Tag Archives: false 498a

Filing false cases, physical attacks all constitute cruelty. 30 years of pure misery ends with Divorce ! Raj HC

Marriage in 1979 (Yes 37 years ago !!). Wife leaves husband in 1983. there is very little cohabitation since then, almost nil cohabitation since 1986 ! There are numerous instances of wife beating or quarreling with the husband, wife’s relatives misbehaving with husband’s parents, wife’s people trying to destroy husband’s father’s wheat crop, and a false 498a where husband and co are completely acquitted. However since the first divorce attempt by the husband goes un successfull, husband goes to SC, who sends case back to Raj HC. At Raj HC Abala Nari wife claims that she is ready to come back !! Still Raj HC appreciates the facts and grants the husband divorce on grounds of cruelty !

The Hon court concludes that “…In the instant case in our view there are several complaints against the respondent who took law into her hands, tried to beat the appellant and his family members not only once but on other occasions as well and created commotion even outside the factory gate with the appellant, coupled with filing of cases u/sec. 498-A and other facts clearly lead to irresistible conclusion that cruelty was certainly caused by the respondent against the appellant husband both mental as well as physical. ….”


IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

D.B. Civil Misc. Appeal No.244/1993

Nathulal  v.  Nathi Bai

Judgment reserved on                        5.4.2016
Judgment pronounced on                        31.5.2016

Hon’ble Mr. Justice Ajay Rastogi
Hon’ble Mr. Justice J.K. Ranka

Mr. Ravi Kasliwal, counsel for appellant
Mr. Suresh Pareek, Sr. Counsel, assisted by Mr. N.C. Sharma, counsel for respondent

By the Court (per Ranka, J.)

  1. This appeal is directed against the judgment & decree dated 24.2.1993 passed by the Family Court, Kota, by which application filed by the appellant u/sec. 13 of the Hindu Marriage Act, 1955 (for short the Act 1955), has been rejected with cost of Rs.1000/-.
  2. This case has a chequered history of litigation.
  3. The husband, Nathulal filed a divorce petition u/sec. 13 of the Act 1955, which was registered as Civil Misc. Case No.183/1991, and the same came to be dismissed by the Family Court. Appeal against the said judgment and order on an earlier occasion came to be decided by Division Bench of this Court vide order dated 1.3.1997, by which Coordinate Bench of this Court allowed the appeal and set aside the judgment and decree of the Family Court and granted a decree for divorce in favour of the appellant-husband. The respondent wife, Nathi Bai carried the matter to the Apex Court in Civil Appeal No.3422/1997 that came to be allowed vide order dated 8.10.2002 and order of the Division Bench in the present appeal, No.244/1993 dated 1.3.1997 was set aside and the matter was remitted to the Division Bench of this Court for fresh hearing and disposal in accordance with law.
  4. The appellant moved an application u/O.41 R.27 CPC for taking subsequent events on record. Taking note of the various contentions and in the light of directions of the Apex Court vide order dated 8.10.2002, the Coordinate Bench of this Court vide judgment dated 9.10.2006, dismissed the appeal filed by the appellant. The appellant filed a review petition which too came to be dismissed by the Coordinate Bench of this Court on 20.12.2006 and the application filed u/O. 41 R.27 CPC remained unattended. The appellant filed Civil Appeal No.(S) 366-367/2009 before the Apex Court against the judgment of this Court dated 9.10.2006 and dismissal of the review application dated 20.12.2006. The Apex Court allowed the appeal of appellant and again remitted the matter back to this Court with a direction to take into consideration application u/O.41 R.27 CPC and decide afresh. The operative portion of the order of Apex Court is quoted thus :-
    • Keeping all the circumstances in view, since avowedly the High Court has not decided the appellant’s application under Order XLI Rule 27 CPC, the course which commends itself to us is to remand the matter in its entirety to the High Court with a direction to first decide the Appellant’s application under Order XLI Rule 27 CPC. The Impugned Order is accordingly set aside.
    • The matters are remanded back to the High Court for consideration afresh.
    • Appeals stand disposed of. No order as to costs.
  5. After the matter was remitted back to this Court, application u/O.41 R.27 was allowed and the judgments annexed thereto were taken on record vide order dated 9.7.2015. Having noticed the above facts, the salient features for disposal of present appeal are noticed hereunder.
  6. Admittedly the appellant-husband got married with the respondent-wife on 27.4.1979 as per the Hindu rites and custom. It has been alleged that in the month of February 1983 respondent wife left the house of appellant husband without any reason and did not turn back. The appellant filed a divorce petition u/sec. 13 in the year 1986 which the appellant withdrew as both the parties entered into a compromise. It is further alleged that in the month of August 1986, respondent came back to the house of the appellant and for some time the behaviour of the respondent was normal, but she started giving threatening and started quarreling with the appellant. It is further alleged that torture of the respondent had gone to such an extent that the respondent lodged a false case against him u/sec. 498-A and 406 IPC in the police station Vigyan Nagar, Kota, on 28.8.1986 against her in-laws in which allegations were levelled regarding demand of dowry against the father and brothers of the appellant and the police after investigation submitted final report, the Investigating Officer having found the entire allegations to be false and that was accepted by the Competent Court of jurisdiction. It is also alleged that the respondent pushed the cycle of the appellant-husband and caught hold of his collar and after abusing him shouted that she would not allow him to go to duty and shut him up in the room and thus there was continuous quarrel in between the parties.
  7. The appellant has also lodged a report on 30.8.1988 against the respondent. It has further been stated that the appellant is serving in Instrumentation Ltd., Kota, and the respondent on one occasion reached the factory premises and misbehaved with the appellant outside the factory gate. It is also alleged that on 2-3 occasions respondent wife brought two persons who attacked the appellant at the time when he was returning from his office. It has further been alleged that the respondent was bent upon to commit his murder and looking to the conduct and behaviour of the respondent and fact of cruelty inflicted upon the appellant, the appellant was unable to live with her and thus an application was moved u/sec. 13 of the Act 1955 in the year 1989, which came to be dismissed as aforesaid.
  8. Mr. Kasliwal, the learned counsel for the appellant has contended that taking into consideration the facts brought in the application for divorce coupled with the material on record, clearly proves that the respondent caused continuous mental and physical cruelty on the appellant husband. The learned Family Court has not considered the material on record insofar as the cruelty of the respondent wife is concerned. There are oral as well as documentary evidence available on record which proves the same. He further contends that the behaviour and conduct of the respondent wife since beginning was not proper and on a small pretext, she left the matrimonial home initially and admittedly did not come for a period of about 3 years and the appellant had to file an application u/sec. 13 of the Hindu Marriage Act before the Family Court, which however was withdrawn because of the intervention of the family members and her relatives, the respondent wife came back to the matrimonial home and after staying, her behaviour for sometime was normal but a false complaint was made against the father and brothers of the appellant on 28.9.1986 with the allegations of beating and demanding dowry, however, after investigation the police filed final report and the same was accepted by the competent court.
    • He drew attention on the complaints/cases :-
    • (i) 28.8.1986 :  FIR No.62/1986 u/sec. 498A IPC by Nathi Bai against appellant’s father and brothers : After investigation police found allegations false.
    • (ii) 5.10.1989 : Complaint by Vikas Adhikari, Panchayat Samiti Sultanpur (where father of the appellant Nathu Lal was employed) to the effect that respondent Nathi Bai came at the office and tried to create nuisance by which office work was disrupted.
    • (iii) 14.12.1989 : Complaint by Dwarka Lal, father of the appellant against Nathi Bai and her brothers to the effect that they came at their house and misbehaved with him and mother of the appellant, even the clothes of appellant’s mother were dis-robed.  On an FIR having been filed by the appellant, challan was filed against the respondent before the competent court and the respondent had been bound down by the Court of Law to behave well with the appellant.
    • (iv) 23.3.1990 : FIR No.37/1990 u/sec. 498A IPC by Nathi Bai against father, mother and brothers of appellant. Vide order dated 18.1.2003 passed by Addl. CJM, Fast Track, Digod (Kota), accused were found not guilty in Case No.428/2002.
    • (v) 7.4.1990 : FIR No.42/1990 u/sec. 498A and 324 IPC by Nathi  Bai against father and mother of appellant. Vide order dated 31.1.2003 passed by Addl. CJM, Fast Track  Digod (Kota), accused were found not guilty in Case No.117/2002.
    • (vi) 21.5.1990 : Complaint No.867 registered at Police Station Vigyan Nagar, Kota, on information received over telephone that at the factory gate of Instrumentation Limited Nathu Lal and Nathi Bai were quarreling and fighting.  Both were taken to the police station by police. However, subsequently they were released on bail by order of ADM (City) Kota.
    • (vii) 5.12.1990 : Dwarka Lal, father of appellant filed a complaint before Dy.SP (Rural), Kota, to the effect that Nathi Bai tried to destroy crop of Wheat in his fields by discharging canal water.
    • (viii) 14.3.1991 : FIR No.21/1991 u/sec.341, 323/34 IPC by Mangi  Bai (mother of appellant) against Nathi Bai and her brothers. Vide order dated 25.7.2002 passed by Judl. Magistrate (First  Class), Digod, accused were found guilty in Case No.366/1997.
  9. He also drew attention of this Court on application under O.41 R.27 CPC by which he placed reliance on three aforementioned orders dated 25.7.2002 (Case No.366/1997), 18.1.2003 (Case No.428/2002), and 31.1.2003 (Case No.117/2002) passed by Digod Courts. Thus, he contended that there has been plethora of cases and even one criminal case is sufficient to prove cruelty whereas in the instant case there are several criminal cases which certainly proves to the hilt about the physical and mental cruelty against the appellant. He also relied upon the statements of several witnesses recorded, which clearly brings on record the behaviour of the respondent.
  10. He further contended that admittedly from August 1989, now almost about 27 years, both husband and wife are living separately, and there being no issue out of the wedlock, no bonding between them, the appellant is now aged about 55 years, certainly needs now a peaceful life, at-least at this stage of his career/life, which has been totally ruined/spoilt by the respondent. He contended that both the appellant and respondent merely can be said to be husband and wife on record but in reality their marriage does not subsist and it is a case of irretrievable breakdown of marriage and under such circumstances, the decree of divorce deserves to be granted in favour of the appellant and the appeal may be allowed. He relied upon the following judgments :-
    • Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558;
    • Mayadevi (Smt.) v. Jagdish Prasad (2007) 3 SCC 136;
    • Vishwanath Agrawal v. Sarla Vishwanath Agrawal (2012) 7 SCC 288;
    • Smt. Savitri Balchandani v. Mulchand Balchandani AIR 1987 Delhi 52;
    • Jayakrishna Panigrahi v. Smt. Surekha Panigrahi AIR 1996 Andhra Pradesh 19;
    • Smt. Sadhana Srivastava v. Arvind Kumar Srivastava AIR 2006 Allahabad 7;
  11. Per contra Mr. Suresh Pareek, learned Sr. Counsel for the respondent, assisted by Mr. N.C. Sharma, Advocate, contended that the respondent was always ready, willing and prepared to live as wife of the appellant, peacefully but the appellant was never interested in keeping the respondent and created hindrances by filing complaints for no rhyme or reason. He further contended that the respondent who is present in Court, has categorically, expressly and openly said that she is ready and willing to live with the appellant in the manner appellant wishes, and words before this Court should be taken in the right spirit and at-least the sacred function of the Court in matrimonial matters, should be taken sympathetically, as it is a matter of life and death of a poor and illiterate lady from a village background who do not know the niceties of law, may have taken some abrupt action which does not come within the definition of cruelty.
  12. He further contended that the appellant and his family members demanded dowry and only under such compelling circumstances, complaint was lodged u/sec. 498A IPC by the respondent which by itself cannot be said to be a cruelty. She lived with the appellant, admittedly, from August 1986 to the year 1989 but then, the appellant himself was not interested and created complex situations.
  13. He further contended that the appellant also filed an application for judicial separation which too was dismissed vide order dated 5.12.1995, and contended that the judgment of Trial Court relied upon by the learned counsel for the appellant and brought on record with the application under O.41 R.27 CPC were not before the Family Court and the same cannot be taken into consideration and if at all required, the matter may be remitted to the Family Court for reconsideration of subsequent developments/judgments.
  14. He further contended that the Family Court has taken into consideration each and every factor, particularly the statements of witnesses and came to a correct conclusion which is not required to be interfered with, and vehemently supported the order passed by the Family Court and contended finally that the husband being habitual of filing divorce petition or judicial separation application, wants to get rid of her by seeking divorce by some method. He further contended that age is no consideration in matrimonial matters, rather contended that at this age of about 55 years or so, both husband and wife needs companionship and endeavour of the Court should be to see that they are reunited not only on papers but in reality.
    • He relied upon the following judgments :-
    • Archna Sharma v. Suresh Kumar Sharma I (1995) DMC 133 [Punjab & Haryana High Court];
    • Sujit Banerjee v. Anita Banerjee II (1997) DMC 48 (DB) [Calcutta High Court];
    • Vegi Jagadesh Kumar v. V. Radhika II (2000) DMC 470 (DB) [Andhra Pradesh High Court];
    • Smt. Santosh Sharma v. Ashok Kumar AIR 2001 Delhi 422;
    • Jagat Singh v. Sarojini Devi I (2002) DMC 645 [Punjab & Haryana High Court];
    • Bishwanath Pandey v. Anjana Devi II (2002) DMC 397 (DB) [Jharkhand High Court];
    • Yudhishter Singh v. Smt. Sarita I (2003) DMC 538 (DB) [Rajasthan High Court];
    • Hari Ram v. Lichmaniya and Others AIR 2003 Rajasthan 319;
    • P.Malleswaramma v. P.Prathap Reddy AIR 2006 Andhra Pradesh 4;
    • Jitendra Singh v. Yashwanti II (2008) DMC 482 [Delhi High Court];
    • Pramodkumar C Shah v. Rajulaben Pramodkumar Shah II (2013) DMC 240 (DB) (Guj.);
    • Kajal Das v. Juli Mahajan (Das) III (2013) DMC 295 (DB) (Gau.);
    • Chetan Dass v. Kamla Devi RLW 2001 (2) SC 201;
  15. We have heard the learned counsel for the parties and have gone through the impugned order and judgments passed by this Court earlier minutely and the observations of the Apex Court.
  16. At the outset, we may quote sec. 13(1) of the Act 1955 and also quote sec. 498A, 323 and 406 IPC for disposal of the present appeal, which reads ad infra :-
    • 13. Divorce-
    • (1) Any marriage solemnized, whether before or after the commencement of the Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-
    • (i) has, after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse; or
    • (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
    • (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
    • (ii) has ceased to be a Hindu by conversion to another religion ; or
    • (iii) has been incurably of unsound mind, or has suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
      • Explanation- In this clause- (a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and include schizophrenia; (b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party and whether or not it requires or is susceptible to medical treatment; or
    • (iv) has been suffering from a virulent and incurable form of leprosy; or
    • (v) has been suffering from veneral disease in a communicable form; or
    • (vi) has renounced the world by entering any religious order; or
    • (vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive;…
    • 498A. Husband or relative of husband of a woman subjecting her to cruelty.
    • Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
      • Explanation.For the purpose of this section, cruelty means
      • (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
      • (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
    • 323. Punishment for voluntarily causing hurt.
    • Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
    • 406. Punishment for criminal breach of trust.Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
  17. Admittedly the ground for divorce taken by the appellant against the respondent is that the respondent has treated the appellant with cruelty.
  18. It would also be apt to quote the statements of material witnesses from both the sides to make home what has transpired in between the parties :-
    • AW-1 Nathulal son of Dwarka Lal stated, inter alia, that on 12.5.1989 at about 8:AM, Nathi Bai misbehaved with him and tried to prevent him from going to his office. He was rescued by neighbourers. One day she fought with him and told that neither she will allow him to go to his duties, nor let him live in Kota, and threatened to even kill him. He also stated that she along with her brothers after abusing him went to his parents’ house where they misbehaved with them and even declothed his mother.
    • AW-3 Dwarka Lal son of Magan Lal, inter alia, stated that Nathi Bai used to misbehave with him and his wife and even they have suffered beating from her and her brothers. On being cross examined, he stated that he has no knowledge how burn marks at her leg were received by her but she used those marks to gain sympathy from others.
    • AW-4 and AW-5 Dinesh Gautam son of Moti Shankar and Banwari Lal son of Madan Lal, have stated that they have witnessed the incident of Nathu Lal being abused by Nathi Bai in front of the factory gate of Instrumentation Ltd.
    • AW-6 Shyam Manohar son of Chaturbhuj, inter alia, has stated in his statement that on 12.3.1991 at about 2:30 in the afternoon when he was going home from village bust stand, he saw 20-25 persons together near the Primary School, and Nathi Bai was also there along with her three brothers and they were abusing and ill-behaving with father and mother of the petitioner Nathu Lal.
  19. On perusal of the witnesses at the instance of the appellant, in our view, clearly proves that the respondent is in the habit of misbehaving not only with aged parents of the appellant and his brothers, but the appellant himself. Leaving apart the statement of AW-1, as he is petitioner appellant-Nathu Lal. Dinesh Gautam (AW-4), Banwari Lal (AW-5), Shyam Manohar (AW-6) and other witnesses have described about the incident of fight which ensued in between the parties outside the factory gate, where the respondent was found beating the appellant and abusing him in front of the staff and officials of the Instrumentation Ltd. NAW-1 Nathi Bai wife of Nathu Lal in her statement, inter alia, stated that she did not fight with her husband on 12.5.1989 nor abused him. She also denied that she had ever threatened her husband. She then stated that after September 1989 she neither went to her in-laws’ house nor abused them. She denied the allegation that she ever wished that her husband should die so that she gets employment in his place. She alleged that for want of dowry, Nathu Lal had left her and differences have widened between them. NAW-2, NAW-3 and NAW-4 Ghanshyamdas son of Madhodas, Ram Ratan Swami, and Birdhilal both sons of Ram Narain, inter alia, stated that dispute between the parties is for demand of dowry by Nathu Lal’s parents. NAW-5, NAW-6 Saroj Singh daughter of Ravindra Pratap Singh, and Kamla Bai wife of Ramkumar, have stated, inter alia, that one day Nathi Bai was weaping and standing outside the house, they enquired from her about the reason of her weaping and standing outside the house, to which Nathi Bai answered that she is wife of Nathu Lal but he has sent a notice/letter of divorce to her. She further stated that when the dispute between the parties grew up, one day in 1986 members of the colony including them, went to Vigyan Nagar Police Station and lodged a report to the effect that Nathi Bai is wife of Nathu Lal but he uses force against her and misbehaves with her. Both the witnesses further stated that younger brothers were residing with the petitioner who used to forcibly push Nathi Bai to go out of the house and torture her. They also claimed that with the help other neighbourers they made Nathi Bai to enter in the house.
  20. We have gone through the statements recorded at the instance of the respondent. While Ghanshyamdas (NAW-2), stated that there was a demand of gold chain in dowry which was conveyed to him by the father of respondent-Nathi Bai, however, in cross-examination he denies having any talk with the appellant in this regard. Ram Ratan Swami (NAW-3), though supports the version of Ghanshyamdas (NAW-2), but speaks of the incident about 10-12 years old and that too by mentioning that respondent’s father had told him about demand of dowry, however, he admitted in cross-examination that the appellant-Nathu Lal never raised any demand for any chain in his presence. Birdhilal (NAW-4), though he is stated to be a Head Constable in the Police Department, but he does not remember his place of posting when appellant’s father and appellant had said about demand of one tola gold chain. In cross-examination, however, he stated that the said incident did not happen in his presence. Ms. Saroj Singh (NAW-5), and Kamla Bai (NAW-6), Mrs. Santosh wife of Suresh Chandra (NAW-7), Mrs. Kesar wife of Radhe Shyam (NAW-8), Mrs. Shanti Verma wife of K.L. Verma (NAW-9), all spoke about the incident of 1986, which in our view is not required to be stressed upon particularly in view of the fact that thereafter admittedly both were living jointly at the instance of the family members of the respondent, and it is only after 1989 that further disputes took place in between the parties.
  21. It would be appropriate to deal the judgments of the Apex Court which have laid down the principles which help discharge the Family Court and other Courts the onerous task in a more realistic and effective manner to decide petitions like this.
  22. In the case of Naveen Kohli v. Neelu Kohli (supra), the Apex Court has laid down the principles which will help discharging the Family Courts and other Courts the onerous task in a more realistic and effective manner to decide the petitions, and the same is quoted thus :-
    • 66. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act 1955. Because of the change of circumstances and for covering a large number of cases where the marriages are virtually dead and unless this concept is pressed into service, the divorce cannot be granted. Ultimately, it is for the Legislature whether to include irretrievable breakdown of marriage as a ground of divorce or not but in our considered opinion the Legislature must consider irretrievable breakdown of marriage as a ground for grant of divorce under the Hindu Marriage Act 1955.
    • 67. The 71st Report of the Law Commission of India briefly dealt with the concept of Irretrievable breakdown of marriage. This Report was submitted to the Government on 7th April, 1978. We deem it appropriate to recapitulate the recommendation extensively. In this Report, it is mentioned that during last 20 years or so, and now it would be around 50 years, a very important question has engaged the attention of lawyers, social scientists and men of affairs, namely, should the grant of divorce be based on the fault of the party, or should it be based on the breakdown of the marriage? The former is known as the matrimonial offence theory or fault theory. The latter has come to be known as the breakdown theory.
    • 68. In the Report, it is mentioned that the germ of the breakdown theory, so far as Commonwealth countries are concerned, may be found in the legislative and judicial developments during a much earlier period. The (New Zealand) Divorce and Matrimonial Causes Amendment Act, 1920 included for the first time the provision that a separation agreement for three years or more was a ground for making a petition to the court for divorce and the court was given a discretion (without guidelines) whether to grant the divorce or not. The discretion conferred by this statute was exercised in a case in New Zealand reported in 1921. Salmond, J. in a passage which has now become classic, enunciated the breakdown principle in these word: “The Legislature must, I think, be taken to have intended that separation for three years is to be accepted by this court, as prima facie a good ground for divorce. When the matrimonial relation has for that period ceased to exist de facto, it should, unless there are special reasons to the contrary, cease to exist de jure also. In general, it is not in the interests of the parties or in the interest of the public that a man and woman should remain bound together as husband and wife in law when for a lengthy period they have ceased to be such in fact. In the case of such a separation the essential purposes of marriage have been frustrated, and its further continuance is in general not merely useless but mischievous.”
  23. The Apex Court in the case of Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511 has held that cruelty is a state of mind, reiterating certain illustrative cases where inference of mental cruelty can be drawn. It would be appropriate to quote the relevant para 101 of the judgment :-
    • 101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of mental cruelty.
    • The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive:
      • (i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.
      • (ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
      • (iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.
      • (iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.
      • (v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.
      • (vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.
      • (vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
      • (viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.
      • (ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.
      • (x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
      • (xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.
      • (xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
      • (xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
      • (xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.
  24. The Apex Court has found that there can be no uniform standard but deemed it appropriate to enumerate some instances of human behaviour in dealing with the case of mental cruelty. In our view, sub paras (i), (ii), (x) and (xiv) are relevant in the instant case.
  25. In the case of K. Srinivas Rao v. D.A. Deepa (2013) 5 SCC 226, not only the Apex Court adjudged the above points of mental cruelty as expressed in the case of Samar Ghosh (supra) but also added few more points namely, making unfounded defamatory allegations against spouse or his relatives even in pleadings, filing repeated false complaints or issuing notices or news items which may have adverse impact on the business prospects or the job of spouse and filing repeated complaints and cases against spouse in the facts of the case, amount to causing mental cruelty.
  26. It is true that the foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each others fault to a certain bearable extent has to be inherent in every marriage. It is true that every matrimonial conduct which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses which happen in day to day married life may also not amount to cruelty. Mental cruelty may consist of verbal abuses and insults, by using filthy and ugly language leading to constant disturbance of mental peace of the other party.
  27. In the case of Mayadevi (smt) v. Jagdish Prasad (supra) the Trial Court found that the allegation of cruelty was established. Several instances were noted. One of them related to wife’s behaviour on the date of judgment in the criminal case. After the judgment of conviction was pronounced, she threatened the husband to kill him and prosecute him. It was also noted by the Trial Court that allegation made by her alleging dowry demand was disbelieved and the police gave final report stating that the case was falsely lodged and on these facts the Trial Court granted the decree of divorce, which was confirmed by the High Court. The Apex Court taking into consideration the facts and circumstances in that case held that the husband was subjected to mental and physical cruelty and thus dismissed the appeal.
  28. In the present case as well, the case instituted u/sec. 498-A IPC was dismissed and the same has not been assailed before higher forum.
  29. In the instant case, the contention of learned counsel for the respondent that proceedings u/sec. 498-A IPC and other cases were filed subsequently cannot be considered, but in the light of the judgment of Vishwanath Agrawal (supra) the contention of learned counsel for the respondent is repelled.
  30. We find that the judgments in Vishwanath Agrawal v. Sarla Vishwanath Agrawal (supra), Smt. Savitri Balchandani v. Mulchand Balchandani (supra), Jayakrishna Panigrahi v. Smt. Surekha Panigrahi (supra), Smt. Sadhana Srivastava v. Arvind Kumar Srivastava (supra), A. Jayachandra v. Aneel Kaur (2005) 2 SCC 22, and Suman Kapur v. Sudhir Kapur (2009) 1 SCC 422 were relied upon wherein it is held that false, scandalous, malicious, baseless and unproved allegations even in the written-statement is cruelty to the other party.
  31. It would also be appropriate to mention about the judgments relied upon by the learned counsel for respondent.
  32. In the case of Sujit Banerjee v. Anita Banerjee (supra) the High Court found that a unilateral act of one spouse, reducing the relationship to a situation where the marriage would be deemed to have broken down and such act unless made an issue by the wronged spouse cannot be deemed to be a valid ground to take away the legal right which was caused by the solemnization of marriage. In the abovesaid case, wife did not opt to dissolve the marriage in spite of suffering at the hands of the husband and there was bona fide on her part. On these facts the High Court dismissed the appeal. In our view, the facts are different and entirely distinguishable to what are available in the instant case.
  33. In the case of Archna Sharma v. Suresh Kumar Sharma (supra), the Court found that allegations of cruelty were not pleaded in the divorce petition by seeking amendment thereto and, therefore, not put to trial, and the Court observed that the allegations of cruelty could not be taken note of while granting divorce unless these were made a part of the divorce petition. The High Court in that case was not inclined to grant decree of divorce. However, in the light of the judgment in Vishwanath Agrawal (supra) of the Apex Court, where it has been held that subsequent events can be taken note of and considered, the said judgment is contrary to the law laid down by the Apex Court and is distinguishable. To the same effect is the judgment relied upon by the learned counsel for respondent in the case of Smt. Santosh Sharma v. Ashok Kumar (supra).
  34. Similarly in the case of Vegi Jagadesh Kumar v. V. Radhika (supra), there were mere accusations, taunts by one against other and the High Court found that they were not willful in nature and does not constitute cruelty. The High Court also observed that the other party committed willful and unjustifiable acts inflicting pain and misery on the complainant and causing injury to his/her health. The conduct of complainant must be serious and higher than the wear and tear of married life. It is not cruelty, if acts complained of are not violent in nature. Mere complaints, accusations, or taunts by one against the other if the same are not willful in nature, do not constitute cruelty. The other judgments relied upon by the learned counsel for respondent in the cases of Pramodkumar C Shah (supra), Jagat Singh (supra), Jitendra Singh (supra), Chetan Dass (supra), Kajal Das (supra), Yudhishter Singh (supra), Hari Ram (supra) and P.Malleswaramma (supra), are judgments where the Courts found that cruelty on the spouse was not proved, or one cannot take advantage of his own wrong and on mere fact that erring spouse is moody, whimsical, irritable or inconsiderate, are no grounds for divorce. However, we have taken into consideration the judgments of the Apex Court and the conduct of the respondent in repeatedly causing cruelty on the appellant. Therefore the judgments are distinguishable on facts.
  35. In the instant case in our view there are several complaints against the respondent who took law into her hands, tried to beat the appellant and his family members not only once but on other occasions as well and created commotion even outside the factory gate with the appellant, coupled with filing of cases u/sec. 498-A and other facts clearly lead to irresistible conclusion that cruelty was certainly caused by the respondent against the appellant husband both mental as well as physical.
  36. Taking into consideration the facts as noticed hereinbefore, and the complaints lodged by both the sides, and in particular at the instance of the respondent-Nathi Bai, it is clear that the criminal cases filed at her instance stood dismissed. However, the criminal cases lodged at the instance of the family members of the appellant stood allowed against the respondent, who was found guilty, and in our view taking into consideration the judgments cited supra, clearly make out a case of physical and mental cruelty against the appellant, and a clear case is made out for grant of decree of divorce.
  37. We have also noticed that the respondent filed several complaints against the appellant, she was also convicted in one of the cases involving father, mother and brothers of the appellant, and was sent to jail, whatever time she lived with her husband, she never lived peacefully with him. She left her matrimonial home and came back after more than 3 years. Thereafter also there was no improvement in the conduct of the respondent, as is evident from criminal complaints and the reports of the independent persons against her behaviour so as to gain sympathy of any person. The relevant consideration is to see whether the conduct is such as to cause a reasonable apprehension in the mind of the one that it will be harmful or injurious for him/her to live with the other side. We have given hereinbefore the cases instituted by both the parties against each other. While the cases instituted at the instance of respondent Nathi Bai were found false or/and the accusations made by Nathi Bai were found not guilty, however, in the complaints made at the instance of the petitioner or/and family members, challan was filed against accused Nathi Bai and her brothers and they were found guilty. Thus, this even otherwise proves that the respondent was in habit of filing repeated cases and in our view even one case is sufficient to prove mental cruelty, at-least in matrimonial matters like this.
  38. Though the Court on several occasions tried to persuade both the parties to come to amicable solution through mediation as Courts go slow at-least in matrimonial matters to try to make rapprochement so that bonding of marriage which is considered to be sacred and sacrosanct in the Hindu Law, is maintained/retained.
  39. In matters like this, something more is required to be considered rather than ordinary wear and tear of married life and the Courts have to be very practical and pragmatic in approach while dealing with the divorce petitions filed on the ground of cruelty or otherwise. Foundation of a sound marriage is tolerance, adjustment and respecting one another. The Court has to bear in mind that the problems before it are those of human beings and a delicate bond of husband and wife should be maintained.
  40. Taking into consideration that the respondent has been threatening that she will either put an end to her life or kill the appellant, abusing the husband time and again and threatening that she will make him loose his job, insulting the husband in front of others and his parents also, complaints of independent persons regarding her quarrelsome and uncalled for behaviour, tarnishing not only the image of her husband but also his parents, are almost so grave an order as to imperil the appellant’s sense of personal safety, mental happiness, job satisfaction and reputation, in our humble view a case of cruelty is clearly made out. Taking into consideration that admittedly both have lived separately since 1989 i.e. almost 27 years now and have been fighting tooth and nail against each other, in our view it also can be said to be irretrievable breakdown of marriage or rather it is a failed marriage and the delicate bond of marriage of sacrifice no more is apparent in addition to cruelty and we feel appropriate to let both husband and wife now be made free from the marriage bonding which was solemnized as per Hindu rites and customs in April 1979 i.e. 37 years ago by now, may be dissolved.
  41. In our view, taking into consideration the statements of the witnesses of both sides, the mental cruelty stands proved against the appellant at the instance of the respondent, and the appellant husband deserves indulgence in seeking their marriage dissolved.
  42. A feeble attempt was made by the learned counsel for respondent that the second petition filed by the appellant on the same subject is barred by the principle of res judicata. In our view, taking into consideration the subsequent development and fresh material/evidence, which has come on record for filing of the divorce petition subsequent to earlier petition having been withdrawn, is in order as it can always be filed in view of the subsequent developments. Equally important is that no ground was raised before the Family Court insofar as the second petition is concerned. Accordingly, the argument of learned counsel for the respondent, is rejected.
  43. For the reasons aforesaid, the appeal deserves to be allowed and we quash and set aside the judgment and decree dated 24.2.1993 and their marriage solemnized on 27.4.1979 stands dissolved. A decree for divorce is hereby granted to the appellant. No costs.
    (J.K. Ranka) J.                            (Ajay Rastogi) J.

    db

In laws ready to gift a crore worth bungalow NOT people who demanded dowry !! Fake 498A busted !

A husband who took her on pleasure trips, In-laws who were ready to gift her a bungalow worth crore, are NOT the people could have have demanded dowry !! Major inconsistencies in FAKE 498a case brought out and husband & family acquitted #fake_498a #fake_dowry

Screenshot - 19_05_2016 , 12_44_02.png

Pay & quash. ALSO guarantee secrecy so that all sh!t will be under wraps !!

Taking money to quash a 498a 406 case itself leads to a suspicion, that the woman was NOT serious about punishment but just wanted money, and used the police / IPC as a convenient tool !

Now, IF you add a secrecy clause to the quash Judgement, that leads to further suspicion that the woman is planning her second attack !!!

So, in this case, Not only is the man paying to quash, now a clause has been added to stop the flow of information !! for example , this quash says “…..It is also agreed that the parties shall not use, circulate or publicize any evidence or marriage photographs, CDs etc. against the others, which is in their possession which is to the detriment to the other and shall destroy them. It is also agreed that the parties shall not contact each other’s relatives, friends and colleagues of the other side in any manner whatsoever. It is also agreed that the parties shall not create any encumbrances which shall be detrimental to the other. …..” !!


IN THE HIGH COURT OF DELHI AT NEW DELHI
CRL.M.C. 391/2016

Date of Decision: May 10th, 2016

JITENDER KUMAR & ORS ….. Petitioner
Through: Mr. Rajendra Kumar Tiwari, Advocate.

versus

STATE (NCT OF DELHI) & ORS ….. Respondent
Through: Mr. M.P. Singh, Additional Public Prosecutor for the State with Sub- Inspector Umed Singh, Police Station Mianwali Nagar, Delhi and Sub-Inspector Raman Pratap, Police Station CWS, Nanakpura.

CORAM:
HON’BLE MR. JUSTICE P.S.TEJI

P.S.TEJI, J.

 

  1. The present petition under Section 482 Cr.P.C. has been filed by the petitioner, namely, Smt. Jitender Kumar, Sh. Mahavir Singh, Smt. Laxmi, Sh. Narender Kumar and Ms. Pooja for quashing of FIR No.88/2008 dated 19.11.2008, under Sections 498A/406/34 IPC registered at Police Station C.W.C. Nanak Puri on the basis of mediation report in Delhi Mediation Centre, Tis Hazari Courts in view of the settlement arrived at between petitioner no.1 and respondent no.2, Smt. Poornima @ Sonia on 24.03.2014.
  2. Learned Additional Public Prosecutor for respondent-State submitted that the respondent No.2, present in the Court has been identified to be the complainant/first-informant in the FIR in question by SI Umedh Singh.
  3. The factual matrix of the present case is that the marriage between petitioner no.1 and the respondent no.2 was solemnized on 23.04.2008. The family of the husband of the complainant was not satisfied with the dowry. All of the complainant’s jewellery was taken away by her mother-in-law including Rs. 24,000/- cash. The husband of the complainant along with his other family members used to beat and abuse the complainant on several occasions. They also used to humiliate the complainant and her father on the demand of Rs.15 Lakhs at various instances. The respondent no.2/complainant lodged a complaint which resulted into the registration of the FIR in question against the petitioners. Subsequently, on 24.03.2014, during the pendency of the proceedings of Section 12 of D.V. Act instituted by the petitioner against the respondent no.2, the matter was amicably settled between the petitioner no.1 and respondent no.2.
  4. Respondent No.2, present in the Court, submitted that the dispute between the parties has been amicably resolved. As per the mediation report, it is agreed that the parties shall take divorce by way of mutual consent. It is agreed that the petitioner no.1 shall pay the total settlement amount of Rs. 6 Lacs towards as her past, present and future maintenance and permanent alimony and any other legal claims. It is also agreed petitioner no.1 shall pay Rs. 2 Lacs at the time of quashing of the FIR in question. It is agreed that petitioner no.1 has already handed over a DD bearing no. 000614 drawn on PMC Bank for a sum of Rs. 1 Lac to respondent no.2. It is also agreed that the first motion petition shall be filed on or before 21.04.2014 and the second motion petition for divorce by mutual consent shall be filed after six months of the allowing of the first motion petition and within two months thereafter. It is also agreed that petitioner no.1 shall withdraw his petition for divorce on the ground of cruelty which is pending before concerned Family Court, west, THC, Delhi on the 05.04.2014. It is also agreed that respondent no.2 shall withdraw the petition under Section 12 of D.V. Act and her petition under Section 125 Cr.P.C. pending before concerned Family Court, West, THC, Delhi on 05.04.2014. It is also agreed that respondent no.2 shall withdraw the executions filed by her before concerned Family Court, West, THC, Delhi on their next dates of hearing i.e. 02.04.2014 and 16.04.2014 respectively. It is also agreed that both parties shall approach this Court for quashing of the FIR in question within the one month from the date of grant of decree of divorce and that respondent no.2 shall cooperate with petitioner no.1 and his family members. It is also agreed that after the decree of annulment is passed, respondent no.2 shall not have any right, title or interest in the property of petitioner no.1 or his ancestors. It is also agreed that the parties shall not retract from their respective statements failing which they shall make themselves liable for legal action as per law. It is also agreed that the parties shall not use, circulate or publicize any evidence or marriage photographs, CDs etc. against the others, which is in their possession which is to the detriment to the other and shall destroy them. It is also agreed that the parties shall not contact each other’s relatives, friends and colleagues of the other side in any manner whatsoever. It is also agreed that the parties shall not create any encumbrances which shall be detrimental to the other. It is also agreed that the parties shall not give any effect to the complaint, if any already filed and shall not file any complaint against the other in future in respect of the marriage between them subject to the conditions of the settlement being fulfilled. It is also agreed that the parties shall not interfere in the future in each other’s lives and that they shall not visit the workplace or residence of each other. It is also agreed that the parties shall not try to contact each other except through their lawyers and As per the convenience of the lawyers they can have a meeting in the chamber of lawyers in order to give effect to this settlement and bring the litigation to an end. It is also agreed that the parties shall not use the evidence, if any in their possession against the other party before any authority. It is also agreed that the parties shall appear before the Court to abide by the terms of and conditions set out in the agreement and not to dispute the same herein after in future. It is also agreed that the parties shall not make any claim of any nature against each other in respect of the present dispute. It is agreed that the parties shall appear before the Court of Ld. MM (Mahila Court)-02, West, THC, Delhi on 02.04.2014 and on subsequent dates As well as before the Court of Ms. Reena Singh Nag, Ld. Judge, Family Courts, West THC, Delhi on 05.04.2014 and on subsequent dates as well as this Court for quashing of the FIR in question to abide by the terms set out in this settlement. Respondent No.2 affirmed the contents of the aforesaid settlement and of her affidavit dated 07.12.2015 supporting this petition. In the affidavit, the respondent no.2 has stated that she has no objection if the FIR in question is quashed. All the disputes and differences have been resolved through mutual consent. Now no dispute with petitioners survives and so, the proceedings arising out of the FIR in question be brought to an end. Statement of the respondent no.2 has been recorded in this regard in which she stated that she has entered into a compromise with the petitioners and has settled all the disputes with them. She further stated that she has no objection if the FIR in question is quashed.
  5. In Gian Singh v. State of Punjab (2012) 10 SCC 303 Apex Court has recognized the need of amicable resolution of disputes in cases like the instant one, by observing as under:-
    • “61. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceedings or continuation of criminal proceedings would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceedings.”
  6. The aforesaid dictum stands reiterated by the Apex Court in a recent judgment in Narinder Singh v. State of Punjab (2014) 6 SCC 466. The relevant observations of the Apex Court in Narinder Singh (Supra) are as under:-
    • “29. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings.
    • 29.1 Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution. 29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:
      • (i) ends of justice, or
      • (ii) to prevent abuse of the process of any court. While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.
    • 29.3. Such a power is not to be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for the offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender.\
    • 29.4. On the other hand, those criminal cases having overwhelmingly and predominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves.
  7. The inherent powers of the High Court ought to be exercised to prevent the abuse of process of law and to secure the ends of justice. The respondent no.2 agreed to the quashing of the FIR in question without any threat or coercion or undue influence and has stated that the matter has been settled out of her own free will. As the matter has been settled and compromised amicably, so, there would be an extraordinary delay in the process of law if the legal proceedings between the parties are carried on. So, this Court is of the considered opinion that this is a fit case to invoke the jurisdiction under Section 482 Cr.P.C. to prevent the abuse of process of law and to secure the ends of justice.
  8. The incorporation of inherent power under Section 482 Cr.P.C. is meant to deal with the situation in the absence of express provision of law to secure the ends of justice such as, where the process is abused or misused; where the ends of justice cannot be secured; where the process of law is used for unjust or unlawful object; to avoid the causing of harassment to any person by using the provision of Cr.P.C. or to avoid the delay of the legal process in the delivery of justice. Whereas, the inherent power is not to be exercised to circumvent the express provisions of law.
  9. It is settled law that the inherent power of the High Court under Section 482 Cr.P.C. should be used sparingly. The Hon’ble Apex Court in the case of State of Maharashtra through CBI v. Vikram Anatrai Doshi and Ors. MANU/SC/0842/2014 and in the case of Inder Singh Goswami v. State of Uttaranchal MANU/SC/0808/2009 has observed that powers under Section 482 Cr.P.C. must be exercised sparingly, carefully and with great caution. Only when the Court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the Court if such power is not exercised, Court would quash the proceedings.
  10. It is a well settled law that where the High Court is convinced that the offences are entirely personal in nature and therefore do not affect public peace or tranquility and where it feels that quashing of such proceedings on account of compromise would bring about peace and would secure ends of justice, it should not hesitate to quash them. In such cases, pursuing prosecution would be waste of time and energy. Non-compoundable offences are basically an obstruction in entering into compromise. In certain cases, the main offence is compoundable but the connected offences are not. In the case of B.S. Joshi and others v. State of Haryana and another 2003 (4) SCC 675 the Hon’ble Apex Court observed that even though the provisions of Section 320 Cr.P.C. would not apply to such offences which are not compoundable, it did not limit or affect the powers under Section 482 Cr.P.C. The Hon’ble Apex Court laid down that if for the purpose of securing the ends of justice, quashing of FIR becomes necessary, section 320 Cr.P.C. would not be a bar to the exercise of power of quashing. In the nutshell, the Hon’ble Apex Court justified the exercise of powers under Section 482 Cr.P.C. to quash the proceedings to secure the ends of justice in view of the special facts and circumstances of the case, even where the offences were non- compoundable. In the light of the aforesaid, this Court is of the view that notwithstanding the fact the offence under Section 498A IPC is a non- compoundable offence, there should be no impediment in quashing the FIR under this section, if the Court is otherwise satisfied that the facts and circumstances of the case so warrant.
  11. The Courts in India are now normally taking the view that endeavour should be taken to promote conciliation and secure speedy settlement of disputes relating to marriage and family affairs such as, matrimonial disputes between the couple or/and between the wife and her in-laws. India being a vast country naturally has large number of married persons resulting into high numbers of matrimonial disputes due to differences in temperament, life-styles, opinions, thoughts etc. between such couples, due to which majority is coming to the Court to get redressal. In its 59th report, the Law Commission of India had emphasized that while dealing with disputes concerning the family, the Court ought to adopt an approach radically different from that adopted in ordinary civil proceedings and that it should make reasonable efforts at settlement before the commencement of the trial. Further it is also the constitutional mandate for speedy disposal of such disputes and to grant quick justice to the litigants. But, our Courts are already overburdened due to pendency of large number of cases because of which it becomes difficult for speedy disposal of matrimonial disputes alone. As the matrimonial disputes are mainly between the husband and the wife and personal matters are involved in such disputes, so, it requires conciliatory procedure to bring a settlement between them. Nowadays, mediation has played a very important role in settling the disputes, especially, matrimonial disputes and has yielded good results. The Court must exercise its inherent power under Section 482 Cr.P.C. to put an end to the matrimonial litigations at the earliest so that the parties can live peacefully.
  12. Since the subject matter of this FIR is essentially matrimonial, which now stands mutually and amicably settled between the parties, therefore, continuance of proceedings arising out of the FIR in question would be an exercise in futility and is a fit case for this Court to exercise its inherent jurisdiction.
  13. In the facts and circumstances of this case, in view of statement made by the respondent no.2 and the compromise arrived at between the parties, the FIR in question warrants to be put to an end and proceedings emanating thereupon need to be quashed.
  14. Accordingly, this petition is allowed and FIR No.88/2008 dated 19.11.2008, under Sections 498A/406/34 IPC registered at Police Station C.W.C. Nanak Puri and the proceedings emanating therefrom are quashed against the petitioners.
  15. This petition is accordingly disposed of.

 

(P.S.TEJI) JUDGE MAY 10, 2016 dd

False 498a on 13 people with vengeance after divorce & recovery of dower. accused wait 7 years for justice ! Jarkhand HC

After accepting dower amount & getting back all utensils as demanded, wife files a complaint case, with Dowry etc allegation of period prior to filing of petition for recovery of dower !! She does so on 13 people including the husband and his family members !! The lower (magistrate) court also takes cognizance !!

So husband and party approach the HC. The Honourable HC concludes “… I find from the materials available on record that this complaint case has been filed with vengeance against the petitioners after recovery of the Dower amount and articles through a competent court….” and “the entire criminal proceeding in connection with C. P. Case No. 1397 of 2008 are, hereby, quashed..” !!

This is the sad fate in India where Cognizance is taken by lower courts, and a false 498a case, that too on 13 people of husband’s family and they are made to run around for approx 7 years to get justice !! (2009 to 2016 )


IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 336 of 2009

1.Md. Sayeed Anwar son of Hamid Ansari @ Abdul Hamid Ansari
2. Aziz Ansari s/o late Majid Ansari
3. Hamid @ Abdul Hamid Ansari s/o Majid Ansari
4. Munni @ Munni Khatoon w/o Abdul Hamid Ansari
5. Sajid @ Sajid Anwar @ Babu s/o Abdul Hamid Ansari
6. Zakir Hussain @ Zakir Anwar @ Lala s/o Abdul Hamid Ansari
7. Rayees Ansari @ Rayesh Anwar s/o Abdul Hamid Ansari
8. Ruby Naaz@ Rubi Naz d/o Abdul Hamid Ansari
9. Guria Praveen @ Guria d/o Abdul Hamid Ansari
10. Soni w/o Imtiyaz Ansari
11. Ashraf Ansari s/o Samsul Ansari
12. Md. Imtiyaz Ansari s/o Khalil Ansari
13. Anjum Ara @ Anjum w/o Ashraf Ansari, all r/o village Chatabad, Bhandaridih
P.S Katras Dist. Dhanbad .……………… Petitioners

Versus
1. State of Jharkhand
2. Hamida Khatoon @ Guriya Arshi d/o Md. Jasim Ansari and w/o Md. Sayeed
Anwar r/o village Rahmatganj, Pandarpala, P.S Bankmore (Bhuli O.P.) Dist.
Dhanbad ………………. Opp. Parties


CORAM: HON’BLE MR. JUSTICE RAVI NATH VERMA

For the Petitioners : M/sr. Gautam Kumar & Birat Kumar, Advocates
For the State : Mr. S.K. Srivastava, APP.
For the O.P No. 2 : Mr. M.K, Laik, Sr. Advocate, Mrs. Leena Mukherjee, Advocate


CAV on- 11.09.2015
Pronounced on 11/05/2016

  1. Invoking the inherent power of this Court under Section 482 of the Code of Criminal Procedure (in short ” the Code”), the petitioners 13 in number have prayed for quashing of the entire criminal proceeding including the order taking cognizance dated 02.02.2009 passed by learned Judicial Magistrate, Dhanbad in C.P. Case No. 1397 of 2008.
  2. The prosecution case, which is relevant for the proper adjudication of the issue involved in this case, in short is that, at the instance of the complainant-Hamid Khatoon @ Guriya Arshi, the aforesaid complaint case was filed against the petitioners with the allegation that her marriage was solemnized with petitioner no.1, Md. Sayeed Anwar on 22.11.2005 and after the marriage, she remained in her Sasural for a month but, thereafter her husband and other in-laws started demanding dowry and due to non-fulfillment of their, she was subjected to physical and mental torture. On 30.04.2008, the petitioners tried to set her on fire by sprinkling kerosene oil, however, she could save herself and informed the police station on 02.05.2008, but when no action was taken, this complaint case was filed. <SMALL>http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com</SMALL&gt;
  3. After examination of the complainant on solemn affirmation and other witnesses, the court took cognizance of the offence under Section 498-A of the Indian Penal Code and directed to issue summons for the appearance of the petitioners.
  4. It appears from the record that before filing of complaint case on 21.07.2008 the opposite party no.2- the complainant had filed a Civil Misc. Case No. 9 of 2008 in the court of Principal Judge, Family Court, Dhanbad under Section 292 of the Mohamdan Law for recovery of Dower of Rs. 39,000/- on the ground that her husband has already given her Talaque and the court after issuance of notice to the present petitioner no.1 directed to pay the Dower amount of Rs. 39,000/- and also directed to return all the articles as per the list given by the complainant. Accordingly, Rs. 39,000/- was handed over to the complainant and an endorsement was made by the complainant on the order-sheet of the said case, which is enclosed as Annexure-3 with this Criminal Miscellaneous Petition. The articles were also returned to the complainant of this case and the list of those articles with the signature of the complainant is enclosed as Annexure-4 with this Criminal Miscellaneous Petition.
  5. Learned counsel Mr. Gautam appearing for the petitioners seriously contented that the continuance of the entire criminal proceeding including the order taking cognizance is bad in law, perverse and abuse of process of law. It was also submitted that the present proceeding is nothing except a vengeance to hurt the petitioners. Hence, continuance of this proceeding amounts to providing a forum to the complainant to settle earlier differences or to take revenge.
  6. Contrary to the aforesaid submissions, Mr. Laik learned Senior Advocate representing the complainant-opposite party no.2 submitted that at this stage, the entire criminal proceeding including the order taking cognizance cannot be quashed as the allegations made in the complaint petition relates to a period before filing of the petition in the court of Principal Judge, Family Court and even though the complainant had admitted the factum of Talaque given by the petitioner no.1 and acceptance of Dower amount and utensils, the petitioners cannot be absolved from criminality.
  7. Apparently, after accepting the Dower amount and getting back all the utensils as demanded by the complainant, the present complaint case was filed with the allegation of period prior to filing of the petition under Section 292 of Mohamdan Law before the Principal Judge, Family Court, Dhanbad. It is not that the petitioner no.1, husband of the complainant, had filed a petition before a competent court for divorce, rather it was the complainant, who had filed the petition for recovery of the Dower amount and utensils, which were given to the petitioner no.1 during marriage. In a case of Arjun Ram Vs. State of Jharkhand and another reported in 2004 CRI. L. J. 2989 while considering the similar situation, the court held that when a case was filed by husband for divorce then a complaint was filed and the court held that it is a motivated one. The Hon’ble Supreme Court in a judgment reported in AIR 1992 SC 604 held that the case filed by way of revenge should be quashed as the same amounts to abuse of the process of the court. In almost a similar situation, the Hon’ble Supreme Court while considering the issue in the case M. Saravana Porselvi Vs. A.R. Chandrashekar @ Parthiban & Others; 2008 (3) East Cr. C 320 (SC) held that if it is a case of customary divorce, the question in regard to existence of good custom may have to be gone into in a civil proceeding. But Criminal prosecution shall not lie. It was initiated malafide. Thus, if it is allowed to continue, the same shall be an abuse of the process of Court.
  8. In the above case also after divorce the party accepted the permanent alimony and thereafter filed a case under Section 498-A I.P.C almost similar to the instant case. The High Court in that case exercising its jurisdiction under Section 482 of the Code had quashed the proceeding. Whereafter aggrieved party filed appeal before Hon’ble Supreme Court. The Supreme Court held that there was no legal infirmity in the impugned judgment of High Court. <SMALL>http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com</SMALL&gt;
  9. I find from the materials available on record that this complaint case has been filed with vengeance against the petitioners after recovery of the Dower amount and articles through a competent court.
  10. In that view of the matter, this Criminal Miscellaneous Petition is allowed. The order 02.02.2009 by which cognizance of offence has been taken and the entire criminal proceeding in connection with C. P. Case No. 1397 of 2008 are, hereby, quashed.

(R.N.Verma, J.)
Jharkhand High Court,
Ranchi Dated, 11th May, 2016

Anjali/N.A.F.R.

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


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


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

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

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

RESERVED

Court No. – 22

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

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

Hon’ble Mahendra Dayal,J.

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

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

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

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

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

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

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

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

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

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

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

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

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

Order Date :- 5th May, 2016

Rakesh/-

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


CASE FROM Allahabad HC site with necessary Emphasis, Re formatting