Tag Archives: Delhi High Court

She can come back EVEN if you are DEAD !! A Decade After Man’s Death, Delhi HC Allows His Wife’s Appeal

A Decade After Man’s Death, Delhi HC Allows His Wife’s Appeal Against Divorce [Read Judgment] | Live Law

By: ashok kini

delhi hc

Ten years after the death of her husband, a lady’s appeal against divorce decree granted by the family court has been allowed by the Delhi High Court.

In 2007, the family court had dissolved their marriage observing that they had reached to a point of no return and their marriage had broken down irretrievably. The wife filed an appeal against this and in 2008, the husband expired. He was represented in the proceedings by his father.

In her appeal, the wife’s contention was that the family court did not take into account the factum that he had withdrawn her consent to the grant of the decree of mutual consent and that she, having refused to participate in the same, cannot now be compelled to accept a divorce through mutual consent in as much as the mutuality to the consent does not exist.

Perusing the records of this case, Justice Anu Malhotra observed that the element of mutual consent have not continued at the stage of proceedings under Section 13B(2) of the Hindu Marriage Act, 1955 when the decree of divorce was granted, no such decree of divorce under Section 13B(2) of the Hindu Marriage Act, 1955 as amended, as granted vide the impugned order, could have been granted.

The court said: “In the absence of the continued mutual consent a decree of divorce under Section 13 B(2) of the Hindu Marriage Act, 1955 as amended cannot be granted as laid down in Smruti Pahariya Vs. Sanjay Pahariya and from the absence of one of the parties before the Trial Court, the presumption of consent for divorce cannot be attributed to that party as consent needs to continue till the date of the decree of divorce under Section 13B (2) of the Hindu Marriage Act, 1955 as amended and the Court has the statutory obligation to hear the parties to ascertain their consent which was clearly not done in the instant case, the appellant not even being present on the date 06.10.2007 i.e. the date of the decree of divorce granted through mutual consent.”

Read judgement here : Courtesy Live law :

https://drive.google.com/file/d/1Qd4qxSrIZ5PrfC3V6NWfPlelxbgHbj71/view

 

 


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regards

Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

Indian Marriage : #alimony #maintenance guaranteed, #SEX not guaranteed ! #498a #DV added attractions !! और करलो शादी

Marriage is becoming legalized slavery and bondage for the males in India.

There is no guarantee of #Sex, there is no guarantee that the wife would be well behaved or a good companion, but every opportunity has been used to ensure that #Maintenace #alimony #wife-support is paid by me

Myriad laws have come to protect ONLY THE WIFE and not the other elders or kids involved

Hence Marriage is making lesser and lesser sense for MEN.

Slowly it’s becoming a great bonus for the Lawyers, courts and legal industry. It’s a great source of income and attention for lawyers who actively work on matrimonial cases. Its a great source of attention for feminists, who take every case, twist it and blame India men

Sadly, More and more judgements are just reinforcing this trend

lapel

 

Marriage doesn’t mean consent for sex: Delhi High on marital rape

////”Marriage does not mean that the woman is all time ready, willing and consenting (for establishing physical relations). The man will have to prove that she was a consenting party,” the bench observed.////
ET Online and Agencies|
Updated: Jul 18, 2018, 12.48 PM IST

The Delhi High Court, while hearing petitions on making marital rape an offence, has observed that physical force is not necessary for rape as a man could bring her wife under financial pressure to force her for sex. It also held that marriage doesn’t mean that wife is always consenting for physical relation with her husband.

“Force is not a pre condition of rape. If a man puts his wife under financial constraint and says he will not give her money for household and kids expenses, unless she indulges in sex with him and she has to do it under this threat. Later, she filed a rape case against the husband, what will happen,” the court said.

The court rejected the arguments put forward by the NGO Men Welfare Trust which said that in a spousal relationship, use of force or threat of force are important elements to constitute as rape. The NGO is opposing the plea to make marital rape an offence.

The NGO’s representatives Amit Lakhani and Ritwik Bisaria cited several laws – Prevention of Women from Domestic Violence Act, harassment to married woman, sexual intercourse with wife without her consent while she is living separately and unnatural sex – to put forward their point that the wife enjoys protection from sexual violence in a wedlock, PTI reported.

A bench of Acting Chief Justice Gita Mittal and C Hari Shankar also observed that marriage gives the right to both man and woman to say no to physical relations.

“Marriage does not mean that the woman is all time ready, willing and consenting (for establishing physical relations). The man will have to prove that she was a consenting party,” the bench observed.

Husband gets #Anticipatory #Bail #AB in #498a #ipc406 #ipc506 case though #wife claims all #Jewels Not #Returned. #DelhiHC

Husband gets #Anticipatory #Bail #AB in #498a #ipc406 #ipc506 though #wife claims all #Jewels Not #Returned. #DelhiHC

//however, a plea was raised that the entire jewellery has not been received, to which the petitioner contends that entire jewellery has been returned to the respondent.

5. Perusal of the record shows that petitioner has made out a case for anticipatory bail. No case is made out for the custodial interrogation of the petitioner.///

**

Delhi High Court

Lalit Singh Negi vs State on 17 April, 2018

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment delivered on: 17.04.2018

BAIL APPLN. 2478/2016

LALIT SINGH NEGI ….. Petitioner
versus

STATE ….. Respondent

Advocates who appeared in this case:

For the Petitioner : Mr Gurmehar Singh Sistani and Mr Samit Khosla
with petitioner in person.
For the Respondent : Ms. Anita Abraham, APP for the State.
SI Satish Kumar, PS Ambedkar Nagar.
Mr Vinod Dubey, Advocate for complainant.

CORAM:-
HON’BLE MR JUSTICE SANJEEV SACHDEVA

JUDGMENT

17.04.2018
SANJEEV SACHDEVA, J. (ORAL)

  1. 1. Petitioner seeks anticipatory bail in FIR No.445/2016 under Sections 498A/406/506/34 IPC, Police Station Ambedkar Nagar.
  2. 2. Parties were referred to Mediation; however, no settlement could be arrived at. Petitioner was granted interim protection on 02.12.2016 subject to joining investigation.
  3. 3. As per the learned Additional Public Prosecutor, the petitioner did join investigation, as and when he was called upon to do so.
  4. 4. On 06.09.2017, this Court had recorded the contention of the complainant that she has received part of jewellery from the petitioner in the Police Station on 15.07.2017 and also a demand draft of Rs.70,000/-, however, a plea was raised that the entire jewellery has not been received, to which the petitioner contends that entire jewellery has been returned to the respondent.
  5. 5. Perusal of the record shows that petitioner has made out a case for anticipatory bail. No case is made out for the custodial interrogation of the petitioner. In the event of arrest, the petitioner shall be released on bail by the Arresting Officer/Investigating Officer/SHO, on his furnishing a bail bond in the sum of Rs.25,000/- with one surety of the like amount to the satisfaction of the Arresting Officer/Investigating Officer/SHO.
  6. 6. The petitioner shall not do anything, which shall either prejudice the investigation or any of the prosecution witnesses. The petitioner shall join investigation, as and when so required by the Investigating Officer.
  7. 7. The Petition is accordingly disposed of.
  8. 8. Order Dasti under signatures of the Court Master.

SANJEEV SACHDEVA, J
APRIL 17, 2018/’Sn’

since #NRI husband’s income is NOT proven, #Delhi #minimum #wage considered & ONLY #9000pm maintenance granted. #DelhiHC

This NRI seems to have suckered into a bad marriage. We do NOT know who did what or who is right or wrong, but ablaa has filed 498a / 406 cocktail and claims husband is a millionaire so she is aiming for a lot of moolah !! Though qualified she claims she can’t work and earn for herself, so seems to be a typical case.

Fella does NOT escape maintenance but has dragged the case some 15 years !!

Marriage in 2002, now this maintenance order (awarding just 9000 p.m.) is passed in 2018 !!!

//// It is alleged in the maintenance petition dated 16.07.2002 that the petitioner got married with respondent no.1 as per the Hindu rites and ceremonies on 24.03.2002////

and

////the petitioner has made a complaint before CAW cell (Crime Against Women cell) against the respondent and his family members and a case FIR No. 127/2003 at Police Station-Alipur under Sections 498A/406/34 IPC was got registered.///

and later the wife was denied maintenance

and the matter moves to HC and at the HC, that the Hon court notices that husband is qualified ///and MBA from Kentucky University, USA could earn at least minimum of Rs. 18,332/- as per the current minimum wage in Delhi. ///

////The respondent is directed to pay maintenance amount of Rs.9,000/- per month from 09.12.2010 onwards. Hence, the present revision petition is allowed//// on May 31st 2018 !! yup, some 16 years later !!

NOT a bad strategy IF you follow the case. and IF the same ratio is used, many NRI should get much lower maintenance ??

 

**

Delhi High Court

Reema Salkan vs Sumer Singh Salkan on 31 May, 2018

IN THE HIGH COURT OF DELHI AT NEW DELHI

CRL.REV.P. 204/2015 & CRL.M.A.4961/2015, 4963/2015,
5608/2015, 9820/2015, 8145/2016, 12393/2016

Reserved on: April 27, 2018

Date of decision: May 31, 2018

REEMA SALKAN ….. Petitioner
Through: Mr. R.P. Vats, Adv.

versus

SUMER SINGH SALKAN ….. Respondent
Through: Ms. Malvika Rajkotia, Ms. Arpita
Rai, and Ms. Akriti Tyagi, Advocates.

CORAM:
HON’BLE MR. JUSTICE I.S.MEHTA

JUDGMENT

I. S. MEHTA, J.

  1. 1. Instant revision petition is preferred by the petitioner- Reema Salkan under Sections 397/401 Cr.P.C. read with Section 482 Cr.P.C. and Section 19 of the Family Court Act, 1984 against the impugned order dated 28.01.2015 passed by the learned Additional Principal Judge, Family Courts North, Rohini, Delhi in Petition No.363/14 Unique Case I.D. No.02404R101992003 titled as Reema Salkan vs. Sumer Singh Salkan.
  2. 2. It is alleged in the maintenance petition dated 16.07.2002 that the petitioner got married with respondent no.1 as per the Hindu rites and ceremonies on 24.03.2002 at Infantry Hostel, Delhi Cantonment, Delhi and the initial source of parties contact was on the basis of newspaper advertisement.
  3. 3. It is further alleged that at the time of rukka ceremonies it was disclosed that the respondent is the permanent resident of Canada and he would take the petitioner on 28.03.2002 to Canada on a tourist visa. The father of the respondent and his other family member assured the petitioner that they would arrange for the petitioner’s visa and on 15.03.2002 the father of the respondent called the parents of the petitioner to Meerut and asked for Rs. 1 lakh (Rs.55,000/- for petitioner’s return ticket to Canada and Rs. 45,000/- for her subsequent immigration to Canada). They also demanded Rs.1 lakh from the parents of the petitioner for household goods. Consequently, the parents of the petitioner gave Rs. 2 lakh to the respondent’s family apart from other gifts.
  4. 4. The marriage of the petitioner and respondent no.1 was solemnized on 24.03.2002 at the Radisson Hotel in Delhi. The petitioner remained at Meerut U.P. from 25.06.2002 till 14.07.2002 after the marriage the respondent’s sister and mother-in-law started taunting the petitioner for bringing insufficient dowry and the mother-in-law took all the cash and gift items. On 28.03.2002, the sister of the respondent took all the stridhan which was given on marriage and her mother-in-law took all jewellery items with her. On 28.03.2002, the respondent No.1 left the petitioner at the airport in Delhi, from where the brother and sister took her to parental home. On 12.06.2002, when the respondent submitted petitioner’s immigration application in Canada, the petitioner informed the father of the respondent and other family members about her desire to return to Meerut and they told her that they would pick her up from Delhi on 25.06.2002 and her mother-in-law asked her to bring $500 along with her, which she told that the respondent had spent on lawyer in Canada for her immigration.
  5. 5. It is further stated that during the petitioner’s visit to Meerut from 25.06.2002 till 14.07.2002, the behaviour of her mother-in-law was very abusive, quarrelsome and rude. She used to shout at the petitioner on trivial matters, and abused her and her parents, used to call them indecent and senseless. When the petitioner objected to use of abusive language by the mother-in-law and father-in-law, the sister-in-law caught hold of petitioner’s hair and thrashed her. She kept instigating her mother to throw the petitioner out of the house and her mother-in-law often used to call the parents of petitioner’ Kangla’, who did not even gift a car. The petitioner felt very lonely and scared in such a hostile atmosphere. https://twitter.com/ATMwithDick?lang=en
  6. 6. It is further stated that on 14.07.2002, the mother-in-law of the petitioner took all her remaining stridhan sarees, jewellery and cosmetics and threatened her not to demand the same in future or she would be thrown out of the house. On the occasion of ‘Teej’, the mother-in-law of the petitioner demanded cash to be brought by her from her parents for Lancer car and also ordered to get gold chains for the respondent and his father, a gold set for herself, which she told must be heavier than the previous one. She told the petitioner to go back to Delhi, stating that she was burden upon them and if she wanted to live in Meerut, she should get the money from her parents for her upkeep. They dropped the petitioner at Rajghat in Delhi, from where the parents of the petitioner picked her up and took her home and then she called the respondent and told him about his parents to stop all this, but the respondent scolded her for speaking against his parents.
  7. 7. It is further stated that on 08.08.2002, the petitioner went to Meerut to celebrate Teej and when she requested her mother-in-law for some jewellery to wear at her nephew’s function, she flatly refused. On 10.08.2002, the petitioner again asked her mother-in-law for the jewellery which she had taken from her for safe keeping, she shouted ” I will burn you alive by throwing kerosene oil on you if you open your mouth for the same. She said ” car ke paise to laayee nahi, upar se zevar maang rahi hai”. She shouted at the petitioner saying “you have dared to defy our demands, you are second hand for us now”. She said “I will not let you go to Canada until our demands are fulfilled”. The petitioner got mortally afraid by their behaviour and called up her sister and asked her to take her from there. Since then the petitioner is living with her parents.
  8. 8. It is further stated that on 19.09.2002, the respondent withdrew his sponsorship for the petitioner’s immigration to Canada. The petitioner came to know about this forgery on the internet website of Canadian immigration Department on 24.09.2002 and she tried to contact the respondent, but all in vain. https://vinayak.wordpress.com/
  9. 9. It is further stated that its thereafter only that the petitioner has made a complaint before CAW cell (Crime Against Women cell) against the respondent and his family members and a case FIR No. 127/2003 at Police Station-Alipur under Sections 498A/406/34 IPC was got registered.
  10. 10. It is further stated that the petitioner is leading a very lonely and pitiable life and it is the respondent and his family who made her life miserable. Since the respondent has not made any arrangement for her maintenance, she is totally dependent upon the mercy of her parents. The petitioner does not know any skilled or specialized work to earn her livelihood and on the other hand respondent is leading a very luxurious and comfortable life and is well settled in Canada, is employed in Customer Care Division, (Sprint Canada) and getting a monthly salary equivalent to Indian Rupees of Three Lakh. Besides the salary, the respondent is also having a monthly income of Rs.50,000/- from the agriculture produce, as he is the owner of large land situated in Village Bafar, Pargana/Tehsil & Distt. Meerut, U.P., thus making Rs. 3.5 lakhs.
  11. 11. Furthermore, it is stated that the respondent is also maintaining various bank accounts, including the bank account number 9926 with Punjab National Bank jointly with his father and NRI account with State Bank of India, NRI division as well as with SBI Meerut Cantt. The respondent /husband is also having joint bank locker with PNB Meerut in his own name along with his mother. All the bank accounts and other properties of the respondent are being maintained and controlled by his father and therefore the father of the respondent is equally liable to pay maintenance to the petitioner.
  12. 12. Furthermore, it is stated that the respondent/husband, his mother and father own/possess and acquired huge assets and properties as below: –
    • a) One bungalow no.12 Tilak Road Begum Bagh, Meerut UP, owned by the father of the respondent.
    • b) One palatial house no.325 friend?s colony, New Delhi in the name of the grandfather of the respondent.
    • c) One house built over plot no. 3604, DLF city phase IV, Gurgaon, measuring about approximately 350 sq. yards, at Gurgaon Haryana in the joint name of father and mother of the respondent.
    • d) One flat at Rajender Nagar,New Delhi in the name of mother of the respondent.
    • e) A well fertile agriculture land measuring 5.5 hectare in village Bafar Distt. Meerut UP., owned.
    • f) Agriculture land owned by the father of the respondent.
    • g) One Honda City car and Zen car.
    • h) Huge investments made in shares, securities, fixed deposits in various companies and banks.
    • i) It is stated that the respondent and his family members are income tax payees.
  13. 13. It is further stated that the respondent has no other liability except to maintain the petitioner which is his legal and moral duty. It is therefore prayed that the respondent be directed to pay a maintenance @ Rs. 2 lakhs per month to the petitioner. https://vinayak.wordpress.com/
  14. 14. Per contra, the respondent No.1 in its written statement on 20.04.2004 has taken the preliminary objections that the petitioner is guilty of abusing and misusing the institution of marriage. The respondent has visited India for a limited period of about four days in March 2002 and at that time, he was a bachelor, aged about 35 years. Since the parents of the respondent were extremely keen on his marriage, they had given an advertisement for that purpose in the press. At the relevant time the respondent was employed in the company “Sprint Canada”. The respondent wanted a good looking, English speaking educated girl who could take up employment in Canada but did not wish to marry a bespectacled girl. Pursuant to that advertisement, the petitioner and her parents visited the house of the respondent on 09.03.2002. She was not wearing spectacles at the relevant time and disclosed that she was proficient in spoken English and was a graduate from Miranda College and had concluded her Master Degree thereafter, and also claimed having obtained a Post Graduate Diploma in Mass Communication from New Delhi. She also assured the respondent that getting a job in Canada would be easy as she had already worked for “Living Media India Limited” from June 1999 to November 1999 as a Journalist and again with Bennett Coleman and Co., New Delhi, from December, 1999 to March, 2000 and her salary was Rs. 10,000/- per month. Thereafter, from April,2000, she had started working as a freelance journalist in Delhi and was earning much more. She told the respondent that she would be able to get an employment as a journalist or as a teacher in Canada. Without making any further enquires with regard to antecedents of the petitioner and her family, the marriage was finalized and the marriage was a simple marriage neither dowry was demanded nor accepted.
  15. 15. It is further stated that the petitioner and the respondent spent the wedding night at Hotel Radisson, New Delhi. The respondent was extremely perplexed as the conduct of the petitioner was unbecoming of newly wedded wife. On reaching the hotel, she immediately removed her bridal dress and make up and changed into casual wear, took out a bottle of whisky and cigarette from her baggage and consumed both. The respondent was taken aback at such conduct of the petitioner as he hailed from a family where the women folk did not drink or smoke. Furthermore, the marriage remained unconsummated till the respondent left for Canada as the petitioner lacked warmth, was cold and frigid and she desired that consummation of marriage could wait till she and respondent developed an emotional bonding.
  16. 16. It is further stated that in the morning, at breakfast the petitioner disclosed that she was allergic to many food items and was on lifelong medication, much to his surprise as he had not been informed about this fact prior to marriage. The petitioner was very casual about the same and retorted that allergies were not uncommon and therefore, were not worth mentioning. Thereafter, when the respondent escorted the petitioner where the reception had been organised by his parents, he got another surprise, he came to know that the respondent was using spectacles and therefore, felt cheated as he had desired a non-spectacled girl. She mentioned that socially, she always used contact lenses and she did not consider it worth mentioning.
  17. 17. It is further stated that at another social dinner, at the house of Sh. P.N. Banerjee, a close family friend of the respondent’s parents, the petitioner remained aloof and did not interact much. She also retorted caustically that she would not change her name, after the marriage and would not adopt the surname of the respondent, leaving the respondent and others astounded, adding to respondent’s miseries, as the respondent hailed from a family of well cultured people who had a strong aversion to deceit, of any kind.
  18. 18. It is further stated that the respondent was to leave for Canada in early hours of 29.03.2002 therefore, the petitioner and the respondent along with the parents of the respondent came to Delhi on 28.03.2002 and after having dinner at the house of a relative at Anand Niketan, New Delhi, all proceeded to the airport. The petitioner’s brother, sister and sister-in-law also reached the airport directly. Before leaving Meerut, the petitioner had told the respondent that she would go to her parental home from the airport, and she had accordingly pre-arranged with her relatives to meet her at the airport and thus, after seeing him off, she went to her parental home. https://vinayak.wordpress.com/
  19. 19. It is further stated that the petitioner and the respondent remained in touch telephonically, but the fear and miseries of the respondent were compounded by the conduct of the petitioner as she started shouting at him and even banged the phone at times. She was not interested in respondent as she never asked about his health, his well being or his job etc. as a normal newly wedded wife would, but she was only interested as to the status of her immigration to Canada. Even though the respondent had second thoughts whether he should facilitate the immigration of the petitioner and he expressed his thoughts to his parents but his parents reprimanded, him to complete the formalities and accordingly concluded the sponsorship facilities to facilitate her immigration to Canada on 12.06.2002. At the end of July 2002, the respondent was informed that the papers had reached Delhi and the remaining formalities would be completed in the Canadian High Commission, New Delhi and the respondent informed the petitioner, accordingly.
  20. 20. It is further stated that in August, 2002 the petitioner told the respondent that she was extremely happy that she would be finally getting her immigration Visa to Canada which was her lifelong ambition as she had failed on two occasions earlier to get the said visa and that she was looking forward to meeting a friend in Detroit. On respondent’s enquiry about the identity of the friend, the petitioner shouted that it was none of his business, totally shattering the respondent mentally. Since it had now become clear to him that this was only a marriage of convenience for the petitioner, she having married him only to obtain passage to Canada and not wanting his life to be made more miserable after petitioner arrival in Canada, he withdrew the sponsorship in September, 2002 by writing to the Canadian authorities to this effect.
  21. 21. It is further stated that the petitioner thereafter made a false complaint against the respondent, his parents and sister to the CAW cell, on the basis of which the FIR No. 127/2003, was registered under Sections 498A/406/34 IPC with P.S. Alipur.
  22. 22. It is further stated that the petitioner has got sufficient means to maintain herself and hence is not entitled to any maintenance from the respondent/husband.The petitioner has neglected the respondent/husband and has voluntarily left the matrimonial home on 10.08.2002, on her own wish, to be able to continue her vocation as a journalist. It was the petitioner who has deserted the respondent without any reasonable cause. Furthermore, the petitioner has falsely impleaded the father of the respondent as a party in the instant case, though she has withdrawn her claim against his father on 04.03.2004.
    • ON MERIT –
  23. 23. The respondent on merits in his reply admitted the solemnization of marriage, but it was a simple marriage, without any dowry. The assertions regarding the respondent, being a permanent resident of Canada was admitted, but he denied that he had told the petitioner that he would take her to Canada on a tourist visa. It is stated that the grant of immigration Visa is the domain of the authorities and it is common knowledge that after marriage, the respondent was required to sponsor his spouse for grant of immigration, which takes its own time and tourist visa is neither granted nor converted to spouse visa.
  24. 24. It is further stated that the respondent/husband had told the petitioner and her parents that he is working with ‘ Sprint Canada’ and his means were limited, as he being a new immigrant and Toronto being an expensive city, two people could not survive on a single income and this was the reason he preferred to marry a girl who would be able to work in Canada. The petitioner and her parents were also informed that it takes about eight months for the immigration visa to be granted by the Canadian authorities. All the remaining allegations made by the petitioner against the respondent, his parents and sister, were emphatically denied. It was denied that she was ever subjected to any cruelty with respect to demands of dowry or that her stridhan was ever taken away.
  25. 25. It is further stated that at the time of engagement ceremony on 23.03.2002 at Meerut, some gifts and cash of Rs. 1 lakh had been given by the father of the petitioner to the respondent, but the respondent asked the father of the petitioner to take back the said amount of Rs. 1 lakh, but the petitioner?s father insisted the respondent to keep it. Initially the said amount of Rs. 1 lakh was deposited by respondent?s father into his joint account with the respondent bearing no. 9926 with Punjab National Bank, Meerut. Thereafter, a saving bank account bearing no.10814 was opened in the name of the petitioner with the same bank at Meerut, and the said amount of Rs. 1 lakh was transferred to her account on 28.06.2002.
  26. 26. It is further denied that the parents of the petitioner had spent a very huge amount in the marriage or had been given handsome dowry, though it is stated that, as per the customs, the petitioner was given certain gifts by the respondent and his family members. The father of the petitioner having retired as a professor, belongs to service class and thus arranged the marriage in the „Infantry Hostel?, Delhi Cantt., and hardly 100 persons from both the sides were present, while the parents of the respondent gave the reception at „Wheelers Club? at Meerut, Cantt., on 25.03.2002. It further denied that the petitioner was ever abused either by the respondent or his family members or that she was ridiculed by the mother of the respondent and his sister on any occasion, whatsoever.
  27. 27. It is also denied that the respondent and his family members were well aware, prior to the marriage, the petitioner is the daughter of retired professor, had they ever been dowry oriented, the respondent would not have gone to marry the petitioner, knowing their financial status. The incident of wedding night in the Radisson Hotel, Delhi, was again reiterated. It is stated that the petitioner always made half-hearted gestures of touching the feet of the elderly ladies, as per the customs of the family of the respondent.
  28. 28. It is denied that on 28.03.2002 the sister of the respondent rebuked the petitioner and took away her stridhan sarees and that his mother took away her jewellery. It is stated that the mother of the respondent was having a joint bank locker with him in Punjab National Bank, Meerut, and on the request of the petitioner, some jewellery was kept in the said locker for safe keeping, which was taken out on 09.08.2002 by the petitioner, when she finally left the matrimonial home on 10.08.2002.
  29. 29. It is further stated that the petitioner did not allow the marriage to be consummated and her behaviour was cold and rigid, causing mental cruelty to the respondent. It is also stated that the petitioner applied for her passport from the address of the respondent and when the police came to the house of the respondent?s parents, they called the petitioner to come to Meerut for police verification. She came to Meerut, in the first week of May, 2002 for police verification and got it done and thereafter, she immediately left along with her father for her parental home.
  30. 30. It is admitted, that in June 2002 when the respondent submitted her immigration application in Canada and she was communicated, the same, and she made known to the parents of the respondent about her desire to return to Meerut. It is also admitted that his parents told her that they would pick her up from her parental home but is denied that her mother asked her to bring $500 along with her. However, the intention of petitioner was never to have a good marriage, but she only wanted to implicate the parents of the respondent in false case, and her only desire was to go to Canada. It is admitted that the petitioner visited Meerut from 25th June, 2002 till 14th July, 2002 but it is denied that she was ever ill- treated by his parents or that his mother ever shouted at her. In the mean time Rs.1 lakh was transferred to her account from the joint account of respondent with his father. It is denied that the petitioner was ever maltreated by the parents of the respondent, in any manner. It was the petitioner?s demand that she wanted to go to her parental home at Delhi, it is submitted that the parents of the petitioner dropped her at Rajghat from where the parents of the petitioner picked her up. https://vinayak.wordpress.com/
  31. 31. It is also stated that before leaving for Canada, the respondent gave Rs. 75,000/- in cash to the petitioner, which was borrowed from his father, the amount being given, so that the petitioner was able to pay up for her tickets etc., and other miscellaneous expenses. It is stated that after receipt of the sponsorship papers, the attitude of the petitioner completely changed, she became very bold and told the respondent tauntingly that she had married him only to go to Canada. She also misbehaved with parents of the respondent which made the respondent realize that she is not a normal woman. He told his parents that he was reaching to limit of his endurance, but his parents scolded him and made him understand to not take any drastic step. However, the behaviour and attitude of the petitioner turned very rude and cruel towards the parents of the respondent and having no other alternative, they disowned the respondent and also gave a public notice in the newspaper „The Statesman?, dated 25.10.2002 and this factum was brought to the knowledge of both, the petitioner and the respondent, telephonically, but they were greeted with abuses and threats at the hands of the petitioner.
  32. 32.The respondent?s parents also sent a legal notice dated 20.12.2002 through their lawyer to the petitioner as well as the respondent, apprising them regarding their debarment. The petitioner gave a reply to the said notice dated 08.01.2003 to which a counter reply was given by his parents dated 18.09.2003. The petitioner threatened the respondent as well as his parents that she would implicate them in false cases and in this scenario, the respondent withdrew his sponsorship for immigration of the petitioner to Canada on 19.09.2002 but he did not ever submit any letter in name of the petitioner in Canadian Embassy as alleged by her.
  33. 33. It is stated that the petitioner was given Rs.75,000/- at the time when he was leaving for Canada for her tickets and other expenses, while Rs.1 lakh was transferred in her bank account form the joint account of his father with him. The petitioner was also given Rs. 1.5 lakh through the court at the time of grant of anticipatory bail. Besides this, the petitioner has deposits, FDRs, interest income and other movable and immovable properties, though the same have not been disclosed to the court. It is denied that she does not have any independent source of income, but rather she had disclosed to his parents, that she was graduate and has done Masters in English from Miranda House and had also done a post graduate diploma in Journalism and Mass Communication from New Delhi and had worked with newspapers and magazines mentioned above and was getting a salary to the tune of Rs. 10,000/- per month. Thereafter, she started working as freelance journalist and was earning much more.
  34. 34. It is stated that the respondent/husband was working with Sprint Canada and his annual gross salary was Canadian $39.491.26/- and after deductions $10,184.63/- his net annual salary in $ 29,306.59/- which comes to the net monthly income of $2,442.22/-. It is stated that he has to pay $900/- as rent, $400/- towards food, $50/- towards laundry, $50.58/- towards cable TV, $35/- towards gym, $200/- towards miscellaneous expenses, $400/- transportation, $250/- for pre-paid telephone. However his net annual salary increased during 2010 to Canadian $35,337.63 as per his pay slips and T-4 forms.
  35. 35. It is further stated that the respondent has no other source of income neither in Canada nor in India or any investment, deposits and agricultural land. The copy of the rent agreement has also been placed on record. It is also stated that the respondent is leading a very stressful life. He is living in one room apartment, having a kitchen and a bathroom and he cannot afford to buy and maintain a car, so he commutes by bus, cabs and metros. It is denied that he is leading a luxurious life. It is stated that he does not have any income of Rs. 50,000/- from agriculture land though it is admitted that he is the owner of some land at village Bafar, UP., but the said land is in dispute and the litigation is pending in the court of Sh. Chet Ram, Magistrate, Railway Road, Meerut, as the father of the respondent claimed to have inherited the said land and had thereafter filed the said case. It is stated that the respondent is having only one bank account bearing no. 9926 with PNB Meerut which was earlier a joint account with his father, but after severing all his relations with the respondent, his father had withdrawn his name from the said account. The other properties mentioned were all belonging to his parents and he has no interest at all in those properties. It is stated that he has been falsely implicated in all cases and that the instant petition is an abuse of the process of law. It is stated that the petitioner is well able to maintain herself and that the petition be dismissed with heavy costs.
  36. 36.The petitioner has filed rejoinder to its petition and denied the allegation made against the petitioner and reaffirmed the contents of the petition. The reply was filed by the respondent and the petitioner has denied the averment and allegation made in the preliminary objection of the reply and reaffirmed the contents of the petition.
  37. 37. During the pendency of the petition the efforts for reconciliation between the parties failed.
  38. 38.The petitioner was granted Rs.25,000/- as interim maintenance vide order dated 14.10.2004 from the date of filing of the petition till the further orders and the same was challenged by the respondent and the said order was modified by the learned ASJ, Delhi on 25.04.2005 into Rs.10,000/- per month as interim maintenance to the petitioner till further orders or till the disposal of the petition.
  39. 39. Subsequently, the respondent was proceeded ex-parte and the petition was disposed of by the learned Metropolitan Magistrate vide order dated 29.09.2007 directing the respondent to pay Rs.25,000/- to the petitioner.
  40. 40.The petitioner not being satisfied with the interim maintenance of Rs. 25,000/- per month, the petitioner preferred revision petition seeking enhancement of said amount which was rejected by the learned ASJ vide order dated 18.10.2009.The respondent also moved a petition before the same ASJ seeking setting aside of the ex-parte judgment dated 29.09.2007. The learned ASJ vide order dated 18.10.2009 dismissed the said petition, consequently, the respondent approached this Court for setting aside of the said ex-parte order and this Court ultimately remanded back the case vide order dated 22.11.2010 directing the respondent to lead evidence without delay and a sum of Rs.10 lakhs to be deposited with the Court reduced the maintenance to Rs.10,000/- per month.
  41. 41. After passing of the said order the parties appeared before the court, but the petitioner stated that only the respondent has been allowed to lead evidence and did not allow herself to be cross-examined. Ultimately, clarifications were again sought from this Court and eventually vide order dated 28.02.2012 the order dated 22.11.2010 was set aside by the division bench and the respondent was directed to pay the interim maintenance to the petitioner till the disposal of the petition, failing which his right of defence would be struck off.
  42. 42. Subsequently thereafter, in another petition, preferred by the petitioner before the Hon’ble Supreme Court of India vide Crl. Appeal No.2347- 2349 of 2014, the Hon’ble Supreme Court vide order dated 28.10.2014, ordered the release of 50% of the amount, which had since been deposited by the respondent, in this Court, in favour of the petitioner and also directed the trial Family Court to dispose of the petition within three months of passing of the said order.
  43. 43.The parties led their evidences in respect of their stand taken in the petition as well as reply and the Court below passed the impugned order dated 28.01.2015.
  44. 44. Aggrieved from the said impugned order dated 28.01.2015 the petitioner preferred the instant revision petition.
    • Hence, the present petition.
  45. 45.The learned counsel for the respondent has submitted that while determining the maintenance petition under Section 125 Cr.P.C. the determining Court has to determine, legally, whether the petitioner who is coming to the Court is unable to maintain herself. She further submits that it may be possible that the petitioner wife may choose to take such plea to harass the husband for the litigation purpose only, whereas, factually, she is able to maintain herself and if at all she takes such plea she should not be permitted to take such plea for misusing the judicial process for their ulterior motives qua each other.
  46. 46. The learned counsel on behalf of the respondent/ husband has submitted that instant, is, a, revision and in the instant petition, the evidence shall not be re-appreciated, only, jurisdictional error, error of law has to be looked into or error on facts.
  47. 47. The learned counsel has further submitted that para 6 of the impugned order shows that after the marriage the husband left for Canada on 28.03.2002 and thereafter petitioner/wife was supposed to live at Meerut house with her in-laws however, she chose to stay with her parents till 25.06.2002, i.e. from 25.06.2002 to 14.07.2002 she lived with her in- laws.
  48. 48. The learned counsel on behalf of the respondent has submitted while going through pleadings, the allegation, put qua the present respondent is not in the form of asking for maintenance rather it forms a smell of Section 498A and Section 406 IPC. This ipso facto clarifies that the petitioners does not seems to ask for the maintenance to maintain herself but she has made it vindictive in the form of maintenance petition.
  49. 49. The learned counsel of the respondent has submitted that in the petition under Section 125 Cr.P.C. the petitioner/wife does not claim maintenance as she is unable to maintain herself and there are no such meaningful averments referring to the same.
  50. 50. The learned counsel for the respondent has submitted that at the threshold, the petitioner must disclose in her petition that she is unable to maintain herself. She has further submitted that the petitioner has to prove/burden lies on her to prove that she is unable to maintain herself and only then the quantum can be decided. She further submitted that at the threshold it was not decided and during the trial too she has not established that she is unable to maintain herself and because of this reason her petition was dismissed. She further submitted that the entire evidence on record only shows that the petitioner is vindictive qua the respondent and because of this reason and ulterior motive she is filing the present petition qua the respondent herein and factually it is not a case of her being unable to maintain herself or for her needs but it is the vindictiveness to harass the respondent and by way of this petition she is continuing for the same course and the law in the case of Chaturbhuj v. Sita Bai, AIR 2008 SC 530 by the Apex Court clearly says that these proceedings are not punitive for perceived neglect as perceived by the wife and it is the vindictiveness of the petitioner which resulted in filing the present petition and her conduct during the trial established her lack of bona fides and hence the petition was dismissed. The impugned judgment is dated 28.01.2015. Learned counsel for the respondent has further submitted that the marriage factually lasted only for four days. She further submitted that till date the petitioner has not filed the divorce petition which is ipso facto suggesting that it is nothing but the vindictiveness of the petitioner towards the respondent/husband. She further submitted that as on 09.02.2011 the petitioner was a practicing lawyer in Delhi High Court and the petitioner after obtaining interim order, evaded to cross-examine herself and because of this reason the learned ADJ Ms. Poonam A. Bamba vide order dated 22.11.2011 dismissed her petition. The said order was challenged by the petitioner before this Court and this Court has specifically directed the petitioner to remain present herself for cross-examination and amount of Rs.10,000/- was restored and directed her to be present before the Trial Court to submit herself for cross-examination and finally the cross-examination was concluded on 01.12.2014. She has further submitted that due to vindictiveness of the petitioner, the respondent/husband lost the job at Canada because she has obtained a Red Corner Notice against him and Google check of the respondent indicated issuance of red corner notice against the respondent because of which he lost the job and could not get another job. She further submitted that Hon’ble Mr.Justice S.N.Dhingra quashed the red corner notice on 11.08.2010 and made observations about the vindictive litigation strategy of the petitioner because her brother was a police officer of the Andhra Pradesh Cadre and the said order/observation of Justice S.N. Dhingra was never challenged by the petitioner.
  51. 51. The learned counsel for the respondent has submitted that it was the petitioner who withdrew her application for immigration to Canada on 12.09.2002 and 19.09.2002. This withdrawal of her application for immigration to Canada from Canadian authorities ipso facto proves that it was the petitioner who deserted the respondent and not the respondent who deserted the petitioner. She has further submitted that after December, 2010, it is because of fault on the part of the petitioner that the employment of the respondent was lost and thereafter respondent is neither gainfully employed nor having any source of income, therefore, the petitioner by her own act and conduct is not entitled for the maintenance. Counsel for the respondent further submitted that the respondent right now is in India without having any job. The learned counsel for the respondent heavily relied upon the judgment of this Court in the Sumer Singh Salkan v. Asst. Directors and Ors, of HMJ Shiv Narayan Dhingra and the second judgment of the Apex Court in the Chaturbhuj v. Sita Rai, AIR 2008 SC 530.
  52. 52.The learned counsel for the respondent has further relied upon the judgment of the Apex Court in the case of Gandhe Vijay Kumar vs. Munjhi @ Mulchand, (2017 SCC OnLine SC 841) decided on 27.07.2017. She further submitted that while exercising the Revisional jurisdiction, only the perversity point is to be seen in the revision petition. She has further submitted that the Court below determined the maintenance in two parts i.e. when the respondent was in service and subsequently when the respondent lost his job having no means. The counsel on behalf of the respondent has specifically pointed out that the Court below has given a finding that it is the petitioner who refused to join the matrimonial home in Canada and thus Section 125 (4) Cr.P.C., 1973 applies and both the parties are living separately with consent as the respondent is not joining the respondent at Canada and therefore, she is not entitled for any maintenance.
  53. 53. The learned counsel on behalf of the respondent has submitted that while the proceedings were going on before this Court, the petitioner has made several scandalous allegations against the respondent including money laundering which would show the conduct and reinforce the respondent?s conduct and the petitioner?s conduct. The learned counsel for the respondent has submitted that the order of the Trial Court has already been complied with and submitted that all the scandalous allegations filed by the petitioner be withdrawn. The learned counsel for the respondent has submitted that it is the petitioner who is choosing not to empower herself despite her fine qualifications and competence. It is just harassment to the husband and nothing else. The learned counsel for the respondent has further submitted that the petitioner is working. The learned counsel for the respondent in support of her arguments has relied upon the following judgments: https://twitter.com/ATMwithDick?lang=en
    • (i) Chaturbhuj v. Sitabai [AIR 2008 SC 530]
    • (ii) Sumer Singh Salkan v. Asst. Director and Ors. [W.P(Crl.) No. 1315/2008]
    • (iii)Rupali Gupta v. Rajat Gupta [234 (2016) DLT 693]
    • (iv)Nagendra Appa v. Neelamma [AIR 2013 SC 1541]
    • (v)Sanjay Bhardwaj v. State [171 (2010) DLT 644]
    • (vi)Damanreet v. Indermeet [2013 (1) JCC 306]
    • (vii) Mamta Jaiswal v. Rajesh Jaiswal [2000 (3) MPLJ 100]
    • (viii) Gandhe Vijay Kumar v. Mulji @ Mulchand [Civil Appeal No. 1384 of 2011]
  54. 54. Per Contra, the learned counsel for the petitioner has submitted that the respondent is a permanent resident of Canada and got married with the petitioner on 24.03.2002 as per the Hindu rites and ceremonies at Infantry Hostel and the said marriage was consummated on the wedding night at Radisson Hotel Delhi. The learned counsel for the petitioner has further submitted that petitioner is wife of the respondent No.1.
  55. 55. The learned counsel for the petitioner has further submitted that the petitioner is a legally wedded wife of respondent No.1
  56. 56. The learned counsel for the petitioner has further submitted that the petitioner’s parents spent huge amount on the marriage of the petitioner and the respondent. The family members of the respondent assured at the time of marriage that the petitioner would be taken to Canada as the respondent is permanent resident of Canada.
  57. 57. The learned counsel for the petitioner has further submitted that at the time of marriage the respondent’s father took Rs. 2 lakhs and other amount given in the said marriage. Later the respondent’s father, mother and sister have kept all the jewellery and other gifts items with them which was given by the parents of the petitioner and threw her out from the matrimonial house in Meerut, UP, without any support and money and the petitioner having no source of income is residing at her paternal house and petitioner is unable to maintain herself whereas the respondent is leading luxurious life and having many sources of income.
  58. 58. The learned counsel for the petitioner has further submitted that the respondent earns about Rs. 3 Lakh per month as salary and Rs. 50,000 per month from Agriculture produce and leading a luxurious life and prays that the petitioner be granted maintenance as per the standard she would have maintained while staying in the matrimonial home and the same status of the petitioner as that of the husband and prays that the petitioner be granted Rs.2 lakhs per month as maintenance amount from the respondent.
  59. 59. The learned counsel for the petitioner has further submitted that the Court below went wrong while passing the impugned order on facts and law.
  60. 60.The learned counsel on behalf of the petitioner has submitted that the Court below finally awarded the maintenance under Section 125 Cr.P.C, 1973 vide order dated 28.01.2015. He has submitted that the Court below went wrong in law and on facts while holding that the respondent is unemployed subsequently w.e.f. 08.12.2010. He has further submitted that under the law u/s. 125 Cr.P.C., 1973 the petitioner is entitled for the maintenance as wife and the respondent being a husband is legally bound to maintain the wife. The counsel for the petitioner in support of his arguments has relied upon the following judgments:
    • (i) Shamima Farooqui v. Shahid Khan, (2015) 5 SCC 705
    • (ii) Sunita Kachwaha v. Anil Kachwaha [AIR 2015 SC 554]
    • (iii) Bhuvan Mohan Singh v. Meena & Ors. [2014 Law Suit (SC) 551]
    • (iv) Chaturbhuj v. Sitabai [AIR 2008 SC 530] (v )Minakshi Gaur v. Chitranjan Gaur [AIR 2009 SC 1377]
    • (vi) Ashwani Mehta v. Vibha Mehta [2012 (187) DLT 348] Delhi DB
    • (vii) Aneeta Joshi v. Subhash Joshi [2006 (4) MPLJ 336]
    • (viii)Tejaswini v. Aravinda Tejas Chandra [2009 (6) KarLJ 643]
    • (ix)Vimal v. Sukumar Anna Patil [1981 CrLJ 210 (Bombay)]
    • (x)Shail Kumari v. Krishan Bhagwan Pathak [(2008) 9 SCC-Civil Appeal 4666/2008]
    • (xi)Annurita Vohra v. Sandeep Vohra [110 (2004) DLT 546] Delhi
    • (xii)Shivangi Kriti v. Yogesh Singh [2007 (98) DRJ 598] Delhi
    • (xiii)Sudhir Diwan v. Tripta Diwan [147 (2008) DLT 756] Delhi
    • (xiv)Bharat Hegde v. Saroj Hegde [AIR 2007 Del 197]
    • (xv)Bipinchandra Jaisinghbhai v. Prabhavati [AIR 1957 SC 176] (xvi)Lachman Utamchand Kirpalani v. Meena [AIR 1964 SC 40] (xvii)Puneet Kaur Vs. Inderjit Sawhney [2011 183 DLT 403] (xviii)Kusum Sharma Vs. Mahinder Kumar Sharma [2015 (217) DLT 706] (xix)Laxmi Bai Patel Vs. Shyam Kumar Patel [JT 2002 (3) SC 409]
  61. 61. As per the Webster’s Third New International Dictionary, Volume II, the term ‘maintenance’ means the act of providing means of support for someone, the provisions supplies, or funds needed to live on. In Words and Phrases, Volume 26, the term ‘maintenance’ means sustenance, support by means of supplies of food, clothing and other conveniences. https://twitter.com/ATMwithDick?lang=en
  62. 62. The doctrine of maintenance which was in the form of Common Law Doctrine in England, later, after Queen’s Proclamation in 1958, the British left alone the personal laws of the communities i.e. marriage, divorce, property, succession, guardianship and rights of the women except for reform initiated from the communities within. To give a dignified life to destitute wife and children equivalent to that of the husband and father, the British introduced a provision under the Criminal Procedure Code, 1898. Subsequently, it was felt that the parents too are required to be included in the said welfare scheme and the same has been incorporated under Section 125 Cr.P.C. in Chapter IX of the Code of Criminal Procedure, 1973.
  63. 63. The scheme of maintenance under the Criminal Procedure Code, 1973 is to prevent vagrancy and to provide to the neglected wife, children and parents a cheap and speedy remedy. This remedy is irrespective of other remedies of such neglected wife, children and parents under any other statutes such as Section 20 of the Hindu Adoption & Maintenance Act, 1956, Sec. 20 (d) of the Protection of Women from Domestic Violence Act, 2005 and any other statute. Subject to the outcome of ultimate determination by the Civil Court to which the parties belong i.e. the personal law or any other law in existence applies on their rights and status.
  64. 64. Sections 125 – 128 of Cr.P.C., 1973 constitute a complete Code in itself and provide summary procedure and remedy for granting relief to the destitute wife, minor children and parents.
  65. 65. Perusal of the record shows that the petition under Section 125 Cr.P.C., 1973 qua the respondent No.1 along with father of the respondent Narendra Singh Salkan respondent No.2 was filed on 16.07.2003 and notices were issued to the respondents. Later on, the petitioner withdrew her claim qua the respondent No.2 i.e. Sh. Narendra Singh Salkan vide her statement made on oath before the learned Metropolitan Magistrate on 04.03.2004. Thereafter the respondent No.1 arrayed as respondent (hereinafter referred to as the respondent). The respondent despite service of notice, he refused to appear before the Court below and proceeded with the ex-parte on 05.03.2004.The relevant paragraph of the said order is reproduced hereunder for ready reference:
    • “05.03.04 As per the report of Overnite Express Ltd. which is as recognized by Hon’ble High Court of Delhi, respondent is duly served and in spite of service, he has refused the service from the Court. In these circumstances, as respondent has failed to appear on all the dates of hearing, at this stage at 3:20 pm, Respondent is proceeded ex-parte.
    • Put up for Ex-parte Arguments on Interim maintenance for 18/03/2004.”
  66. 66. The respondent marks his appearance through counsel and reply to the application was filed on 05.05.2004 and rejoinder to the reply was filed on 28.05.2004.
  67. 67. On the basis of the pleadings an interim maintenance order was passed on 14.10.2014 by the learned Metropolitan Magistrate. The respondent again thereafter chose to proceed with the ex-parte on 18.02.2005. The respondent thereafter intended to join the process by setting aside of ex- parte order. Thereafter, the respondent moved application for setting aside the order and the petitioner has filed affidavit in support of evidence and the matter was fixed for setting aside ex-parte on 19.07.2005.
  68. 68. The statement of the petitioner in the instant petition is recorded on 19.07.2005 and thereafter the respondent failed to cross-examine on the subsequent dates. The case was adjourned for 5 times and on the sixth time the witness was discharged by the Court below on 27.10.2005.The relevant paragraph of the said order is reproduced hereunder for ready reference:
    • ” 27.10.2005 Present: Petitioner with counsel.
    • Proxy counsel Sh. Praveen Kumar for respondent.
    • Pass over sought.
    • Be awaited.
    • File taken up again at 1:05 p.m. Present: Petitioner with counsel.
    • Proxy counsel Sh. Puneet Maheshwari for a respondent, proxy for Sh. Anand Maheshwari. Counsel Sh. Maheshwari states that main counsel is not available and is likely to come at 2.00 p.m. Having heard to the fact that petitioner is present since morning and has been waiting for counsel and despite seeking pass over, counsel is not available. No ground is disclosed for making the witness waiting for counsel. Hence, witness discharged after cross examination being NIL, opportunity given. Respondent is Ex-Parte.
    • List for EFA on 16.12.05.
    • M.M.DELHI 27.10.2005″
  69. 69. The matter was subsequently decided by the learned Metropolitan Magistrate, Rohini Delhi vide order dated 29.09.2007. Thereafter, there was no occasion for the petitioner to make her available for her cross- examination. The aforesaid order sheet indicates the petitioner who came forward to take shelter of beneficial welfare legislation was put to face hard process of legal tactics of the respondent.
  70. 70. The whole question hinges around whether the petitioner is entitled for maintenance from her husband?  The answer is YES.
  71. 71. The petitioner who is alleged to have been married with Sumer Singh Salkan on 24.03.2002 at Infantry Hostel, Delhi Cantonment, Delhi as per the Hindu rites and rituals and has filed her maintenance petition under Section 125 Cr.P.C., and in support of the aforesaid petition the petitioner has tendered her evidence in the affidavit i.e. Ex.PW1/A and placed reliance upon the certified copies of her degree i.e. Ex.PW1/1 to PW1/3, the marriage registration certificate dated 26.03.2002 i.e. Ex.PW1/4, the marriage photograph as Ex.PW1/5(colly) and the matrimonial advertisement in the newspaper is Ex.PW1/6.
  72. 72. At the relevant time of marriage, the petitioner’s as well as the respondent?s educational qualification are as follows:
    1. (i) As per admission of the petitioner at the time of marriage she was M.A in English, had a post-graduate diploma in journalism and mass communication.
    2. (ii) Per contra, the respondent Sumer Singh Salkan as per his admission in cross-examination he is B.Com, M.A (Eco.) and MBA from Kentucky university, USA and working in Canada as Canadian citizen and claim to be from the respectable family as his grandfather was a brigadier in Indian Army and his father was a tea planter in Assam over three decades and he has been brought up in a good culture which is reproduced as under:
    3. “The respondent comes from an extremely respectable family. His grandfather was Brigadier in Army Medical Core of the Indian Army. His father has been a tea planter in Assam for over three decades on the maternal side, the respondent’s maternal grandfather was a General in Indian Army; the parents of the respondent are educated and reside in the society.”
  73. 73. Before the respondent left for Canada, the petitioner and the respondent lived together in peace, which is reproduced as under:
    • After having dinner at the house of the relative at Anand Nitken, New Delhi all proceeded to Airport. The petitioner’s brother, sister and sister in law reached Airport directly. Before living Meerut, the petitioner told the respondent she would go to her parental home from the airport and she accordingly had pre-arranged with her relatives to meet her at the airport. The petitioner went to her parents’ home in the company of her brother, sister in law and sister.”
  74. 74.The petitioner after the marriage lived at the matrimonial home at Meerut from 25.03.2002 along with respondent husband, his parents and other family members. The Respondent who is a Canadian Citizen left for Canada on 28.03.2002 and the petitioner was supposed to join respondent in Canada after due formality having been completed by the respondent and the petitioner was kept with petitioner?s parents on 28.03.2002. Leaving behind apart, the allegation of the petitioner having been maltreated, subsequently, between the period 25th June, 2002 to 14th July 2002.
  75. 75. The petitioner was left at mercy of her parents who were not legally bound to maintain their daughter after the marriage. The petitioner realizing this fact asked for maintenance from her husband, the respondent husband instead of coming forward to provide the minimum sustenance to strengthen their relationship of husband and wife chose not to come back in India till 27.01.2011 in present proceedings, however, he has been participating in the maintenance petition since 18.03.2004 onwards. Non-providing of sustenance amount for the period of more than seven years ipso facto indicates the negligence on the part of the respondent as the respondent husband chooses to contest the maintenance petition under the garb of fraud played on him by the petitioner rather than coming forward to pay some amount as sustenance.
  76. 76.The onus lies on the respondent to prove that the petitioner committed fraud, in the instant case, it is admitted case of the respondent that marriage solemnized on 24.03.2002 at Delhi and thereafter the petitioner and the respondent lived together as husband and wife at Meerut, U.P., from 25.03.2002 to 28.03.2002 peacefully and the respondent left for Canada on 28.03.2002.The allegation of fraud played upon respondent is nothing but an after-thought story to counter the present maintenance petition.
  77. 77. So far dispute in the instant case remains, which pertains to petitioner joining the matrimonial home in Canada on completing the required formalities by the respondent. The respondent in paragraph one of preliminary objections has admitted that after his giving thoughtful consideration he himself has written to immigration office at Canada in September 2002 that he does not wish to facilitate an immigration of petitioner which is reproduced as under:
    • “After having given careful thought to the future of marriage with the petitioner the respondent in September 2002 wrote to the immigration office at Canada withdrawing himself as a Sponsor and indicating to the Immigrating authorities that he did not want to facilitate and immigration Visa for the petitioner.”
  78. 78. The plea of the respondent that the petitioner wife is highly educated and intentionally she does not want to work is without proof and substance. The respondent who is claiming himself to be unemployed and refusing to maintain the wife in one breath has got no right on another breath to say that she is highly qualified and she is intentionally not getting employed. The judgment relied upon by the counsel for the respondent i.e. Rupali Gupta v. Rajat Gupta, 234 (2016) DLT 693 does not factually applies to the present petition as the present petition is filed under Section 125 Cr.P.C., 1973 and not under Section 24, Hindu Marriage Act, 1955.
  79. 79. The respondent during the cross examination has admitted that he too is B.Com, M.A.(Eco.) and MBA from Kentucky University, USA; the respondent is a Canadian citizen working with Sprint Canada and is earning Canadian $(CAD) 29,306.59 as net Annual Salary. However, he has claimed that he has resigned from Sprint Canada on 23.11.2010 and the same has been accepted on 27.11.2010 and the respondent since then is unemployed and has got no source of income to maintain himself and his family.
  80. 80.In the instant case, the petitioner has filed the case under Section 125 Cr.P.C., 1973 for grant of maintenance as she does not know any skill and specialised work to earn her livelihood i.e. in paragraph 26 of maintenance petition against her husband. However, the respondent husband who is well educated and comes from extremely respectable family simply denies the same. The respondent husband in his written statement does not pleads that he is not an able-bodied person nor he is able to prove sufficient earning or income of the petitioner.
  81. 81. It is an admitted fact emerging on record that both the parties got married as per Hindu Rights and Customs on 24.03.2002 and since then the petitioner was living with her parents from 10.08.2002 onwards, and the parents are under no legal obligation to maintain a married daughter whose husband is living in Canada and having Canadian citizenship. The plea of the respondent that he does not have any source of income and he could not maintain the wife is no answer as he is mature and an able- bodied person having good health and physique and he can earn enough on the basis of him being able bodied to meet the expenses of his wife. In this context, the observation made in Chander Prakash v. Shrimati Shila Rani, AIR 1968 Del 174 by this Court is relevant and reproduced as under: “7………an able bodied young man has to be presumed to be capable of earning sufficient money so as to be able reasonably to maintain his wife and child and he cannot be heard to say that he is not in position to earn enough to be able to maintain them according to the family standard. It is for such able-bodied person to show to the Court cogent grounds for holding that he is unable, for reasons beyond his control, to earn enough to discharge his legal obligation of maintaining his wife and child.”
  82. 82. The husband being an able-bodied person is duty bound to maintain his wife who is unable to maintain herself under the personal law arising out of the marital status and is not under contractual obligation. The following observation of the Apex Court in Bhuwan Mohan Singh v. Meena, AIR 2014 SC 2875, is relevant: – “3…..Be it ingeminated that Section 125 of the Code of Criminal Procedure (for short “the Code”) was conceived to ameliorate the agony, anguish, financial suffering of a woman who left her matrimonial home for the reasons provided in the provision so that some suitable arrangements can be made by the court and she can sustain herself and also her children if they are with her. The concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play, and that is where the obligations of the husband, in case of a wife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time of marriage and also in consonance with the statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a beggar. A situation is not to be maladroitly created where under she is compelled to resign to her fate and think of life “dust unto dust”. It is totally impermissible. In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able-bodied. There is no escape route unless there is an order from the court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds.” (emphasis applied)
  83. 83. The respondent’s mere plea that he does not possess any source of income ipso facto does not absolve himself of his moral duty to maintain his wife in presence of good physique along with educational qualification.
  84. 84.So far, the quantum of maintenance is concerned nothing consistent is emerging on record to show the specific amount which is being earned by the respondent after 2010, however the husband is legally bound to maintain his wife as per the status of a respectable family to which he belongs. The husband being able-bodied along with high qualification B.Com, M.A.(Eco) and MBA from Kentucky University, USA could earn at least minimum of Rs. 18,332/- as per the current minimum wage in Delhi. Therefore, the petitioner being wife is entitled to Rs. 9,000/- per month from 09.12.2010 onwards till further orders.
  85. 85. Consequently, the impugned order dated 28.01.2015 is set-aside to the extent of non granting the maintenance in favour of the petitioner /wife from 09.12.2010 onwards. However, the impugned maintenance in favour of the petitioner/wife till 08.12.2010 at the rate of Rs. 10,000/- per month is upheld. The respondent is directed to pay maintenance amount of Rs.9,000/- per month from 09.12.2010 onwards. Hence, the present revision petition is allowed. The arguments of the learned counsel for the respondent and the judgments relied upon by the respondent are of no help.
  86. 86. The present petition is allowed and disposed of in the above terms.
  87. 87. Let one copy of this judgment be sent to the concerned Court(s). TCR be sent back.
  88. 88.All the pending application(s) if any are disposed of accordingly. No order as to costs.
  89. I.S.MEHTA, J.

MAY 31, 2018

#RedCorener Notice #Quash #Delhi #HC. #LOC to be withdrawn. SHIV NARAYAN DHINGRA, J.

#498a etc on NRI Husband. Followed by RCN and LOC

A clear case where RCN with tags such a #Kidapping #Violent #Dangerous etc were added and NO official request for extradition were made for over 7 years !!

Shri Shiv Narayan DHINGRA, J. quashes the RCN and also orders withdrawal of LOC on undertaking by the petitioner

Case exposes the misuse of law

 

/////The petitioner’s description of being ‘#violent and #dangerous’ also has been added malafidly, with ulterior motive, in view of the fact that allegations against petitioner were of only of emotional torture.

Offence of kidnapping was given as the reasons for issuance of RCN, which on the representation of petitioner was removed. It is apparent that the LOC & RCN were issued for extraneous reasons by an officer who was not authorized. The petitioner has also highlighted the difference in statements made by witnesses on different occasions. Since the matter pertaining to these offences is subjudiced, it will not be appropriate to comment on this aspect but suffice it to say that the action against the petitioner of issuing RCN was uncalled for in view of the fact that neither offence, for which the petitioner is facing trial in India, is an extraditable offence, nor any request for extradition of the petitioner has been made for the last 7 years despite knowing whereabouts of the petitioner. I, therefore, consider it a fit case for quashing the RCN issued against the petitioner at the behest of Delhi Police. The RCN, is therefore, hereby quashed.
/////

DELHI HC

Delhi High Court

Court On Its Own Motion vs State V. Gurnek Singh Etc. on 11 August, 2010

Author: Shiv Narayan Dhingra

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: July 15, 2010
Date of Order: August 11, 2010

W.P.(Crl.) No. 1315/2008

11.08.2010

SUMER SINGH SALKAN … Petitioner
Through: Ms. Malavika Rajkotia with Mr. Bandan Kumar, Advocates

Versus

ASSTT. DIRECTOR & ORS. … Respondents
Through: Mr. Vikas Pahwa, Standing Counsel for CBI, Mr. Pawan Sharma, APP for the State, Mr. D.K.Sharma, SHO, P.S. Alipur.

and

Date of Reserve: July 20, 2010

Date of Order: August 11, 2010

Crl. Ref. 1/2006

11.08.2010

COURT ON ITS OWN MOTION RE: … Petitioner

Through: None.

Versus

STATE VS. GURNEK SINGH ETC. … Respondents

Through: Mr. Sunil Sharma, APP

JUSTICE SHIV NARAYAN DHINGRA

“..1. Whether reporters of local papers may be allowed to see the judgment?…” Yes.

“..2. To be referred to the reporter or not?…” Yes.

“..3. Whether judgment should be reported in Digest?…” Yes.

JUDGMENT

  1. 1. By the present petition the petitioner has sought recall of Look-out- Circular (LOC) and Red Corner Notice (RCN) issued by Delhi Police and Interpol against the petitioner alleging that LOC and RCN were issued in arbitrary and malafide exercise of power by the respondent.
  2. 2. The petitioner claimed that he was a Canadian citizen since January, 2004 and a person of Indian origin. He had married one Ms. Reema Salkan, daughter of Prof. R.S. Mann, on 24th March, 2002 according to Hindu rites and ceremonies at Infantry Hostel, Delhi Cantonment, New Delhi. At the time of his marriage, the petitioner was living and working in Canada and he came to India on three weeks leave for the purpose of marriage. The marriage was settled with Ms Reema through matrimonial advertisement in newspaper. The facts reveal that wife of the petitioner was not able to join the petitioner in Canada, as difference arose between the parties in the very beginning. The petitioner alleged that he was compelled to withdraw the sponsorship made by him for his wife Reema in view of certain developments. A complaint against the petitioner and his parents and married sister was filed at Crime Against Women Cell (CAW Cell) under section 498-A/406 IPC making various allegations. Later on, an FIR was registered on 22nd April, 2003 on the basis of this complaint. The parents and sister of petitioner obtained anticipatory bail from the court. Since petitioner was in Canada, he could not be arrested by the police. Additional Deputy Commissioner of Police (North-West) wrote a letter dated 27th May, 2003 to Foreigners Regional Registration Office (FRRO) for opening LOC against the petitioner. This letter, annexed with the petition, shows that Addl. DCP asked RFFO to open an LOC against the petitioner at all India basis because of FIR under section 498A/406 of IPC, registered at Police Station – Alipur, Delhi. Later, a letter seems to have also been written to Interpol Wing of Central Bureau of Investigation (CBI) on 11th June, 2003 for opening and issuance of a Red Corner Notice and service of summons on the petitioner in Canada. In response to this letter, CBI wrote a letter to Dr. R.K. Bansal, Asstt. Commissioner of Police (ACP), Sub Div. Narela, Delhi dated 15th July, 2003 and informed ACP that summons had been forwarded to Indian High Commission in Canada and also informed that in order to bring the petitioner to Delhi, charge-sheet should be filed and Non-Bailable Warrants (NBWs) of arrest should be obtained against the petitioner so that extradition proceedings could be initiated. It was advised that a short self contained note be prepared and same be sent to Interpol Wing. Further documents show that the police declared the petitioner as a “Wanted” person without any process issued through the Court and opened a file No. 6/SIO/2003 (77). Asstt. Director of T.P. Section/SI Cell issued a letter to all Immigration Check Posts alerting them so that if the petitioner was detected, he should be detained and his detention should be conveyed to Shri R.S. Yadav, Addl. Deputy Commissioner of Police. This letter was sent to all States D.G.Ps, all Seaports and all Airports. A copy of RCN, issued against the petitioner, is on record. The RCN described the petitioner as “fugitive wanted for prosecution”. A warning is there that the petitioner may be “dangerous” and “violent”. The RCN had the photograph of the petitioner and particulars. In the particulars, the offences mentioned are section 498A, 406 and 34 of IPC and maximum possible penalty has been mentioned as ’10 years’ imprisonment’. (This must be an invention made by ACP, as far as IPC is concerned, the maximum punishment for offences under section 498-A & 406 of IPC is up to three years imprisonment.)
  3. 3. A notice of the petition was served upon the respondent and a status report was filed by SHO, P.S. Alipur, Delhi. In the status report it has been stated that after registration of FIR, investigation was taken up and sister and parents of the petitioner were granted anticipatory bail, so they were formally arrested. Since the petitioner was at Canada, he could not be arrested and LOC was got opened against him and also RCN was got issued against him, but the petitioner did not join investigation. A charge-sheet was filed against the petitioner, his parents and his sister; in which the petitioner’s name was kept in column 2. It is submitted that LOC and RCN were got issued against the petitioner during investigation as there was sufficient evidence to show complicity of the petitioner in commission of crime. The NBWs were issued against the petitioner by the Court of learned Metropolitan Magistrate through Ministry of Home Affairs and the date fixed before the Court was 15 th April, 2009.
  4. 4. The RCN, was widely published and also placed on internet. It shows that the petitioner was involved in crime of kidnapping including crime against life and health. It is submitted by CBI that family related crimes are classified in the category of ‘kidnapping’ and that is why Interpol’s public website showed the crime of petitioner as ‘kidnapping’. However, on a protest of petitioner, the offence of kidnapping was deleted from ‘RCN’.
  5. 5. This court also received a reference from ACMM, Patiala House Court regarding guidelines for issuance of LOC and for closure of LOCs. Response of the State/UOI was sought on this reference. In its response, it is stated by UOI that there was no legal definition of LOC. However, LOC was interpreted as a communication received from an authorized government agency with reference to a person who is wanted by that agency for fulfillment of a legal requirement, to secure arrest of a person evading arrest, to nab a Proclaimed Offenders so as to facilitate court proceedings by securing presence of under trials. It is stated that statutory backing for issuance of LOC can be placed to Passport Act, 1967, sections 10A and 10B. Section 10A gives power to a designated officer to suspend passport or render a travel document invalid for a period of 4 weeks and section 10B provides that every intimation given by the Central Government or the designated officer, to any immigration authority at an airport or any other point of embarkation or immigration, restricting or in any manner prohibiting the departure from India or any holder of the Passport or travel document. The other statutory provision relied upon is Section 41 of Cr. P.C. which requires police to arrest any person without warrants. The LOC’s are issued at the behest of different agencies in accordance with Ministry of Home Affairs’ Circular No. 15022/13/78-F.1 dated 5th September, 1979, either to monitor the arrival/ departure of foreigners and Indians or to restrict arrival/departure of foreigners or Indians. It is stated that LOCs are based on the originator’s request to send communication to various immigrations, check posts on the basis of substantive/ procedural laws in respect of persons wanted in some cases. It is admitted that Ministry of Home Affairs’ office memorandum No. 15022/20/98-F.IV dated 27th December, 2000 requires that a request for opening of LOC must be issued with an approval of officer not below the rank of Deputy Secretary to the Govt. of India/ Joint Secretary in the State Government/ Concerned Supdt. of Police at district level and action on the LOC is to be taken in accordance with the directions of the originator. LOC was a part of investigation technique.
  6. 6. A perusal of Interpol documents regarding issuance of RCN would show that the RCN / ‘wanted notice’ are published in respect of offender wanted at international level and it requires that the subject may be arrested in certain country with a view to extradite him to the country where he is wanted and following conditions are to be fulfilled: – The person against whom the notice is to be published has committed an offence against ordinary criminal law. – The offence is an “extraditable offence” under the Indian Extradition Act, 1962. – A warrant of arrest has been issued for his/her arrest. – Extradition will be requested, at least from certain countries.
  7. 7. It is apparent that the offence for which an RCN can be issued must be extraditable offence in the country where the offence is originated and in the country where person is located and a warrant of arrest against the person had been issued.
  8. 8. In the present case, petitioner’s address in Canada was well known to the police as well as to the complainant. No effort was made by the police to initiate extradition proceedings against the petitioner from Canada to Delhi despite the fact that even according to police; the petitioner is wanted since 2003. The information given in RCN is that the petitioner emotionally tortured his wife while his family physically tortured his wife. The RCN requirements provide that the request has to be made to the country if the country is linked by Bilateral Extradition Treaty or by any other Convention or Treaty containing provision of Extradition Treaty.
  9. 9. In another case where LOC was issued at the behest of National Commission of Women (NCW) titled as Vikram Sharma & Ors Vs. Union of India & Ors., decided on 26th July, 2010, High Court observed as under: 
    • “8. As regards the procedure for opening an LOC, reference is made to the MHA circulated dated 5th September 1979. It is stated that:
      • Courts also open LOCs on various legal matters. LOCs are based on the originator?s request who sent the communication to various immigrations check posts on the basis of substantive/procedural laws viz IPC, Cr.P.C., Custom Act, Income Tax Act, NDPS Act, etc. All these communications are related to accused/suspected persons wanted in some cases. Besides, different courts also issue these communications in the form of LOCs including LOCs against those person who evade their presence in the Court of law during the course of judicial trial.”
      • “…9. It is further clear from the reply that in terms of a subsequent O.M. dated 27th December 2000 there is a specific proforma in which a request must be made for opening of an LOC and this should be issued “with the approval of an officer not below the rank of Deputy Secretary to the Government of India/Joint Secretary in the State Government/Concerned Superintendent of Police at district level.”
      • A copy of the Office Memorandum dated 27th December 2000 enclosing proforma for request for opening an LOC has also been enclosed…”
      • “…16. The question now is only for consequential relief that should be granted. The power to suspend, even temporarily, a passport of a citizen, the power to issue an LOC, the power to „off-load? a passenger and prevent him or her from travelling are all extraordinary powers, vested in the criminal law enforcement agencies by the statutory law. These are powers that are required under the law, to be exercised with caution and only by the authorities who are empowered by law to do so and then again only for valid reasons.
    • Recently, in Suresh Nanda v. Union of India 2010 IV AD (Del) 53, this Court, after referring to the judgment of the Supreme Court in Maneka Gandhi v. Union of India (1978) 1 SCC 248, observed:
      • “35. …There has to be application of mind by the authority to the relevant factors that would enable it to come to the conclusion that the impounding of the passport is in the interests of the general public. And then again, in the context of the criminal case which is still under investigation, this cannot be an opinion formed at one point in time. The public interest element will vary depending on the stage of the investigation. It cannot be said that as long as the investigation is not complete, it is not in public interest to release a passport. That would be giving too wide a power to the authority.”
    • ..17. In Bhim Singh v. State of J&K (1985) 4 SCC 677, a member of the Jammu & Kashmir Legislate Assembly was detained by the Police while on his way to attend a session of the assembly. By the time the petition filed by him challenging his detention was heard, he had already been released. Nevertheless, the Supreme Court examined the case and concluded that his detention was unlawful. It then proceeded to award him compensation after observing:
      • Custodians of law and order should not become depredators of civil liberties. Their duty is to protect and not to abduct. However the two police officers, the one who arrested him and the one who obtained the orders of remand, are but minions, in the lower rungs of the ladder. We do not have the slightest doubt that the responsibility lies elsewhere and with the higher echelons of the Government of Jammu and Kashmir but it is not possible to say precisely where and with whom, on the material now before us. We have no doubt that the constitutional rights of Shri Bhim Singh were violated with impunity. Since he is now not in detention, there is no need to make any order to set him at liberty, but suitably and adequately compensated, he must be. That we have the right to award monetary compensation by way of exemplary costs or otherwise is now established by the decisions of this court in Rudul Sah v. State of Bihar (1983) 3 SCR 508 and Sebestian M. Hongray v. Union of India AIR 1984 SC 1026. When a person comes to us with the complaint that he has been arrested and imprisoned with mischievous or malicious intent and that his constitutional and legal rights were invaded, the mischief or malice and the invasion may not be washed away or wished away by his being set free. In appropriate cases we have the jurisdiction to compensate the victim by awarding suitable monetary compensation. We consider this an appropriate case.”
    • This High Court concerning the issuance of LOC in Vikram Sharma (Supra) gave following directions :
      • 19. Mr. Nanda, learned counsel appearing for Respondent No. 1 submitted that in order to ensure that such incidents do not recur, this Court should direct that further instructions/circulars should be issued clarifying the correct legal position. This Court finds that there are a large number of statutory commissions at the level of the Centre and the States which perform judicial functions and are vested with, for the purpose of conducting inquiries upon receiving complaints, the powers of a civil court. These include the National Human Rights Commission („NHRC?), the NCW, the National Commission for Protection of Children?s Rights. These statutory bodies, however, have not been vested with the powers of a criminal court and do not have powers to enforce criminal law. It is for the Government of India to take a policy decision on whether it wants to vest such statutory tribunal/commissions with criminal law enforcement powers. Since as of today, they have no such power, it is imperative that the MHA should issue further clarificatory circulars or office memoranda clearly stating that the request for issuance of LOCs cannot „emanate? from statutory bodies like the NCW. If at all, such bodies should bring the necessary facts to the notice of law enforcement agencies like the police, which will then make the request for issuance of an LOC upon an assessment of the situation, and strictly in terms of the procedure outlined for the purpose. This clarification will be issued by the MHA, in consultation with the other concerned agencies, including representatives of the statutory bodies referred to, within a period of 12 weeks from today….”
  10. 10. In the present case, the LOC was issued against the petitioner soon after the registration of FIR. It is alleged by the petitioner that LOC was issued in view of the fact that complainant’s close relative was an IPS officer. This allegation of the petitioner finds support from the fact that the punishment stated by the police to Interpol in respect of the offences committed has been deliberately given as 10 years while the prescribed punishment is maximum 3 years imprisonment. The petitioner’s description of being ‘violent and dangerous’ also has been added malafidly, with ulterior motive, in view of the fact that allegations against petitioner were of only of emotional torture. Offence of kidnapping was given as the reasons for issuance of RCN, which on the representation of petitioner was removed. It is apparent that the LOC & RCN were issued for extraneous reasons by an officer who was not authorized. The petitioner has also highlighted the difference in statements made by witnesses on different occasions. Since the matter pertaining to these offences is subjudiced, it will not be appropriate to comment on this aspect but suffice it to say that the action against the petitioner of issuing RCN was uncalled for in view of the fact that neither offence, for which the petitioner is facing trial in India, is an extraditable offence, nor any request for extradition of the petitioner has been made for the last 7 years despite knowing whereabouts of the petitioner. I, therefore, consider it a fit case for quashing the RCN issued against the petitioner at the behest of Delhi Police. The RCN, is therefore, hereby quashed.
  11. 11. Look-out-Circular has also been issued against the petitioner as the petitioner is an accused before the Court of M.M. and he has not appeared before the Court of M.M. If the petitioner gives an undertaking before the court for his appearance on a particular date, through his counsel, the Look- out-Circular issued against the petitioner shall be withdrawn within 24 hours of giving undertaking by the petitioner.
    • The questions raised in the reference are as under:
      • “A. What are the categories of cases in which the investigating agency can seek recourse of Look- out-Circular and under what circumstances?
      • B. What procedure is required to be followed by the investigating agency before opening a Look-out-circular?
      • C. What is the remedy available to the person against whom such Look-out-Circular has been opened?
      • D. What is the role of the concerned Court when such a case is brought before it and under what circumstances, the subordinate courts can intervene?
    • The questions are answered as under:
      • A. Recourse to LOC can be taken by investigating agency in cognizable offences under IPC or other penal laws, where the accused was deliberately evading arrest or not appearing in the trial court despite NBWs and other coercive measures and there was likelihood of the accused leaving the country to evade trial/arrest.
      • B. The Investigating Officer shall make a written request for LOC to the officer as notified by the circular of Ministry of Home Affairs, giving details & reasons for seeking LOC. The competent officer alone shall give directions for opening LOC by passing an order in this respect.
      • C. The person against whom LOC is issued must join investigation by appearing before I.O. or should surrender before the court concerned or should satisfy the court that LOC was wrongly issued against him. He may also approach the officer who ordered issuance of LOC & explain that LOC was wrongly issued against him. LOC can be withdrawn by the authority that issued and can also be rescinded by the trial court where case is pending or having jurisdiction over concerned police station on an application by the person concerned.
      • D. LOC is a coercive measure to make a person surrender to the investigating agency or Court of law. The subordinate courts’ jurisdiction in affirming or cancelling LOC is commensurate with the jurisdiction of cancellation of NBWs or affirming NBWs.
  12. 12. The petitions stand disposed of in above terms.

SHIV NARAYAN DHINGRA, J.

AUGUST 11 , 2010 acm