Tag Archives: Fake 498a

False & Vexatious 498a and Rape cases on in laws quashed. False 498a also quashed. MP HC

False & Vexatious 498a and Rape cases on in laws quashed. False 498a also quashed. MP HC

Husband files divorce claiming that wife was previously married to some one else and lived with him, hid that fact and remarried the current poor fella. Wife appears one time for the divorce and then promptly files 498a on husband approx 1.5 months later. In that 498a there are NO allegations of rape on in laws, but later wife improvises and also files fake Rape Cases on In laws. Husband also wins the 498a case on merits at Magistrate court. Now All fake cases are quashed by Hon HC. The Hon court sees thru the abuse of process of law.

dfd... - Madhya Pradesh High Court, Gwalior Bench Office Photo ...

HIGH COURT OF MADHYA PRADESH

BENCH AT GWALIOR

SINGLE BENCH

Cr.R.No.87/2017

(Manoj Dubey and Anr. Vs. State of M.P. and Anr.)

&

Cr.R.No.447/2017

(Pradumn Dubey and Anr. Vs. State of M.P. and Anr.)

——————————————————————————————–

Shri Amit Lahoti, learned counsel for the applicant.

Shri Aditya Singh, learned Public Prosecutor for the respondent/State.

Shri Sanjay Kumar Sharma, learned counsel for the complainant.

——————————————————————————————-

Present : Hon. Mr. Justice Anand Pathak

ORDER

{Passed on 12th day of May, 2020}

1. Since both the petitions carry same factual tenor and texture and subject matter is also same therefore, both these criminal revision petitions taken into consideration simultaneously and are decided by the common order. For convenience sake, facts of Cr.R.No.87/2017 are taken into consideration.

2. The instant criminal revisions have been preferred by the petitioners/accused against the order dated 10.01.2017 (in Cr.R.No.87/2017) and order dated 06.02.2017 (in Cr.R.No.447/2017) passed in Case No.208/2016 whereby in sum and substance the respective applications of petitioners under Section 227/228 of Cr.P.C. for discharge have been rejected.

3. The brief facts necessary for adjudication are that on 01.05.2014 marriage was solemnized between Pradumn Dubey (son of present petitioners) i.e. petitioner No.1 in Cr.R.No.447/2017 and respondent No.2 Smt. Richa Bhargawa as per Hindu rites and rituals at Guna. It appears that due to some domestic incompatibility, respondent No.2/wife started living at her parental home at Kolaras, District Shivpuri (M.P.) since 24.02.2015. The dispute between the couple could not be resolved, therefore, on alleged grounds of living adulterous life as well as cruelty committed by respondent No.2, then husband-Pradumn Dubey filed a divorce petition against the respondent No.2/wife on 05.04.2016.

4. In his petition, he levelled specific allegations about leading adulterous life and prior to marriage, conceiving from some other male and later on aborted. Husband levelled specific allegation against respondent No.2 of having relationship with one, Ashutosh Pandey. As per allegations, she lived with Ashutosh Pandey at his village Nohrikala as his wife for sometime and after dispute with him, she came back to her parental home and thereafter, marriage with Pradumn Dubey (petitioner No.1 of Cr.R.447/2017) solemnized. Later on, this fact came to the knowledge of husband through call details of her mobile as well as from other source. All details of leading adulterous life by respondent No.-2 have been narrated in divorce petition. Respondent No.2 contested the case and led her part of evidence.

5. After considering the rival submissions and evidence, Principal Judge, Family Court Guna vide judgment dated 06.09.2017 allowed the petition under Section 13 of Hindu Marriage Act filed by the petitioner-Pradumn Dubey and decree of divorce was issued and by way of divorce couple declared separate.

6. It is worthwhile to mention the fact that on 05.04.2016 divorce petition was filed and on 05.05.2016 wife caused her appearance in the Court and immediately thereafter, on 15.05.2016 she lodged FIR under Section 498-A of IPC and Section 3/4 of Dowry Prohibition Act, showing the dates of alleged offence between 01.05.2014 i.e. date of marriage to 12.10.2015, the date from which she started living separately. In the said FIR, there is not even a whisper in respect of allegation of committing attempt to rape and outraging her modesty by her brother-in-law -Rahul Dubey (Petitioner No.2 in Cr.R.447/2017).

7. On 23.06.2016, she lodged another FIR vide Crime No.327/2016 at Police Station Guna Kotwali for the offence under Sections 376 and 511 of IPC against all the petitioners for committing the offence of attempt to rape and outraging her modesty. In the said FIR, period of incident shown to be from 05.06.2014 to 28.02.2015. Perusal of FIR indicates the date of event as 05.06.2014 at Haridwar and thereafter, one more incident of attempt to rape by her brother-in-law -Rahul Dubey around one year back from the date of FIR.

8. Investigation carried out and charge-sheet submitted. Trial Court framed the charges against all the petitioners (except petitioner No.2 in Cr.R.No.447/2017) in respect of Sections 498-A, 376/109, 354/109 of IPC and brother-in-law -Rahul Dubey (petitioner No.2 of Cr.R.447/2017) was saddled with Sections 498-A, 376/511 and Section 354 of IPC .

9. Meanwhile, divorce petition filed by the husband-Pradumn Dubey was allowed vide judgment and decree dated 06.09.2017, in which this fact has been considered that respondent No.2 lodged a false FIR to the offence of attempt to rape to exert pressure over the petitioners.

10. Meanwhile on 26.09.2019 during the pendency of present petitions, first FIR lodged against all the petitioners under Section 498-A of IPC and Section 3/4 of Dowry Prohibition Act also resulted in acquittal of all the petitioners on merits and the said judgment dated 26.09.2019 is on record.

11. Therefore, through this revision petition, petitioners have challenged the rejection of application for discharge preferred by them under Sections 227/228 of Cr.P.C.. In Cr.R.No.447/2017, petitioners (husband and brother- in-law of respondent No.2-wife) also preferred revision against order dated 06.02.2017 whereby charge has been framed against the petitioners in respect of offence under Sections 498-A, 376/511 and Section 354 of IPC for Rahul Dubey and Section 498-A, 376/109 and 354/109 of IPC against Pradumn Dubey.

12. It is the submissions of counsel for the petitioners that it is factually clear that FIR of leveling allegations of attempt to rape and outrage her modesty are complete abuse of the process of Court and such process cannot be allowed for harassment. He relied upon the judgment rendered by the Hon’ble Apex Court in the case of State of Haryana Vs. Bhajanlal and Ors., AIR 1992 SC 604.

13. It is further submitted that after filing of divorce petition by the husband as counter blast, respondent No.2 lodged FIR under Section 498-A of IPC without mentioning therein any allegations of attempt to rape whereas she filed the said FIR on 15.05.2016 and at that point of time, if subsequent FIR is seen then it is clear that she referred the incident dated 05.06.2014 and the incident is of one year thereafter. Therefore, she could have narrated the said allegations in her first FIR filed under Section 498-A of IPC. It appears that when she realized that she is not getting sufficient material to harass the present petitioners only on the basis of offence under Section 498-A of IPC then she resorted to another FIR including the offence under Sections 376 and 354 of IPC, which is clear abuse of process of law and she cannot be permitted to start litigation at her whims on flimsy pretext and harass the petitioner till eternity. He referred the vagueness made by the prosecutrix in her written complaint, FIR and police statement/statement under Section 161 of Cr.P.C. He further submits that although this is revision petition but since this Court exercises the inherent jurisdiction under Section 482 of Cr.P.C., also then scope of revision is not limited. He relied upon the case of Rajiv Thapar & Ors vs Madan Lal Kapoor, 2013 (3) SCC 331 to submit that even in revisional jurisdiction if the injustice is caused then same can be taken care of. Here in the present case petitioners are constantly harassed by the wife. FIR is a delayed FIR and an afterthought.

14. Learned counsel for the respondent opposed the prayer and prayed for dismissal of petition.

15. Counsel for the complainant also raised the point regarding merits of the case and submits that trial Court would decide the case and allegations prima facie apparently exist and therefore, same needs to be tried through leading evidence.

16. Heard the learned counsel for the parties and perused the case dairy/documents.

17. In the present case, petitioners have filed the revision petitions in which one is against order of discharge and another is against order of framing charge. Scope of revision is not so limited as tried to be projected by the counsel for respondent because revisional Court can see the correctness, legality or propriety of any order passed as well as the regularity of any proceeding of any Court below.

18. Therefore, looking to the scope as provided in Section 397 and 401 of Cr.P.C., this Court has sufficient jurisdiction to look into correctness or propriety of any order passed by the Sessions Court. So far as present case is concerned, respondent No.2 lodged the FIR on 23.06.2016 by filing a written complaint. Contents of written complaint and FIR are almost identical. Later on, her police statement was taken on same day i.e. 23.06.2016 then also she repeated the allegations but next day in her statement under Section 164 of Cr.P.C. before the Magistrate, she made her statement only in one para and the same is reproduced as under for ready reference:-

19. Perusal of the said statement indicates that she referred the role of her brother-in-law-Rahul Dubey but she nowhere refers the role of her husband or her father and mother-in-law (petitioners of Cr.R.No.87/2017). The statement recorded just after one day i.e. 24.06.2016 therefore, it cannot be assumed that by the efflux of time, she forgot the details of incident. She tries to improve upon some contents qua Rahul Dubey which were not earlier lodged in the written complaint, FIR or police statement. Material contradictions and omissions exist in all her statements and contents of her written complaint as well as F.I.R. This shows her intention.

20. This fact has material bearing that after marriage (on 01.05.2014) her brother-in-law- Rahul Dubey started misbehaving with her and first incident is of dated 05.06.2014 one month after the date of marriage. Apparently such allegation comes under the doubt for the reason that if she was so upset by the advances of her brother-in-law then she should have immediately reported her family members, husband as well as father/mother-in-law or to the police. She left her matrimonial home on 24.02.2015 and the said fact reflected in the judgment and decree dated 06.09.2017 passed by the Principal Judge, Family Court, Guna. When she left her matrimonial home within 10 months of her marriage on 24.02.2015 and thereafter, if any advances were made by the brother-in-law -Rahul Dubey then she had one more opportunity to raise her voice and/or to mention the said fact in earlier FIR. The Police Station Kolaras District Shivpuri registered the case vide Crime No.204/2016 against all four petitioners of the instant case for alleged offence under Section 498-A of IPC and 3/4 of Dowry Prohibition Act on which trial was conducted before the JMFC Kolaras, District Shivpuri and vide judgment dated 26.09.2019 the said case resulted into acquittal of all the four petitioners/accused.

21. Reference of one compromise deed (Ex.P-3 of the said case) also finds place in judgment of the trial Court in which she accepted the fact that she was not allowed restrained by the petitioner/husband to go to the place of her brother-in-law (thtkth -Akhil) because her husband did not like the idea of going and staying for day’s together at her sister and brother-in-law’s place. In the said compromise deed dated 03.12.2014, she accepted that she wants to live happily with her matrimonial family and she would not be restrained by the family members/petitioners.

22. The facts of misbehavior by Rahul Dubey could have reflected in the settlement deed dated 03.12.2014 because as per the allegations, first incident of misbehavior by brother-in-law -Rahul Dubey was committed on 05.06.2014 at Haridwar therefore, on 03.12.2014, she could have referred this fact in compromise deed and could have ensured her modesty and chastity but same does not find place in the settlement deed or in the judgment dated 26.09.2019 passed by the JMFC, Kolaras. On this ground also, it appears that she filed the instant cases on false pretext just for harassment.

23. Interestingly, first FIR under Section 498-A of IPC was filed by the prosecutrix at Police Station Kolaras on 15.05.2016 and after one month she again filed an FIR with same allegations of dowry demand but with addition of Section 354 and 376 of IPC. Second FIR was filed at Police Station Guna Kotwali, District Guna. This shows the bend of mind and motive of respondent No.2 to keep harassing the petitioners on the pretext or the other. These facts create sufficient doubt about the actual disposition of respondent No.2 and her intention to wreak vengeance. Criminal law cannot be used as a tool for oppression, harassment and embarrassment to the common man. Here respondent No.2 tried to misuse the process of law for extending harassment to the petitioners. She knows that all petitioners are Government Teachers and their entanglement in criminal proceedings would cost them heavily. Therefore, she is enjoying peevish pleasure.

24. When divorce proceedings successfully pursued by the petitioner/husband Pradumn Dubey and when all four petitioners successfully contested the trial of Section 498-A of IPC then again relegating them back for the trial for same offence under Section 498-A of IPC would be travesty of justice because long drawn litigation itself is a type of punishment or at-least harassment to the common man which cannot be permitted in those cases where malice of complainant is apparent on record.

25. Even otherwise on merits, no allegations of attributes of Section 376 or 354 of IPC existed or reiterated by the complainant in her statement under Section 164 of Cr.P.C. qua other petitioners because allegations are only against Rahul Dubey but since the mens rea or ill-motive is apparent which is being established by the documents available on record, therefore, this Court cannot sit with blind eyes to allow the continuation of the abuse of process of law. Interestingly, her case suffers from delay and latches also because she could not explain delay and factual inconsistency in her complaint and statements.

26. In the case of Sh. Satish Mehra vs Delhi Administration & Anr. 1996 (9) SCC 766 the Hon’ble Apex Court has reiterated the scope of Section 227 of Cr.P.C. which is reproduced as under:- “15.But when the Judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the Court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. We are mindful that most of the Sessions Courts in India are under heavy pressure of work-load. If the Sessions Judge is almost certain that the trial would only be an exercise in futility or a sheer waste of time it is advisable to truncate or snip the proceedings at the stage of Section 227 of the Code itself.”

27. In the cumulative analysis and going through the judgment of the Apex Court in the case of Rajiv Thapar (Supra) and in the facts and circumstances of the case, this Court finds that it is case where interference would advance the cause of justice therefore, this Court intends to allow both the revisions filed by the petitioners.

28. Even otherwise, this Court does not find any ground to proceed further in the litigation and trial Court erred in rejecting the application under Section 227/228 of Cr.P.C. for discharge as well as erred in framing charge as per impugned order dated 10.01.2017 (in Cr.R.No.87/2017) and order dated 06.02.2017 (in Cr.R.No.447/2017) and both the impugned orders are hereby set-aside and no case for trial has been made out by the prosecution.

29. Resultantly, petitioners are discharged from the clutches of charges under Sections 498-A and 376/109, 354/109 of IPC and petitioner Rahul Dubey for the offence under Sections 498-A, 376/511 and Section 354 of IPC. They are set free.

30. E-copy/Certified copy, whichever is available, of this order be provided to the petitioners and E-copy of this order be sent to the trial Court concerned for compliance. It is made clear that E-copy of this order shall be treated as certified copy for practical purposes in respect of this order.

31. Both the revision petitions stand allowed and disposed of accordingly.

Ashish* (Anand Pathak)

Judge

ASHISH

CHAURASIA

2020.05.12

18:38:05

-07’00’

498a Dowry case on 11 year old brother Inlaw, married sis Inlaw, 74 year father Inlaw sheer abuse of law. Quashed. P&H HC

Fake case filing wife ropes in 3 in laws without any proper evidence or case against them. The court finds the case a sheer ABUSE of the process of law. Especially the court notes the following ” … Petitioner No.1 is the sister-in-law of the complainant, who got married on 04.02.1989 and has been residing in her matrimonial home since then and therefore, there is not even a remotest possibility that husband of the complainant was used to give beatings to her at the instance of petitioner No.1. Petitioner No.2 was born on 12.07.1979 and was 11 years of age in March, 1990 when the complainant alleged that she was given beatings by her husband at the instance of petitioner No.2. Moreover, he had left for Canada in March, 1996 and is residing there since then. Similarly, petitioner No.3 aged 74 years had left for Canada in 1996 and is residing there since then with petitioner No.2. In such an eventuality, it is hard to believe that petitioners had harassed the complainant as alleged in the complaint.It has become a common practice to use the provisions of Section 498- A IPC as a weapon rather than shield by disgruntled wives. The simplest way to harass is to get the relatives of the husband roped in under this provision, no matter they are bed ridden grand parents of the husband or the relatives living abroad for decades. The case in hand is also of similar nature..”

The sad saga borne out of Honorable COURT’s decree is given below

Punjab and Haryana High Court Dismisses Bail Plea of Man Accused ...

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH

CRM-M No.13517 of 2018

Date of Decision:15.05.2020

Amarjit Kaur and others ….Petitioners

versus

Jaswinder Kaur and another ….Respondents
CORAM:
HON’BLE MR. JUSTICE JAISHREE THAKUR
Present:
Mr. Bhrigu Dutt Sharma, Advocate for the petitioner.
Mr. Ish Puneet Singh, Advocate for respondent No.1.
Mr. Davinder Bir Singh, DAG, Punjab.


JAISHREE THAKUR. J

  1. This is a petition that has been filed under Section 482 Cr.P.C. seeking to quash Criminal Complaint No.31861/13 dated 06.09.2012 and the summoning order dated 06.12.2016 whereby petitioners herein have been summoned to face trial under Sections 498-A, 506, 120-B IPC and order dated 04.08.2017 declaring the petitioners as proclaimed offenders. Petitioners herein are the father-in-law, brother-in-law and sister-in-law of the respondent No.1 Jaswinder Kaur (hereinafter referred to as the complainant).
  2. In brief, the facts are that the abovesaid criminal complaint had been made by the complainant, who got married with Jaswant Singh on 05.08.1989. Jaswant Singh is none other than the real brother of petitioners No.1 and 2 and son of petitioner No.3. In the complaint it was averred that marriage was solemnized lavishly and a sum of `4 lakhs was spent thereon, apart from giving dowry articles, gold ornaments and other luxurious items. The complaint was made against the husband Jaswant Singh, Amarjit Kaur alleged to be second wife of Jaswant Singh, father-in-law Dilbagh Singh, mother-in-law Charan Kaur, brother-in-law Ranjit Singh and the sister-in-law Amarjit Kaur.
  3. It was further alleged that soon after the marriage, the accused persons named in the complaint started harassing the complainant on account of not bringing enough dowry and they raised a demand of Maruti 800 car along with an amount of `50,000/-. Though the complainant persuaded the accused persons with regard to inability of her parents to fulfill their demands, in the month of March, 1990, husband of the complainant at the instance of other accused gave her beatings and stated that she would have no place in the house if the demands are not fulfilled. Accused No.4 in the complaint i.e. mother-in-law of the complainant also raised a demand of gold ornament.
  4. On 24.07.1993, the complainant gave birth to a girl child namely Manjinder Kaur at Nawanshahar and entire expenses of the delivery were borne by parents of the complainant. It was alleged that after the birth of girl child, the mother-in-law raised a demand of `5 lakhs. The husband and petitioners herein along with mother-in-law taunted the complainant for not giving birth to a male child. In the year 2002, the complainant was turned out of the matrimonial home and at that point of time, her mother-in-law took all gold ornaments and other articles belonged to the complainant. It was further alleged that on 24.01.2008, husband of the complainant at the instance of his family members turned her out of matrimonial home and on 23.02.2008 also left the daughter with the complainant at Jalandhar and threatened her of dire consequences if she made a complaint against him. In this regard, the complainant made a complaint to SSP, Nawanshahr on 15.04.2008 but no action had been taken. In the month of September, 2009, severe blows were given in her stomach by accused No.1 i.e. the husband. She came to know that her husband solemnized a second marriage with one Amarjit Kaur (who was made accused No.2 in the complaint) without taking any divorce from her. She filed a petition under Section 125 Cr.P.C. and also an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005. A complaint was also made by her to the Commissioner of Police on 5.76.2012 but no action had been taken.
  5. In support of her complaint, complainant stepped into witness box as CW1 and examined one Balkiat Singh as CW-2 and Piar Kaur as CW3, who reiterated the version of the complaint. She placed on record photographs of her husband with second wife as Ex.C3 to C5 and copies of petition filed under Section 9 of the Hindu Marriage Act against her and against his second wife as Ex.C6 and C7 respectively. The Judicial Magistrate 1st Class, Jalandhar on appreciation of material placed before it, vide order dated 25.03.2013 summoned the husband to face trial under Sections 406, 498-A, 506 and 494 IPC and the mother-in-law under Sections 406, 498-A and 506 IPC whereas the other accused persons were discharged including the petitioners herein.
  6. The aforementioned order was challenged by the complainant in revision before the Additional Sessions Judge, Jalandhar who vide order dated 02.02.2015 while noting the fact that there are specific allegations against accused No.3, 5 and 6 i.e. petitioners herein set aside the order passed by the Judicial Magistrate 1st Class, Jalandhar and directed to pass appropriate summoning order after re-considering the evidence placed before him.
  7. Since the revisional court set aside the order passed by the Judicial Magistrate, the complainant filed a petition before this Court to the extent that since the husband and mother-in-law did not challenge their summoning order, the revisional court gravely erred in setting aside the order in toto. This Court vide order dated 21.08.2015 clarified that the summoning order passed by the trial Court against husband Jaswant Singh and mother-in-law Charan Kaur will not be deemed to have been set aside.
  8. The trial Court on reconsideration of the evidence before it passed order dated 06.12.2016 whereby accused Nos.3, 5 and 6 i.e. petitioners herein have also been ordered to be summoned to face trial under Sections 498-A, 506 and 120-B IPC.
  9. Pursuant to the summoning order, notice were issued to the petitioners and since they did not put in appearance despite publication, they were declared as proclaimed offenders vide order dated 04.08.2017.
  10. Mr. Bhrigu Dutt Sharma, learned counsel appearing on behalf of the petitioners would submit that there is no specific allegation levelled against the petitioners in the complaint and therefore, the Judicial Magistrate vide order dated 25.03.2013 after appreciating the material placed before it gave a finding that no offence is made out against the petitioners herein and only summoned the husband and mother-in-law of the complainant to face trial under Sections 406, 498-A, 506 IPC. Even in the revision petition filed by the complainant against the aforementioned order, the revisional court failed to consider the fact that a right had been accrued in favour of the petitioner vide order dated 25.03.2013 passed by the Judicial Magistrate and therefore, an opportunity of hearing ought to have been given to the petitioners before setting aside the said order and gravely erred in remanding the matter back to the trial Court for reconsideration of the evidence. On remand, the trial Court failed to take into consideration that there is no specific allegation levelled against the petitioners in the complaint and in the absence of any specific allegation, a complaint is liable to be dismissed.
  11. He further contended that in pursuance to the summoning order dated 06.12.2016, summons issued to the petitioners were never served as the address of the petitioners given in the complaint by the complainant was incorrect as they were not residing at the said address at the relevant point of time. In support of his contention, he relied upon zimni orders dated 22.12.2016, 03.01.2017, 20.01.2017, 08.02.2017, 28.02.2017, 09.03.2017, 01.04.2017 and 24.04.2017 annexed with the petition as Annexure P-7 (colly). On the application moved by the complainant for effecting service upon the petitioners by way of substituted service, the trial Court vide order dated 24.04.2017 ordered the petitioners to be summoned by way publication. The proclamation published in the newspaper would show that petitioners No.2 and 3 were shown to be residents of Shaheed Bhagat Singh Nagar whereas they were actually residing in Canada since 1996 and the said fact was very well in the knowledge of the complainant. Moreover, petitioner No.1 was residing in her matrimonial home at Roper and therefore, was not aware of the pendency of the proceedings. The proclamation was published on 16.07.2017 and petitioners were required to be appeared before the trial Court on 17.07.2017 i.e. the very next day after the publication made in the newspaper. Even order dated 04.08.2017 declaring the petitioners as proclaimed persons has been passed before the expiry of 30 days of the publication of proclamation on 16.07.2017, which is in violation of the provisions of Section 82 (1) and 82 (4) of the Code of Criminal Procedure and therefore, is not sustainable in the eyes of law.
  12. Per contra, Mr. Ish Puneet Singh, learned counsel appearing on behalf of complainant-respondent No.1 supported the orders under challenge whereby petitioners have been ordered to be summoned to face trial and declared as proclaimed persons, while contending that the same have been passed on appreciation of material placed before the trial Court. The husband and the mother-in-law did not challenge the order whereby the husband had been ordered to face trial under Sections 406, 498-A, 506, 494 IPC and the mother-in-law under Sections 406, 498-A and 506 IPC. There are specific allegations levelled against the petitioners in para Nos.3, 5 and 6 of the complainant and therefore, they have rightly been summoned to face trial on the appreciation of evidence by the trial Court.
  13. I have heard learned counsel for the parties and have perused the paper book.
  14. It is the conceded position on record that in the first round of appreciation of evidence, the trial Court vide order dated 25.03.2013 gave a finding that no offence as levelled in the complaint is made out against the petitioners herein and summoned only husband and the mother-in-law to face trial. The complainant challenged the said order in revision petition and the revisional court remanded the matter to the trial court to pass a fresh order qua petitioners after re-appreciation of evidence. On re-appreciation of evidence, the trial court vide order dated 06.12.2016 summoned the petitioners to face trial under Sections 498-A, 506 and 120-B IPC and in pursuance to summoning order when the petitioners had failed to appear before it, the trial Court vide order dated 04.08.2017 declared them as proclaimed persons.
  15. It would be in the interest of justice to see at the first instance whether any offence is made out against the petitioners as per allegations levelled against them in the complaint or not? Because if the complaint fails, as a necessary corollary, all subsequent proceedings arising therefrom would automatically go. The allegations levelled against the petitioners in paras No.3, 5 and 6 of the complaint are reproduced as under:-
    “3.That on showing the incapability to arrange for Maruti 800 car and more dowry articles, in the month of March 1990, the accused No.1 at the instance of respondents No.3 to 6 started giving merciless beatings to the complainant…….
  16. That it is also not out of place to mention here that the accused No.1, 3 to 6 used to taunt the complainant for not giving birth to a male child……..
  17. That on 24.1.2008 the accused No.1 at the instance of accused No.3 to 6 started beating the complainant and further turned out the complainant from her matrimonial house in bare three clothes………All the dowry articles and shtridhan belonging to the complainant is in custody of accused No.1, 3 to 6 and are using the same for their personal gain since then the complainant is living at the mercy of her brothers and widow mother.”
  18. A perusal of the aforementioned would reveal that there are no direct and specific allegations against the petitioners that they had given beatings to the complainant or demanded any dowry article or misappropriated the shrtidhan. The expression used is ‘at the instance of accused No.1’. The complainant has failed to bring on record any evidence to show that she had been physically abused by the petitioners or entrustment of any dowry article.
  19. Petitioner No.1 is the sister-in-law of the complainant, who got married on 04.02.1989 and has been residing in her matrimonial home since then and therefore, there is not even a remotest possibility that husband of the complainant was used to give beatings to her at the instance of petitioner No.1. Petitioner No.2 was born on 12.07.1979 and was 11 years of age in March, 1990 when the complainant alleged that she was given beatings by her husband at the instance of petitioner No.2. Moreover, he had left for Canada in March, 1996 and is residing there since then. Similarly, petitioner No.3 aged 74 years had left for Canada in 1996 and is residing there since then with petitioner No.2. In such an eventuality, it is hard to believe that petitioners had harassed the complainant as alleged in the complaint.
  20. It has become a common practice to use the provisions of Section 498- A IPC as a weapon rather than shield by disgruntled wives. The simplest way to harass is to get the relatives of the husband roped in under this provision, no matter they are bed ridden grand parents of the husband or the relatives living abroad for decades. The case in hand is also of similar nature. The complainant has failed to make out a prima facie case against the petitioners regarding allegation of inflicting physical and mental torture to the complainant or demanding dowry from her. The complaint does not disclose specific allegation against the petitioners except casual reference of their names that husband of the complainant gave her beatings at the instance of petitioners. The Hon’ble Supreme Court in Geeta Mehrotra Vs. State of U.P. (2012) 10 SCC 741 quashed the FIR registered against the unmarried sister of the husband on the ground that prima facie case was not attracted against her in the absence of specific allegations.
  21. In view of the aforementioned facts and circumstances, this court is of the opinion that the case in hand is a sheer abuse of process of law and therefore, is a fit case to exercise the jurisdiction of this Court under Section 482 Cr.P.C. Consequently, the complaint No.31861/13 dated 06.12.2016 and all subsequent proceedings arising therefrom including the orders dated 06.12.2016 and 04.08.2017 qua petitioners are quashed.
  22. The petition is allowed accordingly.
    (JAISHREE THAKUR)

JUDGE

May 15, 2020

Pankaj*

Whether reasoned/speaking Yes/No
Whether reportable Yes/No

498a shortly after marriage. Brother & sister-in-law, staying separately, roped in. Quashed partly! MP HC

PIL filed in Madhya Pradesh HC against 'slapping' of CAA ...

#ipc498a #498a #Dealyed498a #FIR5months after ALLEGED incidents

#GeneralAllegations #Brother #sis-in-law roped in !!

THE HIGH COURT OF MADHYA PRADESH

PRINCIPAL SEAT AT JABALPUR

Hon’ble Shri Justice Rajendra Kumar Srivastava

M.Cr.C No.10097/2019

Smt. Laxmi Balmiki & others

VS.

State of M.P. & another

———————————————————————————–

Shri Rajendra Yadav, learned counsel for the petitioners.

Shri Sharad Singh Baghel, learned P.L. for the respondent No.1/State.

Shri Surendra Patel, learned counsel for the respondent No. 2.

————————————————————————————

ORDER

(20.05.2020) This petition under Section 482 Cr.P.C. has been filed by the petitioners seeking quashment of the FIR in Crime No. 35/18 registered at Mahila Thana, District Sagar for the offence punishable under Sections 498-A, 506/34 of IPC and Section 3/4 of Dowry Prohibition Act, 1961. They also pray for quashing of the consequential proceeding bearing RCT No. 8/2019 pending before JMFC, Sagar.

2. According to the case, on the basis of a complaint made by complainant/respondent No. 2, the police has registered a case under the aforesaid offences against the petitioners and one Rajesh Balmiki, husband of respondent No. 2. It is mentioned in the FIR that the marriage of respondent No. 2 was solemnized with Rajesh Balmiki on 15.05.2017. The family members of the respondent have given sufficient articles at the time of marriage. The respondent was living with the petitioners in joint family. She further mentioned that after the ceremony of first Bidai, the petitioner No. 1 (mother in law) started taunting her on account of non-fulfillment of dowry. She further alleged that the petitioner No. 1 abused her and used to starve her. Further, when she made a complaint of petitioner No. 1 to her father-in-law i.e. petitioner No. 2, they along with husband Rajesh scuffled with her. Thereafter her sister in law and brother in law (Jeth- Jethani) i.e. petitioner No. 3 & 4 came there and told her to bring rupees 10 lakh. She alleged that all the petitioners committed marpeet with her. She also alleged against her husband for demand of dowry and torture. She stated that on 07.07.2018, the petitioners made a conspiracy with her husband to kill her.

3. The learned counsel for the petitioners submits that the petitioners are innocent persons and have been falsely implicated in the case. He submits that they never demanded any dowry from the respondent No. 2 and her family members. He further submits that according to respondent No. 2, last incident was occurred on 07.07.2018 but the complaint was lodged on 04.12.2018, after the period of five months. The respondent No. 2 has not given any satisfactory explanation in this regard. Hence, the allegations made in the FIR, are afterthoughts and concocted. He further argued that the respondent No. 2 herself stated that soon after the marriage, the petitioners started torturing her but she never lodged any FIR or complaint prior to the FIR in question. He stated that respondent No. 2 is a rude woman and she was making pressure on the petitioners to send her husband at her parental house to live separately. Her husband was not ready so she implicated all the family members in this false case. There is also contradiction in the police statements of the witnesses. He further submits that petitioners No. 3 and 4 reside separately from the other accused and respondent No. 2, even then they have been implicated in the case. The petitioners No. 1 and 2 are old age persons, moreover, petitioner No. 1 is a Government servant, hence, just to create pressure on account of her revenge, the respondent No. 2 made them as accused. The petitioner No. 1 and 2 are also living separately and same is indicated from their complaint dated 25.07.2018 filed before the SP Sagar. Further, there is no independent witness in the case. With the aforesaid submission, he prays for allowing this petition. In support of his contention, he relied on the some judgement of the Hon’ble Apex Court.

4. On the other hand, learned panel lawyer for respondent No. 1/State as well and counsel for respondent No. 2 oppose the petition submitting that there is sufficient material available in the case to prosecute the petitioners. The complainant has specifically alleged against all the petitioners for the aforesaid offences, hence, FIR may not be quashed at this stage. Learned counsel for respondent No. 2 further submits that the offences are related to matrimonial cases and are continuing offences, hence, no question of delay in lodging the FIR, specially when the complainant stated that she was trying to save her relation. He further submits that all the petitioners have demanded dowry and for the same reason, they tortured her mentally and physically. He submits that at this initial stage of trial, the Court may not go into the question of truthfulness or veracity of complaint made by the respondent No. 2, it is for the trial Court to decide the same in trial. On perusal of FIR, there is sufficient prima facie material to prosecute them further, hence, this petition deserves to be dismissed. In support of his contention, he relied on the order passed by the High Court of Gauhati in the case of Rajiv Deori @ Rajiv Kumar Deori and others Vs. Riju Bharali and another passed in Criminal Petition No. 270/2015 dated 22.01.2016.

5. Heard and perused the case diary.

6. On perusal of case diary, it appears that the allegations made against the petitioners are that they have tortured the respondent No. 2 on account of non fulfilment of dowry for which the respondent No. 2 has registered the FIR in aforesaid crime number. Since, the learned counsel for the petitioners raised the ground of delay in lodging the FIR, therefore, it would be appropriate to decide the said issue first.

7. At this juncture, I would like to quote the following portion from the case of State of Himachal Pradesh v. Gian Chand, (2001) 6 SCC 71, wherein the Hon’ble Apex Court observed as under :-

“12. Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the court on its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case………..”

8. Further, in the case of P. Rajagopal v. State of T.N., (2019) 5 SCC 403, the Hon’ble Apex Court has held as under :-

12. Normally, the Court may reject the case of the prosecution in case of inordinate delay in lodging the first information report because of the possibility of concoction of evidence by the prosecution. However, if the delay is satisfactorily explained, the Court will decide the matter on merits without giving much importance to such delay. The Court is duty-bound to determine whether the explanation afforded is plausible enough given the facts and circumstances of the case. The delay may be condoned if the complainant appears to be reliable and without any motive for implicating the accused falsely. [See Apren Josephv.State of Kerala[Apren Josephv.State of Kerala, (1973) 3 SCC 114

9. On careful reading of the above referred citations, it is revealed that the prosecution case cannot be discarded solely on the ground of delay in lodging the first information report if the prosecution has satisfactorily explained the delay. The delay may be condoned if the complainant appears to be reliable and without any motive for implicating the accused falsely.

10. In the present case, the case diary shows that on the basis of written complaint dated 04.12.2018, filed by respondent No. 2, the FIR has been registered by the police on 09.12.2018. The incident period which is mentioned in the FIR is from 16.05.2017 to 25.07.2018. On perusal of FIR, the last incident of conspiracy to kill her by her in-laws is alleged to be occurred on 07.07.2018 i.e. about five months before the registration of the FIR. In the application submitted to SP Sagar, the complainant stated that after the incident of 07.07.2018 when she came to her parental home, her parents were trying to convince her but in the meanwhile the petitioners have filed the complaint to SP Sagar against her.

11. In my opinion the matrimonial offences are somehow different as that of other offences and due to social slander and bounding, there is always a possibility of delay in availing the legal remedy by the bride or her family members, perhaps to save their relationship. Moreover, in any eventuality whether there is any inordinate delay in lodging the FIR or not, same would be tested at trial. At this stage, in the facts of the present case, it cannot be a ground for discharge.

12. Now, I proceed to examine the merits of the case to find out whether any case is made out against the petitioners or not ? In this context, first I would like to refer to the principle laid down by the Hon’ble Apex Court for quashing the FIR. In the case of State of Haryana vs. Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426], the Hon’ble Apex Court held that the power under section 482 Cr.P.C should be exercised either to prevent abuse of the process of the Court or otherwise to secure the ends of justice. The court issued seven guidelines to exercise the power under section 482 Cr.P.C. Same are quoted herein under :

“”(1) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;

(2) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;

(3) where the un-controverted allegations made in the FIR or ‘complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;

(4) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code; (5) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;

(6) where there is an express legal bar engrafted in any of the provisions of the code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party; (7) where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

13. This is a case of matrimonial dispute, therefore, it has to be seen as how to deal with a petition under Section 482 of Cr.P.C. for quashing the FIR and subsequent criminal proceedings.

14. The Apex Court in the case of Rakhi Mishra Vs. State of Bihar and others reported in AIR 2017 S.C. 4019 has held as under:-

“This Court in Sonu Gupta Vs. Deepak Gupak Gupta and ors. (2015) 3 SCC 424, 426: (AIR 2015 SC (Supp) 684) held as follows:

“At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence to find out whether a prima facie case is made out for summoning the accused persons. At this stage, the Magistrate is not required to consider the defence version or materials or arguments nor he is required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials would lead to conviction or not.”

15. Further, in the case of Preeti Gupta & anothers Vs. State of Jharkhand & another reported in AIR 2010 SC 3363, the Apex Court expressed its anxiety in increasing the number of matrimonial cases and roping the close relative of husband in the case. The Court has held as under:-

“28. It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. All the courts in our country including this court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society.

29. The courts are receiving a large number of cases emanating from Section 498-A of the Indian Penal Code which reads as under:-

“498-A. Husband or relative of husband of a woman subjecting her to cruelty.–Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.– For the purposes of this section,`cruelty’ means:-

(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

30. It is a matter of common experience that most of these complaints under Section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.

16. The Apex Court in the case of Arnesh Kumar Vs. State of Bihar reported in 2014(8) SCC 273 has held as under:-

“4. There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A IPC is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested. “Crime in India 2012 Statistics” published by National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for offence under Section 498-A of the IPC, 9.4% more than the year 2011. Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net. Its share is 6% out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5% of total crimes committed under different sections of penal code, more than any other crimes excepting theft and hurt. The rate of charge-sheeting in cases under Section 498-A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal.

5. Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so also the police. There is a battle between the lawmakers and the police and it seems that police has not learnt its lesson; the lesson implicit and embodied in the Cr.P.C. It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive.”

17. Likewise, in the case of Geeta Mehrotra and another v. State of Uttar Pradesh and another reported in (2012) 10 SCC 741, the Hon’ble Apex Court has noted that in the matrimonial dispute, there is tendency to involve the entire family members of the husband. The Court has held as under:

“20. Coming to the facts of this case, when the contents of the FIR are perused, it is apparent that there are no allegations against Kumari Geeta Mehrotra and Ramji Mehrotra except casual reference of their names which have been included in the FIR but mere casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute specially if it happens soon after the wedding.

21. It would be relevant at this stage to take note of an apt observation of this Court recorded G.V. Rao vs. L.H.V. Prasad (2000) 3 SCC 693 wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that: “12.There has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their “young” days in chasing their cases in different courts. The view taken by the judges in that matter was that the Courts would not encourage such dispute.”

18. In the present case, it is an admitted fact that the marriage of respondent No. 2 was solemnized with accused Rajesh Balmiki on 15.05.2017 and the petitioners are her matrimonial family members. Petitioners No. 1 and 2 are mother in law and father in law of respondent No. 2 whereas petitioners No. 3 and 4 are her brother in law and sister in law, respectively. It is found that respondent No. 2 alleged that petitioner No. 1 & 2 have abused her and her family members. Petitioner No. 1 has also taunted her for bringing less dowry. So far as petitioner No. 3 and 4 are concerned, they are brother in law and sister in law of respondent No. 2 and allegation against them is that when the husband of complainant was beating her, they came there and told her to bring ten lakh rupees from her parents. Subsequently, respondent No. 2 alleged that all the petitioners and her husband beaten her. For the incident of 07.07.2018, the respondent No. 2 specifically alleged against her husband that he beaten and tried to hang her.

19. On perusal of case diary, it is found that the petitioner No. 1 and 2 have also filed an application before SP Sagar on 09.07.2018 alleging against the respondent No. 2 and her husband and mentioned that they told respondent No. 2 and her husband to live apart from them thereafter they started living separately but on perusal of application dated 25.07.2018 filed by the husband of respondent No. 2 before Mahila Police Thana Sagar, it appears that it is not mentioned by the husband of respondent No. 2 that they were living apart from petitioner No. 1 and 2.

20. So far as petitioners No. 3 and 4 are concerned they are brother in law and sister in law of respondent No. 2 and were living separately. In this regard, they have file a document of Samagra Portal. On perusal of statement of respondent No. 2 and witnesses namely Savitri and Rahul, the allegation lavelled against the petitioner No. 3 and 4 are found general in nature. Considering the case at hand in the light of the aforesaid pronouncements and after minute perusal of the case diary, it is found that the main grievance of respondent no. 2 is against her husband/accused Rajesh Balmiki and petitioner No. 1 and 2 who were allegedly living together and had beaten and tortured her, but the petitioner No. 3 and 4 have also been roped in the case merely because of their relation with him. Petitioners no. 1 & 2 are father and mohter-in-law of respondent No. 2 and looking to the specific allegation against them, they are not entitled to get any relief by this Court. So far as petitioner No. 3 and 4 are concerned, prima facie they are living separately and for want of any specific allegation or disclosure of precise incident against them, it would amount to abuse of the process of law to allow their prosecution for alleged offences. The allegation made against them are found vague and general in nature.

21. Therefore, this petition is partly allowed. Consequently, the FIR in crime No. 35/18 registered at Mahila Thana, District Sagar for the offence punishable under Sections 498-A, 506/34 of IPC and Section ¾ of Dowry Prohibition Act, 1961 and its consequential proceeding bearing RCT No. 8/2019 pending before JMFC, Sagar are hereby quashed against the petitioners No. 3 and 4 only. The trial shall be continued in relation to petitioners No. 1 and 2 and this petition is dismissed in their context. It is also made clear that any findings of this order shall not affect the discretion of learned trial Court.

(Rajendra Kumar Srivastava) Judge L.R.

Digitally signed by LALIT SINGH RANA Date: 2020.05.20 15:07:32 +05’30’

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

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

Image result for bombay HC images

IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

FAMILY COURT APPEAL NO.13 OF 2008

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

VERSUS            

Dr.-Y Wife    …RESPONDENT

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

N. Kakade Advocate for  Appellant-Husband.

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

CORAM:  

R.M. BORDE AND

A.I.S. CHEEMA, JJ.

DATE OF RESERVING JUDGMENT :9th DECEMBER, 2015

DATE OF PRONOUNCING JUDGMENT:21st JANUARY, 2016

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

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

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

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

EARLIER PETITION NO.A.46 OF 2004.

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

Engagement took place on 27th October 2002.

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

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

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

With such facts the first Petition claimed divorce.

WITHDRAWAL OF EARLIER PETITION:

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

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

PRESENT PETITION NO.A.263 OF 2006

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

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

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

DEFENCE

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

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

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

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

Her father was serving in S.T. Department.

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

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

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

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

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

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

ISSUES ANE EVIDENCE BROUGHT BEFORE FAMILY COURT:

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

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

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

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

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

ARUGMENTS FOR PETITIONER-APPELLANT:

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

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

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

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

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

ARGUMENTS FOR RESPONDENT:

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

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

Irretrievable breakdown of marriage is no ground.

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

IN REPLY:

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

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

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

RULINGS:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

POINTS FOR CONSIDERATION:

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

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

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

WHETHER PRESENT PETITION WAS MAINTAINABLE:

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

“(3) Where the Court is satisfied,-  

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

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

(4) Where the plaintiff-

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

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

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

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

CRUELTY:

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

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

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

RESPONDEDNT NOT RELIABLE:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

IMPUGNED JUDGMENT NOT MAINTAINABLE:

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

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

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

THE CRIMINAL AND OTHER CASES FILED:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CRUELTY PROVED:

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

PERMANENT ALIMONY:

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

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

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

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

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

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

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

(IV) No order as to costs.

(V) Decree be drawn accordingly.

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

[R.M. BORDE, J.]

asb/JAN16

You can file fake #MeToo cases after 20 years. But Hon Court cannot reopen most important #BOFORS gun scam case Of national importance as it is 12 ~ 13 years old

Supreme Court dismisses CBI’s appeal in Bofors case

 

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NEW DELHI: The Supreme Court on Friday dismissed CBI’s appeal against the Delhi High Court verdict discharging all the accused including Hinduja brothers in Rs 64 crore Bofors pay-off case. 

A bench headed by Chief Justice Ranjan Gogoi said it was not convinced with the grounds of the CBI on the delay in filing the appeal. 

The apex court, however, said that an appeal against the same HC verdict filed by advocate Ajay Agarwal is pending and the CBI can raise all grounds in it. 

The Rs 1,437-crore deal between India and Swedish arms manufacturer AB Bofors for the supply of 400 units of 155-mm Howitzer guns for the Indian Army was entered into on March 24, 1986.

— Read on m.timesofindia.com/india/supreme-court-dismisses-cbis-appeal-in-bofors-case/articleshow/66473036.cms