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#Wife #suppressing employment details, earlier agreement, guilty of #CONTEMPT, #Denied #Maintenance. #Fine Imposed #DelhiHC

Wife suppressed the fact that she was gainfully employed at the time of claiming maintenance. Wife also suppressed an earlier undertaking given by her to settle and NOT initiate further proceedings. Held : Wife guilty of contempt of court. Maintenance denied with cost.

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Gurbinder Singh vs Manjit Kaur on 25 January, 2010

Author: Shiv Narayan Dhingra

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: January 07, 2010

Date of Order: January 25, 2010

+ Cont. Cas(C) 482 of 2008

25.01.2010

Gurbinder Singh …Petitioner
Through: Mr. V.M. Issar, Advocates

Versus

Manjit Kaur …Respondents
Through: Mr. Anish Dhingra, Advocate along with respondent in person.

JUSTICE SHIV NARAYAN DHINGRA
JUDGEMENT

1. The petitioner has preferred this contempt petition against respondent alleging violation of an undertaking given to the Court of Additional District Judge, Jallandhar on 8th September 2000. https://bit.ly/2Iaztio.

2. The petitioner and respondent are husband and wife. The petitioner was in the Army and the wife was working as a teacher in S.D. Model School, Jalandhar Cantt. The divorce and various other proceedings were going on between the parties. The parties with the intervention of their counsels entered into a settlement and this settlement was recorded by the Court. In that settlement, the respondent (wife) agreed that she will not initiate any type of action against petitioner or against children of the parties or against the parents of the petitioner and other relatives of the petitioner (the children were at that time living with the petitioner) before the Court of law or before any other authority and she would not do anything which would affect the character, status or reputation of the petitioner. The petitioner also gave a similar undertaking that he would not disturb respondent in any manner and he would not institute any action against her either before the Court of law or before any authority and he will not try to castigate honour or character or reputation in any manner https://bit.ly/2Iaztio . Thereafter, before this Court in April’05, she (respondent) again filed an affidavit that she would abide by the undertaking given tothe learned ADJ on 8th September 2000 and she would not harass or humiliate the petitioner in future and will not create any cause of action afresh. This undertaking was given by way of an affidavit. Thereafter,the respondent herein filed an application under Section 125 Cr.P.C. before the Jallandhar Court in August’ 04 claiming maintenance from the petitioner on the ground that the petitioner had neglected to maintain her and she had no source of income. There is no doubt that the respondent had a right to claim maintenance from the petitioner, if she was not able to maintain herself. A perusal of the ex parte order obtained by her from the Court of Jallandhar shows that she concealed all material facts from the Court at Jallandhar. She did not disclose that she was working as a teacher in a school at Jallandhar and that there was an agreement between the parties arrived before learned ADJ, Delhi and that she had also filed an affidavit in the High Court that she would not unnecessarily harass the husband. Where a person after concealing the material facts about her own employment and about the undertaking given to the Court, files an application for maintenance just to harass the opposite side, after givingan undertaking to the Court that she would not harass the petitioner (husband), I consider this amounts to violation of undertaking given by her. The respondent appeared in person today in the Court and admitted that at the time she filed the petition in the Jallandhar Court, she was gainfully employed as a teacher and she continued to remain in employment till 2008i.e. even after passing of the order under Section 125 of Cr.P.C. https://bit.ly/2Iaztio A perusal of the ex parte order passed by learned JM would show that the respondent had concealed from the JM about her own employment, her salary from the school and her assets and contended that the respondent was drawing a pension of Rs.10,000/- per monthand his income from other sources was Rs.20,000/- per month and she obtained an order of grant of maintenance @ Rs.3,000/- per month from the date of application. She did not disclose to this Court when she filedher affidavit in this Court in April, 2005 that Cont.Cas(C) 482/2008 Gurbinder Singh v. Manjit Kaur Page 2 Of 3 she had filed a petition at Jallandhar Court which was going on ex parte or that she had already preferred a petition under Section 125 of Cr.P.C which was pending.

3. I consider that the conduct of the wife (respondent herein) of not disclosing to this Court about a petition being pursued by her and her conduct of concealing the material information from the https://bit.ly/2Iaztio Court of Judicial Magistrate, Jallandhar obtaining an ex parte order was contemptuous and violation of an undertaking given by her.

4. I, therefore, hold the respondent guilty of contempt and a fine of Rs.10,000/- is imposed on her. https://bit.ly/2Iaztio However, after her retirement, if she seeks maintenance for herself after disclosing to the Court concerned about her pension and other income and properties, which she holds in Delhi and other places, she would be free to make a petition regarding maintenance before the Court of competent jurisdiction.

5. With above order, the petition stands disposed of.

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right to residence does NOT mean you can squat @ In Laws House !! Delhi HC, 2010 !

“….We must emphasize once again that the right of residence which a wife undoubtedly has does not mean the right to reside in a particular property. It may, of course, mean the right to reside in a commensurate property. But it can certainly not translate into a right to reside in a particular property. In order to illustrate this proposition, we may take an example of a house being allotted to a high functionary, say a Minister in the Central Cabinet and who resides in the same house along-with his wife, son and daughter-in-law. It is obvious that since the daughter-in-law and son reside in the said house, which otherwise is a government accommodation allotted to the father-in-law, the same could be regarded as the house where the son and daughter-in-law live in matrimony. Can the daughter-in-law claim that she has a right to live in that particular property irrespective of the fact that the father-in-law subsequently is no longer a Minister and the property reverts entirely to the Government? Certainly not. https://wp.me/p7s7-3tU It is only in that property in which the husband has a right, title or interest that the wife can claim residence and that, too, if no commensurate alternative is provided by the husband….”

 

Delhi High Court
Shumita Didi Sandhu vs Sanjay Singh Sandhu & Others on 26 October, 2010
Author: Badar Durrez Ahmed

 

THE HIGH COURT OF DELHI AT NEW DELHI

Judgment delivered on: 26.10.2010

FAO (OS) 341/2007

SHUMITA DIDI SANDHU ….. Appellant

versus

SANJAY SINGH SANDHU & OTHERS ….. Respondents

Advocates who appeared in this case:

For the Appellant : Mr Akhil Sibal with Mr Salim Inamdar

For the Respondents : Mr Chetan Shrma, Sr Advocate with Mr S.S. Jauhar and Mr P.K. Dey CORAM:-

HON’BLE MR JUSTICE BADAR DURREZ AHMED

HON’BLE MS JUSTICE VEENA BIRBAL

 

Whether Reporters of local papers may be allowed to see the judgment ? Yes

To be referred to the Reporter or not ? Yes

Whether the judgment should be reported in Digest ? Yes

 

BADAR DURREZ AHMED, J

  1. This appeal raises interesting issues with regard to the concepts of „matrimonial home? and „shared-household? and also concerning the right of residence of a wife in the matrimonial home, shared-household or some other place. https://wp.me/p7s7-3tU
  2. This appeal is directed against the judgment and / or order dated 02.07.2007 passed by a learned single Judge of this court in IA Nos.291/2005 and 8444/2005 in CS(OS) 41/2005. The suit had been filed by the appellant against her husband, Mr Sanjay Singh Sandhu (defendant No.1), her father-in-law, Mr Hardev Singh Sandhu (defendant No.2) (since deceased) and her mother-in-law, Mrs Shiela Sandhu (defendant No.3). During the pendency of the suit as also the said applications, the appellant?s father-in-law (the said defendant No.2) passed away and his legal representatives, being his widow (Mrs Sheila Sandhu), son (Mr Sanjay Singh Sandhu), daughter, Mrs Zoya Mohan and another daughter (Mrs Tani Sandhu Bhargava), were brought on record.
  3. In the said suit, the appellant / plaintiff had sought the following reliefs:- “(a) Grant a decree of permanent injunction restraining the Defendant Nos. 1, 2 and 3 from committing themselves or through their agents / representatives acts of violence and intimidation against the plaintiff; (b) Grant a decree of permanent injunction restraining the Defendant Nos. 1, 2 and 3 and their agents / representatives from forcibly dispossessing the Plaintiff out of her matrimonial home without due process of law; (c) Grant any other / further relief / relief (s) as may be deemed fit and proper under the facts and circumstances of the case.”
  4. In IA No.291/2005, the appellant / plaintiff sought an interim order restraining the defendants from dispossessing her from her “matrimonial home”, which, according to her, was the property at 18-A, Ring Road, Lajpat Nagar-IV, New Delhi. It is her case that she was occupying the first floor of the said property and there was imminent danger of her being dispossessed from the said portion of the said property without following the due process of law. IA No.8444/2005 was filed by the appellant / plaintiff seeking interim orders restraining the defendants from creating any third party rights in the said property. The said applications were dismissed by the learned single Judge by virtue of the impugned order dated 02.07.2007. The learned single Judge was of the view that the plaintiff could not claim any right to stay in the said property as it did not belong to her husband (defendant No.1), but it belonged to her parents-in- law. Taking note of the statement under Order 10 of the Code of Civil Procedure, 1908 made by the defendant No.2 that the defendants have no intention to throw out the plaintiff from the first floor of the said property, which is occupied by her, without following the due process of law, the learned single Judge ordered that the said defendants would be bound by the statement. https://wp.me/p7s7-3tU However, the learned single Judge clarified that this would not prevent the defendants 2 and 3 from taking recourse to law for dispossessing the plaintiff.
  5. The learned single Judge in paragraph 9 of the impugned judgment and / or order observed as under:- “There is no dispute that the suit property belongs to the defendant Nos. 2 and 3. The plaintiff?s husband, namely, the defendant No.1 has no share and / or interest in the same.” Again in para 9 of the impugned judgment / order, the learned single Judge observed that:- “The question for prima facie consideration is as to whether the plaintiff has any right to stay in the suit property in which her husband has no right, interest or share and belongs to her father-in-law and mother-in-law. Incidental question for determination is as to whether it could be treated as matrimonial home of the plaintiff?”
  6. The learned single Judge, it is obvious from the aforesaid extracts, proceeded on the basis that the said property belonged to defendant Nos. 2 and 3, that is, the father-in-law and the mother-in-law and that there was no dispute with this proposition. https://wp.me/p7s7-3tU Consequently, relying on the Supreme Court decision in the case of S.R. Batra v. Taruna Batra: 2007 (3) SCC 169, he observed that the ratio of the said Supreme Court decision was clearly that the daughter-in-law has no legal right to stay in the house which belongs to her parents-in-law. The learned single Judge observed that the legal position which emerged was that the husband had a legal and moral obligation to provide residence to his wife and, therefore, the wife was entitled to claim a right of residence against her husband. He further observed that if the house in question where she lived after marriage belonged to her husband, the same could certainly be treated as a matrimonial home. Furthermore, if the house in question belonged to a Hindu undivided family in which her husband was a co-parcener, even that house could be termed as a matrimonial house. But, where the house belonged to the parents-in-law in which the husband had no right, title or interest and the parents-in-law had merely allowed their son alongwith the daughter-in-law to stay in the said house, it would amount to mere permissive possession on the part of the daughter-in-law and would not give her any right to stay in the said house inasmuch as the same would not be her matrimonial home.
  7. The learned single Judge also noted that there was a serious dispute as to whether the property could, at all, be termed as a matrimonial home. He referred to the pleadings from which it, prima facie, appeared that the appellant / plaintiff lived in the said property from the date of her marriage in 1994 till 1996 when she moved out to Defence Colony as her relations with the defendants had become strained. Interestingly, her husband (defendant No.1) also joined her and started residing with her in Defence Colony, which was a rented accommodation. In 1999, the appellant / plaintiff and her husband (defendant No.1) returned to the said property and resided in the first floor. Serious allegations have been hurled by the plaintiff as well as the defendant No.1 against each other with regard to their chastity. There is also an allegation that the defendant No.2 married another lady sometime in 2004 and that she had moved into the said property. It was alleged that because of these incidents, the appellant / plaintiff left the property in 2004. Of course, she re-entered the first floor of the said property on 10.10.2004 at 2.30 a.m. It is because of this circumstance, that the learned single Judge was prima facie of the view that there was some credence in the allegations of the defendants that the appellant / plaintiff had forced her entry into the said property on 10.10.2004 at an odd hour. Another circumstance which may be noted is that the appellant / plaintiff had also taken a flat in Mumbai for the period December 1999 to November 2000 and that the lease of the flat was in her name and she had stayed there for three-four months and her husband had also joined her. It is because of these circumstances that the learned single Judge was of the view that there was a serious dispute as to whether the suit property could, at all, have been termed as a matrimonial house, particularly when the appellant / plaintiff had left the said property in the early part of 2004 and had, prima facie, forcibly entered the same on 10.10.2004.
  8. Anyhow, the main thrust of the reasoning adopted by the learned single Judge was that the daughter-in-law (appellant/plaintiff) cannot claim any right to stay in the said property inasmuch as the said property belonged to her parents-in-law. This conclusion is based on the said decision of the Supreme Court in the case of S.R. Batra (supra).
  9. Mr Akhil Sibal, the learned counsel appearing on behalf of the plaintiff raised three points of attack insofar as the impugned decision is concerned. https://wp.me/p7s7-3tU His first and main point was that the learned single Judge had proceeded on the basis that there was no dispute that the property belonged to the defendants 2 and 3. He submitted that the plaintiff had nowhere admitted the defendants 2 and 3 to be the sole and exclusive owners of the said property. Consequently, the learned counsel submitted that since the very premise was wrong, the conclusion based on such premise was obviously erroneous. He also submitted that because the said premise was faulty, the decision of the Supreme Court in the case of S.R. Batra (supra) would not be applicable to the facts and circumstances of the present case.
  10. The second point of attack was that the learned single Judge had erred in holding that the appellant / plaintiff, could not, as a matter of law, claim any right in the property of the mother-in-law. He submitted that the plaintiff / appellant had a right of residence and that this proposition was not correct. The third point of attack was that since the learned single Judge had decided that in law, the appellant / plaintiff could not claim any right in the property of the mother-in-law, the suit as such had virtually been dismissed without returning any conclusive findings or recording any satisfaction on the factual aspects at all. He, therefore, submitted that this was a fit case for remand, after the impugned order was set aside.
  11. Elaborating on the first aspect of the matter, that the appellant / plaintiff had not admitted the defendant Nos. 2 and 3, jointly or the defendant No.3 by herself, to be the exclusive owner(s) of the said property, Mr Sibal drew our attention to the pleadings of the parties and, in particular, to the written statements filed on behalf of the defendant Nos.1, 2 and 3. Referring to para 3 of the written statement of the defendant No.1, Mr Sibal pointed out that the stand taken is that the said property belonged to defendant No.3 (the mother-in-law). https://wp.me/p7s7-3tU However, in paragraph 17 of the same written statement, a somewhat different statement has been made to the following effect:- “… The suit property lawfully belongs to the parents of the defendant No.1 and the plaintiff has no claim whatsoever in the said suit property.” Again, in para 21 of the written statement of the defendant No.1, it is stated as under:- “… the matrimonial house of the parties will be the residence of the husband i.e. defendant No.1 and not the house / property of the parents of the husband i.e. defendant No.2 and 3 to whom the suit property belongs. The suit property is the self acquired property of the defendant No.2 and 3 and no person except the defendant No.3 has any right, title or interest in the suit property. The matrimonial home of the plaintiff thus will be the house in which her husband i.e. defendant No.1 resides who has his residence in Dehradun and not in the suit property.”
  12. Mr Sibal submitted that from the aforesaid averments made in the written statement, the defendant No.1 has taken conflicting stands. https://wp.me/p7s7-3tU At one place, the defendant No.1 has stated that the property belongs to his mother (defendant No.3) and not to the plaintiff and at other places he has stated that it belongs to his parents, i.e., both defendant Nos.2 and 3.
  13. Referring to the written statement of the defendant No.2, Mr Sibal submitted that the defendant No.2 claimed the said property to have been built from his personal earnings and also on the basis of the loan which he had taken from LIC. He referred to the following averments in paragraph 6 of the written statement:- “6. That the correct facts in brief imperative for the proper adjudication of the present matter are that the house at 18A, Ring Road, Lajpat Nagar was built from the personal earnings of defendant No.2 and also the loan which he had taken from LIC. The defendant No.2 was living on the ground floor with his wife, defendant No.3 and three unmarried children. The plaintiff and the defendant No.1 got married in the year 1994. After the marriage, the plaintiff and the defendant No.1 lived with defendants no.2 and 3 in the ground floor of their house. Thereafter, in the year 1996, the plaintiff and the defendant No.1 left the said premises at Lajpat Nagar and took a separate residential premises for their living in C-461, Defence Colony, New Delhi which remained their residential premises till 1999. The said house was taken on lease by plaintiff and defendant No.1 and all the payments for rent and were duly reflected in defendant No.1?s Bank statement for the said period. Thereafter plaintiff and defendant No.1 had been living at different places from time to time. For the last few years plaintiff and defendant no.1 started living in defendant No.1?s house in Dehradun or at times at the First Floor of the suit property with permission of defendants no.2 & 3. Whenever they stayed at Lajpat Nagar House even though they maintain separate kitchen. Defendant No.2 had been paying all electricity and water charges including payment to security guards and other related expenses. For the said reasons the first floor at Lajpat nagar house belonging to defendant No.3 was never considered to be matrimonial home of plaintiff and defendant No.1.” The defendant No.3, in paragraph 11 (preliminary objections) of her written statement, has categorically stated that the suit property is the self acquired property of the defendant No.3 and no person except the defendant No.3 has any right, title or interest in the suit property. https://wp.me/p7s7-3tU In para 2 (parawise reply on merits), the defendant No.3 once again stated that she was the true and legal owner of the suit property and the defendant No.2 and 3 have been in possession of the suit property.
  14. In view of the averments made in the said written statements, Mr Sibal submitted that the stand of the defendants is unclear. At one point, they claim that the property belongs to the defendant Nos.2 and 3 and at other points they claim that the property belongs to defendant No.3 exclusively. Thus, according to Mr Sibal, the shifting stands are indicative of the ulterior designs of the defendants to oust the appellant / plaintiff from her matrimonial home.
  15. He then referred to para 21 of the replication, where, for the first time, the plaintiff raised the plea that the said property was not the self- acquired property of the defendants 2 and 3 and also denied that no person except the defendant No.3 had any right, title or interest in the suit property. It was, therefore, contended by Mr Sibal that there was a dispute with regard to the ownership of the suit property. Continuing further, Mr Sibal referred to the Order X statement made under the Code of Civil Procedure, 1908 by the defendant No.2, where once again, the said defendant took a different stand that the property bearing No.18-A, Ring Road, Lajpat Nagar, Delhi had been bought by his wife, Mrs Sheela Sandhu out of her own income and that the perpetual lease deed was executed by DDA in her favour.
  16. Mr Sibal also submitted that an application being IA No.8442/2005 had been filed by the appellant / plaintiff under order 6 Rule 17, CPC seeking amendment of the plaint. One of the amendments sought was the introduction of para 12-B, wherein the plaintiff proposed to allege that the defendant No.3, in collusion with the other defendants, had transferred part of the above said property in the name of defendant No.4 falsely claiming this to be her absolute property, knowing fully well that the said property was the joint ancestral property and by making false averments regarding possession and consideration. In other words, the appellant / plaintiff sought to take, inter alia, the plea of joint ancestral property by virtue of the said amendment application. https://wp.me/p7s7-3tU Mr Sibal said that that application is pending and is yet to be disposed of. He submitted that the learned single Judge ought to have disposed of the application for amendment prior to passing the impugned order. This, according to him, is another reason as to why the impugned order ought to be set aside and the matter be remanded to the learned single Judge for a fresh consideration.
  17. There was also some controversy with regard to a status quo order dated 08.01.2005. But, we need not go into that aspect of the matter. The main thrust of the arguments advanced by Mr Sibal was that the foundation on which the learned single Judge had premised his conclusions was itself faulty inasmuch as the learned single Judge, assumed that there was no dispute that the suit property belonged to the defendants 2 and 3 in which the appellant?s / plaintiff?s husband had no share or interest. He submitted that he has been able to show, prima faice, that there was a dispute as to whether the defendants 2 and 3 or the defendant No.3 alone was the exclusive owner of the said property and that the issue as to whether it was a joint family property also needed to be looked into. Therefore, the decision in the case of S.R. Batra (supra) would not be applicable to the facts and circumstances of the present case, because, in the Supreme Court decision, the position with regard to ownership, being that of the mother-in- law, was undisputed.
  18. Referring to the following decisions, Mr Sibal submitted that the property in question was the matrimonial home of the appellant / plaintiff and she had a right to reside therein and, therefore, she was entitled to an order restraining the defendants from dispossessing her and / or creating any third party interest therein:-
    1. 1) Kavita Gambhir v. Hari Chand Gambhir & Another: 162 (2009) DLT 459;
    2. 2) Appasaheb Peerappa Chandgade v. Devendra Peerappa Chandgade and Ors.: 2007 (1) SCC 521;
    3. 3) Komalam Amma v. Kumara Pillai Raghavan Pillai & Others: AIR 2009 SC 636;
    4. 4) Mangat Mal (Dead) & Another v. Punni Devi (Dead) and Others: 1995
    5. 5) SCC 88; 5) S.R. Batra & Another v. Taruna Batra: 2007 (3) SCC 169;
    6. 6) S. Prabhakaran v. State of Kerala: 2009(2) RCR(Civil) 883;
    7. 7) P. Babu Venkatesh Kandayammal and Padmavathi v. Rani: [CRL. R.C. Nos.48 and 148 of 2008 and M.P. Nos. 1 of 2008 decided on 25.03.2008].
  19. Mr Chetan Sharma, the learned senior counsel, appearing for the respondent No.3, submitted that the present appeal is merely academic because the learned single Judge has virtually decreed the suit. He submitted that one of the reliefs claimed in the suit was to permanently injunct the defendants from forcibly dispossessing the plaintiff out of her matrimonial home “without due process of law”. https://wp.me/p7s7-3tU He submitted that this relief has already been granted by the learned single Judge by virtue of the impugned order, whereby he directed as under:-
    • 19. In view of the above, insofar as the right of the plaintiff to stay in the suit property is concerned, she cannot claim any such right as the property belongs to her parents-in-law. However, statement of defendant No.2 was recorded by the Court under Order X CPC where he stated that he or his wife had no intention to throw her out of the premises in question without due process of law. Therefore, while dismissing the applications of the plaintiff, it is ordered that the defendant Nos.1 and 2 shall remain bound by the said statement. This, however, would not prevent the defendants to take recourse to the law for dispossessing the plaintiff.”
  20. Mr Chetan Sharma further submitted that at the time when IA Nos. 291/2005 and 8444/2005 were being argued and which ultimately came to be disposed of by the impugned order, the appellant / plaintiff did not press for hearing of the amendment application. Consequently, she cannot now be permitted to submit that the said amendment application ought to have been decided prior to the said IA Nos.291/2005 and 8444/2005. He further submitted that the appellant / plaintiff did not press for any additional issue with regard to the title in respect of the said property. Referring to the Supreme Court decision in Om Prakash Gupta v. Ranbir B. Goyal: 2002 (2) SCC 256, Mr Sharma submitted that the rights of the parties stand crystallised on the date of institution of the suit and subsequent events are not to be taken into account unless the three circumstances referred to therein arise. The said three circumstances are:-
    • (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted;
    • (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and
    • (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise.
  21. Mr Chetan Sharma fully supported the impugned judgment and contended that there was no infirmity in the same and, therefore, did not call for any interference. He submitted that the case of the appellant / plaintiff was that there was no abandonment of the matrimonial home and that she had a right to live in the matrimonial home even if it belonged to her in- laws. Earlier, the High Court decision in the case of Taruna Batra v. S.R. Batra & Another: 116 (2005) DLT 646 had been relied upon by the appellant / plaintiff as observed in the impugned order itself, but the Supreme Court decision in S.R. Batra (supra) reversed the decision of the High Court and sealed the fate of the appellant / plaintiff. Mr Chetan Sharma also referred to a decision of a learned single Judge of this court in the case of Neetu Mittal v. Kanta Mittal & Others: (2008) 106 DRJ 623 by way of persuasive value to submit that under the Protection of Women from Domestic Violence Act, 2005, there is no concept of matrimonial home. On the other hand, the concept is of a „shared house-hold?. In that case, the learned single Judge, after referring to and relying upon the decision of the Supreme Court in S.R. Batra (supra) held that a daughter-in-law has no right to live in the house belonging to her parents-in-law.
  22. Mr Chetan Sharma also submitted that in the present case, the said property cannot be regarded as the matrimonial home because, first of all, the appellant / plaintiff left the house in 1996 when she went to reside in Defence Colony. https://wp.me/p7s7-3tU Her husband, the defendant No.1 also left the said property and resided with her in Defence Colony. Secondly, the appellant / plaintiff resided in Dehradun and, thirdly, she resided in Mumbai and then in 2004, she once again left the said property, only to re-enter the same on 10.10.2004 at 2.30 a.m. He referred to the order X, CPC statement of the appellant / plaintiff, wherein she stated that she had married the defendant on 05.11.1994 and that she had shifted to Defence Colony in June, 1996 and remained there till March, 1999. She then stated that she was forced to leave her matrimonial home in 2004. She also admitted that she took a flat in Bombay during the period December 1999 till November, 2000 and that the lease of the Bombay flat was in her name and that she was in Bombay for three to four months and that her husband had joined her later on. She also admitted to her going to Pakistan in January 2004 and staying there for six days alongwith a number of other persons. Thereafter, she went to Pakistan again on 12.04.2004 to 24.05.2004 with a women’s organization. She also admitted that during the period February 2004 till 09.10.2004, no formal complaint was lodged by her.
  23. According to Mr Sharma, the Protection of Women from Domestic Violence Act, 2005, would come into play only when domestic violence takes place. This is not a case of domestic violence as there has been no whisper of any violence during February 2004 to 10.10.2004 when the appellant / plaintiff re-entered the said property at 2.30 a.m. He submitted that apart from this not being a case of domestic violence at all, the appellant / plaintiff having come to learn that the defendant No.3 was interested in disposing of the said property, wanted to put an impediment in the sale so as to extract some money from the defendants. For all these reasons, Mr Sharma contended that the appeal be dismissed.
  24. Let us first deal with the submission of the learned counsel for the appellant that the foundation of the learned single Judge?s decision that there was no dispute that the suit property belongs to defendant Nos. 2 and 3 was itself faulty and, therefore, the entire decision is liable to be set aside. It is true that the learned single Judge had proceeded on the basis that there was no dispute that the suit property belonged to defendants 2 and 3 and even the question which was taken up for prima facie consideration by the learned single Judge, as would be apparent from paragraph 9 of the impugned order, was founded on the understanding that the appellant?s husband (defendant No.1) had no right, title or share in the said property and that the said property belonged to the appellant?s father-in-law and mother- in-law. We have already noticed above that the learned counsel for the appellant was at pains to attempt to demonstrate that the appellant / plaintiff nowhere admitted that the said property belonged to her father-in-law and mother-in-law or to her mother-in-law exclusively. He had also pointed out that there is no admission by the appellant / plaintiff that her husband (defendant No.1) did not have any right, interest or share in the said property. https://wp.me/p7s7-3tU The learned counsel for the appellant had drawn our attention to the written statements filed by the defendants as also the replication filed by the appellant / plaintiff and the Order X CPC statement of the defendant No.2.
  25. On going through the relevant portions of the said documents, it appears that the defendant No.1 took the stand that the said property belonged to his mother (defendant No.3). However, in the very same written statement, the defendant No.1 had also stated that the said property belonged to defendant Nos. 2 and 3 and that it was their self-acquired property. In the very same paragraph (para 21 of the written statement of the defendant No.1), it is again stated that no person except the defendant No.3 has any right in the said property. The defendant No.2 in his written statement stated that the said property was made from his personal earnings and from a loan taken from LIC. However, in his Order X CPC statement, the defendant No.2, took a different stand and stated that the property was bought by his wife (defendant No.3) out of her own funds. The defendant No.3, however, took a clear stand in her written statement that the said property was her self- acquired property and no person except her had any right, title or interest in the same. She stated that while she was the true and legal owner of the said property, her husband (defendant No.2) and she were in possession of the suit property.
  26. It does appear from the averments made in the written statements of the defendant Nos. 1 and 2 that there is a shift in the stand taken with regard to the ownership of the said property. The defendant No.1 had taken the stand that the property belongs to his mother (defendant No.3) and that no person except the defendant No.3 had any right, title or interest in the same. However, he has also averred that the said property belonged to defendants 2 and 3. A similar ambivalence is discernible in the stand taken by the defendant No.2 in his written statement and his order X CPC statement. However, this much is clear that none of the defendants have stated that the appellant?s husband (defendant No.1) had any right, title or interest in the said property. There is only some lack of clarity in the pleadings with regard to the exclusivity of ownership of the defendant No.3. In other words, there is a degree of ambiguity, particularly on the part of defendant No. 2 as to whether the defendant No.3 is the sole and exclusive owner of the said property or whether it also belongs to the defendant No.2. However, there is no confusion with regard to the stand that the said property does not at all belong to the appellant’s husband (defendant No.1).
  27. In the replication, as pointed out earlier, the appellant / plaintiff has sought to introduce a new dimension to the case by making an allegation that the said property is not the self-acquired property of the defendant Nos.2 and 3. The appellant / plaintiff had also filed an amendment application under Order 6 Rule 17, CPC to introduce new para 12 B in the plaint where she has taken the plea of joint ancestral property. However, as pointed out above, the appellant did not press for a decision on this application at the time when IA Nos. 291/2005 and 8444/2005 were being argued before the learned single Judge. In any event, the plea of joint ancestral property has been sought to be introduced only by way of an amendment to the plaint after the defendants had filed their written statements. It cannot be said as to whether the amendment, which has been sought, will be allowed by the learned single Judge or not. Therefore, as on the date on which the learned single Judge passed the order, there did not exist any plea of joint ancestral property in the pleadings of the parties. https://wp.me/p7s7-3tU Furthermore, what is important is to examine the stand taken by the appellant / plaintiff in the plaint which unfortunately had not been alluded to by the learned counsel for the appellant. In para 2 of the plaint, it is merely stated that the property bearing No.18-A, Ring Road, Lajpat Nagar-IV, is the matrimonial home of the plaintiff since 1994 and that she is currently residing in the first floor of the said property and the defendants are living on the ground floor due to strained relations between the parties.
  28. In paragraph 8 of the plaint, it is alleged:- “The defendant Nos. 2 and 3 permitted the Defendant No.1 to live with “Chinu” in the matrimonial home of the Plaintiff with ulterior motives of driving the Plaintiff from the matrimonial home.” From the said averment, it is discernible that even as per the appellant?s / plaintiff?s understanding, the said property, which the plaintiff was regarding as her “matrimonial home” belonged to defendant Nos. 2 and 3 and the defendant No.1 only had permission to live in the same.
  29. In para 12 of the plaint, it has been averred that the plaintiff feared for her life and was filing the suit to protect her rights “in her matrimonial home”. The plea taken was that she feared that she would be “summarily thrown out without due process of law”. It was also stated that:- “… the defendants are trying to sell the house. They have already taken possession of a house being 201, Jor Bagh, New Delhi for their residence.”
  30. Two things are clear from the averments made in the plaint. The first is that it is nowhere alleged in the plaint by the appellant / plaintiff that the said property, which the appellant / plaintiff was referring to as her matrimonial home belonged to or was owned by her husband (defendant No.1). In fact, there is no averment in the plaint that the defendant No.1 had any right, title or interest or share in the said property. There is no averment that the property did not belong to the defendant No.3 exclusively. As pointed out above, it can be inferred that the appellant / plaintiff was of the view that the property actually belonged to the defendant Nos. 2 and 3. https://wp.me/p7s7-3tU The other point which emerges from the averments contained in the plaint is that the suit was filed to protect her rights in her „matrimonial home? as she feared that she would be summarily thrown out without due process of law inasmuch as she had learnt that the defendants were trying to sell the house. It is in this context that the prayer (b) of the plaint, which seeks the grant of a decree of a permanent injunction restraining the defendants from forcibly dispossessing the plaintiff out of her “matrimonial home” without due process of law, gains importance and significance.
  31. Thus, looking at the totality of the circumstances and the pleadings as well as the order X, CPC statements, it cannot be said that the learned single Judge was off the mark when he observed that there is no dispute that the suit property belongs to the defendant Nos. 2 and 3. Therefore, the first point of attack that the conclusion of the learned single Judge was founded on a wrong premise, falls to the ground.
  32. In order to examine the other points urged by the learned counsel for the appellant to the effect that the conclusion of the learned single Judge that the appellant / plaintiff could not claim any right in the property of the mother-in-law was erroneous and that the learned single Judge in so holding had virtually dismissed the suit itself without recording any satisfaction on the facts, it would be necessary for us to consider the decisions cited at the bar as also the provisions of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as „the said Act?). We shall first examine the decision of the Supreme Court in the case of Mangat Mal (supra) wherein a question arose as to whether the right of maintenance of a Hindu lady, includes the right of provision for residence. The Supreme Court held as follows:-
    • 19. Maintenance, as we see it, necessarily must encompass a provision for residence. Maintenance is given so that the lady can live in the manner, more or less, to which she was accustomed. The concept of maintenance must, therefore, include provisions for food and clothing and the like and take into account the basic need for a roof over the head. Provision for residence may be made either by giving a lump sum in money, or property in lieu thereof. It may also be made by providing, for the course of the lady’s life, a residence and money for other necessary expenditure. Where provision is made in this manner, by giving a life interest in property for the purposes of residence, that provision is made in lieu of a pre-existing right to maintenance and the Hindu lady acquires far more than the vestige of title which is deemed sufficient to attract Section 14(1).”
  33. Next, we refer to the decision of the Supreme Court in B.P. Achla Anand v. S. Appi Reddy and Another: 2005 (3) SCC 313, which is a decision which was relied upon by a learned single Judge of this court in the case of Kavita Gambhir (supra), which in turn, was referred to by the learned counsel for the appellant. In B.P. Achla Anand (supra), in the context of a deserted wife continuing in possession of a property in which her husband was a tenant, the Supreme Court observed that there was no precedent, much less a binding authority, from any court in India dealing with such a situation. However, the Supreme Court noticed that English decisions could be found. The following passage from Lord Dening?s Book – The Due Process of Law – was quoted by the Supreme Court:- “A wife is no longer her husband’s chattel. She is beginning to be regarded by the laws as a partner in all affairs which are their common concern. Thus the husband can no longer turn her out of the matrimonial home. She has as much right as he to stay there even though the house does stand in his name. … Moreover it has been held that the wife’s right is effective, not only as against her husband but also as against the landlord. Thus where a husband who was statutory tenant of the matrimonial home, deserted his wife and left the house, it was held that the landlord could not turn her out so long as she paid the rent and performed the conditions of the tenancy.”
  34. After considering several other decisions, under English law, the Supreme Court noted the Matrimonial Homes Act, 1983 applicable in England. The preamble of that Act stated that it was an Act to consolidate certain enactments relating to the rights of a husband or wife to occupy a dwelling house that has been a matrimonial home. The Supreme noted that one of the several rights expressly provided for by the Matrimonial Homes Act, 1983 in England was that so long as one spouse had a right to occupation, either of the spouses could apply to the court for an order requiring the other spouse to permit the exercise of that right. The Supreme Court observed as under:-
    • “32. In our opinion, a deserted wife who has been or is entitled to be in occupation of the matrimonial home is entitled to contest the suit for eviction filed against her husband in his capacity as tenant subject to satisfying two conditions : first, that the tenant has given up the contest or is not interested in contesting the suit and such giving up by the tenant-husband shall prejudice the deserted wife who is residing in the premises; and secondly, the scope and ambit of the contest or defence by the wife would not be on a footing higher or larger than that of the tenant himself. In other words, such a wife would be entitled to raise all such pleas and claim trial thereon, as would have been available to the tenant himself and no more. So long as, by availing the benefit of the provisions of the Transfer of Property Act and Rent Control Legislation, the tenant would have been entitled to stay in the tenancy premises, the wife too can continue to stay exercising her right to residence as a part of right to maintenance subject to compliance with all such obligations including the payment of rent to which the tenant is subject. This right comes to an end with the wife losing her status as wife consequent upon decree of divorce and the right to occupy the house as part of right to maintenance coming to an end.
    • 33. We are also of the opinion that a deserted wife in occupation of the tenanted premises cannot be placed in a position worse than that of a sub-tenant contesting a claim for eviction on the ground of subletting. Having been deserted by the tenant-husband, she cannot be deprived of the roof over her head where the tenant has conveniently left her to face the peril of eviction attributable to default or neglect of himself. We are inclined to hold – and we do so – that a deserted wife continuing in occupation of the premises obtained on lease by her husband, and which was their matrimonial home, occupies a position akin to that of an heir of the tenant-husband if the right to residence of such wife has not come to an end. The tenant having lost interest in protecting his tenancy rights as available to him under the law, the same right would devolve upon and inhere in the wife so long as she continues in occupation of the premises. Her rights and obligations shall not be higher or larger than those of the tenant himself. A suitable amendment in the legislation is called for to that effect. And, so long as that is not done, we, responding to the demands of social and gender justice, need to mould the relief and do complete justice by exercising our jurisdiction under Article 142 of the Constitution. We hasten to add that the purpose of our holding as above is to give the wife’s right to residence a meaningful efficacy as dictated by the needs of the times; we do not intend nor do we propose the landlord’s right to eviction against his tenant to be subordinated to wife’s right to residence enforceable against her husband. Let both the rights co- exist so long as they can.”
  35. However, in B.P. Achla Anand (supra), the appeal filed by Smt. Achla was dismissed because, in the meanwhile, a decree for dissolution of marriage by divorce based on mutual consent had been passed. The Supreme Court noted that it was not the case of Smt. Achla Anand, the appellant, that she was entitled to continue her residence in the tenanted premises by virtue of an obligation incurred by her ex husband to provide residence for her as part of maintenance. Consequently, the Supreme Court held that she could not, therefore, be allowed to proceed with the appeal and defend her right against the claim for eviction made by the landlord.
  36. The third decision of the Supreme Court in this line is that of Komalam Amma (supra). In that decision, the Supreme Court took a view similar to that in Mangat Mal?s case (supra) that maintenance, in the case of a Hindu lady, necessarily must encompass a provision for residence. The Surpeme Court reiterated that the provision for residence may be made either by giving a lump sum in money or property in lieu thereof. It may also be made by providing, for the course of the lady?s life, a residence and money for other necessary expenditure.
  37. The final decision in this line of cases is that of the Supreme Court in S.R. Batra (supra). The facts before the Supreme Court in S.R. Batra (supra) are somewhat similar to those in the present case and it would, therefore, be instructive to refer to them in some detail. Taruna Batra married Amit Batra and started living with him in the second floor of the house belonging to Amit Batra?s mother. It was not disputed that the said house at B-135, Ashok Vihar, Phase-I, Delhi belonged to Taruna Batra?s mother-in-law and not to her husband Amit Batra. Cross divorce petitions were filed by Taruna Batra and Amit Batra and because of this discord, Smt Taruna Batra shifted to her parents residence. She alleged that later on, when she tried to enter B-135, Ashok Vihar, she found the main entrance locked and consequently she filed a suit for mandatory injunction to enable her to enter the house. However, before any order could be passed in the said suit, Smt Taruna Batra, alongwith her parents, allegedly broke open the locks and entered the said property. Another aspect was that Amit Batra had shifted to his own flat in Mohan Nagar, Ghaziabad before the said litigation had ensued. In the said suit, the trial Judge granted temporary injunction restraining the appellants therein from interfering with the possession of Smt Taruna Batra in respect of the second floor of the said property. In appeal, the Senior Civil Judge, Delhi, by his order dated 17.09.2004, held that Smt Taruna Batra was not residing in the second floor of the premises in question and that her husband Amit Batra was not living in the said property and the matrimonial home could not be said to be a place where only a wife was residing. He also held that Smt Taruna Batra had no right to the properties other than that of her husband and consequently dismissed the temporary injunction application. Thereafter, a petition under Article 227 of the Constitution of India was filed before the Delhi High Court whereupon a learned single Judge of this court held that the second floor of the property in question was the matrimonial home of Smt Taruna Batra and he further held that even if her husband Amit Batra shifted to Ghaziabad that would not make the Ghaziabad home the matrimonial home of Smt Taruna Batra. On this reasoning, the learned single Judge of this court, held that Smt Taruna Batra was entitled to continue to reside in the second floor of B-135, Ashok Vihar as that was her matrimonial home. The Supreme Court disagreed with the view taken by the learned single Judge of this court. Referring to an earlier decision in the case of B.R. Mehta v. Atma Devi and Others: 1987 (4) SCC 183, the Supreme Court observed “whereas in England the rights of the spouses to the matrimonial home are governed by the Matrimonial Homes Act, 1967, no such right existed in India”.
  38. A reference was made to the following observations in B.R. Mehta (supra):- “… it may be that with change of situation and complex problems arising it is high time to give the wife or the husband a right of occupation in a truly matrimonial home, in case of the marriage breaking up or in case of strained relationship between the husband and the wife.” However, the Supreme Court in S.R. Batra (supra) observed that the aforesaid extract was merely an expression of hope and it did not lay down any law and that it was only the legislature which could create a law and not the court. The Supreme Court further held:- “17. There is no such law in India, like the British Matrimonial Homes Act, 1967, and in any case, the rights which may be available under any law can only be as against the husband and not against the father-in-law or mother-in-law. 18. Here, the house in question belongs to the mother-in-law of Smt. Taruna Batra and it does not belong to her husband Amit Batra. Hence, Smt. Taruna Batra cannot claim any right to live in the said house. 19. Appellant No. 2, the mother-in-law of Smt. Taruna Batra has stated that she had taken a loan for acquiring the house and it is not a joint family property. We see no reason to disbelieve this statement.”
  39. Thereafter, the Supreme Court considered the provisions of the said Act and particularly the concept of a “shared household” under Section 2(s) of the said Act as also the provisions of Sections 17 and 19(1) thereof and repelled the argument that since Smt Taruna Batra had lived in the property in question in the past, therefore, the said property was her „shared household?. The Supreme Court observed as under:- “26. If the aforesaid submission is accepted, then it will mean that wherever the husband and wife lived together in the past that property becomes a shared household. It is quite possible that the husband and wife may have lived together in dozens of places e.g. with the husband’s father, husband’s paternal grand parents, his maternal parents, uncles, aunts, brothers, sisters, nephews, nieces etc. If the interpretation canvassed by the learned Counsel for the respondent is accepted, all these houses of the husband’s relatives will be shared households and the wife can well insist in living in the all these houses of her husband’s relatives merely because she had stayed with her husband for some time in those houses in the past. Such a view would lead to chaos and would be absurd. 27. It is well settled that any interpretation which leads to absurdity should not be accepted.” The Supreme Court finally held as under:- “29. As regards Section 17(1) of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household, and a ‘shared household’ would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The property in question in the present case neither belongs to Amit Batra nor was it taken on rent by him nor is it a joint family property of which the husband Amit Batra is a member, it is the exclusive property of appellant No. 2, mother of Amit Batra. Hence it cannot be called a ‘shared household’. 30. No doubt, the definition of ‘shared household’ in Section 2(s) of the Act is not very happily worded, and appears to be the result of clumsy drafting, but we have to give it an interpretation which is sensible and which does not lead to chaos in society.”
  40. From this line of cases, it is apparent that the concept of maintenance, insofar as a Hindu lady is concerned, necessarily encompasses the provision for residence. Furthermore, the provision for residence may be made either by giving a lumpsum in money or property in lieu thereof. It may also be made by providing, for the course of the lady?s life, a residence and money for other necessary expenditure. Insofar as Section 17 of the said Act is concerned, a wife would only be entitled to claim a right of residence in a “shared household” and such a household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The property which neither belongs to the husband nor is taken on rent by him, nor is it a joint family property in which the husband is a member, cannot be regarded as a “shared household”. Clearly, the property which exclusively belongs to the father-in-law or the mother-in-law or to them both, in which the husband has no right, title or interest, cannot be called a “shared household”. The concept of matrimonial home, as would be applicable in England under the Matrimonial Homes Act, 1967, has no relevance in India.
  41. In the light of the aforesaid principles, the appellant / plaintiff would certainly have a right of residence whether as a part of maintenance or as a separate right under the said Act. The right of residence, in our view, is not the same thing as a right to reside in a particular property which the appellant refers to as her „matrimonial home?. The said Act was introduced, inter alia, to provide for the rights of women to secure housing and to provide for the right of the women to reside in a shared household, whether or not she had any right, title or interest in such a household.
  42. Let us now look at the relevant provisions of the said Act. They are:-
    • “2. Definitions. – In this Act, unless the context otherwise requires,
    • (a) “aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;
    • xxxx xxxx xxxx xxxx
    • (q) “respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner;
    • xxxx xxxx xxxx xxxx
    • (s) “shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.”
  43. Chapter IV of the said Act deals with the procedure for obtaining orders or reliefs. The said chapter comprises of Sections 12 to 29. Section 12 provides for the making of an application to a Magistrate seeking one or more of the reliefs under the Act. Section 17 relates to the right to reside in a “shared household”. Section 18 prescribes the protection orders which the Magistrate may pass on being prima facie satisfied that domestic violence has taken place or is likely to take place. Section 19 contemplates the residence orders that may be passed by the Magistrate on being satisfied that domestic violence has taken place. Since the said provisions of Sections 17, 18 and 19 are relevant, they are set out in full hereinbelow:-
    • “17. Right to reside in a shared household. –
    • (1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.
    • (2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.
    • 18. Protection orders.-
    • The Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, pass a protection order in favour of the aggrieved person and prohibit the respondent from-
    • (a) committing any act of domestic violence;
    • (b) aiding or abetting in the commission of acts of domestic violence;
    • (c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person;
    • (d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact;
    • (e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate;
    • (f) causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence;
    • (g) committing any other act as specified in the protection order.
    • 19. Residence orders.
    • (1) While disposing of an application under sub-section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order –
    • (a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;
    • (b) directing the respondent to remove himself from the shared household;
    • (c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;
    • (d) restraining the respondent from alienating or disposing off the shared household or encumbering the same;
    • (e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or
    • (f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require: Provided that no order under clause (b) shall be passed against any person who is a woman.
    • (2) The Magistrate may impose any additional conditions or pass any other direction which he may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person.
    • (3) The Magistrate may require from the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence.
    • (4) An order under sub-section (3) shall be deemed to be an order under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be dealt with accordingly.
    • (5) While passing an order under sub-section (1), sub-section (2) or sub-section (3), the court may also pass an order directing the officer in charge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order.
    • (6) While making an order under sub-section (1), the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties. (7) The Magistrate may direct the officer in-charge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order. (8) The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled to.”
  44. Another important provision is Section 23 which empowers the Magistrate to grant interim and ex parte orders on the Magistrate being satisfied that an application, prima facie, discloses that the respondent is committing or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence. The ex parte order may be passed on the basis of affidavits of the aggrieved person in terms of, inter alia, Sections 18 and 19 against the respondent. Section 26 of the said Act prescribes that any relief available under Sections 18, 19, 20, 21 and 22 may also be sought in any legal proceedings before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent, whether such proceeding was initiated before or after the commencement of the said Act.
  45. From the aforesaid provisions, it is clear that the expression “matrimonial home” does not find place in the said Act. It is only the expression “shared household” which is referred to in the said Act. “Shared household” is defined in Section 2(s) to mean a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity. The „shared household? also includes such a household which may belong to the joint family, of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household. The word “household” has not been defined in the said Act, however, Black?s Law Dictionary, 9th Edition defines „household? in the following manner:- “household, adj. Belonging to the house and family; domestic. household, n. (14c) 1. A family living together, 2. A group of people who dwell under the same roof. Cf. FAMILY. 3. The contents of a house.”
  46. In contrast, the impression that we get by reading Section 2(s), which defines “shared household” is that the “household” which is referred to in the said provision, relates to the property and not just to the group of people who dwell under the same roof or the family living together. Therefore, we are of the view that the word “household” used in Section 2(s) actually means a house in the normal sense of referring to a property, be it a full-fledged house or an apartment, or some other property by any other description. This is also clear because the expression “household” has been referred to as a place where the person aggrieved lives or, at any stage has lived. It also refers to a property whether owned or tenanted or in which the aggrieved person or the respondent has any right, title, interest or equity. Therefore, in order to fall within the meaning of “shared household” as defined in Section 2(s), it is essential that the property in question must be one where the person aggrieved lives, or at any stage, has lived in a domestic relationship, either singly or alongwith the respondent. It also includes such a property whether owned or tenanted either jointly by the aggrieved person and the respondent or owned or tenanted by either of them in respect of which either of them or both jointly or singly have any right, title, interest or equity. It also includes a property which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest therein. The Supreme Court has already observed in S.R. Batra (supra) that the definition of “shared household” in Section 2(s) is not happily worded, but the courts have to give it an interpretation which is sensible and which does not lead to chaos in society. In this backdrop and in the facts and circumstances of the present case, the property in question cannot be considered to be a shared “household” because neither the appellant / plaintiff, nor her husband (defendant No.1) has any right, title or interest or equitable right in the same. The property may belong to defendant No.3 exclusively or to defendants 2 and 3 jointly, but it certainly does not belong to the defendant No.1 or the appellant / plaintiff. The position as it exists today also does not indicate even prima facie that the property in question is the property of a joint family of which the defendant No.1 is a member. Therefore, in our view, the property in question does not fall within the expression “shared household” as appearing in Section 2(s) of the said Act.
  47. Section 17 of the said Act deals with the right of every women in a domestic relationship to reside in the shared household and, Section 17(2), specifically provides that such a woman shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law. In other words, the wife can be evicted or excluded from the “shared household” after following the due procedure established by law and it is not an absolute right of the wife to reside in a “shared household”. However, in the present case, we need to go into this aspect of the matter because Section 17 in itself would be inapplicable in view of the fact that the property in question cannot be regarded as a “shared household”. The residence orders that may be passed under Section 19 are also subject to the Magistrate / court being satisfied that domestic violence has taken place. All the residence orders also relate to a “shared household”. Consequently, Section 19 would also not come in the aid of the appellant / plaintiff.
  48. The learned counsel for the appellant had also referred to single Bench decisions of the Kerala High Court and the Madras High Court in the cases of S. Prabhakaran (supra) and P. Babu Venkatesh Kandayammal and Padmavathi(supra) to indicate instances of cases where the Supreme Court decision in S.R. Batra (supra) was distinguished. Those decisions are single Bench decisions and that too of other high courts and are, therefore, of no precedential values insofar as this Bench is concerned. We feel that in view of the prima facie finding that the property in question does not belong to the appellant?s / plaintiff?s husband nor does he have any share or interest in the same, there is no question of the said property being regarded as a “shared household” in terms of Section 2(s) of the said Act. We also find that the expression “matrimonial home” is not at all defined in the said Act and the concept of the matrimonial homes as prevailing in England by virtue of the Matrimonial Homes Act, 1967 cannot be applied in India as pointed out in S.R. Batra (supra) and B.R. Mehta (supra). There is no doubt that the appellant / plaintiff has a right of a residence whether as an independent right or as a right encapsulated in the right to maintenance under the personal law applicable to her. But that right of residence does not translate into a right to reside in a particular house. More so, because her husband does not have any right, title or interest in the said house. As noted by the Supreme Court in the case of Komalam Amma (supra) as well as in Mangat Mal (supra), the right of residence or provision for residence may be made by either giving a lumpsum in money or property in lieu thereof. In the present case, we have noted earlier in this judgment that the learned single Judge had recorded that alternative premises had been offered to the appellant / plaintiff, but she refused to accept the same and insisted on retaining the second floor of the property in question claiming it to be her „matrimonial home?.
  49. We must emphasise once again that the right of residence which a wife undoubtedly has does not mean the right to reside in a particular property. It may, of course, mean the right to reside in a commensurate property. But it can certainly not translate into a right to reside in a particular property. In order to illustrate this proposition, we may take an example of a house being allotted to a high functionary, say a Minister in the Central Cabinet and who resides in the same house alongwith his wife, son and daughter-in-law. It is obvious that since the daughter-in-law and son reside in the said house, which otherwise is a government accommodation allotted to the father-in-law, the same could be regarded as the house where the son and daughter-in-law live in matrimony. Can the daughter-in-law claim that she has a right to live in that particular property irrespective of the fact that the father-in-law subsequently is no longer a Minister and the property reverts entirely to the Government? Certainly not. It is only in that property in which the husband has a right, title or interest that the wife can claim residence and that, too, if no commensurate alternative is provided by the husband.
  50. In view of the foregoing discussion, no interference is called for with the impugned order and we also feel that the learned single Judge has amply protected the appellant / plaintiff by directing that she would not be evicted from the premises in question without following the due process of law. The appeal is dismissed. The parties shall bear their respective costs.

BADAR DURREZ AHMED, J

VEENA BIRBAL, J

October 26, 2010

dutt

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

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

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

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

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

Delhi High Court

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

Author: P Nandrajog

Bench: P Nandrajog

JUDGMENT Pradeep Nandrajog, J.

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

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


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15 lakhs for a SHORT marriage. FIR within 2 years of marriage !! Delhi HC

 
15 lakhs for a SHORT marriage. FIR within 2 years of marriage. 498a quahsed on payment ! Delhi HC

  • IN THE HIGH COURT OF DELHI AT NEW DELHI
  • CRL.M.C. 1653/2016
    Date of Decision: December 1st, 2016
    TARUN BATRA & ORS ….. Petitioners
    Through Ms.Guneet Khehar, Adv.

versus

THE STATE (NCT OF DELHI) & ANR ….. Respondents
Through Ms.Manjeet Arya, APP.
Respondent no.2 in person with
Mr.Madhukar, Adv. proxy for
Mr.Anirudh Mishra, Adv.
CORAM:
HON’BLE MR. JUSTICE P.S.TEJI

ORDER

P.S.TEJI, J.(Oral)

  1. The present petition under Section 482 Cr.P.C. has been filed by the petitioners, namely, Sh. Tarun Batra, Sh. R.K. Batra, Smt. Alka Batra and Sh. Varun Batra for quashing of FIR No.556/2013 dated 21.11.2013, under Sections 498-A/406/34 IPC registered at Police Station Kalkaji on the basis of a mediation report of the Delhi High Court Mediation and Conciliation Centre, New Delhi in view of the settlement arrived at between petitioners and respondent no.2, namely, Ms. Deepti Sachdeva on 26.05.2015.
  2. Learned Additional Public Prosecutor for respondent-State submitted that the respondent No.2, present in the Court has been identified to be the complainant/first-informant of the FIR in question by her counsel.

  3. The factual matrix, in brief, of the present case is that the marriage was solemnized between Mr. Tarun Batra and respondent no.2 on 14.04.2011 according to Hindu rites. It is the case of the complainant that the in-laws and husband of the complainant were dissatisfied with the dowry brought in by the complainant at the time of marriage and that they would torture her for the same.

Thereafter, the complainant got lodged the complaint following which the FIR in question was registered against the petitioners. During the pendency of the proceedings, the matter was settled between the accused persons and the respondent no.2. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

  1. Respondent No.2, present in the Court, submitted that the dispute between the parties has been amicably resolved. As per the relevant terms of the mediation report, it is agreed that the respondent no.2 and Mr. Tarun Batra shall be dissolved by filing for divorce by mutual consent. It is agreed between the parties that the petitioners shall pay a sum of Rs. 15 Lakhs to respondent no.2 in full and final settlement towards all her claims arising out of the marriage of respondent no.2 and Mr. Tarun Batra which includes permanent alimony, dowry articles, istridhan, maintenance (past, present and future). It is agreed that the petitioners shall pay a sum of Rs. 5 Lakhs by means of a DD at the time of recording of the statement of the respondent no.2 in support of quashing of the FIR in question before this Court. Respondent No.2 affirmed the contents of the aforesaid settlement and of her affidavit dated 18.04.2016 supporting this petition. In the affidavit, she has stated that she has no objection if the FIR in question is quashed. All the disputes and differences have been resolved through mutual consent. Now no dispute with petitioners survives and so, the proceedings arising out of the FIR in question be brought to an end. Statement of the respondent No.2 has been recorded in this regard in which she stated that she has entered into a compromise with the petitioners and has settled all the disputes with them. She further stated that she has no objection if the FIR in question is quashed.
  • In Gian Singh v. State of Punjab (2012) 10 SCC 303 Apex Court has recognized the need of amicable resolution of disputes in cases like the instant one, by observing as under:- “61. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceedings or continuation of criminal proceedings would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceedings.”

  • The aforesaid dictum stands reiterated by the Apex Court in a recent judgment in Narinder Singh v. State of Punjab (2014) 6 SCC 466. The relevant observations of the Apex Court in Narinder Singh (Supra) are as under:-

  • | “29. in view of the aforesaid discussion, we sum up and lay down the
    | following principles by which the high court would be guided in
    | giving adequate treatment to the settlement between the parties and
    | exercising its power under section 482 of the code while accepting
    | the settlement and quashing the proceedings or refusing to accept the
    | settlement with direction to continue with the criminal proceedings:
    | 29.1 power conferred under section 482 of the code is to be
    | distinguished from the power which lies in the court to compound the
    | offences under section 320 of the code.
    | of 8 doubt, under section 482 of the code, the high court has
    | inherent power to quash the criminal proceedings even in those cases
    | which are not compoundable, where the parties have settled the matter
    | between themselves. however, this power is to be exercised sparingly
    | and with caution. 29.2. when the parties have reached the settlement
    | and on that basis petition for quashing the criminal proceedings is
    | filed, the guiding factor in such cases would be to secure:
    |
    | (i) ends of justice, or
    |
    | (ii) to prevent abuse of the process of any court. while exercising
    | the power the high court is to form an opinion on either of the
    | aforesaid two objectives. 29.3. such a power is not to be exercised
    | in those prosecutions which involve heinous and serious offences of
    | mental depravity or offences like murder, rape, dacoity, etc. such
    | offences are not private in nature and have a serious impact on
    | society. similarly, for the offences alleged to have been committed
    | under special statute like the prevention of corruption act or the
    | offences committed by public servants while working in that capacity
    | are not to be quashed merely on the basis of compromise between the
    | victim and the offender. 29.4. on the other hand, those criminal
    | cases having overwhelmingly and predominantly civil character,
    | particularly those arising out of commercial transactions or arising
    | out of matrimonial relationship or family disputes should be quashed
    | when the parties have resolved their entire disputes among themselves.

    1. The inherent powers of the High Court ought to be exercised to prevent the abuse of process of law and to secure the ends of justice. The respondent no.2 agrees to the quashing of the FIR in question without any threat or coercion or undue influence and has stated that the matter has been settled out of her own free will. As the matter has been settled and compromised amicably, so, there would be an extraordinary delay in the process of law if the legal proceedings between the parties are carried on. So, this Court is of the considered opinion that this is a fit case to invoke the jurisdiction under Section 482 Cr.P.C. to prevent the abuse of process of law and to secure the ends of justice.

    2. The incorporation of inherent power under Section 482 Cr.P.C. is meant to deal with the situation in the absence of express provision of law to secure the ends of justice such as, where the process is abused or misused; where the ends of justice cannot be secured; where the process of law is used for unjust or unlawful object; to avoid the causing of harassment to any person by using the provision of Cr.P.C. or to avoid the delay of the legal process in the delivery of justice. Whereas, the inherent power is not to be exercised to circumvent the express provisions of law. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

    3. It is settled law that the inherent power of the High Court under Section 482 Cr.P.C. should be used sparingly. The Hon’ble Apex Court in the case of State of Maharashtra through CBI v. Vikram Anatrai Doshi and Ors. MANU/SC/0842/2014 and in the case of Inder Singh Goswami v. State of Uttaranchal MANU/SC/0808/2009 has observed that powers under Section 482 Cr.P.C. must be exercised sparingly, carefully and with great caution. Only when the Court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the Court if such power is not exercised, Court would quash the proceedings.

    4. It is a well settled law that where the High Court is convinced that the offences are entirely personal in nature and therefore do not affect public peace or tranquility and where it feels that quashing of such proceedings on account of compromise would bring about peace and would secure ends of justice, it should not hesitate to quash them. In such cases, pursuing prosecution would be waste of time and energy. Non-compoundable offences are basically an obstruction in entering into compromise. In certain cases, the main offence is compoundable but the connected offences are not. In the case of B.S. Joshi and others v. State of Haryana and another 2003 (4) SCC 675 the Hon’ble Apex Court observed that even though the provisions of Section 320 Cr.P.C. would not apply to such offences which are not compoundable, it did not limit or affect the powers under Section 482 Cr.P.C. The Hon’ble Apex Court laid down that if for the purpose of securing the ends of justice, quashing of FIR becomes necessary, section 320 Cr.P.C. would not be a bar to the exercise of power of quashing. In the nutshell, the Hon’ble Apex Court justified the exercise of powers under Section 482 Cr.P.C. to quash the proceedings to secure the ends of justice in view of the special facts and circumstances of the case, even where the offences were non- compoundable. In the light of the aforesaid, this Court is of the view that notwithstanding the fact the offence under Section 498A IPC is a non- compoundable offence, there should be no impediment in quashing the FIR under this section, if the Court is otherwise satisfied that the facts and circumstances of the case so warrant.

    5. The Courts in India are now normally taking the view that endeavour should be taken to promote conciliation and secure speedy settlement of disputes relating to marriage and family affairs such as, matrimonial disputes between the couple or/and between the wife and her in-laws. India being a vast country naturally has large number of married persons resulting into high numbers of matrimonial disputes due to differences in temperament, life-styles, opinions, thoughts etc. between such couples, due to which majority is coming to the Court to get redressal. In its 59th report, the Law Commission of India had emphasized that while dealing with disputes concerning the family, the Court ought to adopt an approach radically different from that adopted in ordinary civil proceedings and that it should make reasonable efforts at settlement before the commencement of the trial. Further it is also the constitutional mandate for speedy disposal of such disputes and to grant quick justice to the litigants. But, our Courts are already over burdened due to pendency of large number of cases because of which it becomes difficult for speedy disposal of matrimonial disputes alone. As the matrimonial disputes are mainly between the husband and the wife and personal matters are involved in such disputes, so, it requires conciliatory procedure to bring a settlement between them. Nowadays, mediation has played a very important role in settling the disputes, especially, matrimonial disputes and has yielded good results. The Court must exercise its inherent power under Section 482 Cr.P.C. to put an end to the matrimonial litigations at the earliest so that the parties can live peacefully.

    6. Since the subject matter of this FIR is essentially matrimonial, which now stands mutually and amicably settled between the parties, therefore, continuance of proceedings arising out of the FIR in question would be an exercise in futility and is a fit case for this Court to exercise its inherent jurisdiction.

    7. In the facts and circumstances of this case, in view of statement made by the respondent No.2 and the compromise arrived at between the parties, the FIR in question warrants to be put to an end and proceedings emanating thereupon need to be quashed.

    8. Accordingly, this petition is allowed and FIR No.556/2013 dated 21.11.2013, under Sections 498-A/406/34 IPC registered at Police Station Kalkaji and the proceedings emanating therefrom are quashed against the petitioners.

    9. This petition is accordingly disposed of.

    (P.S.TEJI) JUDGE

    DECEMBER 01, 2016

    /dd

    Crl.M.C. 1653/2016


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


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



     

     

    source : https://indiankanoon.org/doc/40608081/

     

    Son has no legal right to live in parent’s house. He stays at their mercy & till they allow – Delhi HC

    In this classic case, elders harassed by their Daughters in law and sons seek mandatory injunction and peacefull possesion of their property. They are granted the same by lower courts. One of the sons goes on appeal. The HC affirms the lower court orders.

    The Hon Delhi HC goes on to add “…. 15. 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….”


    IN THE HIGH COURT OF DELHI AT NEW DELHI

    Date of Decision: 24th November,2016

    RSA 136/2016 & CM No.19123/2016

    SACHIN & ANR ….. Appellants
    Through: Appellant No.1 in person

    versus

    JHABBU LAL & ANR ….. Respondents
    Through: Mr.Rakesh Kumar, Advocate with respondents in person

    PRATIBHA RANI, J. (Oral)

     

    1. The appellant No.1, who is present in person, requests for an adjournment on the ground that he wants to change his counsel. The appellants are enjoying an ex-parte interim stay granted in their favour on 20th May, 2016 against their dispossession from the suit property.
    2. On 29th August, 2016 the appellants requested for a date on the ground that the counsel was suffering from fever. This Court passed the following order:- “1. Only for the reason that counsel for the appellants is said to be down with fever, therefore, this case is adjourned, otherwise prima facie I find no merits in the appeal where appellants/defendants who are son and daughter-in-law of the respondents/plaintiffs have been evicted from the suit premises. 2. List on 7th September, 2016.
    3. On 7th September, 2016 after hearing respondent No.2, mother of the appellant No.1, with the consent of the parties, appellant No.1 Sachin was directed to pay ` 3500/- per month to the respondents/parents with effect from September, 2016. Appellant No.1 Sachin undertook to comply with this obligation. He also agreed not to stop his elder brother Sanjay (Defendant No.1) from using the second floor of the property. Matter was also referred to the mediation. Mediation report dated 17 th October, 2016 received with the report that it was ‘Non-Starter’.
    4. Today appellant No.1 Sachin was asked as to whether he has complied with the order dated 7th September, 2016 by making payment to his parents, he simply stated that he has no money to pay and sought time to change his counsel. The appellant No.1 was again asked whether he is ready to comply with the directions dated 7 th September, 2016 as in that case he can be given time to make the payment to his parents. The appellant No.1 has refused to make any payment to his parents.
    5. When the mediation failed on 17th October, 2016, if the appellants intended to change their counsel, nothing prevented them from doing so. The appellants cannot be permitted to abuse the process of law by seeking adjournment on one pretext or the others especially when they are enjoying ad-interim stay against their dispossession from this Court. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
    6. Heard.
    7. The Regular Second Appeal No.136/2016 under Section 100 of the Code of Civil Procedure, 1908 impugns the concurrent judgment of the Court below i.e. of the trial Court dated 16 th March, 2015 and of the First Appellate Court dated 13th January, 2016 whereby Civil Suit No.49/14 filed on 11th February, 2014 by the parents of the appellants (respondent Nos.1 & 2 herein) against their two sons and their wives seeking decree of permanent and mandatory injunction has been decreed.
    8. The suit was filed by respondent No.1, Sh.Jhabbu Lal and respondent No.2, Smt.Raj Devi pleading that they are senior citizens residing on ground floor in House No.RZ-H-81, Gali No.4, Nihal Vihar, Nangloi, Delhi-110041 and construction on the said plot has been raised upto second floor. Their elder son Sanjay along with his wife Mamta was permitted to live on the second floor whereas the younger son Sachin along with his wife Neetu was permitted to live on the first floor of the said property out of love and affection for their sons. The parents of the appellant No.1 claimed themselves to be owner of the suit property which was self acquired. It was further pleaded by the parents of the appellants that their sons as well their wives made the life hell for them so much so that they were not even paying the electricity bills. The old parents were constrained to make various complaints to the police and also issued public notice on 5th January, 2007 and 17th May, 2012 disowning their sons and debarring them from their self acquired property. It was also pleaded that said property was purchased by them by selling their earlier property being RZ-H-215A, Nihal Vihar, Laxmi Park, Nangloi, Delhi-110041. Since the behaviour of the two sons and their wives became unbearable, they filed a suit seeking a decree of mandatory injunction directing them to vacate the floors in their possession and also to restrain them from creating any third party interest in the said property.
    9. Two separate written statements were filed by the Sanjay and his wife (Defendant Nos.1 & 2) and Sachin and his wife Neetu (Defendant Nos.3 and 4) denying the claims of the plaintiffs to be the exclusive owner of the suit property or that it was their self acquired property. They claimed to be co- owner having contributed towards purchase as well as towards costs of construction for the said property.
    10. Perusal of the LCR shows that on 9th September, 2014 following issues were framed:- 1. Whether the plaintiff is entitled to be relief of mandatory and permanent injunction as prayed? OPP 2. Whether the plaintiff is not the exclusive owner of the suit property and the defendant are the co-owners? OPD 3. Relief.
    11. Both the plaintiffs filed their examination-in-chief by way of affidavit in support of the averments made in the plaint. However, all the four defendants failed to appear at that stage thus their right to cross-examine PW-1 & PW-2 was closed by the Court. Even at the stage of defence evidence none of the defendants led any evidence to prove that plaintiffs were not the exclusive owner of the suit property or that they were the co- owners. Believing the unrebutted testimony of the plaintiffs which was supported by necessary documentary evidence, learned trial Court decreed the suit interalia on the following grounds:- (i) The documents i.e. GPA, agreement to sell, receipt and Will being in favour of the plaintiff No.1 (Father of defendant Nos.1 & 3) though do not make him absolute owner but he has a better title as compared to the defendants. (ii) It has not been denied by the defendants that the property stands in the name of the plaintiff No.1 Sh. Jhabbu Lal and have not claimed any ownership right of their own distinguished from the plaintiffs. No evidence has been led to prove that they are the co-owners having contributed their share towards the purchase of the said property. (iii) The testimony of the plaintiffs that defendants were licensees and their license has been revoked stands unrebutted. (iv) Suit for mandatory injunction being filed within a reasonable time i.e. within six months period after termination of the license, separate suit for possession is not mandatory. Decree for mandatory and permanent injunction was accordingly passed in respect of the suit property. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
    12. The first appeal bearing RCA No.63/15 was filed only by defendant Nos.3 and 4 i.e. younger son Sachin and his wife Neetu. Before the First Appellate Court the grievance was more towards the learned Presiding Officer than on merits.
    13. The appeal was dismissed observing that it was a case of gross- negligence on the part of the appellants/defendant Nos.3 & 4 in defending the case. It was further held that in the absence of any evidence being led by the appellants and the testimony of the respondents/plaintiffs having remained unchallenged, the impugned order was not suffering from any illegality. Hence the appeal was dismissed.
    14. The appellant No.1 is the younger son of the respondent No.1/plaintiff No.1 Jhabbu Lal who has led detailed evidence both oral and documentary duly corroborated by testimony of his wife, respondent No.2/plaintiff No.2 Smt. Raj Devi to prove their case. The respondent Nos.1 and 2/plaintiffs may not have proved themselves to the owner of the suit property as may be established in a case of acquiring title under a registered sale deed but surely they would have better rights/entitlement to seek possession of the suit property from his sons who were permitted to live on the first floor only out of love and affection towards them.
    15. 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.
    16. In my opinion in a case such as the present one where the appellants/defendant Nos.3 & 4 have led no evidence to prove that it waived self acquired or co-ownership in the suit property whereas respondents/plaintiffs No.1 & 2 have proved their case on the basis of documentary evidence i.e. copies of General Power of Attorney, Agreement to Sell, Receipt possession letter Affidavit etc., the learned trial Court was justified in decreeing the suit which was upheld by the First Appellate Court.
    17. In view of the above no substantial question of law arises for this Court to exercise its power under Section 100 of the Code of Civil Procedure. Therefore, the appeal is dismissed leaving the parties to bear their own costs.

    PRATIBHA RANI, J.

    NOVEMBER 24, 2016 ‘pg’


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


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