Tag Archives: Allahabad HC

How a DV case on husband & SEVEN more is sent back by Allah.HC ! No DV against females & ppl NOT in dom. relation

Section 2(q) of DV Act : “respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person..” .

“…Thus respondent, against whom proceeding should proceed, must be adult male person, who is or has been in domestic relationship with aggrieved person. In present matter, applicants 3, 4, 5, 6 and 7 (who are opposite parties no. 2 to 7 of original case) are ladies. ..”

“It is directed that trial court shall consider this point before proceeding before these ladies-applicants/accused. It was pointed out that applicant no. 8/OP No.- 8 Zahid resides in different district Moradabad and has never been in domestic relationship with applicants of the case. Before proceeding against him and other accused, the propriety of carrying out proceedings in light of above mentioned provisions will be considered by trial court……”

#DV_case #DVCase_on_eight_ppl !! #WhyNotOneDozen !! ?? #FakeDV #fakeDVisMoolah

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HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. – 48

Case :- APPLICATION U/S 482 No. – 19953 of 2016

Applicant :- Mohd. Alam @ Raja And 7 Ors

Opposite Party :- State Of U.P. And Another

Counsel for Applicant :- Ved Prakash Pandey

Counsel for Opposite Party :- G.A.

Hon’ble Pramod Kumar Srivastava,J.

Heard learned counsel for the applicants, learned AGA and perused the records.

The proceedings of Complaint Case No. 339/2014, Sections 18/12, 20, 21, 23 and 31 of Protection of Women from Domestic Violence Act? has been challenged.

Under these provisions, aggrieved person may be women or child under the age of 18 years. Applicants of said complaint case is wife and his three years’ son. The proceeding under said Act can be carried out against the ‘respondent’. The definition of ‘respondent’ is given in Section 2 (q) of said Act is as under:- “Section 2(q)-, “respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

Thus respondent, against whom proceeding should proceed, must be adult male person, who is or has been in domestic relationship with aggrieved person. In present matter, applicants 3, 4, 5, 6 and 7 (who are opposite parties no. 2 to 7 of original case) are ladies. It is directed that trial court shall consider this point before proceeding before these ladies-applicants/accused. It was pointed out that applicant no. 8/OP No.- 8 Zahid resides in different district Moradabad and has never been in domestic relationship with applicants of the case. Before proceeding against him and other accused, the propriety of carrying out proceedings in light of above mentioned provisions will be considered by trial court.

With these observations, this application is disposed of.

Order Date :- 11.7.2016

SR


============================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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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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11 months Jail for a FALSE rape case AFTER girl eloped. Falsity apparent says Allahabad HC & grants bail

  • Girl seems to have voluntarily eloped with the boy
  • however, claiming that the girl is only 16 years old a rape case is filed and the boy incarcerated since 08. July 2015 !! (approx 11 months)
  • Court notices and states the following “…. allegation of rape against the applicant but the same has not been corroborated by any medical evidence and surrounding circumstances is totally belies the prosecution case as well as statement under Section 164 Cr.P.C. Her medical report does not show any mark of injury, violence or sexual assault. He further submits that it is not a case of taking away or enticing away the prosecutrix as from a perusal of her statement under Section 164 Cr.P.C., it is apparent that she has voluntarily eloped with the applicant. The applicant has no criminal history. The applicant is in jail since 8.7.2015. The falsity of the case is apparent from the fact that the Nana and Baba of the applicant have also been implicated in the present case….”

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Court No. – 4

Case :- BAIL No. – 4796 of 2016

Applicant :- Vimlesh Katheriya

Opposite Party :- State Of U.P.

Counsel for Applicant :- Jairam Bharti
Counsel for Opposite Party :- Govt. Advocate

Hon’ble Ramesh Sinha,J.

Heard Sri Jairam Bharti, learned counsel for the applicant and Ms. Sushma Shukla, learned A.G.A. appearing for the State.

It is submitted by learned counsel for the applicant that as per medical opinion, prosecutrix is 16 years. The law is settled that the margin of error in ascertaining the age by radiological examination is two years on either side and hence the possibility of the prosecutrix being major cannot be ruled out. Although, she has made an allegation of rape against the applicant but the same has not been corroborated by any medical evidence and surrounding circumstances is totally belies the prosecution case as well as statement under Section 164 Cr.P.C. Her medical report does not show any mark of injury, violence or sexual assault. He further submits that it is not a case of taking away or enticing away the prosecutrix as from a perusal of her statement under Section 164 Cr.P.C., it is apparent that she has voluntarily eloped with the applicant. The applicant has no criminal history. The applicant is in jail since 8.7.2015. The falsity of the case is apparent from the fact that the Nana and Baba of the applicant have also been implicated in the present case.

Learned A.G.A. opposed the prayer for bail.

Without expressing any opinion on the merits of the case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, reasonable apprehension of tempering of the witnesses and prima facie satisfaction of the Court in support of the charge, the applicant is entitled to be released on bail in this case.

Let the applicant Vimlesh Katheriya involved in Case Crime No. 587 of 2015 under sections 323, 342, 363, 376 I.P.C. and 3/4 POCSO Act, police station Mishrikh, District Sitapur be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions.

(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

Order Date :- 14.6.2016

shiraz

Visit http://elegalix.allahabadhighcourt.in/elegalix/StartWebSearch.do for more Judgments/Orders delivered at Allahabad High Court and Its Bench at Lucknow.


—————————-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 (this one is from Allahabad HC website). 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.

FIR in year 2004 or earlier. “Revision” rejected @ HC in 2016 !! Who says delay is bad ??

As per the record the FIR was filed circa 2004 or earlier and summoning order was dated 10th June 2004…. The accused seemed to have filed for a revision stating that the magistrate has NOT applied his mind and NO personal involvement has been shown !! That “revision” is rejected in 2016 …. YES seems to have lingered for 12 years and finally rejected, meaning the case should start afresh now !!

This can’t be a typo, as the year is mentioned multiple times , it’s mentioned on the summoning order, on this revision case etc!!, and the matter is from the Allahabad HC site (directly from site) !!

However a certified copy is ordered, immediately !!


This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Deputy Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. – 34

Case :- CRIMINAL REVISION No. – 3369 of 2004

Revisionist :- Sanjay And Others
Opposite Party :- State Of U.P. And Another
Counsel for Revisionist :- Ashok Kumar Srivastava
Counsel for Opposite Party :- Govt. Advocate,R. Sinha

Hon’ble Sudhir Agarwal,J.

  1. Heard learned counsel for the revisionists and perused the record.
  2. This criminal revision under Section 397/401 Cr.P.C., has been filed aggrieved by summoning order dated 10.06.2004 passed by Civil Judge (Junior Division)/ Magistrate, Dudhi, District Sonebhadra, in Case No. 475 of 2004, under Sections 498-A, 147, 504, 506 IPC and 3/4 Dowry Prohibition Act. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  3. The impugned summoning order has been passed on a complaint made by complainant-respondent no. 2 and after recording statements of complainant under Section 200 Cr.P.C. and witnesses under Section 202 Cr.P.C. Nothing has been placed on record to show that Magistrate has not applied its mind to the material available before him.
  4. The mere fact that individual role has not been assigned in complaint or there is no injury report etc. is wholly irrelevant at this stage inasmuch as from perusal of documents placed on record, i.e., statement recorded by Magistrate under Sections 200 and 202 Cr.P.C. it cannot be said that prima facie offence under Sections 498-A, 147, 504, 506 IPC and 3/4 Dowry Prohibition Act is not made out. Magistrate, therefore, has rightly exercised its power. No ground for interference in revisional jurisdiction is made out.
  5. Dismissed. Interim order, if any, stands vacated.
  6. Certify this judgment to the lower Court immediately.

Order Date :- 13.5.2016

AK

Visit http://elegalix.allahabadhighcourt.in/elegalix/StartWebSearch.do for more Judgments/Orders delivered at Allahabad High Court and Its Bench at Lucknow.

Disclaimer

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from http://elegalix.allahabadhighcourt.in/ 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 http://elegalix.allahabadhighcourt.in/ WEB SITE with necessary Emphasis, Re formatting
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Un proven criminal cases, wild allegations, is cruelty ! Divorce even before 498a decreed !!

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


HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Court No. – 19

Case :- SECOND APPEAL No. – 844 of 2006

Appellant :- Narayan Prasad Saraswat

Respondent :- Smt. Shaifali @ Muniya

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

Counsel for Respondent :- D.K. Dwivaedi

Hon’ble Pramod Kumar Srivastava, J.

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

 

Order Date :- 18.04.2016 SR

498a 406 DV cocktail 27 years after marriage on scientist husband. UP HC quashes 498a, talks of misuse!

  • Marriage in November 1986
  • Two children aged approx 27 years and 20 years out of wedlock
  • Husband a doctorate and scientist. Couple have lived abraod and in India
  • After approx 25 years couple split and wife has filed 498A, DV, maintenance cocktail on husband
  • In addition to getting Rs 15000 p,m. and 170000 from husband, wife files 498a, 406, 323, 504 case in 2013 !! yes 27 years later
  • The learned Magistrate, passed summoning order in a mechanical manner !
  • Husband runs to HC for quash (after approaching apex court !!).
  • HC orders “…application under Section 482 Cr.P.C., is allowed and the impugned summoning order dated 16.07.2013 along with entire proceedings of the complaint case are hereby quashed…”

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

RESERVED

Court No. – 22

Case :- U/S 482/378/407 No. – 5246 of 2013

Applicant :- Dr. Bijoy Kundu
Opposite Party :- The State Of U.P And Anr.
Counsel for Applicant :- Rohit Tripathi,Chandra Bhushan Pandey
Counsel for Opposite Party :- Govt. Advocate,Saurabh Mishra

Hon’ble Mahendra Dayal,J.

This application under Section 482 Cr.P.C., has been filed for quashing of the summoning order dated 16.07.2013 passed in Criminal Case No.45/2013, under Sections 498-A, 323, 504, 506 and 406 IPC, by the Court of Judicial Magistrate, Court No.35, Lucknow, whereby the applicant has been summoned to face trial. A prayer has also been made for quashing of the entire proceedings of the aforesaid criminal case. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

The brief facts are that the applicant and the opposite party No.2 are husband and wife. The marriage between them was solemnized in the month of November, 1986. The applicant is working on the post of Chief Scientist in C.D.R.I., Lucknow. Two sons were born out of the wedlock. The first son is a Computer Engineer and is aged about 27 years, while the second son is aged about 20 years. It was in the year 1989-1991 that the applicant visited United States and stayed there for a considerable period. During his stay at United States, he pursued the opposite party No.2 to take admission in the M.B.A. Course. He also took her to several countries. However, despite all efforts from the side of the applicant, the opposite party No.2 neglected the applicant and some times abused him also by calling him illegitimate child of his parents. The applicant was ultimately forced to move out from his own house in the month of March, 2012 on account of cruelty from the side of the opposite party No.2 and since then both of them have been living separately. The opposite party No.2 also filed a suit for divorce in the year 2012 on the ground of cruelty and desertion. She also filed a case under the Domestic Violence Act and also claimed maintenance under Section 125 Cr.P.C. The Court fixed monthly maintenance of Rs.15,000/- as an interim measure and the applicant paid a sum of Rs.1,70,000/- to the opposite party No.2 towards maintenance allowance. In order to further harass the applicant, the opposite party No.2 filed an application under Section 156(3) Cr.P.C., which was treated as complaint case. The learned Magistrate, after following the procedure of the complaint case, passed the impugned summoning order in a mechanical manner. There was absolutely no material to attract the offence of Section 406 IPC. There is also no material on record to attract the offence of Sections 498-A, 504 or 506 IPC. The impugned summoning order, passed by the learned Magistrate, therefore, suffers from manifest error of law and is liable to be set aside.

Learned counsel for the opposite party No.2 has filed counter affidavit and has stated therein that the entire facts narrated in the complaint are true and on the basis of the allegations, the charges under Sections 498-A, 323, 504, 506 and 406 IPC are fully made out. The applicant after having acquired control over the movable or immovable properties belonging to the opposite party No.2, has misappropriated the property and has left her to face destitution. The opposite party No.2 has no source of income. It has further been averred that the opposite party No.2 has half share in a plot at Sector-H, Aliganj, Lucknow, which is measuring 2200 sq. ft., but in order to misappropriate the share of the opposite party No.2, the applicant sold the entire plot without the knowledge and consent of the opposite party No.2. Several other allegations have been made in the counter affidavit to show that the applicant had committed the offence of misappropriation of property. The submission on behalf of the opposite party No.2 is that on the basis of the allegations made in the complaint and the statement, the learned Magistrate has rightly passed the summoning order and there is no sufficient ground for quashing of the summoning order.

A perusal of the record reveals that while entertaining this application under Section 482 Cr.P.C., this Court vide order dated 24.10.2013 directed that no coercive measure shall be taken against the applicant. Since the aforesaid order could not be extended from some reason, the applicant moved an application on 18.09.2014 making request that the interim order granted on 24.10.2013 be extended. A Coordinate Bench of this Court while passing order on this application, provided that the applicant may apply for bail before the trial court within three weeks and the trial court shall decide his bail application on the same day considering that the applicant is a public servant. This order was passed considering the fact that merely by directing that no coercive measure shall be taken against the applicant, would not amount to stay of the proceedings.

Feeling aggrieved by this order, the applicant approached the Hon’ble Apex Court and the Hon’ble Apex Court on 10.10.2014 passed an order that the earlier order passed by this Court on 24.10.2013 shall stand restored. The special leave petition filed by the applicant was disposed of by Hon’ble the Apex Court on 11.01.2016 requesting this Court to dispose of the application under Section 482 Cr.P.C., within a period of six weeks, from the date of communication of the order. The said order of Hon’ble the Apex Court was placed on record on this Court on 01.02.2016.

Learned counsel for the applicant has relied upon several decisions of Hon’ble the Apex Court to show that no offence under Section 406 IPC or Section 498-A IPC is made out against the applicant. One of such case law relied upon by the applicant is reported in (2010) 68 ACC Page 246 – Bhaskar Lal Sharma and another vs. Monica. In this case, Hon’ble the Apex Court has held that the essential ingredient to attract the offence of Section 498-A IPC is that the complainant must make allegations of harassment to meet unlawful demand of dowry or any unlawful conduct on the part of the accused which is likely to drive woman to commit suicide or to cause grave injury or danger to life limb or health. The only allegation that the accused kicked the complainant with her leg and told her that her mother was a liar, does not make out an offence under Section 498-A IPC. For the offence of Section 406 IPC, Hon’ble the Apex Court has held that the essential ingredients for establishing an offence, are entrusting any person with property or with any dominion over property and the person entrusted dishonestly misappropriating on converting to his own use that property or willfully suffering any other persons so to do. Hon’ble the Apex Court has held that in the absence of essential ingredients, no offence under Sections 498-A and 406 IPC would be made out. Hon’ble the Apex Court on the basis of the aforesaid observations passed an order quashing the summoning order.

For invoking of the power under Section 482 Cr.P.C., to quash the summoning order or the proceedings of the complaint case, the applicant has placed reliance on a decision of the Hon’ble Apex Court reported in (2006) 6 SCC Page 736 – Indian Oil Corporation vs. NEPC India Ltd. & Ors. In this case, Hon’ble the Apex Court has held that if the allegations in the complaint, taken on their face value, disclose a criminal offence, the complaint cannot be quashed merely because it relates to a commercial transaction or breach of contract for which civil remedy is available. However, if it is found that frivolous criminal complaint has been filed knowing well that remedy lies only in civil law, the person who filed such complaint should be made accountable, in accordance with law at the end of such proceedings.

Another case law relied upon by the applicant is reported in (2013) 3 SCC Page 330 – Rajiv Thapar & Ors. vs. Madan Lal Kapoor. In this case, Hon’ble the Apex Court has held that the discretion vested in the High Court under Section 482 Cr.P.C., can be exercised to prevent the abuse of process of law and to secure the ends of justice. The High Court can exercise its jurisdiction himself and make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of the allegations leveled by the complainant against the accused. To invoke the inherent jurisdiction, the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his defence is based on sound and reasonable facts.

In the background of the aforesaid legal principles of law, this Court after examining the contents of the complaint, finds that the marriage between the applicant and the opposite party No.2 took place in the year 1986 and after the birth of two sons in the year 1987 and 1993 respectively, the differences arose between them. The opposite party No.2 started making serious allegations against her husband and simultaneously filed several cases, one for divorce, one under Domestic Violence Act and one under Section 125 Cr.P.C. The fourth case is the present one, in which, the impugned summoning order has been passed. After such a long gap, making demand of dowry and harassment for demand of dowry, is not only highly improbable, but it is also not established from the allegations. It is not disputed between the parties that after differences between them, both of them started living separately. The applicant took a rented flat in Metro City, Lucknow. The allegations with regard to extending threats do not at all attract the offence of Section 498-A IPC. The allegations made by the opposite party No.2 in her complaint are inadequate to show that there was any demand of dowry on the part of the applicant. The object of enactment of Section 498-A IPC is to prevent the custom for demanding dowry. It has also been experienced by the courts that the provisions of Section 498-A IPC is misused in order to take revenge or exert pressure on the other side for some ulterior motive. The jurisdiction of the High Court to quash the summoning order in such cases should be exercised where it appears that the provision is being misused. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

So far as the offence of Section 406 IPC is concerned, the only allegation against the applicant is that the opposite party No.2 was having half share in a plot of land which the applicant sold without her knowledge and consent. This averment made by the opposite party No.2 does not make out the offence of Section 406 IPC because the essential ingredients of entrustment is missing, which is necessary for attracting the offence of criminal misappropriation. Moreover, the opposite party No.2 has an alternative remedy before the civil court in case her right in the immovable property has been affected.

So far as the other offences under Section 323, 504, 506 IPC are concerned, there is absolutely no evidence to attract those offences also. A perusal of the impugned order reveals that the learned Magistrate in a technical manner and without considering as to whether any prima-facie offence is made out against the applicant, passed the impugned summoning order, which is erroneous for the reason that the learned Magistrate has not recorded his satisfaction that the aforesaid offences are made out against the applicant. It is unfortunate on the part of the parties that even after twenty years of marriage and having two adult sons, they are litigating in such a manner making serious allegations against each other. Both the parties belong to a respected family and the applicant is holding a very high position and is facing several cases.

After having considered the contents of the complaint and the law on the subject as discussed above and the impugned summoning order, I am of the view that none of the offences, as indicated in the impugned summoning order, are made out against the applicant and as such the impugned order is manifestly erroneous and is liable to be set aside.

In the result, the application under Section 482 Cr.P.C., is allowed and the impugned summoning order dated 16.07.2013 along with entire proceedings of the complaint case are hereby quashed.

Order Date :- 5th May, 2016

Rakesh/-

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CASE FROM Allahabad HC site with necessary Emphasis, Re formatting