Tag Archives: 498a

Hon HC is very concerned that wife’s getting ONLY 84 LAKHS from 498a quash & settlement. ONLY 84 lakhs !

Hon HC says it repeatedly checked with the wife before she agreed to take ONLY 84 lakhs …… before quasing 498a etc cocktail !!

By the way, she filed a 498a cocktail to get the settlement done !!


IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

WRIT PETITION NO.1260 OF 2017
1. Nipul Chandravadan Panchal,
Age 40 years, Occ: Architect

2. Mrs. Neela Chandravadan Panchal,
Age 63 years, Occ: Housewife

3. Chandravadan Panchal,
Age 70 years, Occ: No

Residing at 302, Mary Anne Heights, 3rd Road, GPS III, Opp: Cafe-Coffee Day,
Santacruz (East), Mumbai-400 055. …. Petitioners

– Versus –

1. The State of Maharashtra

2. Mrs. Vaishali Nipul Panchal,
Age 36 years, Occ: Service,
R/a Room No.7, Building No.1,
Kangra Bhavan, 232, Dr. Anny
Besent Road, Opp: Potdaar
Hospital, Warli, Mumbai. …. Respondents
Mr. P.R. Yadav i/by Ms Priyanka Dubey for the Petitioners.
Dr. F.R. Shaikh, APP, for the Respondent-State.
Mr. D.V. Saroj for Respondent No.2.
CORAM: S.C. DHARMADHIKARI & PRAKASH D. NAIK, JJ.

DATE : APRIL 07, 2017 ORAL JUDGMENT

(Per Shri S.C. DHARMADHIKARI, J.) :

 

  1. 1. Rule. The respondents waive service. By consent, rule is made returnable forthwith and the petition is taken up for final disposal.
  2. 2. The complainant Vaishali is present in Court. She admits that on 4-6-2015 her statement was recorded by the concerned police station, namely, Vakola Police Station, Mumbai and an FIR was registered. The FIR No.254/2015 alleges offences punishable under Sections 498A, 406, 341, 504, 323 and 34 of the Indian Penal Code.
  3. 3. A request is made by the accused including the husband of the respondent/original complainant to quash this FIR.
  4. 4. The only contention raised in support of this petition is that, this is a fall out of a matrimonial dispute. That discord and dispute led to the husband approaching the Family Court at Bandra, Mumbai with a petition seeking divorce. That petition bearing No.A-1425 of 2015 was later on sought to be converted into a petition and a joint one. The relief was altered to that of a decree of divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955.
  5. 5. Our attention has been invited to the Consent Terms tendered in the Family Court and the altered Consent Terms. Pages 77 to 84 of the paper-book have been perused by us carefully. One of the clauses in the Consent Terms postulates that the sum deposited in the account and mentioned in the Terms cannot be withdrawn by the complainant/wife unless she agrees to quashing of this criminal proceedings.
  6. 6. The nature of this settlement and which prima facie appears to us to be one sided, compelled us to call upon the Advocate appearing for the second respondent/complainant to request her to remain present.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick.
  7. 7. She has remained present and has tendered an affidavit confirming the above arrangement.
  8. 8. She says that she is completely familiar and can speak and equally read and write in English language. She has perused the affidavit. That is drafted as per her instructions and reflects the position correctly.
  9. 9. Though she is not aware of the legal proceedings and provisions, we have sufficiently clarified to her that the affidavit being tendered on record and the prosecution being quashed on the ground that it is purely a private one arising out of a strained matrimonial relationship, then, she would have waived her rights which she has as wife and stated to be voluntarily. We called upon her and repeatedly, whether this arrangement and as reflected in the affidavit is arrived at willingly and her consent is free and unequivocal.
  10. 10. This query was raised by us especially because there are rights of a child, a minor son at the relevant time aged eight years. The custody of this minor son is handed over to the wife. The mother is now going to fend for herself in a City like Mumbai with only a sum of Rs.84 lakhs, that too deposited in the Bank account and as permanent alimony. The same is full and final settlement for all claims of the wife/mother including for permanent alimony. No separate amounts are provided for the child as well.
  11. 11. Upon our limited questioning, she says that she wants an end to all these proceedings and desires to resume her life with her son. She wants nothing more from the in-laws or the husband.
  12. 12. Once she repeatedly says that she is agreeable to the criminal prosecution being quashed and with the above understanding as well, then, we have no alternative but to quash this criminal prosecution which is a fall out of a dispute between the husband and wife, a direct impact after the complaint for domestic violence was lodged, the husband’s petition for Divorce. Then going by this settlement and which is confirmed, we allow the petition. Rule is made absolute in terms of prayer clause (a). No order as to costs.
  13. 13. The consequence being not only the FIR is quashed but even the criminal case and charge-sheet which is filed in the Court of the Metropolitan Magistrate, 71st Court, Bandra, Mumbai.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick.
  14. 14. However, since the complainant/wife says that in the interest of her child as also on account of her lack of faith, trust and love for the husband, the criminal prosecution should be quashed and she is ready for the same, in the event the Family Court’s jurisdiction under Section 26 of the Hindu Marriage Act, 1955 r/w Section 114 of the Code of Civil Procedure, 1908 is invoked for variation or modification of the Terms and particularly the clause for payment, our order passed today quashing the criminal prosecution shall not be an impediment for the Family Court to exercise its jurisdiction and in accordance with law. Clarifying thus, the petition is allowed.

 

(PRAKASH D. NAIK, J.)

(S.C. DHARMADHIKARI, J.)


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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.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting


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

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


PUNJAB AND HARYANA HIGH COURT

Before :- K.K. Srivastava, J.

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

Kiran – Petitioners

Versus

State of Haryana – Respondents


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


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

K.K. Srivastava, J. –

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

High court affirms #discharge of #relatives from #fake498a case !! speaks of #misuse 

Punjab & Haryana High Court Mukesh Rani Vs State of Haryana
Advocates Appeared: 
For the Mr. Ramesh Hooda, Advocate. 

For the , Mr. G.P.S. Nagra, AAG, Haryana.
Nirmal Singh, J. – 
This is a petition under Section 482 Cr.P.C. for quashing the impugned order Annexure P-1 vide which respondents 2 and 3 were discharged by the Sub-Divisional Judicial Magistrate, Gohana vide order dated 24.4.1996 Annexure P-2 vide which the revision petition filed by the State has been dismissed by the learned Additional Sessions Judge, Sonepat.
2. The facts of the case are that on the complaint of Mukesh Rani a case under Sections 406, 498-A, 323, 506, 34 IC was registered against Sukhdev, Krishan, Bharto, Kalawanti and Ram Niwas, on the allegations that they have been harassing the complainant for bringing Refrigerator, Scooter and cash amounting to Rs. 50,000 for the purchase of land. After the completion of the investigation, a report under Section 173 Cr.P.C. was presented before the Illaqa Magistrate. The learned Judicial Magistrate, after perusing the evidence on record discharged Ram Niwas and Kalawanti whereas other accused were charge sheeted under Sections 498-A, 406, 323 506, 34 IPC. Aggrieved by the order of discharge, the State preferred a revision petition which came up for hearing before the Additional Sessions Judge, Sonepat who vide order dated 26.3.1998 dismissed the revision petition. Aggrieved by the orders of Courts below the present petition has been preferred.
3. I have heard Shri Ramesh Hooda, learned counsel for the petitioner and perused the record.
4. Shri Hooda, learned counsel for the petitioner submitted that the impugned orders are palpably erroneous. He submitted that at the time of framing the charge, the Courts are not to see whether the accused is to be convicted or to be acquitted. He submitted that at the time of framing the charge, only a prima facie case is to be seen. If from the evidence on record, a prima facie case is made out, then a charge is to be framed. He submitted that from the evidence on record, it has transpired that there is a prima facie case against respondents 2 and 3. He submitted that the petitioner was harassed by the respondents No. 2 and 3 alongwith their co-accused on account of demand of dowry. They were demanding scooter and refrigerator. He further submitted that the dowry articles have been recovered from the house of respondent No. 2. He submitted that these facts have been overlooked by the learned trial Court.
5. After hearing the learned counsel of the parties, I am of the considered opinion that there is no illegality or irregularity in the impugned order. There is no dispute regarding proposition of law putforth by the learned counsel for the petitioner that at the time of framing the charge, the trial court is not to go into the merits of the case and only a prima facie case is to be seen. At that stage, it is not to be seen whether the accused is to be convicted or to be acquitted. At the same time, if the allegations are vague and from the complaint itself, if shows that the accused has been falsely implicated then the charge is not to be framed. If the charge is framed it will tantamount to abuse of the process of the Court. Reliance can be placed upon Satyabir Singh and others v. State of Haryana and another, 1993(2) RCR(Crl.) 520 (P&H) : 1993(2) CLR 249 , Parveen Kumari v. State of Punjab and others, 1994(1) RCR(Crl.) 407 (P&H) : 1994(1) CLR 53 , Madhu Bala Mahajan v. Sunayana Mahajan, 1991(2) CLR 227.
6. In the instant case respondent No. 2 is the husband of respondent No. 3 and respondent No. 3 is the sister of husband of the complainant. In the FIR, it has not been specifically mentioned what dowry articles were entrusted to respondents 2 and 3 at the time of marriage. If no article has been entrusted to respondents 2 and 3, then no case under Section 406 is made out. It is also not the case of the complainant that respondents 2 and 3 are residing with the husband of the complainant. The respondents have placed on record the document showing that they are employed as teachers and are living separately in village Bambla from the complainant and her husband Satyadev. Even on the date when the alleged occurrence took place respondents were present in their school i.e. on 7.1.1994.
7. The provisions of Sections 498-A, 304-B IPC and 113-A and 113-B in the Evidence Act were added by the legislature, in its wisdom, for the protection of women but these provisions are being mis-used day in and day out. Whenever there is a matrimonial dispute between husband and wife, for the fault of the husband, other relations of the husband i.e. brothers, sisters and parents, are also roped in the litigation on the allegation of demand of dowry, whether they are living joint or separate. Sometimes, the parents who are aged about 80 to 90 years and unable to walk or talk and the sisters living at far off places in the matrimonial house are also involved. In such like situation, the courts while framing charge should be very cautious. Charge should be framed when there is cogent and convincing evidence. If on the face of the complaint it shows that complaint is false, charge should not be framed. In the instance case, there is evidence that respondent No. 3 who is the sister of the husband of the complainant was living separate with her husband-respondent No. 2 in a different village and were employed as teacher, therefore, the learned trial Court has rightly discharged respondents 2 and 3 by observing as under :- “I am of the considered opinion that the prosecution has failed to bring a prime facie case against these two accused persons particularly when there is no statement of any eye witness of the public of village Jasrana u/s 161 Cr.P.C. to support the contention of the complainant, about the presence in the village Jasrana, while they are serving as teacher in Distt. Bhiwani, prior to the marriage of the complainant with accused Satyadev, as stated by them, at the bar, so the authorities of law quoted by ld. APP as 1986 AIR 2046, 1989(2) CLR 430, (sic) 1980 SC 52 and 1999(2) CCJ 480 are not applicable to the facts of the present case with regards to the aforesaid two accused persons for which, relying upon the authorities of law quoted by ld. defendant counsel referred to above, both the said person namely Ram Niwas and Kalawati are hereby discharged.”
For the reasons mentioned above, there is no ground to interfere in the well reasoned orders passed by the learned Courts below. Hence this petition is dismissed.
Petition dismissed.

Courts can’t force husbands to pay #maintenance as condition for #Anticipatory #BAIL. Supreme Court !

In this case, the wife had filed a #498a , #406 cocktail on the husband. The husband and his parents approach the HC for #Anticipatory #bail. The HC initially sends the parties to #mediation. The mediation fails. then the HC imposes a #condition that the husband shall pay Rs 300,000 arrears and also pay Rs 12,500 p.m. as monthly maintenance as a condition for the bail.

The husband approaches the Hon Supreme court in appeal. The Hon Supreme court clearly states that courts CANNOT impose such conditions for payment of maintenance as part of the bail proceedings

The Apex court clarifies that ‘….It is well settled that while exercising discretion to release an accused under Section 438 of the Code neither the High Court nor the Session Court would be justified in imposing freakish conditions. There is no manner of doubt that the Court having regard to the facts and circumstances of the case can impose necessary, just and efficacious conditions while enlarging an accused on bail under Section 438 of the Code. However, the accused cannot be subjected to any irrelevant condition at all….” The Apex court goes on to state that the conditions cannot be onerous and frustrate the very purpose of the bail “…While imposing conditions on an accused who approaches the Court under section 438 of the Code, the Court should be extremely chary in imposing conditions and should not transgress its jurisdiction or power by imposing the conditions which are not called for at all. There is no manner of doubt that the conditions to be imposed under section 438 of the Code cannot be harsh, onerous or excessive so as to frustrate the very object of grant of anticipatory bail under section 438 of the Code. In the instant case, the question before the Court was whether having regard to the averments made by Ms. Renuka in her complaint, the appellant and his parents were entitled to bail under section 438 of the Code. ….”

The court very clearly states that “…. When the High Court had found that a case for grant of bail under section 438 was made out, it was not open to the Court to direct the appellant to pay Rs. 3,00,000/-for past maintenance and a sum of Rs.12,500/- per month as future maintenance to his wife and child. In a proceeding under section 438 of the Code, the Court would not be justified in awarding maintenance to the wife and child. …”

We hope this classic case helps harassed husbands who are seeking AB in 498a, 406 cases !!

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

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 344 OF 2009

(Arising out of S.L.P. (Criminal) No. 637 of 2008)

Munish Bhasin & Ors. … Appellants

Versus

State (Govt. of N.C.T. of Delhi) & Anr. … Respondents

J U D G M E N T

J.M. PANCHAL, J.

  1. Leave granted. The complainant (wife of first appellant) to whom notice was ordered on 25.01.2008 is impleaded as second respondent.
  2. Heard Counsel.

  3. The appellant (accused no. 1) assails the condition imposed by the High Court requiring him to pay a sum of Rs.12,500/- as maintenance to his wife and child while granting anticipatory bail to him and his parents with reference to the complaint filed by his wife for alleged commission of offences punishable under Sections 498A and 406 read with Section 34 of the Indian Penal Code.

  4. The marriage of the appellant was solemnized with Ms. Renuka on December 05, 2004. She has filed a complaint in November 2006, against the appellant and his parents for alleged commission of offences punishable under Sections 498A and 406 read with Section 34 of the Penal Code on the grounds that after marriage she was subjected to mental and physical cruelty for bringing less dowry and that her stri-dhan entrusted to them has been dishonestly misappropriated by them. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

  5. Apprehending arrest, the appellant and his parents moved High Court of Delhi for anticipatory bail. The application came up for consideration before a Learned Single Judge of the High Court on 22.02.2007. The Learned Additional Public Prosecutor accepted notice and submitted that the matter was essentially a matrimonial dispute and therefore the parties should be referred to the Mediation and Conciliation Cell of the Delhi High Court. The Learned Judge agreed with the suggestion made by the Additional Public Prosecutor and directed the parties to appear before the Mediation and Conciliation Cell of the Delhi High Court on March 02, 2007. The case was ordered to be listed on 10.05.2007. The Learned Judge further directed that in the event of arrest of the appellant and his parents, before the next date of hearing, they shall be released on bail on their furnishing personal bond in the sum of Rs.25,000/- each with one surety of like amount to the satisfaction of the Investigating Officer/ Arresting Officer concerned, subject however, to the condition that the appellant and his parents shall surrender their passports to the Investigating Officer and shall file affidavits in the Court that they would not leave the country without prior permission of the Court.

  6. From the records, it appears that the conciliation proceedings failed and therefore the bail application was taken up for hearing on merits. On representation made by the wife of the appellant, the counsel of the appellant was directed to produce appellant’s salary slip. Accordingly, the salary slip of the appellant was produced before the Court which indicated that the appellant was drawing gross salary of Rs.41,598/- and after deductions of advance tax etc., his net salary was Rs.33,000/-. The Learned Single Judge of the High Court took the notice of the fact that the appellant had the duty to maintain his wife and the child and therefore as a condition for grant of anticipatory bail, directed the appellant, by the order dated 07.08.2007 to pay a sum of Rs.12,500/- per month by way of maintenance to his wife and child. The Learned Single Judge also directed to pay arrears at the rate of Rs. 12,500/- per month from August 2005, that is Rs. 3,00,000/- within six months. The imposition of these conditions for grant of anticipatory bail is the subject matter of challenge in the instant appeal.

  7. From the perusal of the provisions of sub-section (2) of section 438, it is evident that when the High Court or the Court of Session makes a direction under subsection (1) to release an accused alleged to have committed non-bailable offence, the Court may include such conditions in such direction in the light of the facts of the particular case, as it may think fit, including (i) a condition that a person shall make himself available for interrogation by police officer as and when required, (ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer, (iii) a condition that the person shall not leave India without the previous permission of the Court and (iv) such other conditions as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section. Sub-section (3) of Section 437, inter alia, provides that when a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1), the Court shall impose the following conditions-(a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter, (b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and (c) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence. The Court may also impose, in the interests of justice, such other conditions as it considers necessary.

  8. It is well settled that while exercising discretion to release an accused under Section 438 of the Code neither the High Court nor the Session Court would be justified in imposing freakish conditions. There is no manner of doubt that the Court having regard to the facts and circumstances of the case can impose necessary, just and efficacious conditions while enlarging an accused on bail under Section 438 of the Code. However, the accused cannot be subjected to any irrelevant condition at all. The conditions which can be imposed by the Court while granting anticipatory bail are enumerated in sub-section (2) of Section 438 and subsection (3) of Section 437 of the Code. Normally, conditions can be imposed (i) to secure the presence of the accused before the investigating officer or before the Court, (ii) to prevent him from fleeing the course of justice, (iii) to prevent him from tampering with the evidence or to prevent him from inducing or intimidating the witnesses so as to dissuade them from disclosing the facts before the police or Court or (iv) restricting the movements of the accused in a particular area or locality or to maintain law and order etc. To subject an accused to any other condition would be beyond jurisdiction of the power conferred on Court under section 438 of the Code. While imposing conditions on an accused who approaches the Court under section 438 of the Code, the Court should be extremely chary in imposing conditions and should not transgress its jurisdiction or power by imposing the conditions which are not called for at all. There is no manner of doubt that the conditions to be imposed under section 438 of the Code cannot be harsh, onerous or excessive so as to frustrate the very object of grant of anticipatory bail under section 438 of the Code. In the instant case, the question before the Court was whether having regard to the averments made by Ms. Renuka in her complaint, the appellant and his parents were entitled to bail under section 438 of the Code. When the High Court had found that a case for grant of bail under section 438 was made out, it was not open to the Court to direct the appellant to pay Rs. 3,00,000/-for past maintenance and a sum of Rs.12,500/- per month as future maintenance to his wife and child. In a proceeding under section 438 of the Code, the Court would not be justified in awarding maintenance to the wife and child. The case of the appellant is that his wife Renuka is employed and receiving a handsome salary and therefore is not entitled to maintenance. Normally, the question of grant of maintenance should be left to be decided by the competent Court in an appropriate proceedings where the parties can adduce evidence in support of their respective case, after which liability of husband to pay maintenance could be determined and appropriate order would be passed directing the husband to pay amount of maintenance to his wife. The record of the instant case indicates that the wife of the appellant has already approached appropriate Court for grant of maintenance and therefore the High Court should have refrained from granting maintenance to the wife and child of the appellant while exercising powers under section 438 of the Code. The condition imposed by the High court directing the appellant to pay a sum of Rs.12,500/- per month as maintenance to his wife and child is onerous, unwarranted and is liable to be set aside.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

  9. For the foregoing reasons, the appeal succeeds. The direction contained in order dated August 07, 2007 rendered by Learned Single Judge of Delhi High Court in Bail Application No. 423 of 2007 requiring the appellant to pay a sum of Rs.12,500/- per month by way of maintenance (both past and future) to his wife and child is hereby deleted. Rest of the directions contained in the said order are maintained. It is however clarified that any amount received by the wife of the appellant pursuant to the order of the High Court need not be refunded by her to the appellant and will be adjusted subject to the result of application for maintenance filed by wife of the appellant under Section 125 of the Code before the appropriate Court.

  10. The Appeal is accordingly disposed of.

…………………………J. [R.V. Raveendran]

…………………………J. [J.M. Panchal]

New Delhi;

February 20, 2009.


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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.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting


Don’t convert BAIL 2 recovery proceedings & civil case 2 criminal case! Excellent Delhi HC Anticipatory

An elderly couple approach the Delhi HC seeking bail. Their son’s failed SECOND marriage is the cause of their misery. The young couple have met in London and married, stayed and separated in Dubai but the daughter in law has filed 498a etc on the elderly in-laws. The daughter in law has alleged gifts worth crores of rupees without much proof. The lower court has tried to make bail concomitant with recovery of money / promised settlement etc !! The Hon Delhi HC sees thru the entire matrix, appreciates that the elders have had little or NO role in the lives of the couple. The Hon orders that “…Since allegations in the complaint are to the effect that jewellery and gifts worth crores were given by the parents and relatives of the complainant, instant case would require a prior investigation by the investigating officer before petitioners are made to account for the gifts, whether at all the family of the complainant had the means to shower gifts of such magnitude…..” The court also reiterates that “…Case is thus made to admit petitioners to anticipatory bail. While so directing, I am conscious of the failed compromise talks before the learned Additional Sessions Judge but I cannot ignore the fact that proceedings for bail cannot be converted into recovery proceedings. ….” and thus grants bail to the elders !!

Please note that this case is from 2007 !! yes approx 9.5 years ago !! the court has in many places says that the case against the elders is unwarranted ! the Hon court refers to multiple decisions where 498a has been misused including Sushil Kumr sharma case !!

Still in 2017 there seems to be NO let up to the number of false cases and ways to milk men !!

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Delhi High Court

Smt. Surjit Kaur Chopra vs State And Anr. [Along With Bail … on 21 August, 2007

Author: P Nandrajog

Bench: P Nandrajog

JUDGMENT Pradeep Nandrajog, J.

FIR No.6/2007 dated 3.1.2007 under Section 498A/406 IPC PS Hazrat Nizamuddin.

  1. Vide Bail Application No. 1711/2007, Smt. Surjit Kaur Chopra seeks anticipatory bail. Vide Bail Application No. 1716/2007, Sh. Harbhajan Singh Chopra seeks anticipatory bail. The 2 applicants are the mother-in-law and father-in-law respectively of the complainant, Arti.
  2. At the outset, I must refer my displeasure at the manner in which Bail Application No. 1711/2007 has been drafted by learned Counsel for the petitioner.
  3. The same is a verbatim copy of Bail Application No. 1716/2007.
  4. Use of computers does not mean that learned members of the Bar would not apply their mind. Human beings cannot become computers and start operating themselves by clicking a mouse.
  5. Little realizing that in Bail Application No. 1716/2007 reference to the applicant was made as father of the husband of the complainant i.e. as father-in-law of the complainant, even Smt. Surjit Kaur Chopra has been referred to as father of the husband of the complainant i.e. father-in-law of the complainant.
  6. In the instant case, the misdescription may be trivial. But in large number of cases I notice that the misdescription is not trivial, more so, when disputes relate to complaints under Section 138 of the Negotiable Instruments Act 1881. In said cases description of the accused with reference to the role assigned becomes relevant. Precious judicial time is wasted in identifying who is being referred to and in what context reference is being made pertaining to persons accused of offence and who have filed quashing petitions challenging the summoning order.
  7. It is hoped and expected that learned members of the Bar would justify them being referred to as ‘learned Counsel’. Their being learned must be reflected in their pleadings.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick.
  8. Referring to the facts, why else would a father-in-law and mother-in-law be seeking bail? Of course, when their daughter-in-law has filed a complaint resulting in registration of FIR under Section 498A/406/34 IPC. This has happened in the instant case.
  9. Since issue of anticipatory bail has to be decided, reference to the FIR becomes necessary.
  10. Touching upon the salient features of the FIR, complainant Arti, stated that she met Jitender Singh Chopra, son of the applicants in London in July 2004 through common friends. She states that the two met a number of times and around 3rd week of September 2004 decided to get married in Dubai on 30.9.2004. She stated that she and Jitender Singh Chopra came to Delhi and got engaged. That at the time of engagement presents worth Rs. 15 lakhs were gifted by her parents to the in-laws and relatives of Jitender. That her in-laws gave her jewellery worth Rs. 40 lakhs. That at the asking of her prospective mother-in-law, for relatives who were not present at the engagement, her mother sent additional gifts worth Rs. 5 lakhs. That marriage between the complainant and Jitender was solemnized at Dubai on 27.10.2004 as per Hindu rites and customs. At the time of marriage her mother, relatives and friends gave gifts worth Rs. 70 lakhs. Her in-laws gifted her jewellery worth Rs. 90 lakhs. Next day her mother-in-law took away the jewellery for safe keeping. She and her husband came to Delhi on 3.11.2004 and stayed at the farm house of the in-laws. The couple celebrated their first Deepawali. On said function her relatives gave gifts worth Rs. 40 lakhs to her husband. That her mother and her relatives gave her ancestral jewellery worth Rs. 1.75 lakhs at said function. That her in-laws gave her expensive gifts and jewellery worth Rs. 80 lakhs. That when they were at Delhi her brother-in-law tried to force himself upon her. That she was disgraced by the family of her in-laws who stated that they expected that she would bring a Mercedes car in her dowry. That when the couple left for their honeymoon her husband compelled her to drink excessively as also to indulge in vulgar sexual acts. That since it was her second marriage she did not speak to anyone. That on 18.1.2005 she and her husband went back to Dubai. For said trip her husband demanded Rs. 25 lakhs from her mother. Her mother arranged Rs. 5 lakhs and gave the same to her husband. That her husband demanded more money. Her mother paid Rs. 15 lakhs. That she came back to Delhi on 29.12.2005 and in spite of requests to hand over her jewellery, none was being returned to her. That her father-in-law wanted her parents to transfer ownership rights of 2 floors of their house in name of her husband. That her mother-in-law had retained her jewellery.
  11. According to the petitioners the marriage at Dubai was financed by the petitioners. Entire stay of the family of the bride was paid for by the petitioners. That after the wedding, the newly wed came to Delhi to celebrate their first Deepawali and went back to Dubai in February 2005. They took on rent a villa and resided separately from the petitioners. That the couple separated due to temperamental differences. That their son sought divorce in London due to irreconcilable differences. That the FIR was a counter blast to the divorce petition filed by their son.
  12. Before dealing with the rival submissions on the issue whether petitioners should be granted anticipatory bail or not, it has to be noted that petitioners as also their second son i.e. the brother-in-law of the complainant sought anticipatory bail before the learned Additional Sessions Judge. Attempts were made to compromise the matter and in full and final satisfaction of all claims of the complainant not only the FIR be withdrawn but the couple could agree for an amicable settlement. Order dated 29.3.2007 passed by the learned Additional Sessions Judge records that a settlement was arrived at pursuant whereto complainant would be paid Rs. 4 crores in cash and a flat at DLF Gurgaon worth Rs. 60 lacs would be transferred in her name. Thereafter, the talks broke down inasmuch as offer was reduced to Rs. 2 crores.
  13. Petitioners when charged with attempting to wriggle out of an agreed settlement explained that their younger son was briefing the counsel and he was receiving instructions from the husband of the complainant for the reason any payment under the settlement had to be financed by the husband of the complainant. That unfortunately, their son i.e. husband of the complainant could not firm up his mind and for said reason settlement failed.
  14. Shri K.T.S. Tulsi, learned senior Counsel for the applicants urged that proceedings for grant of anticipatory bail cannot be converted into a recovery proceedings. Learned senior Counsel urged that the anxiety of the Court to try and effect a settlement between the warring couple may be a laudable act but is alien to the exercise of jurisdiction while deciding an application seeking grant of anticipatory bail. Learned senior Counsel urged that the well known parameters viz. gravity of the offence, seriousness of the allegations constituting the offence, possibility of the accused absconding or threatening witnesses of the prosecution, inherent probabilities, for and against the accused are some of the factors which have to be considered by the Court while deciding an application for grant of anticipatory bail.
  15. Expanding the argument, learned senior Counsel submitted that documents annexed as Annexure-C to the petitions conclusively establish that the petitioners paid the entire bill at Dubai when marriage took place. Drawing attention to Annexure-D, learned senior Counsel urged that the same evidences that the newly married couple set up separate residence in Dubai. As regards the petitioners, learned senior Counsel urged that they were residents of Delhi. Their son was settled abroad. Except for participating in the joyous occasion of the marriage of their son and showering their blessings and gifts upon the newly wed as also to finance the marriage, the two had no role to play in the matrimonial life of the couple. Learned senior Counsel further urged that allegations in the FIR are alien to the social norms of the society from which complainant, her family and the petitioners come from. Learned senior Counsel explained that main items are gifted to the couple at the time of their marriage. Thereafter, as and when festive occasions occur, small gifts are exchanged. Learned senior Counsel urged that it was unbelievable that at the time of Deepawali celebrations after the couple got married, complainant’s family members would gift to their daughter and her in-laws, gifts worth Rs. 1.75 crores. Learned senior Counsel further submitted that the allegations of dowry demand are against the husband i.e. the son of the petitioners. Allegations of mental and physical cruelty are against the husband save and except a vague allegation that on one occasion father-in-law threw a plate at the complainant and abused her as a bitch. Learned senior Counsel stated that the two allegations pertaining to dowry demand against the father-in-law viz. that he expected his daughter-in-law to bring a Mercedes car and a demand for ownership rights of 2 floors in her parent’s house at Sunder Nagar are false. Learned senior Counsel submitted that the gravement of the allegation against the mother-in-law is that she retained the jewellery of the complainant.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick.
  16. Learned senior Counsel urged that in view of the fact that the complainant and her husband had set up their matrimonial house at Dubai, a residence separate from that of the petitioners, considering the social background of the family of the complainant as also the petitioners it was unbelievable that the complainant would have handed over her jewellery to her mother-in-law.
  17. Fulcrum of opposition by learned Counsel for the complainant centered around the orders passed by the learned Additional Sessions Judge regarding a settlement between the parties from which petitioners back tracked. Learned Counsel submitted that the said settlement evidenced the acknowledgment by the petitioners that the complainant had to be recompensed. Learned Counsel submitted that the jewellery articles of the complainant have yet to be recovered. Counsel submitted that the complainants have started dissipating their assets. Thus, counsel urged that no case is made out to grant anticipatory bail to the petitioners.
  18. It is not in dispute that the instant marriage was the second marriage of both parties. Thus, both would be presumed to be aware of not only their matrimonial obligations but even the matrimonial laws. Judicial authorities are replete with a caution by the Courts that the unfortunate tendency to rope in all family members of the in-laws is a growing trend which has two side effects. Firstly, innocent persons suffer the trauma of a criminal prosecution and secondly, even the accused get acquitted for the reason, false implication of innocent persons is followed by presentation of fabricated evidence before the Court. So inextricably interwoven is truth with lies that truth cannot be segregated from lies resulting in benefit of doubt being given even to the accused persons.
  19. More often than not, pertaining to dowry, Courts are faced with a dilemma inasmuch as tax avoidance is the norm in India. Huge volume of black money in circulation finds expression in ostentatious marriages. But when called upon to prove that the family had enough assets to justify the stated gifts gifted at the time of marriage, family members of the girl side have no answers. They cannot establish the means to justify their capacity to shower gifts worth crores.
  20. In the instant case, before the in-laws of the complainant can be called upon to account for the gifts given by the parents of the girl, the parents of the girl would have to establish their means and their capacity to gift items worth Rs. 3 crores to their daughter and her in-laws.
  21. As noted above, gravement of the allegations are directed principally against the husband. No doubt, there is reference against the petitioners pertaining to dowry demand and retention of jewellery, but, as noted above, allegations of dowry demand are against the father-in-law and not against the mother-in-law. Vice versa, allegations pertaining to retention of the jewellery of the complainant is against the mother-in-law and not the father-in-law. Thus, if at all, father-in-law may be answerable to a charge under Section 498A IPC. If at all, mother-in-law may be answerable for a charge under Section 406 IPC.
  22. Qua the mother-in-law a circumstance which stands out is that her son and her daughter-in-law had a separate residence at Dubai. The couple was married at Dubai. Whatever may be the jewellery gifted to the complainant at the time of marriage, there is no material on record that when she along with her husband came to India they made a declaration to the Customs Authority that personal jewellery worth crores was being brought by her i.e. the complainant to India. Greater probability would be that either jewellery of the value alleged to be gifted to her by the complainant was not gifted to her, or if gifted, the same was in her custody at Dubai.
  23. . Pertaining to the father-in-law I find that the allegations are general. It is not stated in the complaint that because father-in-law desired that the complainant should bring a Mercedes car he i.e. the father-in-law took vengeance against the complainant. What is stated in the FIR is that the father-in-law commented that he expected that the complainant would bring as part of dowry a Mercedes car.
  24. Prima facie, it is one thing to have a desire and express the same. It is altogether another thing to raise a demand as per the desire.
  25. Allegation of mental cruelty against the father-in-law pertains to an alleged incident when according to the complainant she served cold food to her father-in-law. Prima facie, said allegation of cruelty does not relate to a dowry demand.
  26. . The only other allegation pertaining to transfer of 2 floors in the house of the complainant’s parents at Sunder Nagar is without any particulars i.e. the day or the month when said demand was raised.
  27. In the report published as Indian Oil Corporation v. NEPC India Ltd. in para 13 the Hon’ble Supreme Court lamented as under: 13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests o lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged.
  28. In para 19 of the report published as Sushil Kumar Sharma v. Union of India the Supreme Court observed as under:  19. The object of the provision is prevention of the dowry menace. But as has been rightly contended by the petitioner many instances have come to light where the complaints are not bona fide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to the trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentional provision. Merely because the provision is constitutional and intra vires, does not give a license to unscrupulous persons to wreak personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the courts have to take care of the situation within the existing framework. As noted above the object is to strike a the roots of dowry menace. But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used as a shield and not as an assassin’s weapon. If the cry of “wolf” is made too often as a prank, assistance and protection may not be available when the actual “wolf” appears. There is no question of the investigating agency and courts casually dealing with the allegations. They cannot follow any straitjacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that the ultimate objective of every legal system is to arrive at the truth, punish the guilty and protect the innocent. There is no scope for any preconceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the courts start with the presumptions that the investigating agencies and the courts start with the presumptions that the accused persons are guilty and that the complainant is speaking the truth. This is too wide and generalized a statement. Certain statutory presumptions are drawn which again are rebuttable. It is to be noted that the role of the investigating agencies and the courts is that of a watchdog and not of a bloodhound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally undisputable that in many cases no direct evidence is available and the courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view.
  29. In the decision dated 23.2.2007 in Crl.M.C. No. 7262/2006 Neera Singh v. State and Ors. a learned Single Judge of this Court had pains to note as under: 4. Now-a-days, exorbitant claims are made about the amount spent on marriage and other ceremonies and on dowry and gifts. In some cases claim is made of spending crores of rupees on dowry without disclosing the source of income and how funds flowed. I consider time has come that courts should insist upon disclosing source of such funds and verification of income from tax returns and police should insist upon the compliance of the Rules under Dowry Prohibition Act and should not entertain any complaint, if the rules have not been complied with. Rule 2 of the Dowry Prohibition (Maintenance of List of Presents to the Bride and Bridegroom) Rules, 1985 reads as under: 2. Rules in Accordance With Which Lists of Presents Are to Be Maintained. – (1) The list of presents which are given at the time of the marriage to the bride shall be maintained by the bride. (2) The list of presents which are given at the time of the marriage to the bridegroom shall be maintained by the bridegroom. (3) Every list of presents referred to in Sub-rule (2)-(a) shall be prepared at the time of the marriage or as soon as possible after the marriage; (b) shall be in writing; (c) shall contain: (i) a brief description of each present; (ii) the approximate value of the present; (iii) the name of the person who has given the present; and (iv) where the person giving the present is related to the bride or bridegroom, a description of such relationship. (d) shall be signed by both the brides and the bridegroom. 5. The Metropolitan Magistrate should take cognizance of the offence under the Act in respect of the offence of giving dowry whenever allegations are made that dowry was given as a consideration of marriage, after demand. Courts should also insist upon compliance with the rules framed under the Act and if rules are not complied with, an adverse inference should be drawn. If huge cash amounts are alleged to be given at the time of marriage which are not accounted anywhere, such cash transactions should be brought to the notice of the Income Tax Department by the Court so that source of income is verified and the person is brought to law. It is only because the Courts are not insisting upon compliance with the relevant provisions of law while entertaining such complaints and action is taken merely on the statements of the complainant, without any verification that a large number of false complaints are pouring in.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick.
  30. Admittedly, neither complainant nor her family members have complied with Rule 2 of the Dowry Prohibition (Maintenance of List of Presents to the Bride and Bridegroom) Rules 1985.
  31. Since allegations in the complaint are to the effect that jewellery and gifts worth crores were given by the parents and relatives of the complainant, instant case would require a prior investigation by the investigating officer before petitioners are made to account for the gifts, whether at all the family of the complainant had the means to shower gifts of such magnitude.
  32. I note that the husband of the complainant is paying to her a monthly maintenance of Rs. 1 lakh.
  33. Learned Counsel for the State did not urge that the petitioners are not cooperating with the IO.
  34. The special circumstances of the case may be summarized:
    • (a) Marriage is a love marriage and took place at Dubai. There is prima facie evidence that marriage expenses were borne by the in-laws of the complainant.
    • (b) The young couple took up separate residence at Dubai and stayed their after the marriage till they came to India to celebrate their first Deepawali festival. The complainant stayed with her in-laws for about 10 days. The couple departed for their honeymoon.
    • (c) Allegations in the FIR are primarily directed against the husband. Prima facie it appears to be a case of temperamental difference between the husband and the wife.
    • (d) There are no allegations of dowry demand against the mother-in-law. Allegation against her is of retaining the jewellery gifted by her parents as stated by the complainant to be in the value of over Rs. 2 crores. There is no evidence that jewellery of such magnitude was gifted.
    • (e) Allegations of dowry demand against the father-in-law only relate to transfer of ownership rights of 2 floors in a property at Sunder Nagar in the name of the husband of the complainant. The allegation is of a general nature. The time, date and month of demand has not been specified.
    • (f) The couple separated at Dubai. The petitioners did not have a joint residence with the complainant and thus could not be in possession of her jewellery.
  35. Case is thus made to admit petitioners to anticipatory bail. While so directing, I am conscious of the failed compromise talks before the learned Additional Sessions Judge but I cannot ignore the fact that proceedings for bail cannot be converted into recovery proceedings. I find prima facie justification of the petitioners that their younger son was briefing the counsel and was informing the counsel what was being consented to by the son of the petitioners. If the son of the petitioners back tracks from his commitment, petitioners cannot be faulted with.
  36. I additionally note that the complainant is being paid a monthly maintenance of Rs. 1 lakh by her husband.
  37. Petition stands disposed of directing that on the petitioners surrendering their passport to the Investigating Officer and cooperating at the inquiry to be conducted by the Investigating Officer, in the event of the petitioners being arrested by the IO, the petitioners would be released on bail by the IO on the petitioners furnishing a personal bond of Rs. 1,00,000/- each with one surety each in the like amount to the satisfaction of the IO in the above captioned FIR.
  38. Needless to state, the petitioners would join the investigation as and when required by the IO.
  39. Copy of the order be supplied dusty to learned Counsel for the petitioners.


*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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