also take serious note of the Father, without notifying or taking the permission of the Civil Judge, leaving its jurisdiction along with Thalbir. Prima facie this undermines the authority of the Court and it may even tantamount to contempt of court. Section 26 of the G&W Act has been violated and that too by a person who has not been appointed as the guardian. Relocation is now a well known legal concept. Since movement of persons from one place to another or one State to another State of the Country or even from one Country to another Country of the Globe is no longer a rarity. Very often it becomes necessary because the parent having custody of the child finds a more suitable employment somewhere else. The entitlement of the left behind spouse has, therefore, to be jurally investigated. The Mother may want to relocate to the United States where she can be very gainfully employed as against the Father who has not been able to disclose any income or sources of regular income. But this is not the case or stage before us. Here, the Father ought not to have left the jurisdiction of Court in Goa which was discharging its duties as parens patirae. This seems to have been completely lost sight of and instead the learned Single Judge has given premium to the unauthorised relocation. We have already mentioned the Criminal Petition 87/2013 which was disposed of by permitting the Mother to meet Thalbir; but keeping in view the pendency of proceedings in Goa, the Court rightly did not interfere with or alter or modify any of the Orders passed by the Court in Goa. Forum shopping or Court shopping requires to be firmly dealt with. The second learned Single Judge ought to have kept in mind that it was the Father who has started proceedings in Goa where the Mother was then also residing having, prima facie, been constrained to give up her employment in the Calfornia, U.S to be in a position to look after her infant son Thalbir. Co-ordinate Benches must respect prior orders.

18 We shall abjure for making any further observations as the Trial is still pending. Keeping in mind the facts and circumstances which have been disclosed before us, we set aside the impugned Order dated 18.09.2014. It is not in consonance with the previous order of a co-ordinate Bench and in fact severely nullifies its salient directions. We set aside the impugned Order dated 2nd August, 2014 inter alia for the reason that it incorrectly shifts the burden on the Mother to show her suitability for temporary custody of the infant Thalbir and, therefore, runs counter to the provisions contained in Section 6 of the HMG Act. We clarify that nothing presented by the Father, or placed on the record discloses that the Mother is so unfit to care for the infant Thalbir as justifies the departure from the statutory postulation in Section 6 of the HMG Act. Visitation rights succinctly stated are distinct from custody or interim custody orders. Essentially they enable the parent who does not have interim custody to be able to meet the child without removing him/her from the custody of the other parent. If a child is allowed to spend several hours, or even days away from the parent who has been granted custody by the Court, temporary custody of the child stands temporarily transferred.

19 We also have taken due note of the Reports filed by the Social Worker and have heard the Counsel for the parties in this regard. We record our appreciation for the diligence with which she has performed her duties. In the event that her fees/ expenses have not been defrayed by the Father, the remainder shall be paid by the Maharashtra State Legal Services Authority.

20 We transfer the temporary custody of Thalbir to the Appellant/Mother with the direction that both of them shall reside in the address given by her, viz, House No.80, Magnolia, Ground Floor, Bin Waddo, Betalbatim, Goa and will not leave that territorial jurisdiction of the Trial Court without prior leave. We further direct that the Respondent/Father shall have visitation rights between 2.30 p.m. and 6.00 p.m. on every Tuesday and Thursday, and from 2.30 p.m. to 9.00 p.m. on Saturdays. These Orders are purely temporary in nature. The Civil Judge should decide the Petition/application pending before him with expedition, as directed by the High Court, without being influenced by any observations made by us hereinabove.

21 After carefully reading the Reports of the Social Worker, Mrs. Deepali Ajay Satpute, we find it necessary to direct Mr. Arun Sharma, Father to neither directly nor indirectly through any member of his family or his friends, to communicate in any manner or to meet the Social Worker, Mrs. Deepali Ajay Satpute. This is in deference to the apprehensions that she has felt and expressed to the Court as a consequence of conversations of the Respondent and his Mother with her pertaining to her as well as the safety of her own son. In the event of the Social Worker seeking Police Protection to her and family, the Station House Officer of the concerned Police Station shall immediately provide the same and we direct so.

22 The Appeals are allowed in these terms. The parties shall bear their respective costs.

*********J [VIKRAMAJIT SEN]

*********J [C* NAGAPPAN]

New Delhi;

February 17, 2015.?

After the pronouncement of this Judgment it has been pointed out to us that the passports of both the parties have been deposited in this Court. The Thalbir’s passport is with the Trial Court in Goa. These will not be released to any of the parties without the explicit leave of the Court. It also transpires that House No.80, Magnolia, Ground Floor, Bin Waddo, Betalbatim, Goa has been sold by the Father-Respondent. The Petitioner- Mother will, therefore, stay in Goa, as already indicated, until explicitly permitted by the Competent Court. The said address will be mentioned to the Civil Court.

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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

Section 17, THE GUARDIANS AND WARDS ACT,1890

17. Matters to be considered by the court in appointing guardian

(1) In appointing or declaring the guardian of a minor, the court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.

(2) In considering what will be for the welfare of the minor, the court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.

(3) If minor is old enough to form an intelligent preference , the court may consider that preference.

14[* * *]

(5) The court shall not appoint or declare any person to be a guardian against his will.
Comment: We are, however, satisfied having regard to the circumstances of the case and the past history that the custody of the child should be immediately given to the mother as the child is less than 5 years old. The mother will, therefore, have the custody of the child. It will, however, be open to the father, that is, respondent No. 1 to apply for the custody of the child in appropriate guardianship proceedings. The respondent No. 1, however, will be entitled to visit the residence of the petitioner @page-SC1157 and be with the child during week ends (on Saturdays and Sundays)., Smt. Manju Tiwari v. Dr. Rajendra Tiwari, AIR 1990

14. Sub-section (4) omitted by Act No. 3 of 1951.

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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

Section 17, THE GUARDIANS AND WARDS ACT,1890

17. Matters to be considered by the court in appointing guardian

(1) In appointing or declaring the guardian of a minor, the court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.

(2) In considering what will be for the welfare of the minor, the court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.

(3) If minor is old enough to form an intelligent preference , the court may consider that preference.

14[* * *]

(5) The court shall not appoint or declare any person to be a guardian against his will.
Comment: We are, however, satisfied having regard to the circumstances of the case and the past history that the custody of the child should be immediately given to the mother as the child is less than 5 years old. The mother will, therefore, have the custody of the child. It will, however, be open to the father, that is, respondent No. 1 to apply for the custody of the child in appropriate guardianship proceedings. The respondent No. 1, however, will be entitled to visit the residence of the petitioner @page-SC1157 and be with the child during week ends (on Saturdays and Sundays)., Smt. Manju Tiwari v. Dr. Rajendra Tiwari, AIR 1990

14. Sub-section (4) omitted by Act No. 3 of 1951.

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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