Tag Archives: Bombay HC

False & vexatious criminal cases on husband & family is cruelty. Husband wins divorce. Bombay HC

Love marriage turns sour. Husband and wife part ways. Wife ropes a lot of ppl from husband’s family and files fake cases, Wife gets husband and his brother arrested !! She then tries to deny him divorce. the Honorable Bombay HC sees thru here scheming and lying nature (calls it unreliable witness !!) and grants the husband divorce

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IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

FAMILY COURT APPEAL NO.13 OF 2008

Dr.-X Husband …APPELLANT (Orig. Petitioner)

VERSUS            

Dr.-Y Wife    …RESPONDENT

Mr. P.M. Shah, Senior Counsel with Mr. Amol

N. Kakade Advocate for  Appellant-Husband.

Mr. V.D. Sapkal Advocate for Respondent-Wife.

CORAM:  

R.M. BORDE AND

A.I.S. CHEEMA, JJ.

DATE OF RESERVING JUDGMENT :9th DECEMBER, 2015

DATE OF PRONOUNCING JUDGMENT:21st JANUARY, 2016

JUDGMENT [PER A.I.S. CHEEMA, J.] :

(1.) This Appeal is filed by the Appellant – husband an Ophthalmologist (hereafter referred as “Petitioner”), whose Petition for divorce against the Respondent – wife B.H.M.S. – practicing   Homeopathy (hereafter referred as “Respondent”) has been dismissed by the Family Court, Aurangabad in Petition No.A.263 of 2006. Keeping in view the nature of dispute, we have blocked the names of the parties in the cause title.

(2.) Succinctly put, the marriage between the parties took place on 29th November 2002. They lived together happily for some time and then due to disputes, the Petitioner claims that the Respondent deserted him on 30th December 2003. The Respondent claims that she was beaten and left at the place of her parents on 4th December 2003. Petitioner – husband earlier filed Divorce Petition No.A.46 of 2004 on 3rd February 2004. The Respondent received summons in that matter on 9th February 2004. Thereafter few incidents took place and the Respondent filed F.I.R. leading to criminal case against the Petitioner and his other family members. The Petitioner withdrew earlier divorce Petition due to further developments. The   present Petition No.A.263 of 2006 came to be filed later on, on 27th September 2006, which has now been dismissed by the Family Court on 27th March 2008.

(3.) To understand the disputes between the parties, it is now necessary to refer the facts in some more details.

EARLIER PETITION NO.A.46 OF 2004.

Exhibit 52 is copy of the earlier Petition No.A.46 of 2004. It was divorce Petition under Section 13 of the Hindu Marriage Act, 1955. The Petitioner claims that his marriage with Respondent could be termed as self arranged marriage.

Engagement took place on 27th October 2002.

The engagement was broken by the parents of the Respondent on the ground that she was not offered proper gifts and number of   persons who attended the function were more. As Respondent and her paternal uncle were ready for marriage, registered marriage was performed and religious rites were carried out at Ghrishneshwar Temple, Ellora (on 29th November 2002). Reception took place on 8th December 2002, in which only uncle and aunt of Respondent attended.

In the evening, on the day of marriage, the parents and relatives of Respondent had come to the residence of the Petitioner and quarreled. The marriage was happy for few days. Later on Respondent was not behaving properly and insulted the Petitioner in front of his parents and friends. She used to take suspicion against the Petitioner if any time he talked with any girl. She suspected him with his cousin sister also and he was lowered in the eyes of relatives and sister. When a female friend called from Bombay, Respondent quarreled with the   Petitioner and left the house alleging that Petitioner had relations with that friend.

She was back answering elderly persons and mother of Petitioner. The Respondent was being instigated by her parents. She had the habit of disclosing private life to friends and creating embarrassment. She left house on many occasions and the Petitioner brought her back. She did not behave properly with friends and relatives and avoided to perform religious ceremonies. She had the habit of leaving the gold ornaments open on bed and when pointed out, she quarreled. She quarreled and deserted the Petitioner claiming that she will put him behind the bars. She threatened to commit suicide. She consistently humiliated him which acts amounted to cruelty. It had become impossible to live with her due to mental agony and torture.

With such facts the first Petition claimed divorce.

WITHDRAWAL OF EARLIER PETITION:

(4.) The Petitioner filed application (Exhibit 58) in the earlier Petition claiming that the Respondent has now filed criminal complaint and he wanted to withdraw the Petition to file fresh divorce Petition after dismissal of the criminal case and so with permission, liberty may be given.

The Respondent took time to reply but did not file reply and then the Judge of the Family Court, without recording grant of permission, passed order dismissing the Petition for want of prosecution. Against the withdrawal, Respondent filed Family Court Appeal No.47 of 2004 (Exhibit 59) in this Court and the Appeal was dismissed with clarification that no adverse order has been passed against the present Respondent, as no leave   had been granted.

PRESENT PETITION NO.A.263 OF 2006

(5.) Subsequently the present divorce Petition No.A.263 of 2006 was filed. In this Petition the first twelve paragraphs are similar to the averments as made in the earlier Petition, to which we have made brief reference above. From Paragraph No. 13 onwards, there is reference to other facts which took place after filing of the earlier Petition. We proceed to refer to those facts in brief, as pleaded by the Petitioner. The Petitioner has now further claimed that after the earlier Petition was filed, notice was issued to Respondent and it was served on her. Thereafter she came to the Petitioner and gave threats that she will file false criminal case under Section 498-A of the Indian Penal Code (I.P.C.) against him and his family members. On 25th   February 2004 when Petitioner was going on motorcycle from Kranti Chowk towards Paithan Gate, at about 2.00 p.m., in Nutan Colony, the Respondent stopped him and gave such threats. She also threatened that she will commit suicide and implicate him and his family members and put them in jail. On 26th February 2004 she came to the clinic of the Petitioner and in front of patients abused and threatened him. In view of such acts of Respondent, the Petitioner filed application with Kranti Chowk Police Station on 27th February 2004. On 28th February 2004 Respondent came in front of his clinic and asked him to withdraw the divorce Petition or else she would file case under Section 498-A of I.P.C. The Petitioner informed this to Mukundwadi Police Station vide N.C. No.163 of 2004.

The Respondent filed false complaint (F.I.R.) on 29th February 2004 making false   and vexatious allegations against the Petitioner, his mother, two brothers and wife of one brother that she was ill-treated, assaulted and there was dowry demand of Rupees Two Lakhs and Fifteen Tola gold. She claimed that she had been assaulted on 28th February 2004 in the cabin of the Petitioner. This led to registration of offence at Jinsi Police Station vide Crime No.I-14 of 2004. The Petitioner and his family members suffered great hardship. The Petitioner and his brother Vijay were arrested and thereafter came to be released on bail. They were greatly humiliated. When bail petition came up, Respondent, although she did not have injury, bandaged her both hands and appeared before the Court to take sympathy and tried to get the bail rejected. She appeared in the course of trial on each date and opposed exemption applications.

  She gave false evidence in the criminal case. (The Petition then mentions as to what was allegedly the false evidence.) Respondent went back from her signature on application which she had given at the time of marriage to Jinsi Police Station that she had married on her own accord. She sought various adjournments in the criminal case and at the stage of arguments even got the case transferred vide Transfer Petition No.68 of 2006 making averments against the Judicial Officer. The Petitioner and his family members came to be acquitted. The marriage has irrevocably broken down and parties have been residing separately for more than 2 ½ years. Respondent left the house on 30th December 2003 without any reason and has been guilty of willful mental ill-treatment and cruelty to Petitioner. It is impossible for the parties to live together without mental   agony, torture and distress. Thus the divorce Petition.

DEFENCE

(6.) The Respondent filed Say/Written Statement vide Exhibit 40. We proceed to refer to those facts in brief, as pleaded by the Respondent in the Written Statement:

It is not disputed by the Respondent that engagement took place on 27th February 2002. She claims that her parents spent Rupees Sixty Thousands on the engagement. The marriage was fixed for 29th December 2002 but the Petitioner wanted to finish up the marriage ceremony in simple and economical manner. For saving Rupees Two Lakhs, parents of Respondent agreed.

They gave garland of five Tola gold to her and remaining ten Tola gold was to be given   within a year. Marriage took place at Ellora in Ghrishneshwar Temple in simple ceremony. It is denied that Petitioner arranged reception on 8th December 2002.

Her parents and relatives attended and there was no quarrel. She denies that she was taking suspicion or that she quarreled on that count. She claims that the elder brother of Petitioner, Mr. Sujay was married unemployed. Though he was living separate but used to come for meals twice in the house of the Petitioner. She claims that he was “parasite”(?) in the family.

Her father was serving in S.T. Department.

She has two sisters, one brother and mother. She comes from religious, social, cultural back-ground. She never threatened Petitioner with case under Section 498-A of I.P.C. and she is from medical side and not legal side. The earlier Petition was withdrawn as Petitioner had filed bogus pan   card and income tax record in the earlier case when pendente lite maintenance was sought by Respondent and Respondent filed complaint of forgery and cheating. The present Petition is hit by the principle of ‘res judicata’. When the earlier divorce Petition was filed, the Respondent had requested Petitioner to withdraw the divorce Petition. On the contrary, Petitioner went to police station as he wanted to swallow the clinic developed by her from her money of medical profession and stridhan. When she requested to withdraw the Petition, she was beaten when she was attending patients and her thumbs were fractured by the Petitioner. Although both her thumbs were fractured by the Petitioner, she did not go to private doctor as she did not want to disclose the deeds of her husband. She went to Ghati hospital where police made out Medico Legal   Case and recorded offence under Section 498-A of I.P.C. as the Petitioner – husband had demanded Rupees Two Lakhs and fifteen Tola gold from her parents. She claimed that the Petitioner and his family members got acquitted as they managed the police and pressurized police prosecutor. She has preferred appeal to the High Court.

In the Written Statement, further pleas are raised by the Respondent.

According to her, it cannot be said that the marriage between her and Petitioner was love marriage. She claims that the Petitioner and his mother had approached the parents of Respondent and the engagement took place. Out of oneness she was sending patients to the Petitioner thereafter. When the marriage was preponed, it was agreed that whatever would be saved, would be spent on further development of   the couple. Her father agreed to give fifteen Tola gold after marriage. After simple ceremony at Ellora, marriage was registered. She started living in the three storeyed building at Seven Hill Colony, belonging to the Petitioner. Petitioner insisted that she should not practice in slum area and should shift in Indu-Ganga complex where he was practicing. Even prior to marriage, believing Petitioner, she shifted in that complex and took gala on rent. She took Rupees One Lakh Sixty Thousands from the State Bank of Hyderabad as loan to set up the clinic. She got the loan after engagement ceremony had taken place. Petitioner asked her to shift her practice in the same clinic where he was practicing. She spent the amount in setting up both the clinics. Petitioner took Rupees Seventy Thousand from the loan which was sanctioned to her and spent it on his   family members. She claims that Rupees Ninety Five Thousand were still outstanding from the said loan amount. After marriage she was treated nicely for two months.

Thereafter her mother-in-law Nirmala, sister-in-law Pragati and brother-in-law Sujay started claiming that Petitioner was highly qualified and could have got big money as dowry and girl who had M.B.B.S. degree, but he had preferred a girl from hutment. She claims that her mother-in-law and sister-in-law started quarreling with her that she does not know cooking and domestic work. They started instigating Petitioner who started beating her. She was beaten on 9 to 11 occasions. Petitioner was himself taking her to clinic and dropping back out of suspicion that she may go to her parents. When she was beaten, he took her to doctors, namely Rege, Sameer Deshmukh, Dande, Rakshale under fear that   Respondent should not expose him. Mother-in-law, sister-in-law and brother-in-law were alleging that she had extra marital affair, without naming any body. When her father met with an accident and was in hospital for eight months, she was never allowed to meet him. Her income of Rs.7000/- to 8,000/- per month was being taken away by the Petitioner. She was brutally beaten on 4th December 2003 for an hour and dropped at the place of her parents, on 5th December 2003. She was pregnant of three months at that time. She developed complications and was taken to Dr. Mrs. Mahindrakar. Doctor informed the Petitioner but he did not come. She lost her child at that time, due to physical, verbal and economical abuse. Her sister-in-law Pragati, mother-in-law Nirmala, brothers-in-law Vijay and Sujay claim that she does not know cooking and spends money   on beauty parlour and shopping and they don’t need her. Petitioner used to be mute spectator to all this. Even after she was left at the place of her parents, she was attending the clinic at Indu-Ganga complex.

She tried to go back to matrimonial home but was denied entry and was asked to bring fifteen Tola gold and Rupees Two Lakhs.

After separation she was not able to practice as when she joined Dr. Roplekar and later on Dr. Jadhav, she was removed due to Petitioner and her mother-in-law not liking her working. On 16th July 2006 there was an advertisement showing inauguration of big hospital by the Petitioner at Seven Hills Colony. The hospital is worth Rupees Three Crores and the Petitioner is earning not less than Rupees One Lakh per month. Respondent claimed that she is entitled to Rupees Twenty Five Thousand per month as pendente   lite maintenance.

ISSUES ANE EVIDENCE BROUGHT BEFORE FAMILY COURT:

(7.) With such pleadings, the Family Court framed issues at Exhibit 28. First issue related to jurisdiction to try the case. Second issue related to alleged cruelty. Third issue related to the question whether the Respondent had deserted Petitioner without reasonable cause. Fourth issue related to, whether there was bar under Section 23 of the Hindu Marriage Act. Parties brought on record necessary evidence. Petitioner examined himself as PW-1 giving evidence on line of above pleadings. Per contra Respondent led her evidence on above line of pleadings and to support herself, examined RW-2 Nandkumar Parikh, handwriting expert, as she was claiming that the income tax return tendered in the “earlier” Petition was forged and was also claiming that the letter dated 29th November 2002, Exhibit 84, relied on by   the Petitioner in Criminal Case, as sent by her to police that the marriage was willful, was forged.

Respondent examined RW-3 Ravindra Sangavikar, employee from Bank regarding loan she had taken.

(Although question of maintenance was not being decided -). Sub Registrar Saheb Khan was examined as RW-4 regarding value of the property of the Petitioner at Seven Hills to claim that it was worth more than a Crore of Rupees. RW-5 P.S.I. Shahabuddin Shaikh has been examined to bring on record evidence that in the police station concerned original of Exhibit 84, the letter dated 29th November 2002 was not available and neither station diary entry was there. RW-6 Satish Purohit was examined to prove Tipan Exhibit 168 that when the engagement took place, marriage was initially scheduled for 27th December 2012.

(8.) The Family Court considered the evidence led by the parties and held that it had jurisdiction to try the case. It however held that   Petitioner failed to prove cruelty by Respondent and that he had also failed to prove that she had deserted him without reasonable cause. The Family Court observed that question of bar under Section 23 of the Hindu Marriage Act does not survive.

Family Court concluded that Petitioner was not entitled for decree of divorce.

ARUGMENTS FOR PETITIONER-APPELLANT:

(9.) Against the Judgment, present Family Court Appeal came to be filed raising various grounds. It is claimed in the Appeal and it has been argued by the learned counsel for the Petitioner – Appellant that the Family Court did not consider the evidence in proper perspective.

The marriage between the parties was a love marriage which was performed against the wish of parents of the Respondent. The parents and other relatives except one uncle of Respondent, did not attend the marriage. Although photographs were produced, none showed the presence of the parents   or other family members of the Respondent. The Respondent had herself filed the letter to the police on 29th November 2002 vide Exhibit 84 but later on has gone back from her signature on the letter. The Appellant proved on record the conduct of the Respondent, post receipt by her of the summons in the earlier petition. Petitioner proved how he was abused and threatened on 26th February 2004 and 28th February 2004 and subsequently false criminal case was filed. Because of the criminal case Petitioner-Appellant and his brother were arrested and thereafter released on bail. Other family members had to rush to file anticipatory bail petition, during the course of which hearing, the Respondent appeared with bandaged hands to prejudice the Court. It has been argued that the Respondent made all endeavours to put the Petitioner and his family members behind bars all the while making false allegations. Although it was pleaded that her thumbs were fractured, in evidence she accepted that they were not   fractured. Wild allegations were made that the family members of the Petitioner were asking for dowry and that Petitioner would have got girl having M.B.B.S. The marriage took place with full knowledge of the back-ground of the Respondent.

Wild allegations of miscarriage were made without any medical evidence being brought on record. Dr. Mrs. Mahindrakar was not examined. Family Court failed to see that the private handwriting expert examined, had relied only on xerox copies, which was inadmissible. The Respondent filed domestic violence case, which came to be dismissed. She filed frivolous case against the advocates of the Appellant, which also came to be dismissed.

Although the Appellate Court had remanded the matter after acquittal, post impugned Judgment the High Court maintained the Judgment of acquittal and S.L.P. filed by the Respondent came to be dismissed. Thus, it has been argued that the cruelty has been proved. In present Appeal, the Petitioner filed Civil Application Nos. 14302 of   2015 and 15183 of 2015 with copies of documents which are Judgments/applications in the various proceedings between the parties supported by the affidavits. Some of the Judgments and orders are relating to the period before the impugned Judgment while some Judgments and orders have been rendered subsequent to the disposal of the impugned matter.

(10.) Learned counsel for Respondent has not disputed the correctness of the documents relating to the Judgments and orders passed or applications moved. The counsel have referred to the said Judgments and orders as well as applications at the time of arguments and we are taking note of the subsequent proceedings also.

ARGUMENTS FOR RESPONDENT:

(11.) On behalf of the Respondent, the learned counsel referred to Sub Rules (3) and (4) of Order XXIII Rule 1 of the Code of Civil Procedure, 1908   (C.P.C.) to argue that if the earlier Petition was withdrawn without taking permission referred to in Sub Rule (3), the Petitioner would be precluded from instituting any fresh suit in respect of the subject matter or part of the claim. It is argued that the earlier Petition was for divorce on the ground of cruelty and present Petition is also for divorce on the ground of cruelty. As the earlier Petition was withdrawn without taking permission of the Court and which order has been clarified by the High Court in the earlier Appeal, the present Petition was barred. Learned counsel agreed that the observation of the trial Court in Para 50 of its Judgment that the present Petition was hit by the principles of ‘res judicata’ was not maintainable, as earlier Petition was not decided on merits, but according to him the bar is under Order XXIII Rule 1 of the C.P.C., which is applicable. It is argued by the Respondent that due to withdrawal of the earlier matter, the Respondent was unable to prove her defence which   she was to take in the earlier Petition. The grounds raised for divorce are general and vague.

The Respondent denied in her written statement that she was suspecting cousin sister of the Petitioner. According to the learned counsel, there was no evidence that the Respondent was guilty of ill-treatment and desertion. (The counsel took us through the evidence.) It is claimed that in the earlier proceedings, the documents filed of income tax return and Exhibit 84, letter claimed to be filed by the Respondent to police, were forged and so handwriting expert was examined. The counsel submitted that the Respondent is ready to go and reside with the husband and the husband is not ready to take her back and thus divorce should not be granted. Lapse of time is no reason to grant divorce.

Irretrievable breakdown of marriage is no ground.

Only because the Petitioner was acquitted in the criminal proceedings, would not go to prove that the Respondent inflicted cruelty. The first   divorce petition was filed within fifteen months of the marriage, which showed that the husband was not interested in maintaining the marriage.

IN REPLY:

(12.) The learned counsel for the Petitioner in reply submitted that when in the earlier Petition the Petitioner had filed application for withdrawal with permission to institute fresh proceedings, if the permission was not being granted, what Court could have done was to refuse the permission but the Court could not have simply disposed the Petition as withdrawn. He however, did not press for this argument, as according to him, the matter had been, at that time, carried to the High Court and in Appeal High Court recorded opinion and so that order has become final. The learned counsel submitted that in the present Petition, the Petitioner is not relying on the earlier events which were agitated in the earlier Petition, but is relying on the incidents which   took place subsequent to the filing of the earlier Petition and present Petition is based on those subsequent facts which according to learned counsel are not barred under Order XXIII of the C.P.C. According to the learned counsel the earlier Petition was based on facts till the date of filing of the earlier Petition, which facts themselves constituted cause of action. The present Petition cannot be said to be based on the same subject matter as in the present Petition, the set of facts relied on are different and cause of action is also different. According to the counsel, subsequent to filing of the earlier Petition, the Respondent reacted inappropriately and further, the Petitioner and his family members were dragged into criminal cases and they were got arrested and harassed making wild allegations against the character of the husband and criminal acts were attributed, because of which the present Petition was required to be filed. It is argued that it would be unimaginable to hold that once a   divorce petition on the ground of cruelty has been withdrawn further divorce petition cannot be filed even if there are subsequent events showing cruelty. The counsel submitted that the record and proceedings of Family Court show that the Respondent resorted to raising various obstructions to the Petitioner by filing various criminal cases and even in the present Petition irrelevant evidence was brought like that of the valuer although question of maintenance was not being decided and in cross-examination there were multiple repetitions. Although the Respondent claims not to be a person of law, she carried out extensive cross-examination of the Petitioner, in-person, on 9th July 2007, 10th July 2007, 21st July 2007 and 12th October 2007. She has legal acumen and is not a lay person and the evidence has not been properly appreciated by the Family Court.

(13.) It is submitted by the learned counsel for the Petitioner that in the record of the Family Court at Page No.98, there is copy of complaint dated 4th September 2007 which discloses that Respondent filed complaint to the Police Commissioner against Head Constable Adhane claiming that he had given false evidence in the criminal case. The Criminal Court accepted the evidence of Adhane and acquitted the Petitioner and his family members and thus such complaint could not have been maintained. The counsel for Petitioner further submitted that Respondent filed application Exhibit 12 in the Petition before the Family Court claiming domestic violence and even secured some orders in her favour on 11th January 2007. Subsequently she filed Criminal M.A. No.130 of 2008 under Domestic Violence Act before the J.M.F.C. on 4th February 2008 and thereafter on 10th March 2008 withdrew the application under Section 26 of the Domestic Violence Act which she had filed before the Family Court. This Criminal M.A. No.130 of 2008 containing similar allegations   as made before the Family Court, has also come to be dismissed by 19th Court of J.M.F.C., Aurangabad on 31st December 2012.

(14.) Before proceeding to discuss the facts of the matter, quick reference may be made to the Judgments relied on by the learned counsel for both sides to support their averments.

RULINGS:

(15.) The learned counsel for the Petitioner has placed reliance on the following reported cases:

(A) Learned counsel for the Petitioner relied on the case of X husband vs. Y wife, reported in 2014(4) Bom.C.R. 168 to submit that this Court had, in that matter, taken note of how the wife in that matter also had subjected the husband to various criminal proceedings in a bitter legal battle and this Court had held that filing of   false criminal cases against a spouse is itself an act of cruelty and can very well sustain a decree of divorce.

(B) The Petitioner further relied on the case of Vishwanath Agrawal s/o Sitaram agrawal vs. Sarla Vishwanath Agrawal, reported in (2012) 7 Supreme Court Cases 288, where also the husband was dragged into criminal cases and Hon’ble Supreme Court observed in Para 50, that subsequent events can be considered. The Hon’ble Supreme Court observed in Para 47 as below:

“47. Another aspect needs to be taken note of. The respondent had made allegation about the demand of dowry. RCC No. 133/95 was instituted under Section 498-A of the Indian Penal Code against the husband, father-in-law and other relatives. They have been acquitted in that case. The said decision of acquittal has not been assailed before the higher forum. Hence, the allegation on this count was incorrect and untruthful and it can unhesitatingly be stated that such an act creates mental trauma in the   mind of the husband as no one would like to face a criminal proceeding of this nature on baseless and untruthful allegations.”

In Para 54 and 55 of the Judgment, the Hon’ble Supreme Court observed as follows:

“54. Regard being had to the aforesaid, we have to evaluate the instances. In our considered opinion, a normal reasonable man is bound to feel the sting and the pungency. The conduct and circumstances make it graphically clear that the respondent-wife had really humiliated him and caused mental cruelty. Her conduct clearly exposits that it has resulted in causing agony and anguish in the mind of the husband. She had publicised in the newspapers that he was a womaniser and a drunkard. She had made wild allegations about his character. She had made an effort to prosecute him in criminal litigations which she had failed to prove. The feeling of deep anguish, disappointment, agony and frustration of the husband is obvious.

55. It can be stated with certitude that the cumulative effect of the evidence brought on record clearly establishes a sustained attitude of causing humiliation and calculated torture   on the part of the wife to make the life of the husband miserable. The husband felt humiliated both in private and public life. Indubitably, it created a dent in his reputation which is not only the salt of life, but also the purest treasure and the most precious perfume of life.

It is extremely delicate and a cherished value this side of the grave. It is a revenue generator for the present as well as for the posterity. Thus analysed, it would not be out of place to state that his brain and the bones must have felt the chill of humiliation. The dreams sweetly grafted with sanguine fondness with the passage of time reached the Everstine disaster, possibly, with a vow not to melt. The cathartic effect looked like a distant mirage.

The cruel behaviour of the wife has frozen the emotions and snuffed out the bright candle of feeling of the husband because he has been treated as an unperson. Thus, analysed, it is abundantly clear that with this mental pain, agony and suffering, the husband cannot be asked to put up with the conduct of the wife and to continue to live with her. Therefore, he is entitled to a decree for divorce.”

(C). The counsel for Petitioner relied on the case of Seth Ramdayal Jat vs. Laxmi Prasad,   reported in AIR 2009 S.C. 2463 to submit that the Judgment in a criminal case is admissible to prove conviction or acquittal. Learned counsel submitted that Judgment in this matter shows that when in the civil matter admission is given regarding what was stated in the criminal case, the same would be admissible. According to the learned counsel, in the present matter the Respondent wife admitted that in criminal case she had admitted her signature on letter Exhibit 84 which was sent to police on 29th November 2002, but she still backed out from the signature in the civil proceedings and even led evidence of handwriting expert to prove that it was not her signature. The counsel submitted that her admitting signature in the criminal case was proved and was required to be considered.

(D) The learned counsel for the Petitioner relied on the case of Malathi Ravi, M.D. vs. B.V. Ravi, M.D., reported in (2014) 7 Supreme Court   Cases 640 to submit that even in the case brought on the ground of desertion, by taking into consideration subsequent events, divorce could be granted on the ground of cruelty. The Hon’ble Supreme Court referred to various incidents of that matter and observed in Para 43 as under:

“43. As we have enumerated the incidents, we are disposed to think that the husband has reasons to feel that he has been humiliated, for allegations have been made against him which are not correct; his relatives have been dragged into the matrimonial controversy, the assertions in the written statement depict him as if he had tacitly conceded to have harboured notions of gender insensitivity or some kind of male chauvinism, his parents and he are ignored in the naming ceremony of the son, and he comes to learn from others that the wife had gone to Gulbarga to prosecute her studies. That apart, the communications, after the decree for restitution of conjugal rights, indicate the attitude of the wife as if she is playing a game of chess. The launching of criminal prosecution can be perceived from the spectrum of conduct. The learned Magistrate has recorded the judgment of acquittal. The   wife had preferred an appeal before the High Court after obtaining leave. After the State Government prefers an appeal in the Court of Session, she chooses to withdraw the appeal. But she intends, as the pleadings would show, that the case should reach the logical conclusion. This conduct manifestly shows the widening of the rift between the parties. It has only increased the bitterness. In such a situation, the husband is likely to lament in every breath and the vibrancy of life melts to give way to sad story of life.”

The learned counsel submitted that facts of the present matter are similar and require drawing of conclusion of cruelty and divorce needs to be granted. It is stated, as was done by the Hon’ble Supreme Court in the above referred matter, this Court is competent to grant divorce and even pass order granting permanent alimony under Section 25 of the Hindu Marriage Act, 1955, taking note of the status of the parties.

(E). The further reliance was placed on the   case of K. Srinivas Rao vs. D.A. Deepa, reported in (2013) 5 Supreme Court Cases, 226. In Para 28 of the Judgment, the Hon’ble Supreme Court observed as under:

“28. Pursuant to this complaint, the police registered a case under Section 498-A IPC. The appellant husband and his parents had to apply for anticipatory bail, which was granted to them. Later, the respondent wife withdrew the complaint. Pursuant to the withdrawal, the police filed a closure report. Thereafter, the respondent wife filed a protest petition. The trial Court took cognizance of the case against the appellant husband and his parents (CC No.62 of 2002). What is pertinent to note is that the respondent wife filed criminal appeal in the High Court challenging the acquittal of the appellant husband and his parents of the offences under the Dowry Prohibition Act and also the acquittal of his parents of the offence punishable under Section 498-A IPC. She filed criminal revision seeking enhancement of the punishment awarded to the appellant husband for the offence under Section 498-A IPC in the High Court which is still pending. When the criminal appeal filed   by the appellant husband challenging his conviction for the offence under Section 498-A IPC was allowed and he was acquitted, the respondent wife filed criminal appeal in the High Court challenging the said acquittal. During this period the respondent wife and members of her family have also filed complaints in the High Court complaining about the appellant husband so that he would be removed from the job. The conduct of the respondent wife in filing a complaint making unfounded, indecent and defamatory allegation against her mother-in-law, in filing revision seeking enhancement of the sentence awarded to the appellant husband, in filing appeal questioning the acquittal of the appellant husband and acquittal of his parents indicates that she made all attempts to ensure that he and his parents are put in jail and he is removed from his job. We have no manner of doubt that this conduct has caused mental cruelty to the appellant husband.”

(F). Learned counsel for the Petitioner relied on the case of Naveen Kohli vs. Neelu Kohli, reported in (2006) 4 Supreme Court Cases 558, which was followed by the Hon’ble Supreme Court in   the matter of Samar Ghosh vs. Jaya Ghosh, reported in (2007) 4 Supreme Court Cases, 511 also, to submit that there was no uniform standard laid down for guidance as to what amounts to mental cruelty, but still the Hon’ble Supreme Court has referred to some of the instances in Para 101 of the Judgment of Samar Ghosh, cited supra.

Referring to the instances, the learned counsel submitted that in the present matter also the wife can be held responsible for inflicting cruelty to her husband.

(G) As regards the objections raised under Order XXIII Rule 1 of C.P.C., the learned counsel for Petitioner relied on the case of Vallabh Das vs. Dr. Madan Lal and others, 1970(1) Supreme Court Cases 761.

(16.) This Judgment was followed by Hon’ble Supreme Court in the matter of N.R. Narayan Swamy vs. B. Francis Jagan, reported in (2001) 6 Supreme   Court Cases 473. The Hon’ble Supreme Court observed in Para 10 as under:

“10. The aforesaid rule would have no application in a proceeding initiated for recovering the suit premises on the ground of bona fide requirement which is a recurring cause. Order 23 Rule 1(4)(b) precludes the plaintiff from instituting any fresh suit in respect of such subject matter or such part of the claim which the plaintiff has withdrawn. In a suit for eviction of a tenant under the Rent Act on the ground of bona fide requirement even though the premises remain the same, the subject matter which is the cause of action may be different. The ground for eviction in the subsequent proceedings is based upon requirement on the date of the said suit even though it relates to the same property. Dealing with similar contention in Vallabh Das v. Dr. Madanlal and Others [(1970) 1 SCC 761)], this Court observed thus:

“The expression ‘subject-matter’ is not defined in the Civil Procedure Code. It does not mean property. That expression has a reference to a right in the property which the plaintiff seeks to enforce. That expression includes the cause of action and the relief   claimed. Unless the cause of action and the relief claimed in the second suit are the same as in the first suit, it cannot be said that the subject-matter of the second suit is the same as that in the previous suit.”

(17.) Learned counsel for the Respondent placed reliance on the following Reported Cases:

(A) The learned counsel for the Respondent relied on the case of Surjit Kaur vs. Jhujhar Singh, reported in 1978 CJ (P&H) 286, where Order XXIII Rule 1 of C.P.C. was invoked to bar the second Petition as it was on same cause of action.

(B). The learned counsel for Respondent relied on the case of Darshan Gupta vs. Radhika Gupta, reported in AIR 2013 S.C. (Supp) 85, to submit that ground of irretrievable breakdown of marriage is not available to husband when he is responsible for the conditions. The counsel submitted that the Hon’ble Supreme Court has, observed in Para 35 of   that Judgment that perusal of grounds on which divorce can be sought under Section 13(1) of Hindu Marriage Act, 1955 would reveal that the same are grounds based on the ‘fault’ of the party against whom dissolution of marriage is sought. The party seeking divorce should be innocent. It is argued that in the present matter the husband is not innocent.

(C) The learned counsel for Respondent relied on the case of Vishnu Dutt Sharma vs. Manju Sharma, reported in AIR 2009 S.C. 2254(1) and submitted that ground of irretrievable breakdown of marriage is not available as carving out such ground would amount to legislating.

POINTS FOR CONSIDERATION:

(18.) Considering the various pleadings of the parties, the evidence and arguments raised, the Points for Determination are:

  (1) Whether the present Petition for divorce based on incidents occurring subsequent to the earlier Petition is maintainable?

(2) Whether the Petitioner has proved that the Respondent has, after solemnization of the marriage, treated the Petitioner with cruelty and he is entitled to decree of divorce?

WHETHER PRESENT PETITION WAS MAINTAINABLE:

(19.) As regards first Point for Determination, reference may be made to Order XXIII Rule 1 Sub-Rule (3) and (4) of C.P.C. The Rule deals with withdrawal of suit or abandonment of part of claim. The Sub-Rules (3) and (4) of Rule 1 of Order XXIII of C.P.C. read as follows:-

“(3) Where the Court is satisfied,-  

(a) that a suit must fail by reason of some formal defect, or

(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.

(4) Where the plaintiff-

(a) abandons any suit or part of claim under sub-rule (1), or

(b) withdraws from a suit or part of a claim without the permission referred to in sub- rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.”

It is clear from reading of the above that if the plaintiff withdraws from the suit without taking permission, he would be precluded from instituting any fresh suit ‘in respect of such subject-matter or such part of the claim’.

The Hon’ble Supreme Court in the matter of Vallabh Das vs. Dr. Madan Lal, (referred supra) has observed that expression “subject-matter” includes the cause of action and the relief claimed. In the matter of N.R. Narayan Swamy vs. B. Francis Jagan (referred supra), the Hon’ble Supreme Court was dealing with eviction matter under the Karnataka Rent Control Act, where landlord claimed eviction on the basis of bona fide requirement. The Hon’ble Supreme Court found that in the matter of bona fide requirement, there could be recurring cause of action. In the suit for eviction on the ground of bona fide requirement, even though the premises remain the same, the subject-matter which is cause of action, may be different. Case of “Sujit Singh” relied on   by learned counsel for Respondent can be distinguished as it had different facts and subsequent matter was based on same cause of action. In the present matter, although the foundational facts regarding relationship of the parties remain the same, the present proceedings could not be said to be barred as although they refer initially to earlier incidents, they are based on events which took place subsequent to the filing of the earlier proceeding which was sought to be withdrawn in view of the subsequent developments. If such view is not taken, it would mean that once in such matter if the spouse fails to establish cruelty, subsequently also on the ground of cruelty, proceeding would not be entertainable. When the relationship continues between the couple, there could be recurring incidents giving rise to fresh causes of actions and claim for relief which would be subject-matter for the subsequent action. For such reasons, we do not find that the present Petition is barred. We   would ignore the claims of the Petitioner with reference to the incidents claimed by him in the earlier Petition as constituting cause of action for the earlier Petition. Order XXIII Sub Rule (4) of Rule 1 of C.P.C. precludes the plaintiff from instituting any fresh suit in respect of the subject-matter, however, it does not bar the earlier defendant or respondent from agitating the instances provided they are relevant in subsequent petition. In the present matter although now objection under Order XXIII of C.P.C. has been raised, the Respondent has raised various disputes in evidence with reference to what were instances claimed by the Petitioner in earlier Petition. As the present Petition is now being dealt with and decided on the basis of subsequent events, the reference to the evidence of the Respondent with regard to earlier instances can be referred only where and if relevant to decide present subject matter or for appreciation of evidence if the witness is reliable.

CRUELTY:

(20.) Coming to the second Point for Determination, there is evidence of the Petitioner claiming that notice of the earlier divorce Petition No.A.46 of 2004 was served on the Respondent. Exhibit 53 shows that the summons of that proceeding was served on the Respondent on 9th February 2004. As per the Petitioner, when she received notice, she threatened the Petitioner with false prosecution under Section 498-A of I.P.C. against him and his family members. He has deposed that on 25th February 2004 when he was travelling on motorcycle from Kranti Chowk to Paithan Gate, at about 2.00 p.m. in Nutan Colony Respondent stopped him and threatened him with complaint under Section 498-A of I.P.C. He claims that she threatened that she will commit suicide and implicate him and his family members and put them in jail. His evidence is that on 26th February 2004 also Respondent visited his clinic   and in front of patients abused him and threatened him. Regarding this incident, he sent application to Kranti Chowk Police Station on 27th February 2004. The Petitioner further deposed that on 28th February 2004, in the morning, Respondent came in front of the clinic asking him to withdraw the divorce petition and gave threats of complaint under Section 498-A of I.P.C. if he will not withdraw the Petition. Petitioner claims that he informed the police about this incident also on 28th February 2004 which was recorded as N.C. No. 163 of 2004. Document in this regard is at Exhibit 95. According to the Petitioner, Respondent filed false F.I.R. dated 29th February 2004 alleging that he and his family members ill-treated her, assaulted her, demanded Rupees Two Lakhs and fifteen Tola gold and went to the extent of alleging assault on her on 28th February 2004.

This led to offence being registered at Jinsi   Police Station and he and his brother Vijay got arrested and thereafter were released on bail. It is deposed that at the time of bail proceedings, Respondent, although she did not have any injury, appeared with both hands bandaged, to get sympathy of the Court. The evidence further shows as to how in the criminal case the Respondent appointed Advocate and brought about criminal cases and led false evidence causing great humiliation and mental agony. It is claimed that relations have deteriorated to such an extent that now it is not possible to live with Respondent.

(21.) The Respondent extensively cross examined the Petitioner and brought on record various documents relating to the criminal cases. The Petitioner, in cross-examination, gave certain admissions (relating to incidents which were basis of earlier petition) while denying allegations of ill-treatment by him or that he or his family members had demanded dowry or beaten the   Respondent.

RESPONDEDNT NOT RELIABLE:

(22.) The Respondent filed affidavit as examination-in-chief and reiterated what she had claimed in her say/written statement, which we have discussed above. We need not repeat the same.

She has also been cross-examined and her cross-examination reveals certain facts which show that she is not reliable witness. We will briefly refer to those instances:

(a). In evidence the Respondent has tried to show that after separating from the Petitioner she, having qualification of BAMS, has tried to practice, for which she joined the office of one Dr. Roplekar and one Dr. Jadhav ( Para 36 and 37 of her examination-in-chief). She claimed that she could not continue due to the pressure from the mother of Petitioner. Thus, she has   tried to show that the Petitioner and his family are making her life miserable. In cross-examination, however, she accepted that her own sister, with whom she had got good relations, herself has a clinic at Kartiki Hotel (Para 2 of the cross- examination). She denied that she was practicing with her sister.

(b) In pleadings and in evidence Respondent claims that the Petitioner husband took away part of the amount of loan which she had taken from the Bank for her clinic. However, her cross-examination, Para 9 shows that she had submitted quotations to the Bank to get the loan released. Her evidence ( Cross – Para 29) shows that initially she accepted that she received cheque from Bank of Rupees Ten Thousand in the name of M/s. Vijay and sons, but in further cross-examination she   conveniently pleaded loss of memory with regard to various specific cheque amounts pointed out by the cross examiner, given to Shantiram Glasses, Kaushaldeep, Usha Electrics and System and Store.

(c). Respondent raised much hue and cry regarding the pleading of the Petitioner that theirs was a self arranged or love marriage. She went to the extent of even denying application dated 29th November 2002 (Exhibit 84) given to police station on the date of marriage that she had married by her own will and complaint of her parents or relatives may not be given cognizance. She has even led evidence of a handwriting expert, RW-2 Nandkumar to claim that the signature on Exhibit 84 was not of hers, although in the criminal case bearing RCC No.414 of 2004, evidence came on record of Head Constable Shaikhnath Adhane that on   29th November 2002 he was given original of this document (marked Exhibit 78 in the criminal case) for inquiry and that he had gone to the house of the Petitioner and also given understanding to the parents of the Respondent. Against this, the cross- examination of the Respondent, Para 10, shows her admitting that one year before the marriage she had gone to the clinic of the Petitioner to extend Diwali greetings.

Although the Respondent claims that the marriage was with consent of her parents, no evidence worth the name was brought on record by her. In the photographs of marriage, brought on record, her parents or other relatives are not shown. According to Petitioner only one uncle of hers had attended the marriage. Even the marriage certificate Exhibit 137 has signatures of witnesses on her behalf as those advocates who were friends of the Petitioner, not   known to Respondent since before. Although denied in Written Statement, Respondent admitted (in Para 17 of her cross- examination) that the marriage reception dated 8th December 2002 was arranged by the Petitioner.

(d). Respondent claimed (in Para 18 of cross-examination) that she was not sent for Makar Sankrant. However, the evidence further showed that she accepted that everything was all right for two months after the marriage. Marriage took place on 29th November 2002. As such Makar Sankrant would be in the middle of January 2003. Inspite of this she wanted to insist that she was not sent for Makar Sankrant.

(e). Respondent wanted to attribute misconduct to the Petitioner and his family claiming that she was not allowed to go to   meet her father when he met with an accident. However, evidence has come on record that she had indeed been going out and had gone and met her father.

(f). Respondent claimed physical assault on her on 28th February 2004 seen by compounder Vishnu (Para 53 of examination-in-chief). She claimed that the incident took place at 12.30 p.m. Still she went to Ghati Hospital only at 5 – 5.30 p.m. and that too to Dr. Vikhe, husband of her friend Anupama (Para 19 of her cross- examination). She tried to show that she did not go to private doctor in order to save name of the family but still she goes to husband of her friend in Government hospital and then has tried to show that it was beyond her control that it became a police case. Although she claimed assault, the spot was in the clinic which was in   crowded area (Para 19 of her cross- examination) and still she had no witness in her support. In criminal case and in this Petition also there is no corroboration to her claims of having been beaten more than 9-10 times.

(g). In written statement Para 14 and the evidence Para 15 Respondent claimed that in the incident dated 28th February 2004 she was so assaulted that her both thumbs of the hands were fractured.

However, in cross-examination Para 20 she admitted that she did not have fracture to the thumbs of both the hands. In evidence she claimed that she had tendon injury to her thumbs. Even this is not supported by medical evidence. Para 27 of her cross- examination shows that she admitted that at the time of anticipatory bail of the relatives of the Petitioner, she was   present in Court and filed photographs showing bandage to both of her hands. Of course, she immediately retracted from this admission also.

(h). Although Respondent denied her signature on Exhibit 84, the application dated 29th November 2002 filed to police station about willful marriage, the Respondent was confronted (in Para 25 of the cross-examination) with her admission in the criminal case where she admitted her signature on the document. She deposed that she had admitted her signature in the case under Section 498-A of I.P.C. Then she has added that it was under pressure of Advocate Ghanekar representing the accused.

(i). In Para 27 of her cross- examination, Respondent accepted that there was no dispute at the time of betrothal   ceremony about what is to be given. We have already mentioned that the subsequent reception was arranged by the Petitioner is admitted fact. The marriage admittedly took place in a temple followed by registration before the Marriage Registrar vide Exhibit 137 and a letter to police vide Exhibit 84.

Inspite of this, the Respondent has tried to depose that the Petitioner and his family members were subsequently harassing her for dowry. Evidence rather shows that after the betrothal the family of Respondent was not willing but Petitioner went ahead with support of his family and friends as Respondent herself was willing and they got married. Petitioner and his family knew that father of Respondent was a humble Class IV employee and she was B.A.M.S. and her younger sisters and brother were still studying. Still they went ahead with the marriage as Respondent   was willing. A family interested in dowry would not have done that.

(j). Although the Respondent claimed that when she was cohabiting with the Petitioner, she was seriously beaten on more than 8-9 occasions, no single piece of evidence was brought on record either in the form of medical certificates or the evidence of any other doctor to whom Respondent claims that she was taken by the Petitioner.

(k). Respondent denied (in Para 27 of cross-examination) that she had engaged Advocate Nanasaheb Jagtap in Criminal Case No.414 of 2004 as Advocate to assist the prosecutor. However, in subsequent cross- examination (Para 33) when she was confronted with the Vakalatnama Exhibit 132 and other documents, she had to admit that   she did engage Advocate Jagtap in the criminal case.

(l). Respondent claimed (in Para 3 of her examination-in-chief) that marriage was preponed and so her father gave five Tola gold and had agreed to give ten Tola gold within a year. Inspite of this, she has led evidence to claim that her in-laws were troubling her for fifteen Tola gold and Rupees Two Lakhs. No such assertion was made against the in-laws in the F.I.R.

(Exhibit 86) which she had filed on 29th February 2004. In the F.I.R. this was attributed only to the husband.

(m). Respondent has claimed that when she was assaulted and left at the place of her parents, she was pregnant by three months and because of the assault she was taken to Dr. Mrs. Mahindrakar and although   doctor informed the Petitioner, he did not come and she lost the child. Although such serious allegations have been made, neither Dr. Mrs. Mahindrakar was examined nor any other medical evidence is brought to show that indeed the Respondent was pregnant and that she suffered miscarriage.

IMPUGNED JUDGMENT NOT MAINTAINABLE:

(23.) We have gone through the evidence of the Petitioner as well as Respondent. The Family Court discussed the evidence and while discussing the evidence of the Petitioner, referred to the admissions given by the Petitioner to observe that the admissions shattered his evidence, But, while referring to the Respondent, Family Court definitely concluded (in Para 66 of Judgment) that she has given false testimony to some extent. The observations of the Family Court show (in Para 40 of the Judgment) that this is not a case of physical cruelty. As regards mental cruelty, in   Para 45 of the Judgment the Family Court assumed that as father of Respondent was Class IV employee and Petitioner claimed that it was love marriage, mother and brother of the Petitioner must have tortured Respondent. We find that there was regular betrothal ceremony in the present matter and it appears that between the betrothal ceremony and marriage something happened due to which Petitioner and Respondent went ahead with their marriage inspite of opposition from the parents of the Respondent. The Petitioner who was doctor, knew the fact of father of Respondent being Class IV employee. As such no such conclusions could have been drawn by the Family Court on the basis of assumptions and presumptions. The Family Court (in Para 45 of the Judgment) found that the Respondent had failed to examine any doctor to prove assault. In Para 46 of the Judgment the Family Court justified the filing of criminal case under Section 498-A of I.P.C. on the reasoning that it was the Petitioner who first filed divorce   petition. We do not agree with such reasoning.

Only because the husband had filed divorce petition, would be no licence for the wife to file criminal cases making wild allegations which she is unable to prove.

. The Family Court wanted the Petitioner to prove negative. The Respondent has claimed that she was beaten in the clinic. The Family Court observed that the Petitioner claims that Respondent was not beaten and on that count her thumbs were not swollen, then he should have examined the compounder Vishnu. This was placing burden on the Petitioner to disprove what the Respondent was asserting, without her bringing on record the necessary evidence. The Family Court burdened its Judgment, in Para 76 and 77, by unnecessarily resorting to philosophy with regard to the importance of child. In fact, the Family Court, in the course of recording evidence, has allowed to be brought on record lot of evidence   which was not really relevant for deciding the issues which had been framed. It was like trying to prove the criminal case in the civil proceedings. We find that the impugned Judgment is not maintainable.

THE CRIMINAL AND OTHER CASES FILED:

(24.) It is not in dispute that the Respondent had filed F.I.R. Exhibit 86 leading to filing of Regular Criminal Case No.414 of 2004. If Exhibit 86 is perused, after the introductory part, she alleged that she was treated well for two months after the marriage and then her sister-in-law Pragati and mother-in-law Nirmala started grumbling that the Petitioner would have got Rupees ten to fifteen Lakhs as dowry and girl who was M.B.B.S. but had married to a girl from hutment. It was alleged that listening to them, the Petitioner, after three months of marriage, started giving her trouble and started beating her claiming that she does not know household work or   cooking. She claimed that on 8-9 occasions the Petitioner had beaten her, and her brothers-in-law Sujay and Vijay were poisoning the ears of her husband and asking him to beat her. She claimed that on 4th December 2003 she was beaten and left at the place of her parents. She claimed that whenever she wanted to go to her parents, she was not being allowed to go and her mother-in-law, brother-in-law were suspecting that she has some love affair and so they were not letting her go out. In the F.I.R. it is further alleged that although she was left at the place of her parents, she continued to attend the clinic with her husband and in January 2004 she received summons from Family Court. On 28th February 2004 she went to the hospital at Thakre Nagar, at which time the Petitioner had slapped her in the cabin and twisted her thumbs of both hands and threatened that if she wanted to stay with him, she should get Rupees Two Lakhs and fifteen Tola gold from her parents or else he will not let her parents   live.

(25.) On the basis of above F.I.R., Regular Criminal Case No.414 of 2004 was filed against the Petitioner and his family members. We have already discussed evidence that the Petitioner and one of his brother were arrested and later on released on bail, while other family members succeeded in getting anticipatory bail, at which time the Respondent appeared in the Court with bandaged hands. The J.M.F.C. 11th Court, Aurangabad, vide Judgment dated 5th July 2006 acquitted the Petitioner and his family members observing (in Para 22) that the complaint had been made with intention to take revenge or pressurize the accused No.1 (Petitioner herein) to withdraw the divorce petition. Against this Judgment, the State had filed Criminal Appeal No.111 of 2006 to the First Additional Sessions Judge, Aurangabad, who had remanded the matter on the basis that separate charge under Section 323 of I.P.C. should have   been framed. In Criminal Revision No.188 of 2007 filed by the Petitioner and his other family members to the High Court, the Judgment of remand was set aside and learned Single Judge of this Court upheld the Judgment of the J.M.F.C. on merits. Respondent appears to have gone against the Judgment of the High Court in Special Leave to Appeal (Criminal) No.807 of 2009 to the Hon’ble Supreme Court, which dismissed the same on 19th July 2010. The Judgment of the High Court and orders of the Hon’ble Supreme Court are subsequent to the passing of the present impugned Judgment dated 27th March 2008. Copies of Judgments are on record. These are subsequent developments, which facts are undisputed. It goes to show that the allegations made by the Respondent in the criminal case were not proved. Apart from the criminal case, we have already discussed the evidence in the present petition where the Respondent has failed to show that she was at any time physically assaulted. We have also found her to be unreliable   as a witness.

(26.) During pendency of Petition No.A.263 of 2006 in Family Court, Respondent filed application Exhibit 12 under Section 26 of the Domestic Violence Act on 1st December 2006 and it was partly allowed on 11th January 2007. She then filed Criminal M.A. No.130 of 2008 before J.M.F.C. on 4th February 2008 and withdrew Exhibit 12 in Family Court on 10th March 2008. In these applications she was raising similar allegations against Petitioner and his family. Criminal M.A. No.130 of 2008 has also came to be dismissed by J.M.F.C. on 31st December 2012.

(27.) Apart from the above criminal case No.414 of 2004 ending up in acquittal, which has become final, record shows that Respondent filed Regular Criminal Case No.958 of 2009 on 1st June 2009 before Chief Judicial Magistrate, Aurangabad against not merely the Petitioner but also his   Advocates who were signatories to the marriage certificate as well as Advocate Ghanekar who was defending the Petitioner in the criminal case and also Head Constable Adhane who gave evidence in the criminal case to prove application Exhibit 84 dated 29th November 2002. She arrayed all of them in the criminal case seeking prosecution under Sections 469 and 471 of I.P.C. The C.J.M. found the complaint to be time barred and also referred to Section 195 of the Code of Criminal Procedure (Cr.P.C.) that cognizance could not be taken by other Court except on the complaint in writing of the Court before whom the offence was alleged to have been committed. It shows that Respondent wants to intimidate whoever may stand for Petitioner. Roping in his defence Advocate as accused, seriously reflects against Respondent.

Not satisfied with the Judgment of the C.J.M., the Respondent filed Criminal Revision No.19 of 2002 before the Additional Sessions Judge, Aurangabad and the dismissal of the complaint filed by the   Respondent has been maintained. It is quite clear reading Section 195 with Section 340 of Cr.P.C. that when the offence is alleged to have been committed in or in relation to the proceedings in the Court, the complaint by the concerned Court would be necessary. Ignoring these provisions, in the present matter the Family Court has allowed evidence to be led to show that the income tax return filed in the earlier petition was forged and that Exhibit 84 did not bear signature of the Respondent which was filed in the earlier criminal case. The Family Court concluded that these documents were forged (Para 60 to 62 of the Judgment) accepting the evidence of the handwriting expert, although the handwriting expert had admitted that the analysis he had carried out was on the basis of xerox copies (rather – photocopies) which the Respondent had provided to him. Thus, in law or even on appreciation of evidence, the findings recorded by the Family Court on this count cannot be   maintained.

(28.) In line with the other on-slaught of the Respondent against the Petitioner, is the Regular Civil Suit No.713 of 2009 filed by the Respondent against Petitioner claiming that he intends to go for another marriage and he should be restrained.

The suit has been dismissed by 18th Joint Civil Judge, Junior Division, Aurangabad on 22nd November 2012.

(29.) With Civil Application No.15183 of 2015 the Petitioner has brought on record copy of the application which Respondent gave to Women and Child Welfare Officer on 12th December 2007. There also similar allegations as in the present matter, were made by the Respondent. She added in prayer (B) that the present Petitioner should be restrained from letting other women come to the building Sonai, Seven Hills, other than his mother and two sisters and no such other woman should be   allowed to stay there as paying guest or tenant or to come as friend.

. Clearly, Respondent was making allegations against the character of the Petitioner although in the written statement she filed, she claimed that she was not suspecting the character of the husband. Such psyche of groundless, unsupported doubts by one spouse as seen in present matter (of seeking to keep out all women (other than mother and sisters) from the house and baseless suit to restrain husband from re-marrying) cast aspersions on character of the other spouse amounting to cruelty.

(30.) Considering the observations of the Hon’ble Supreme Court in various matters, referred above, where wild allegations are made in criminal cases one after the other, we find that in the present case also the Respondent indulged in various conducts once she received summons in the   earlier divorce Petition No.A.46 of 2004, which were in the nature of subjecting the Petitioner and his family members to humiliation. She appears to have resorted to all means to ensure that the Petitioner or his family members do not get bail and should remain in jail. She made allegations of dowry demand and assault, which have not been proved. Considering the allegations in the F.I.R. and even those made to the Women and Child Welfare Officers, as well as allegations made to the J.M.F.C. in Domestic Violence case, the acts were in the nature of inflicting mental cruelty to the Petitioner and his family members. The Petitioner and one of his brother had to undergo the agony of getting arrested and later on being released on bail. Brother of Petitioner admittedly living separate has been called a “parasite” by Respondent in this Petition and was dragged in criminal case. They had to face the criminal prosecution, which appears to have been motivated.

The Family Court brushed aside the impact of such   actions of Respondent only because the mother of Petitioner did not lose her job or the brother of Petitioner could still contest municipal election or the Petitioner put up hospital in already owned family house. When the family is facing such criminal prosecution, and they had to face arrest and the wife is making allegations against the character of the husband, mental cruelty is clearly established.

(31.) Considering evidence of the parties, we find Petitioner reliable when he deposed that due to conduct of Respondent deserting him, he filed earlier Petition reacting to which Respondent misbehaved with him in public at Nutan Colony on 25th February 2004 and again on 26th February 2004 and 28th February 2004 and then subjected him and his family to further cruelty by lining up false cases against him and his family.

(32.) A parting reference can be made to recent   Judgment of the Hon’ble the Supreme Court in the matter of K. Srinivas vs. K. Sunita, (2014) 16 Supreme Court Cases, 34, where it was observed that:

It is now beyond cavil that if a false criminal complaint is preferred by either spouse it would invariably and indubitably constitute matrimonial cruelty, such as would entitle the other spouse to claim a divorce.”

CRUELTY PROVED:

(33.) We find substance in the arguments of learned Senior Counsel for Petitioner. The Rulings relied on by learned counsel for Respondent were on different facts and we are unable to agree with his submissions made. For reasons discussed, we find that the Petitioner has proved that the Respondent has, after the solemnization of the marriage, treated the Petitioner with cruelty under Section 13(1)(i-a) of the Hindu Marriage Act, 1955. There are no grounds to attract Section   23 of the Hindu Marriage Act and the Petitioner is entitled to decree of divorce.

PERMANENT ALIMONY:

(34.) Learned counsel for the Petitioner fairly stated that if this Court considers granting of divorce, any amount may be fixed as permanent alimony under Section 25 of the Hindu Marriage Act. In the record of the trial Court at Exhibit 157 there is assessment-sheet of the house at Seven Hills, Aurangabad belonging to the Petitioner and his family showing the value as Rs.1,07,41,500/- (Rupees One Crore Seven Lakhs Forty One Thousand Five Hundred). The property card at Exhibit 45 shows that apart from mother of Petitioner his two brothers are also co-owners in the property which they have inherited from their father. In the cross-examination of the Petitioner (Para 1) the Respondent brought on record the fact that his mother is assistant teacher in grant aided school. His father was no more at the time   of their marriage. Earlier, his father had been head master in private education institution. The above property came in the family in view of efforts of his father. One of the brother of the Petitioner appears to be worker of some political party and other brother Vijay was in service. The Petitioner appears to have set up his hospital in part of the property and is also having clinic at Indu-Ganga complex. Thus with humble beginnings the family was just coming up. Respondent similarly has started with humble beginnings and the sisters and brothers with education have come up. There was suggestion put by Respondent herself in the cross-examination of the Petitioner at Para No.19, that when they were together, she was earning Rs. 10,000/- to Rs.12,000/- per month, which suggestion has been accepted by the Petitioner. The position that emerges is that in the ancestral house, there are four co-sharers and the Petitioner is a doctor, while Respondent also is a doctor. Keeping in view this capacity of both   the parties, and the sources available to the Petitioner and the responsibility as husband to assist the wife in settling, it would be reasonable to direct the Petitioner to deposit an amount of Rs.25,00,000/- (Rupees Twenty Five Lakhs) in the Family Court as permanent alimony payable to the Respondent.

(35.) For the reasons afore stated, we pass the following order:

O R D E R (I) The Family Court Appeal is allowed.

Impugned Judgment and Order are quashed and set aside. Petition No.A.263 of 2006 is allowed.

(II) The marriage dated 29th November 2002 between the Appellant-Petitioner and Respondent is hereby dissolved by decree of divorce under Section 13(1)(i-a) of the Hindu Marriage Act, 1955.

(III) The Appellant is directed to pay permanent alimony of Rs.25,00,000/- (Rupees Twenty Five Lakhs) under Section 25 of the Hindu Marriage Act, 1955 to the Respondent.

The amount shall be deposited in the Family Court within a period of THREE MONTHS from the date of this Judgment and order.

(IV) No order as to costs.

(V) Decree be drawn accordingly.

[A.I.S. CHEEMA, J.]

[R.M. BORDE, J.]

asb/JAN16

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ordinary #petulance & #discord in matrimony do NOT constitute #cruelty under #ipc498a – #BombayHC

“……Prima facie, this discloses hyper sensitivity of a wife, and ordinary petulance and discord in matrimonial life. Prima facie, this incident cannot be said to satisfy the requirement of ingredients of offence of cruelty defined in Section 498A of the IPC. Similarly, for making out an offence punishable under Section 306 of the IPC, what is required to be proved is mensrea. Without knowledge and intention, there cannot be an abetment. There must be some active suggestion or stimulation by accused persons to the victim.

12. Perusal of evidence of parents of deceased Neha, prima facie goes to show that they have spoken about matrimonial cruelty rather than legal cruelty,

 

In the High Court of Bombay
Criminal Appellate Jurisdiction

(Before A.M. Badar, J.)

Neeraj Subhash Mehta
v.
The State of Maharashtra

Criminal Application No. 1213 of 2016

Decided on January 13, 2017

Citation: 2017 SCC OnLine Bom 62
A.M. Badar, J.:—

  1. This is an application for suspension of sentence and releasing the applicant/accused on bail during pendency of the appeal. The applicant/accused is convicted of the offences punishable under Sections 498A and 306 read with Section 34 of the IPC and he is sentenced to suffer rigorous imprisonment for 3 years for the offence punishable under Section 498A read with Section 34 of the IPC and to suffer rigorous imprisonment for 10 years for the offence punishable under Section 306 read with Section 34 of the IPC. In addition, the applicant/accused and the co-accused are directed to pay compensation of Rs. 25,000/- each to the first informant.
  2. 2. Heard the learned counsel appearing for the applicant/accused at sufficient length. By taking me through the evidence of witnesses for the prosecution, the learned counsel pointed out that the incident dated 28th September 2014 is coming on record from the evidence of PW2 Premlata Sharma – mother of the deceased. By taking me through evidence of other witnesses recording the alleged ill-treatment, the learned counsel argued that evidence is lacunae and insufficient to hold that offences alleged against the applicant/accused are proved.
  3. 3. The learned APP opposed the application by contending that the offence alleged is serious and evidence of witnesses examined by the prosecution is sufficient to hold that the offence is proved and therefore considering the nature of offence, the applicant/accused is not entitled for bail.
  4. 4. I have carefully considered the rival submissions and also perused the impugned judgment and order as well as deposition of witnesses.
  5. 5. The applicant/accused married Neha Mehta (since deceased) on 27th April 2009 and thereafter she started cohabiting with the applicant/accused and his family at Nerul, Navi Mumbai, in her matrimonial house. Neha Mehta died suicidal death on 28th September 2014 by hanging herself at the house of the applicant/accused.
  6. 6. On the basis of report lodged by PW1 Kamal Sharma – father of deceased Neha, the applicant/accused and co-accused were prosecuted and ultimately convicted and sentenced as indicated in opening paragraph of this order. Charges of subjecting a married woman to cruelty and abetting her to commit suicide are held to be proved against the applicant/husband.
  7. 7. Explanation to Section 498A of the IPC defines the term cruelty and it reads thus:
    •  498A. Husband or relative of husband of a woman subjecting her to cruelty – Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
      Explanation – For the purpose of this section, “cruelty” means —
    •  (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
    •  (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
  8. 8. Section 107 of the IPC defines the term abetment and this section reads thus:
    • 107. Abetment of a thing – A person abets the doing of a thing, who —
    • Firstly – Instigates any person to do that thing; or
    • Secondly – Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or
    • Thirdly – Intentionally aids, by any act or illegal omission, the doing of that thing.
    • Explanation 1 — A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
    • Explanation 2 — Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.
  9. 9. Section 113A of the Evidence Act prescribes rule of presumption in case of suicidal death by a married woman. Whenever the question arose as to whether commission of suicide by a woman has been abetted by her husband or relatives of her husband and it is shown that she had committed suicide within the period of seven years of her marriage and that her husband or relatives of her husband had subjected her to cruelty, then the court may presume “having regard to all other circumstances of the case” that such a suicide has been abetted by her husband or relatives of her husband. It is, thus, clear that, this presumption cannot be raised automatically on proof of suicidal death within seven years of marriage and subjecting a married woman to cruelty. Something more is required to be seen for drawing this presumption.
  10. 10. By catena of judgments of this court as well as Apex Court what amounts to cruelty as envisaged by Explanation to Section 498A of IPC is explained. Cruelty implies harsh and harmful conduct with certain intensity and persistence. It covers acts causing both physical and mental agony and torture or tyranny and harm as well as unending accusations and recrimination reflecting bitterness putting the victim thereof to intense miscarries. The conduct, in order to prove guilt, must be such as strongly stirring up the feeling in the mind of a married woman that life is now not worth living and she should die, being the only option left. In other words, provisions of Section 498A of the IPC envisages intention to drawing or force a woman to commit suicide by un-abetted persistence and grave cruelty. A willful conduct of such a nature as is likely to propel or compel a married woman to commit suicide or to cause grave injury or danger to her life, limb or health is required to be established. In other words, matrimonial cruelty is included from the definition of legal cruelty. To put it in other words, ordinary petulance and discord or differences in domestic life does not amount to cruelty. By keeping this aspect in mind, let us prima facie examine the instant case for a limited purpose as to whether the applicant/accused is entitled for liberty. If the impugned judgment and order of the trial court is perused, then it is seen that the reasoning part is in paragraph 65 of the judgment. Reliance is placed on evidence of PW1 to PW3 by the learned trial court. It is observed that the dispute was over the issue of the deceased having made “kaccha chapati.” Further observations are to the effect that this was too trivial matter to invoke extreme and harsh response of calling her brother and parents. In other words, the learned trial Judge was very well aware of the fact that the incident of commission of suicide was preceded by a trivial incident in the matrimonial life of Neha. Still, without further discussion, offence punishable under Section 498A of the IPC is held to be proved. Then by taking aid of Section 106 of the Evidence Act, as well as Section 113A thereof, it is held that the offence punishable under Section 306 of the IPC is proved.
  11. 11. Evidence of PW2 Premlata Sharma – mother of the deceased, reflects what was the incident which took place just prior to suicidal death of Neha Mehta. Mother of Neha (PW2) disclosed this incident by stating that on that day, excluding Neha, everybody in her house had breakfast. But when Neha was about to take breakfast, her husband i.e. the present applicant, asked her to prepare tea for his mother i.e. the co-accused. Upon that, as per version of PW2 Premlata Sharma, her daughter informed the applicant/husband that she is feeling uneasy and unwell. Then the applicant/husband had spoken bad words about parents and relatives of Neha i.e. his wife. This incident, according to prosecution case, as reflected from the evidence of parents and brother of the deceased, triggered her suicide. Prima facie, this discloses hyper sensitivity of a wife, and ordinary petulance and discord in matrimonial life. Prima facie, this incident cannot be said to satisfy the requirement of ingredients of offence of cruelty defined in Section 498A of the IPC. Similarly, for making out an offence punishable under Section 306 of the IPC, what is required to be proved is mensrea. Without knowledge and intention, there cannot be an abetment. There must be some active suggestion or stimulation by accused persons to the victim.
  12. 12. Perusal of evidence of parents of deceased Neha, prima facie goes to show that they have spoken about matrimonial cruelty rather than legal cruelty, as according to their averments, taunts to deceased Neha were to the effect that she was not knowing how to speak English, how to cook food etc. On this backdrop, parents of the deceased admitted that their daughter studied in English Medium at Army Public School and that she was even cadet in NCC. It has also come on record that after marriage the deceased continued her education. To crown this all, it is seen that prior to few months of the incident, PW2 Premlata Sharma had joined parental relative of deceased Neha to enjoy trip to Himachal Pradesh, Chandigarh and Delhi etc.
  13. 13. In the wake of this evidence against the applicant/accused, and the fact that during trial, he was on bail, he deserves liberty, and therefore the order:
    • i) The application is allowed.
    • ii) Substantive sentence of imprisonment imposed upon the applicant/accused is suspended and he is directed to be released on bail on executing P.R. Bond of Rs. 15,000/- and on furnishing surety in like amount.

Adult Children, Grandchildren can NOT forcefully stay in elder’s property ! Son and DIL take note !! Bombay HC

Where the house is self acquired house of the parents, son whether married or unmarried, has no legal right to live in that house and he can live in that house only at the mercy of his parents upto the time the parents allow

///Delhi High Court in the case of Sachin & Anr. Vs. Jhabbu Lal & Anr. (supra) has held that where the house is self acquired house of the parents, son whether married or unmarried, has no legal right to live in that house and he can live in that house only at the mercy of his parents upto the time the parents allow. Merely because the parents have allowed him to live in the house so long as his relations with the parents were cordial, does not mean that the parents have to bear his burden throughout his life. The principles of law laid down by the Delhi High Court in the case of Sachin & Anr. Vs. Jhabbu Lal & Anr. (supra) would squarely apply to the facts of this case. In my view, no child can compel his parents and more particularly senior citizen to allow such child or grand child to stay with him////

 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.10611 OF 2018

Dattatrey Shivaji Mane )
R/a. 502, 5th Floor, B-Wing, )
Darshan Heights, Zavaba Wadi, )
Thakurdwar, Girgaon, Mumbai. ) .. Petitioner

Versus

1. Lilabai Shivaji Mane )
R/a. 502, 5th Floor, B-Wing, )
Darshan Heights, Zavaba Wadi, )
Thakurdwar, Girgaon, Mumbai. )

  1. Dy.Collector/Officer, )
    Parents and Senior Citizen’s Welfare )
    Tribunal, Mumbai City, )
    Old Custom House, Shahid Bhagatsingh)
    Road, Fort, Mumbai. )
  2. State of Maharashtra )
    (Notice to be issued upon Government)
    Pleader, Appellate Side, (Writ Cell), )
    High Court, Mumbai. ) .. Respondents
    &&&
    Mr.J.P. Kharge for the petitioner.
    Mr.Sandeep Naik for the respondent no.1.
    Mr.S.D.Rayrikar, AGP for the respondent nos.2 & 3.
    &&&
    CORAM : R.D. DHANUKA, J.

DATE : 26th June 2018

Judgment :

  1. 1. By this petition filed under Article 227 of the Constitution of India, the petitioner has impugned the order dated 1st February 2018 passed by the Tribunal for Welfare of Parents and Senior Citizens on a complaint filed by the respondent no.1 who is the mother of the petitioner no.1, under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (for short “the said Act”).
  2. 2. It is the case of the petitioner that the petitioner has been staying in the tenament i.e. Room No.502, 5 th floor, B-Wing, Darshan Heights, Zavaba Wadi, Thakurdwar, Girgaon, Mumbai along with his wife, son, daughter and the respondent no.1. Admittedly the said tenament belongs to the respondent no.1 exclusively. https://twitter.com/ATMwithDick/status/1015907674364538880
  3. 3. The respondent no.1 filed a complaint against the petitioner inter alia praying for maintenance and eviction of the petitioner on various grounds. The said complaint was resisted by the petitioner. The Tribunal passed an order on 1 st February 2018 thereby directing the petitioner and his other family members to evict themselves from the said tenament within 30 days from the date of the said order and hand over vacant possession thereof to the respondent no.1. This order of the Tribunal is impugned by the petitioner in this petition under Article 227 of the Constitution of India.
  4. 4. Learned counsel appearing for the petitioner challenged the said order on the ground that the complaint was filed by the respondent no.1 against the petitioner only whereas in the impugned order, the Tribunal has passed the impugned order of eviction also against the wife, son and daughter of the petitioner from the suit premises which is not permissible in law.
  5. 5. The next submission of the learned counsel for the petitioner is that under Section 4 of the said Act, the Tribunal has no jurisdiction to evict the petitioner as well as his family members from the tenament owned by the respondent no.1. The entire order is thus without jurisdiction.
  6. 6. The next submission of the learned counsel for the petitioner is that the petitioner has been maintaining the respondent no.1 for last several years. The respondent no.1 has been harassing the petitioner and his family members. All the criminal complaints filed by the respondent no.1 against the petitioner and his family members are disposed of. The complaint filed under the provisions of the Protection of Women from Domestic Violence Act, 2005 against the petitioner is dismissed for default.
  7. 7. It is submitted by the learned counsel for the petitioner that the respondent no.1 has been independently earning substantial amount and thus could not seek any relief against the petitioner by filing a complaint under Section 4 of the said Act.
  8. 8. Learned counsel appearing for the respondent no.1, on the other hand, submits that because of mental torture and continuous harassment to the respondent no.1 by the petitioner and his family members, the respondent no.1 has filed several complaints against them in last ten years. The Tribunal however has not taken any action on those complaints filed by the respondent no.1 against the petitioner and his family members. https://twitter.com/ATMwithDick/status/1015907674364538880
  9. 9. In so far as the complaint filed by the respondent no.1 under the provisions of the Protection of Women from Domestic Violence Act, 2005 against the petitioner is concerned, the said complaint has been dismissed for default and not on merit.
  10. 10. Learned counsel for the respondent no.1 submits that even during the pendency of this petition, the petitioner had caused physical hurt to the respondent no.1 and thus the respondent no.1 was compelled to file a police complaint against the petitioner with the concerned police station.
  11. 11. Learned counsel for the respondent no.1 placed reliance on the judgment of the Delhi High Court in the case of Sunny Paul & Anr. Vs. State Nct of Delhi & Ors. delivered on 15th March 2017 in Writ Petition (C) No.10463 of 2015 and also another judgment of the Delhi High Court in the case of Sachin & Anr. Vs. Jhabbu Lal & Anr. delivered on 24th November 2016 in RSA 136 of 2016. He submits that the tribunal has ample power to pass an order of eviction against the persons under the provisions of the said Act from the tenament in which the respondent no.1 has right, title and interest.
  12. 12. Learned counsel for the respondent no.1 submits that on one hand, the petitioner or his wife who allegedly earns income of Rs.12,000/- per month, on the other hand, he has been paying substantial amount of eduction fees of his child and has been living lavishly. The respondent no.1 does not have any major source of income and cannot be forced to permit the petitioner and his family members to occupy the tenament owned by her. https://twitter.com/ATMwithDick/status/1015907674364538880
  13. 13. It is not in dispute that the respondent no.1 has exclusive rights in the tenament which is allowed to the occupied by the petitioner and his family members by the respondent no.1. It is not in dispute that the respondent no.1 has filed several police complaints against the petitioner and his family members in various police stations alleging harassment and other offences. The complaints filed against the petitioner under the provisions of the Protection of Women from Domestic Violence Act, 2005 has been dismissed not on merit but for default.
  14. 14. Learned counsel for the petitioner could not point out any legal right of his client to occupy the tenament owned by the respondent no.1 under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 or under any other provisions of law. The submission of the petitioner is that since the petitioner has been allegedly maintaining the respondent no.1 for last several years, no order of eviction could be passed by the tribunal under Section 4 of the said Act or under any other provisions of the said Act. Per contra, the respondent no.1 has produced sufficient material on record before this Court and also the Tribunal showing that the respondent no.1 has been harassed by the petitioner and his family members for last several years.
  15. 15. In so far as the submission of the learned counsel for the petitioner that since no complaint was filed by the respondent no.1 against the wife, son and daughter of the petitioner before the Tribunal, no order could be passed by the Tribunal against the other family members of the petitioner is concerned, in my view, there is no merit in this submission of the learned counsel for the petitioner. Section 4 of the said Act permits a senior citizen including parent who is unable to maintain himself from his earning or out of property owned by him and if such senior citizen is unable to lead a normal life to apply for such relief not only against his children but also the grand children. Be that as it may, the wife, son and daughter of the petitioner have not challenged the impugned order.
  16. 16. In so far as the complaints filed by the respondent no.1 which are alleged to have been disposed of are concerned, it is the case of the respondent no.1 that the concerned police station did not take any action on those complaints filed by her. The petitioner does not dispute that those complaints were filed by the respondent no.1 against the petitioner making serious allegations of harassment and other offences. Merely because the police station has not taken any action on those ppn 8 5.wpst-10611.18(j).doc complaints, the petitioner cannot be allowed to urge that he and his family members had not harrassed or tortured the respondent no.1.
  17. 17. Learned counsel for the respondent no.1 states that his client wants to evict the petitioner and his family members from her premises to stop the harassment and torture in future, from the petitioner and his family members, for peace of mind and to lead a normal life and does not want any maintenance from the petitioner henceforth. Statement is accepted.
  18. REASONS AND CONCLUSIONS :- A perusal of the record indicates that it is an admitted position that even according to the petitioner, the petitioner had been requesting the respondent no.1 for entering the names of his son and daughter in the ration card in respect of the said tenament which the respondent no.1 has refused. According to the petitioner, it has been an apprehension in the mind of the respondent no.1 that if the names of the son and daughter of the petitioner were entered in the ration card, the petitioner and his children would claim right in the said tenament owned by her. The petitioner could not show any right of any nature whatsoever in the said tenament of the respondent no.1 under any provisions of law.
  19. 19. In the complaint filed by the respondent no.1 before the Tribunal, the respondent no.1 had alleged that the petitioner and his family members were beating the respondent no.1 and had caused injuries to the hand and leg of the respondent no.1. It was further alleged that the petitioner and his family members are trying to oust the respondent no.1 from her house. The respondent no.1 was prevented from using her house by the petitioner and his family members. It was alleged by the respondent no.1 in the said complaint that the petitioner and his family members also prevented the respondent no.1 from using toilet and were closing the water tap.
  20. 20. A perusal of the complaint dated 7 th April 2007 filed by the respondent no.1 with L.T. Marg Police Station indicates that the respondent no.1 had alleged that the petitioner and his wife used to beat her regularly and also abusing her. Copies of all such complaints against the petitioner lodged by the respondent no.1 with the local police station were already annexed to the application filed by the respondent no.1 and are forming part of the record of the writ petition filed by the petitioner.
  21. 21. A perusal of the record clearly indicates that the relationship between the respondent no.1 and the petitioner and his family members are very strained resulting in the respondent no.1 filing various police complaints against the petitioner. In these circumstances, the respondent no.1 who is 73 years old cannot be compelled to allow the petitioner and his family members to stay with her. It is exclusively for the respondent no.1 to decide whether she wants to permit the petitioner and his family members to stay with her or not. In this case, the respondent no.1 has decided not to allow the petitioner and his family members to stay with her in the house owned by her. In my view, the Tribunal was thus fully justified in passing an order of eviction not only against the petitioner but also other family members of the petitioner.
  22. 22. The provision of Section 4 of the said Act permits such application for eviction of child and grand child if the condition set out in that provision read with other provisions are satisfied. In my view, there is thus no substance in the submission of the learned counsel for the petitioner that the order of eviction cannot be passed by the Tribunal under Section 4 of the said Act read with other provisions of the said Act. https://twitter.com/ATMwithDick/status/1015907674364538880
  23. 23. The Objects and Reasons of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 read thus :-
    • “1. Traditional norms and values of the Indian society laid stress on providing care for the elderly. However, due to withering of the joint family system, a large number of elderly are not being looked after by their family. Consequently, many older persons, particularly widowed women are now forced to spend their twilight years all alone and are exposed to emotional neglect and to lack of physical and financial support. This clearly reveals that ageing has become a major social challenge and there is a need to give more attention to the care and protection for the older persons. Though the parents can claim maintenance under the Code of Criminal Procedure, 1973, the procedure is both time consuming as well as expensive. Hence, there is a need to have simple, inexpensive and speedy provisions to claim maintenance for parents.
      2. The Bill proposes to cast an obligation on the persons who inherit the property of their aged relatives to maintain such aged relatives and also proposes to make provisions for setting up old age homes for providing maintenance to the indigent older persons.
      The Bill further proposes to provide better medical facilities to the senior citizen and provisions for protection of their life and property.
      3. The Bill, therefore, proposes to provide for :-
      (a) appropriate mechanism to be set-up to provide need- based maintenance to the parents and senior citizens;
      (b) providing better medical facilities to senior citizens;
      (c) for institutionalisation of a suitable mechanism for protection of life and property of older persons;
      (d) setting-up of old age homes in every district.
      4. The Bill seeks to achieve the above objectives.”
  24. 24. In so far as the submission of the learned counsel for the petitioner that under Section 4 of the said Act, no order of the eviction can be passed by the Tribunal but the said provision could be invoked only for the purpose of making a claim for maintenance is concerned, Delhi High Court in the case of Sunny Paul & Anr. Vs. State Nct of Delhi & Ors. (supra) has considered the said issue at great length and has held that the claim for eviction is maintainable under Section 4 of the said Act read with various other provisions of the said Act by a senior citizen against his children and also the grand children.
  25. 25. If the argument of the learned counsel for the petitioner is accepted by this Court then no senior citizen who has been meted out with harassment and mental torture will be able to recover possession of his/her property from the children or grand children during his/her lifetime. The said Act is enacted for the benefit aand protection of senior citizen from his children or grand children. The principles of law laid down by the Delhi High Court in the case of Sunny Paul & Anr. Vs. State Nct of Delhi & Ors. (supra) would squarely apply to the facts of this case. I respectfully agree with the views expressed by the Delhi High Court in the said judgment.
  26. 26. Delhi High Court in the case of Sunny Paul & Anr. Vs. State Nct of Delhi & Ors. (supra) has adverted to the another judgment of the Delhi High in the case of Nasir Vs. Govt. of Nct of Delhi & Ors. -2015 (153) DRJ 259 and also the judgment of Gujarat High Court in the case of Jayantram Vallabhdas Meswania Vs. Vallabhdas Govindram Meswania – AIR 2013 Gujarat 160.
  27. 27. Delhi High Court in the case of Nasir Vs. Govt. of NCT of Delhi & Ors. (supra) while dealing with the matter under the provisions of the same Act and has held that once it is found that a senior citizen was the owner of the subject property, no error can be found with the directions issued by the Tribunal restraining the child of such senior citizen from interfering with the possession of the senior citizen who was the mother of the petitioner in that matter occupying the property and/or from recovering the rental income of the other property and further directing the son to maintain peace in the house and not to disturb his aged mother. It is held that in such situation, if it is said that the respondent mother ought to have been relegated by the Tribunal to the Civil Court, the same would have been in negation of the very purpose of setting up of such Tribunal. It is held that while interpreting the provisions, object of the Act has to be kept in mind which is to provide ppn 14 5.wpst-10611.18(j).doc simple, inexpensive and speedy remedy to the parents and senior citizens who are in distress, by a summary procedure. The provisions have to be liberally construed as the primary object is to give social justice to parents and senior citizens.
  28. 28. Delhi High Court in the said judgment has adverted to the judgment of the Supreme Court in the case of Board of Muslim Wakfs, Rajasthan Vs. Radha Kishan- 1979(2) SCC 468 in which Supreme Court has held that the construction which tends to make any part of the statute meaningless or ineffective must always be avoided and the construction which advances the remedy intended by the statute should be accepted. In my view, the principles of law laid down by the Delhi High Court in the case of Nasir Vs. Govt. of NCT of Delhi & Ors. (supra) and the judgment of the Supreme Court in the case of Board of Muslim Wakfs, Rajasthan Vs. Radha Kishan (supra) apply to the facts of this case. I am in respectfully agreement with the views expressed by the Delhi High Court in the said judgment. The principles of law laid down by the Supreme Court in the aforesaid judgment are binding on this Court.
  29. 29. Gujarat High Court in the case of Jayantram Vallabhdas Meswania Vs. Vallabhdas Govindram Meswania (supra) while dealing with a writ petition filed by the son of a senior citizen has construed Sections 4, 23 and various other provisions of the said Act. The son was occupying the property of his father who was admittedly a senior citizen. The said senior citizen needed to generate earning/income from the said part of the premises which were occupied by his son. Son was not maintaining the father. Gujarat High Court considered the objects and reasons of the said Act and held that son had not claimed any right of, or protection as statutory tenant or otherwise in respect of the said premises owned by the father. It is held that while explaining the object behind the enactment of the Act, the Legislature has clarified that, “the Bill proposes to cast an obligation on the persons who inherit the property of their aged relatives to maintain such aged relatives. The Bill further proposes to provide better medical facilities to the senior citizens and provisions for protection of their life and property.”
  30. 30. After adverting to the objects and reasons of the said Act, Gujarat High Court has held that on overall consideration and having regard to the provision under Sections 2(b), 2(d), 2(f), 4 and the object of the Act, the said term should receive wider meaning so as to include possession/occupation of property, as well. The said concept is already recognised, accepted and internalised by the Act vide Section 4 of the Act. It is held that the provisions under Section 23 of the Act cannot be, and need not be, read in isolation or by divorcing the said provision from other provisions, particularly Section 4 of the Act read with Sections 2(b), 2(f), 2(g) & 2(h) of the Act. Gujarat High Court accordingly rejected the writ petition of the son impugning the order of the Tribunal directing him to hand over possession of the property to the father and held that the said order passed by the Tribunal to hand over possession could not be said to be without jurisdiction or beyond the scope of Section 23 read with Sections 4, 2(b), 2(d) and 2(f) of the Act. In my view, the principles of law laid down by the Gujarat High Court Jayantram Vallabhdas Meswania Vs. Vallabhdas Govindram Meswania (supra) applies to the facts of this case. I am in respectfully agreement with the views expressed by the Gujarat High Court in the said judgment.
  31. 31. In my view, Section 4 cannot be read in isolation but has to be read with Section 23 and also Sections 2(b), 2(d) and 2(f) of the said Act. The respondent no.1 mother cannot be restrained from recovering exclusive possession from her son or his other family members for the purpose of generating income from the said premises or to lead a normal life. In my view, if the respondent no.1 mother who is 73 years old and is a senior citizen, in this situation, is asked to file a civil suit for recovery of possession of the property from her son and his other family members who are not maintaining her but are creating nuisance and causing physical hurt to her, the whole purpose and objects of the said Act would be frustrated.
  32. 32. In my view, since under Section 23 of the said Act, a senior citizen is entitled to apply for a declaration of gift or transfer of his/her property by any other means given subject to the condition that the transferee shall provide the basic amenities and basic physical needs to such senior citizen and such child or grand child refuses to provide such amenities and physical needs, such senior citizen can apply for declaration of such transaction to be void, such senior citizen can even apply for recovery of possession from her child or grand child in the event of the child refusing to maintain such senior citizen and parents or does not comply with the obligations extending to the needs of senior citizen or such parents to enable such senior citizen or parents to lead a normal life. Such parents and senior citizen can certainly apply for recovery of vacant possession of the property and for a relief restraining such child or grand child or his other family members who are claiming through such child from entering upon the property of such senior citizen or parents. In my view, there is thus no merit in the submission of the learned counsel for the petitioner that the Tribunal could not have passed an order of eviction against the petitioner and his family members from the tenament owned by the respondent no.1 under the provisions of the said Act.
  33. 33. Delhi High Court in the case of Sachin & Anr. Vs. Jhabbu Lal & Anr. (supra) has held that where the house is self acquired house of the parents, son whether married or unmarried, has no legal right to live in that house and he can live in that house only at the mercy of his parents upto the time the parents allow. Merely because the parents have allowed him to live in the house so long as his relations with the parents were cordial, does not mean that the parents have to bear his burden throughout his life. The principles of law laid down by the Delhi High Court in the case of Sachin & Anr. Vs. Jhabbu Lal & Anr. (supra) would squarely apply to the facts of this case. In my view, no child can compel his parents and more particularly senior citizen to allow such child or grand child to stay with him. https://twitter.com/ATMwithDick/status/1015907674364538880
  34. 34. The impugned order passed by the Tribunal is in conformity with the powers granted to such Tribunal under Section 4 read with other provisions of the said Act. I do not find any infirmity in the ppn 19 5.wpst-10611.18(j).doc impugned order. The petition is devoid of merit and is accordingly dismissed. No order as to costs.
  35. 35. In view of the fact that the impugned order of the Tribunal is upheld, the said order shall be complied with by the petitioner and by other occupants i.e. his wife, son and daughter within two weeks from today and shall hand over vacant possession to the respondent no.1 without fail. If the order is not complied with by the petitioner and his family members, the said order shall be executed by the respondent no.1 with the assistance of the police, if required. Parties as well as the Tribunal to act on the authenticated copy of this order.

R.D. DHANUKA, J.

NO #double #maintenance under Sec #24HMA and Sec #18HAMA, #BombayHC

discussing the provisions of various enactments providing maintenance, the Honourable Bombay HC concludes that “…. 7. We, however, make it clear that, once the interim maintenance is granted either under section 24 of the Hindu Marriage Act or under section 18 of the Hindu Adoptions and Maintenance Act, then, there is no question of entertaining the application under the other Act. This would avoid multiplicity of proceedings, because the criteria for awarding maintenance under both the provisions would be the same…..”

This is very useful for husbands fighting multiple maintenance claims by women

**

Bombay High Court
Sangeeta Piyush Raj vs Piyush Chaturbhuj Raj on 13 January, 1998
Equivalent citations: 1998 (3) BomCR 207, II (1998) DMC 443
Author: M Shah
Bench: M S C.J., R Kochar
ORDER M.B. Shah, C.J.

  1. 1. After considering the various decisions cited at the hearing of the Notice of Motion, by order dated 17th January, 1997, Variava, J., referred to the Division Bench the following two questions for determination:–
    1. “1. Whether in proceedings under section 18 of the Hindu Adoptions and Maintenance Act, the Court can grant interim maintenance?
    2. 2. Whether if matrimonial proceedings are pending between the parties then an application for interim maintenance must be made only to the Family Court under the provisions of section 24 of the Hindu Marriage Act?”
  2. 2. With regard to the first question, after considering the various decisions, the Division Bench of this Court (V.P. Tipnis & Mrs. R.R Desai, JJ.) by judgment and order dated (16th and 17th December, 1997 in Appeal No. 14 of 1997) has arrived at the conclusion that, in a suit filed under section 18 of the Hindu Adoptions and Maintenance Act, 1956, the Court has jurisdiction and power to pass appropriate interim and ad-interim orders. We agree with the said conclusion.
  3. 3. Further, it is to be noted that the Hindu Adoptions and Maintenance Act, 1956 codifies the law relating to adoptions and maintenance among Hindus. It only declares and codifies the law with regard to adoptions and maintenance by Hindus. The basis of such obligation to maintain wives, widowed daughter-in-law, children and aged parents may be a pious obligation of Hindus. The provisions relating to maintenance are in Chapter III. Section 18 deals with maintenance of a wife during her life time under certain circumstances, as provided in sub-section (2) thereof. Section 19 provides for maintenance of a widowed daughter-in-law to the extent that she is unable to maintain herself out of her own earnings or other property by her father-in-law. Similarly, section 20 provides for maintenance of his or her legitimate or illegitimate children and his or her aged or infirm parents. The liability to pay maintenance to children is on the father or mother. Similarly, liability to pay maintenance to infirm parents is on the son or the daughter. Section 22 further provides that the heirs of a deceased Hindu are bound to maintain the defendants of the deceased (as defined in section 21) out of the estate inherited by them from the deceased. Section 23 provides for the objective criteria for determining the amount of maintenance. Further, the requirement is that no person shall be entitled to claim maintenance if she or he has ceased to be a Hindu by conversion to any other religion (section 24). Section 25 empowers the alteration of the amount of maintenance on change of circumstances justifying such alteration. Further, the proceedings initiated for getting maintenance would be under the Civil Procedure Code. Hence, there is no reason why inherent jurisdiction of the Court cannot be exercised for providing interim maintenance. If a deserted wife, widowed daughter-in-law, minor children and aged parents are not provided with interim maintenance, it would cause lot of hardship for a long period. The entire purpose of the enactment would be defeated because of the proverbial delays in disposal of cases resulting in grave hardship to the applicants who may have no means to survive until final decree is passed. There is no provision under the Hindu Adoptions and Maintenance Act or under the Civil Procedure Code that interim maintenance cannot be granted; there is no provision under the said Act which would meet the necessities of the case in question. Therefore, for doing real and substantial justice, Court can exercise power under section 151 of the Civil Procedure Code for grant of interim maintenance. It would also prevent abuse of the process of the Court.
  4. 4. Even in proceedings under section 125 of the Code of Criminal Procedure, in the case of Savitri v. Govind Singh Rawat, 1986 Cri. L.J. 411, the Court held as under :–
    • “Having regard to the nature of the jurisdiction exercised by a Magistrate under section 125 of the Code, we feel that the said provisions should be interpreted as conferring power by necessary implication on the Magistrate to pass an order directing a person against whom an application is made under it to pay a reasonable sum by way of interim maintenance, subject to the other conditions referred to, pending final disposal of the application. In taking this view we have also taken note of the provisions of section 7(2)(a) of the Family Courts Act, 1984 (Act No. 66 of 1984) passed recently by Parliament proposing to transfer the jurisdiction exercisable by Magistrates under section 125 of the Code to the Family Courts constituted under the said Act.”
    • For arriving at the above conclusion, the Court has observed that every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective. The Court further observed that whenever anything is required to be done by law and it is found impossible to do that thing unless something not authorised in express terms be also done, then that something else will be supplied by necessary intendment. In a civil suit filed for maintenance on the basis of the law applicable under the Hindu Adoptions and Maintenance Act, such power is required to be exercised. In our view, there is no reason not to apply the ratio laid down by the Supreme Court in Savitri’s case (supra) to the question involved in the present case.
  5. 5. Re: The Second Question :
    • In our view, even if matrimonial proceedings are pending between the parties, it is not the requirement that the application for interim maintenance must be made only to the Family Court under the provisions of section 24 of the Hindu Marriage Act. Once we arrive at the conclusion that an application under section 18 of the Hindu Adoptions and Maintenance Act is maintainable during the pendency of proceedings under the Hindu Marriage Act, then, obviously, the result would be that the application (or interim maintenance could be filed before the Court dealing with the right arising under provisions of section 18 of the Hindu Adoptions and Maintenance Act.
  6. 6. With regard to the provisions of section 18 of the Hindu Adoptions and Maintenance Act and provisions of the Hindu Marriage Act, the Apex Court, in the case of Chand Dhawan v. Jawaharlal Dhawari, 1993(3) Supreme Court Cases 4061, has held that, without affection or disruption of the marital status, a Hindu wife sustaining that status can live in separation from her husband, and whether she is living in that state or not, her claim to maintenance stands preserved in codification under section 18(1) of the Hindu Adoptions and Maintenance Act. She may also be entitled to relief under section 125 of the Code of Criminal Procedure; but this is an alternative measure. The Court clarified that, in a petition under the Hindu Marriage Act, the Court is empowered to grant interim maintenance; but, in those cases where the marital status is to be affected or disrupted, then the Court would pass orders for maintenance. In other cases, the Hindu Adoptions and Maintenance Act would be applicable. Hence, in our view, even if matrimonial proceedings are pending between the parties in the Family Court, it is not necessary that for getting interim maintenance, an application must be made to the said Court under the provisions of section 24 of the Hindu Marriage Act.
  7. 7. We, however, make it clear that, once the interim maintenance is granted either under section 24 of the Hindu Marriage Act or under section 18 of the Hindu Adoptions and Maintenance Act, then, there is no question of entertaining the application under the other Act. This would avoid multiplicity of proceedings, because the criteria for awarding maintenance under both the provisions would be the same.
  8. 8. Reference stands disposed of accordingly.

 

Sincerely regret blogging Arman Kholi paid 50 lakhs for freedom, today’s reports say 1 crore :-) :-)

Rs 1 crore settlement, remorse letter get FIR dropped against Armaan Kohli

TNN | Updated: Jun 16, 2018, 04:50 IST

Armaan Kohli With Neeru Randhawa and (inset) her tattoo
Armaan Kohli With Neeru Randhawa and (inset) her tattoo
MUMBAI: A Rs 1-crore settlement and an expression of remorse later, actor Armaan Kohli (46) was freed from a criminal case of assault and from jail on Friday. The Bombay high court on Friday quashed a first information report (FIR) filed against Kohli by his live-in girlfriend Neeru Randhawa, a British national, on June 3.

On June 7, Kohli had filed a plea before the HC to have the FIR quashed, following a Rs 50-lakh settlement aided by family and friends. The HC, however, felt that Kohli must “contribute something to society” and directed him to pay Rs 1 lakh each to Tata Memorial Hospital for the children department for cancer, and National Association of Blind, Worli, within six weeks.

His girlfriend of over three years, Randhawa (35), a fashion stylist, had lodged the FIR with the Santacruz police alleging that on June 3, Kohli had pushed her down a flight of stairs after an argument and banged her head on the floor, requiring her to get 15 stitches. The FIR was for offences including criminal intimidation and causing grievous hurt by dangerous weapons or means. On Wednesday, after being arrested and denied bail a day earlier, Kohli’s plea was first heard. The court wanted to know if he genuinely regretted his actions. On Thursday, a bench of Justices R M Savant and Revati Mohite-Dere sought an a statement on oath from Kohli that he would not repeat such behaviour. On Friday, the actor sent the statement from Arthur Road Jail, where he was incarcerated since Wednesday.

His father, film producer Raj Kumar Kohli, was in court both days and belying his age—90 years—stood for hours. When asked by the court about the settlement, his father said he was not aware of it. The HC then recorded the statement of Kohli’s brother-in-law that the settleme-nt was in place and two additional post-dated cheques of Rs 25 lakh each were paid to Randhawa between Thursday and Frid-ay, taking the total to Rs 1 crore.

Randhawa, who has left Kohli’s Santacruz residence, informed HC she was satisfied with the settlement and having received the cheques, didn’t wish to pursue the case. She had filed two affidavits recording her consent to quash the case. The bench cited SC rulings to hold that “no purpose would be served in keeping the FIR pending” given the settlement.