Tag Archives: Gujarat HC

Dowry case – FIR quashed !!

#Dowry #498a #Quash
Dowry harassment—When the allegations are shown to be non-specific and not of the degree of seriousness contemplated in law, and when the applicants accused are shown to be living separately coupled with attendant facts and aspects noticed and noted, the alleg mations become too bald to be sustained in law—FIR quashed. : 2017 (2) LRC 465(Guj)

Hon JUSTICE J.B.PARDIWALA quashes #fake498a against NRI husband. Guj HC #498aQuash

In this case, wife files #498a case on her #NRI_Husband. Three incidents are alleged, one of which is on on Feb 2014 while the husband has left India on 04th june 2013 !! He seems to have taken employment and is living in Bahrain (Middle East). The Mother in law is projected as a cruel woman but the allegations against her are vague in nature.

The Hon Judge orders as follows “….I have no hesitation worth the name in quashing the proceedings of the Criminal Case referred to above so far as the mother-in-law is concerned. As such, there are no allegations which constitute cruelty within the meaning of Section 498A of the Indian Penal Code. Whatever allegations have been levelled are quite vague and general. So far as the husband is concerned, I take notice of the fact that from June 2013 he is in Bahrain. It seems that he has taken up employment in Bahrain. As usual, it appears that the first informant could not adjust herself at her matrimonial home on account of the disputes which could be termed as mundane matters. In the result, this application is allowed. The FIR being CR-II No.44 of 2014 registered with the Jalalpore Police Station, District Navsari, as well as the proceedings of the Criminal Case No.3757 of 2014 pending in the Court of the learned JMFC, Navsari, are hereby quashed. …”

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R/CR.MA/12027/2015 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 12027 of 2015

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

PARESHBHAI PRAVINBHAI PATEL & 1….Applicant(s)

Versus

STATE OF GUJARAT & 1….Respondent(s)

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

Appearance:
MR ZUBIN F BHARDA, ADVOCATE for the Applicant(s) No. 1 – 2
DS AFF.NOT FILED (R) for the Respondent(s) No. 2
MS NISHA THAKORE, APP for the Respondent(s) No. 1

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

Date : 02/02/2017

ORAL ORDER

The respondent no.2 although served with the notice issued by this Court, yet has chosen not to remain present either in person or through an advocate and oppose this application.

By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicants – original accused nos.1 and 2 seek to invoke the inherent powers of this Court praying for quashing of the FIR being CR-II No.44 of 2014 registered with the Jalalpore Police Station, District Navsari, for the offence punishable under Sections 498A, 323, 504 read with Section 114 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act.

The applicants before me are none other than the husband and the mother-in-law of the respondent no.2 – first informant.

It appears from the materials on record that the respondent no.2 got married to the applicant no.1 on 10th December 2012. It is alleged in the FIR that the husband is addicted to liquor. The husband used to pick up quarrel on petty issues and harass the first informant.

In the FIR, there is a reference of three specific incidents. Let me start with the incident of 15th February 2013. It is alleged that on that day, the applicant no.1 came home heavily drunk and started beating the first informant. According to the first informant, she left the matrimonial home. While at her parental home, she realized that she had conceived. On 28th September 2013, the first informant gave birth to a baby girl at the Civil Hospital, Navsari. It is alleged that no one from the family of the husband came to inquire about the health of the first informant or to have a look at the new born baby. The third incident is dated 26th February 2014. It is alleged that on that particular day, the applicant no.1 called up the first informant on her mobile and told her that if she would get Rs.1 lac from her parents he would come on the next day and take her back to the matrimonial home. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

As usual, the mother-in-law has also been projected as a very cruel woman.

Mr.Bharda, the learned counsel appearing for the applicant, submitted that even if the entire case of the first informant is accepted or believed to be true, none of the ingredients to constitute an offence of cruelty within the meaning of Section 498A of the Indian Penal Code are spelt out. He submitted that the FIR is false for the simple reason that on 26th February 2014, the applicant no.1 was not in India and was in Bahrain (Middle East). The learned counsel pointed out that the applicant no.1 left India on 4th June 2013. This itself goes to show that the FIR was concocted by levelling false allegations. He submitted that there is no case worth the name so far as the mother-in-law is concerned.

On the other hand, this application has been vehemently opposed by Ms.Thakore, the learned APP appearing for the State. The learned APP would submit that the plain reading of the FIR prima facie discloses commission of a cognizable offence. The learned APP would submit that the police should be permitted to complete the investigation so far as the applicant no.1 is concerned. She pointed out that charge-sheet has been filed so far as the mother-in-law is concerned, and in the said charge-sheet, the applicant no.1 has been shown as an absconder. She prays that this application be rejected. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is, whether the FIR so far as the applicant no.1 is concerned, should be quashed and the proceedings of the Criminal Case No.3757 of 2014 pending in the Court of the learned JMFC, Navsari, so far as the applicant no.2 is concerned, should be quashed. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

I have no hesitation worth the name in quashing the proceedings of the Criminal Case referred to above so far as the mother-in-law is concerned. As such, there are no allegations which constitute cruelty within the meaning of Section 498A of the Indian Penal Code. Whatever allegations have been levelled are quite vague and general. So far as the husband is concerned, I take notice of the fact that from June 2013 he is in Bahrain. It seems that he has taken up employment in Bahrain. As usual, it appears that the first informant could not adjust herself at her matrimonial home on account of the disputes which could be termed as mundane matters.

In the result, this application is allowed. The FIR being CR-II No.44 of 2014 registered with the Jalalpore Police Station, District Navsari, as well as the proceedings of the Criminal Case No.3757 of 2014 pending in the Court of the learned JMFC, Navsari, are hereby quashed. Rule made absolute to the aforesaid extent. Direct service is permitted.

(J.B.PARDIWALA, J.)

MOIN


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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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Hon J Shri J.B. Pardiwala hits out at stereotype, copy-paste FIRs in his 498a quash !! Dec’16

Hon Justice Shri J.B. Pardiwala hits out at sterotype, copy-paste FIRs in his recent 498a quash !! Dec’16

“…20. This Court over a period of time has noticed that the First Information Report field by wife contains following allegations:
“1. The father of the wife is a beggar.
2. Rs.5,00,000/- has been demanded by the husband and his family members by way of dowry.”
Without these two allegations, no First Information Report in the State of Gujarat is complete so far as the offence under Section 498(A) of the IPC is concerned….”

The Hon HC quashes this false 498a cases roping in relatives with an oblique motive !!

*************** case from Gujarat HC website *********************

R/CR.MA/7507/2015 JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 7507 of 2015

FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE J.B.PARDIWALA

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BIPINKUMAR DEVENDRABHAI PARMAR & 3….Applicant(s)

Versus

STATE OF GUJARAT & 1….Respondent(s)

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Appearance:

MR ZUBIN F BHARDA, ADVOCATE for the Applicant(s) No. 1 – 4

MR.HIREN M MODI, ADVOCATE for the Respondent(s) No. 2

MS SHRUTI PATHAK, APP for the Respondent(s) No. 1

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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

Date : 09/12/2016

ORAL JUDGMENT

  1. By this application under Section 482 of the Code of Criminal Procedure 1973, the applicants-original accused persons seek to invoke inherent powers of this Court praying for quashing the First Information Report registered as C.R. No.I-87/2015 with the Gotri Police Station, District-Vadodara for the offence punishable under Section 498(A), 323, 294(b) read with Section 114 of the IPC and Sections 3 and 7 of the Dowry Prohibition Act.
  2. The case of the first informant as reflected from the First Information Report may be summarized as under:

2.1 The first informant got married with the applicant no.1 on 19.05.2014. The applicant no.2 is the father-in-law. The applicant no.3 is the mother-in-law and the applicant no.4 is the sister-in-law of the first informant. It appears that within a very short time the matrimonial life of the first informant got disturbed. She thought fit to lodge an FIR on 31.03.2015 i.e. within almost one year from the date of the marriage alleging harassment and cruelty at the end of the applicants herein. It is alleged in the FIR that the husband used to ask the first informant to press his legs and head. It is further alleged that the applicants herein also used to ill-treat the first informant. It is alleged that the applicants used to taunt her that she had not brought sufficient dowry from her parental house.

  1. The learned counsel appearing for the applicants would submit that the allegations leveled in the First Information Report are palpably false. The first informant could not adjust herself at the house of the applicants soon after the marriage. The learned counsel further pointed out that efforts were made by the people of the community to dissolve the marriage on certain terms and conditions. He pointed out that the first informant’s family demanded an amount of Rs.3,00,000/- to dissolve the marriage which was not acceptable to the applicants. He would submit that the allegations are stereo type. It is submitted that even if the entire case as put up by the first informant is accepted as true, none of the ingredients to constitute the offence of cruelty within the meaning of Section 498(A) are spelt out. In such circumstances referred to above, the learned counsel prays that the application may be allowed and FIR be quashed. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
  • On the other hand, this application has been vehemently opposed by Mr. Modi, the learned counsel appearing for the first informant and Ms. Pathak, the learned APP for the State. Both the learned counsel would submit that the plain reading of the FIR prima-facie disclose the commission of a cognizable offence. It is submitted that this Court may not embark upon an inquiry whether the allegations are true or false. A primafacie case is to be seen for the purpose of quashing of the FIR. In such circumstances referred to above both the learned counsel would submit that there being no merit in this application. The same may be rejected.

  • It is now well settled that the power under Section 482 of the Code has to be exercised sparingly, carefully and with caution, only where such exercise is justified by the tests laid down in the Section itself. It is also well settled that Section 482 of the Code does not confer any new power on the High Court but only saves the inherent power, which the Court possessed before the enactment of the Criminal Procedure Code. There are three circumstances under which the inherent jurisdiction may be exercised, namely (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice.

  • The investigation of an offence is the field exclusively reserved for the Police Officers, whose powers in that field are unfettered, so long as the power to investigate into the cognizable offence is legitimately exercised in strict compliance with the provisions under Chapter XII of the Code. While exercising powers under Section 482 of the Code, the Court does not function as a Court of appeal or revision. As noted above, the inherent jurisdiction under the Section, although wide, yet should be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.

  • In R.P. Kapur v. State of Punjab (AIR 1960 SC 866) the apex Court summarized some categories of cases where inherent power can, and should be exercised to quash the proceedings.

    (i) where it manifestly appears that there is a legal bar
    against the institution or continuance e.g. want of sanction;
    
    ii) where the allegations in the first information report
    or complaint taken at its face value and accepted in their
    entirety do not constitute the offence alleged;
    
    (iii) where the allegations constitute an offence, but
    there is no legal evidence adduced or the evidence adduced
    clearly or manifestly fails to prove the charge.
    

  • The Supreme Court, in the case of State of A.P. Vs. Vangaveeti Nagaiah, reported in AIR 2009 SC 2646, interpreted clause (iii) referred to above, observing thus:
    "6. In dealing with the last category, it is important to
    bear in mind the distinction between a case where there is
    no legal evidence or where there is evidence which is
    clearly inconsistent with the accusations made, and a case
    where there is legal evidence which, on appreciation, may
    or may not support the accusations. When exercising
    jurisdiction under Section 482 of the Code, the High Court
    would not ordinarily embark upon an enquiry whether the
    evidence in question is reliable or not or whether on a
    reasonable appreciation of it accusation would not be
    sustained. That is the function of the trial Judge.
    Judicial process no doubt should not be an instrument of
    oppression, or, needless harassment. Court should be
    circumspect and judicious in exercising discretion and
    should take all relevant facts and circumstances into
    consideration before issuing process, lest it would be an
    instrument in the hands of a private complainant to unleash
    vendetta to harass any person needlessly. At the same time
    the Section is not an instrument handed over to an accused
    to short-circuit a prosecution and bring about its sudden
    death. The scope of exercise of power under Section 482 of
    the Code and the categories of cases where the High Court
    may exercise its power under it relating to cognizable
    offences to prevent abuse of process of any court or
    otherwise to secure the ends of justice were set out in
    some detail by this Court in State of Haryana v. Bhajan Lal
    [1992 Supp. (1) SCC 335].A note of caution was, however,
    added that the power should be exercised sparingly and that
    too in rarest of rare cases. 
    
    The illustrative categories indicated by this Court are as
    follows:
    
    "(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 FIR 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 uncontroverted allegations made in the
    F.I.R. 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 F.I.R. 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 mala fide 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.
    
  • Bearing the aforesaid principles in mind, I need to consider whether the FIR deserves to be quashed so far as the applicants Nos. 2 to 6 are concerned. I have already set out the relations of the petitioners Nos. 2 to 6 with the petitioner No.1 i.e. the husband of the respondent No.2, the complainant.
  • A plain reading of the FIR and the charge-sheet papers reveal that the allegations levelled by the respondent No.2 are quite vague, general and sweeping, specifying no instances of criminal conduct. Although the respondent No.2 is much more annoyed with her husband, with an obvious motive, has arrayed all the close relatives of her husband in the FIR. The Police also seems to have recorded stereo-type statements of the witnesses who are none other than the parents and other relatives of the respondent No.2 and has filed a charge-sheet. If a person is made to face a criminal trial on some general and sweeping allegations without bringing on record any specific instances of criminal conduct, it is nothing but abuse of process of the Court. The Court owes a duty to subject the allegations levelled in the complaint to a thorough scrutiny to find out prima-facie whether there is any grain of truth in the allegations or whether they are made only with the sole object of involving certain individuals in a criminal charge. To prevent abuse of process of the Court, and to save the innocent from false prosecutions at the hands of unscrupulous litigants, the criminal proceedings, even if they are at the stage of framing of the charge, if they appear to be frivolous and false, should be quashed at the threshold. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

  • In Preeti Gupta Vs. State of Jharkhand, reported in 2010 Criminal Law Journal 4303(1), the Supreme Court observed the following:-

    "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 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."
    
    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.
    
    31.The learned members of the Bar have enormous social
    responsibility and obligation to ensure that the social
    fiber of family life is not ruined or demolished. They must
    ensure that exaggerated versions of small incidents should
    not be reflected in the criminal complaints. Majority of
    the complaints are filed either on their advice or with
    their concurrence. The learned members of the Bar who
    belong to a noble profession must maintain its noble
    traditions and should treat every complaint under section
    498-A as a basic human problem and must make serious
    endeavour to help the parties in arriving at an amicable
    resolution of that human problem. They must discharge their
    duties to the best of their abilities to ensure that social
    fiber, peace and tranquillity of the society remains
    intact. The members of the Bar should also ensure that one
    complaint should not lead to multiple cases.
    
    32. Unfortunately, at the time of filing of the complaint
    the implications and consequences are not properly
    visualized by the complainant that such complaint can lead
    to insurmountable harassment, agony and pain to the
    complainant, accused and his close relations.
    
    33. The ultimate object of justice is to find out the
    truth and punish the guilty and protect the innocent. To
    find out the truth is a herculean task in majority of these
    complaints. The tendency of implicating husband and all his
    immediate relations is also not uncommon. At times, even
    after the conclusion of criminal trial, it is difficult to
    ascertain the real truth. The courts have to be extremely
    careful and cautious in dealing with these complaints and
    must take pragmatic realities into consideration while
    dealing with matrimonial cases. The allegations of
    harassment of husband's close relations who had been living
    in different cities and never visited or rarely visited the
    place where the complainant resided would have an entirely
    different complexion. The allegations of the complaint are
    required to be scrutinized with great care and
    circumspection. Experience reveals that long and protracted
    criminal trials lead to rancour, acrimony and bitterness in
    the relationship amongst the parties. It is also a matter
    of common knowledge that in cases filed by the complainant
    if the husband or the husband's relations had to remain in
    jail even for a few days, it would ruin the chances of
    amicable settlement altogether. The process of suffering is
    extremely long and painful.
    
    34. Before parting with this case, we would like to
    observe that a serious relook of the entire provision is
    warranted by the legislation. It is also a matter of common
    knowledge that exaggerated versions of the incident are
    reflected in a large number of complaints. The tendency of
    over implication is also reflected in a very large number
    of cases.
    
    35. The criminal trials lead to immense sufferings for all
    concerned. Even ultimate acquittal in the trial may also
    not be able to wipe out the deep scars of suffering of
    ignominy. Unfortunately a large number of these complaints
    have not only flooded the courts but also have led to
    enormous social unrest affecting peace, harmony and
    happiness of the society. It is high time that the
    legislature must take into consideration the pragmatic
    realities and make suitable changes in the existing law.It
    is imperative for the legislature to take into
    consideration the informed public opinion and the pragmatic
    realities in consideration and make necessary changes in
    the relevant provisions of law. We direct the Registry to
    send a copy of this judgment to the Law Commission and to
    the Union Law Secretary, Government of India who may place
    it before the Hon'ble Minister for Law and Justice to take
    appropriate steps in the larger interest of the society."
    

  • In the aforesaid context, it will also be profitable to quote a very recent pronouncement of the Supreme Court in the case of Arnesh Kumar Vs. State of Bihar, Criminal Appeal No. 1277 of 2014, decided on 2nd July, 2014. In the said case, the petitioner, apprehending arrest in a case under Section 498A of the IPC and Section 4 of the Dowry Prohibition Act, 1961, prayed for anticipatory bail before the Supreme Court, having failed to obtain the same from the High Court. In that context, the observations made by the Supreme Court in paras 6, 7 and 8 are worth taking note of. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
  • They are reproduced below:-

        "6. 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 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, bedridden 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 498A, 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.
    
        7. Arrest brings humiliation, curtails freedom and cast
        scars forever. Law makers know it so also the police. There
        is a battle between the law makers and the police and it
        seems that police has not learnt its lesson; the lesson
        implicit and embodied in the Cr.PC. 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.
    
        8. Law Commissions, Police Commissions and this Court in a
        large number of judgments emphasized the need to maintain a
        balance between individual liberty and societal order while
        exercising the power of arrest. Police officers make arrest
        as they believe that they possess the power to do so. As
        the arrest curtails freedom, brings humiliation and casts
        scars forever, we feel differently. We believe that no
        arrest should be made only because the offence is non-
        bailable and cognizable and therefore, lawful for the
        police officers to do so. The existence of the power to
        arrest is one thing, the justification for the exercise of
        it is quite another. Apart from power to arrest, the police
        officers must be able to justify the reasons thereof. No
        arrest can be made in a routine manner on a mere allegation
        of commission of an offence made against a person. It would
        be prudent and wise for a police officer that no arrest is
        made without a reasonable satisfaction reached after some
        investigation as to the genuineness of the allegation.
        Despite this legal position, the Legislature did not find
        any improvement. Numbers of arrest have not decreased.
        Ultimately, the Parliament had to intervene and on the
        recommendation of the 177th Report of the Law Commission
        submitted in the year 2001, Section 41 of the Code of
        Criminal Procedure (for short Cr.PC), in the present form
        came to be enacted. It is interesting to note that such a
        recommendation was made by the Law Commission in its 152nd
        and 154th Report submitted as back in the year 1994. ....
        ....."
    
    1. In the case of Geeta Mehrotra and anr. Vs. State of U.P. reported in AIR 2013, SC 181, the Supreme Court observed as under:-
      "19. Coming to the facts of this case, when the contents of
      the FIR is perused, it is apparent that there are no
      allegations against Kumari Geeta Mehrotra and Ramji
      Mehrotra except casual reference of their names who 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.
      
      20. It would be relevant at this stage to take note of an
      apt observation of this Court recorded in the matter of
      G.V. Rao vs. L.H.V. Prasad & Ors. reported in (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: there has been
      an outburst of matrimonial dispute in recent times.
      Marriage is a sacred ceremony, 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
      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 reasons which need not be mentioned
      here for not encouraging matrimonial litigation so that the
      parties may ponder over their defaults and terminate the
      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 this matter was that the
      courts would not encourage such disputes.
      
      21. In yet another case reported in AIR 2003 SC 1386 in
      the matter of B.S. Joshi & Ors. vs. State of Haryana & Anr.
      it was observed that there is no doubt that the object of
      introducing Chapter XXA containing Section 498A in the
      Indian Penal Code was to prevent the torture to a woman by
      her husband or by relatives of her husband. Section 498A
      was added with a view to punish the husband and his
      relatives who harass or torture the wife to coerce her
      relatives to satisfy unlawful demands of dowry. But if the
      proceedings are initiated by the wife under Section 498A
      against the husband and his relatives and subsequently she
      has settled her disputes with her husband and his relatives
      and the wife and husband agreed for mutual divorce, refusal
      to exercise inherent powers by the High Court would not be
      proper as it would prevent woman from settling earlier.
      Thus 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. It
      would however be a different matter depending upon the
      facts and circumstances of each case whether to exercise or
      not to exercise such a power."
      
    2. Thus, it could be seen from the above that the apex Court has noticed the tendency of the married women roping in all the relatives of her husband in such complaints only with a view to harass all of them, though they may not be even remotely involved in the offence alleged.
  • Once the FIR is lodged under Sections 498A/406/323 of the IPC and Sections 3 and 7 of the Dowry Prohibition Act, whether there are vague, unspecific or exaggerated allegations or there is no evidence of any physical or mental harm or injury inflicted upon woman that is likely to cause grave injury or danger to life, limb or health, it comes as an easy tool in the hands of Police and agencies like Crime Against Women Cell to hound them with the threat of arrest making them run helter skelter and force them to hide at their friends or relatives houses till they get anticipatory bail as the offence has been made cognizable and non-bailable. Thousands of such complaints and cases are pending and are being lodged day in and day out. There is a growing tendency to come out with inflated and exaggerated allegations roping in each and every relation of the husband and if one of them happens to be of higher status or of a vulnerable standing, he or she becomes an easy prey for better bargaining and blackmailing. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

  • Ms. Pathak, the learned APP in his own way may be right in submitting that the Court, while exercising inherent power under Section 482 of the Code, should not embark upon an enquiry as regards the truthfulness of the allegations because, according to the learned APP, once there are allegations disclosing commission of a cognizable offence, then whether they are true or false, should be left for the trial Court to decide at the conclusion of the trial. According to the learned APP, at the best, the applicants could plead in their defence the category No.7, as indicated by the Supreme Court in the case of State of Haryana (supra).

  • Since Mr. Raval has raised such issue, I must deal with it as it goes to the root of the matter. For the sake of convenience, category 7, as laid down by the Supreme Court in State of Haryana (supra) is reproduced hereinbelow:-

    "(7) Where a criminal proceeding is manifestly attended
    with mala fide 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."
    

  • I am of the view that the category 7 referred to above should be taken into consideration and applied in a case like the present one, a bit liberally. If the Court is convinced by the fact that the involvement by the complainant of all close relatives of the husband is with an oblique motive, then even if the FIR and the charge-sheet disclose commission of a cognizable offence on plain reading of the both, the Court, with a view to doing substantial justice, should read in between the lines the oblique motive of the complainant and take a pragmatic view of the matter. If the proposition of law as sought to be canvassed by the learned APP is applied mechanically to this type of cases, then in my opinion, the very inherent power conferred by the Code upon the High Court would be rendered otiose. I am saying so for the simple reason that if the wife, due to disputes with her husband, decides to not only harass her husband, but all other close relatives of the husband, then she would ensure that proper allegations are levelled against each and every such relative, although knowing fully well that they are in no way concerned with the matrimonial dispute between the husband and the wife. Many times the services of professionals are availed of and once the complaint is drafted by a legal mind, it would be very difficult thereafter to pick up any loopholes or other deficiencies in the same. However, that does not mean that the Court should shut its eyes and raise its hands in helplessness, saying that whether true or false, there are allegations in the first information report and the charge-sheet papers discloses the commission of a cognizable offence.
  • It is because of the growing tendency to involve innocent persons that the Supreme Court in the case of Pawan Kumar Vs. State of Haryana, AIR 1998 SC 958 has cautioned the Courts to act with circumspection. In the words of the Supreme Court “often innocent persons are also trapped or brought in with ulterior motives and therefore this places an arduous duty on the Court to separate such individuals from the offenders. Hence, the Courts have to deal such cases with circumspection, sift through the evidence with caution, scrutinize the circumstances with utmost care.”

  • This Court over a period of time has noticed that the First Information Report field by wife contains following allegations:

    “1. The father of the wife is a beggar.

    1. Rs.5,00,000/- has been demanded by the husband and his
      family members by way of dowry.”
  • Without these two allegations, no First Information Report in the State of Gujarat is complete so far as the offence under Section 498(A) of the IPC is concerned.

    1. In such circumstances referred to above, this Court was compelled to observe the following in the judgment and order dated 26.09.2014 passed in Criminal Misc. Application No.5819 of 2009.

      “31.Many times, the parents including the close relatives
      of the wife make a mountain out of a mole. Instead of
      salvaging the situation and making all possible endeavours
      to save the marriage, their action either due to ignorance
      or on account of sheer hatredness towards the husband and
      his family members, brings about complete destruction of
      marriage on trivial issues. The first thing that comes in
      the mind of the wife, her parents and her relatives is the
      Police, as if the Police is the panacea of all evil. No
      sooner the matter reaches up to the Police, then even if
      there are fair chances of reconciliation between the
      spouses, they would get destroyed. The foundation of a
      sound marriage is tolerance, adjustment and respecting one
      another. Tolerance to each other’s fault to a certain
      bearable extent has to be inherent in every marriage. Petty
      quibbles, trifling differences are mundane matters and
      should not be exaggerated and blown out of proportion to
      destroy what is said to have been made in the heaven. The
      Court must appreciate that all quarrels must be weighed
      from that point of view in determining what constitutes
      cruelty in each particular case, always keeping in view the
      physical and mental conditions of the parties, their
      character and social status. A very technical and hyper
      sensitive approach would prove to be disastrous for the
      very institution of the marriage. In matrimonial disputes
      the main sufferers are the children. The spouses fight with
      such venom in their heart that they do not think even for a
      second that if the marriage would come to an end, then what
      will be the effect on their children. Divorce plays a very
      dubious role so far as the upbringing of the children is
      concerned. The only reason why I am saying so is that
      instead of handling the whole issue delicately, the
      initiation of criminal proceedings would bring about
      nothing but hatredness for each other. There may be cases
      of genuine illtreatment and harassment by the husband and
      his family members towards the wife. The degree of such ill-
      treatment or harassment may vary. However, the Police
      machinery should be resorted to as a measure of last resort
      and that too in a very genuine case of cruelty and
      harassment. The Police machinery cannot be utilized for the
      purpose of holding the husband at ransom so that he could
      be squeezed by the wife at the instigation of her parents
      or relatives or friends. In all cases where wife complains
      of harassment or ill-treatment, Section 498-A of the IPC
      cannot be applied mechanically. No F.I.R is complete
      without Sections 506(2) and 323 of the IPC. 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 today married
      life, may also not amount to cruelty.

      1. Lord Denning, in Kaslefsky Vs. Kaslefsky (1950) 2 All
        ER 398 observed as under:-

        “When the conduct consists of direct action by one against
        the other, it can then properly be said to be aimed at the
        other, even though there is no desire to injure the other
        or to inflict misery on him. Thus, it may consist of a
        display of temperament, emotion, or perversion whereby the
        one gives vent to his or her own feelings, not intending to
        injure the other, but making the other the object-the butt-
        at whose expense the emotion is relieved.”

        When there is no intent to injure, they are not to be
        regarded as cruelty unless they are plainly and distinctly
        proved to cause injury to health ……..when the conduct
        does not consist of direct action against the other, but
        only of misconduct indirectly affecting him or her, such as
        drunkenness, gambling, or crime, then it can only properly
        be said to be aimed at the other when it is done, not only
        for the gratification of the selfish desires of the one who
        does it, but also in some part with an intention to injure
        the other or to inflict misery on him or her. Such an
        intention may readily be inferred from the fact that it is
        the natural consequence of his conduct, especially when the
        one spouse knows, or it has already been brought to his
        notice, what the consequences will be, and nevertheless he
        does it, careless and indifferent whether it distresses the
        other spouse or not. The Court is, however not bound to
        draw the inference. The presumption that a person intends
        the natural consequences of his acts is one that may not
        must-be drawn. If in all the circumstances it is not the
        correct inference, then it should not be drawn. In cases of
        this kind, if there is no desire to injure or inflict
        misery on the other, the conduct only becomes cruelty when
        the justifiable remonstrances of the innocent party provoke
        resentment on the part of the other, which evinces itself
        in actions or words actually or physically directed at the
        innocent party.”

      2. What constitutes cruelty in matrimonial matters has
        been well explained in American Jurisprudence 2nd edition
        Vol. 24 page 206. It reads thus:-

        “The question whether the misconduct complained of
        constitute cruelty and the like for divorce purposes is
        determined primarily by its effect upon the particular
        person complaining of the acts. The question is not whether
        the conduct would be cruel to a reasonable person or a
        person of average or normal sensibilities, but whether it
        would have that effect upon the aggrieved spouse. That
        which may be cruel to one person may be laughed off by
        another, and what may not be cruel to an individual under
        one set of circumstances may be extreme cruelty under
        another set of circumstances.”

    2. For the foregoing reasons, I hold that if the investigation of the First Information Report is permitted to continue, then it will be nothing but abuse of process of the law and travesty of justice. This is a fit case wherein the inherent powers under Section 482 of the Code should be exercised for the purpose of quashing the FIR. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

    3. The application succeeds and is hereby allowed. The First Information Report being C.R. No.I-87/2015 lodged before the Gotri Police Station, District- Vadodara, is hereby quashed. Rule is made absolute.

    4. At this stage, I may only say that since the applicant no.1 and the first informant are quite young they should dissolve the marriage by initiating appropriate proceedings before the Court concerned so that both can start living their own life.

    (J.B.PARDIWALA, J.)

    ABHISHEK

    Page 20 of 20 HC-NIC Page 20 of 20

    Created On Tue Jan 03 17:37:40 IST 2017

    90,000 pm maintenance (S125 CrPC) from second marriage! how many crores “settlement” will she demand ? Guj HC

    The Honourable court finally decides that the woman has to get 90000 a month , as maintenance under Sec 125 CrPC, even though she has left her husband !!!

    “….is hereby modified and enhanced to total Rs.75,000/­ towards maintenance (i.e. Rs.30,000/­ granted earlier + Rs.45,000/­ granted by this order), which will not be adjusted against the amount of Rs.15,000/­ which has been granted under the provisions of the Domestic Violence Act…..”

    Actually the ablaa nari is a kind woman who ONLY claimed Rs. 500,000 yes 5 LAKHS PER MONTH !! “…., Before the Family Court, an application under section 125 of the CrPC being Criminal Miscellaneous Application No.2495 of 2013, was moved, whereby she had claimed an amount of Rs.5,00,000/­ per mensem, however, the Family Court has granted Rs.30,000/­ per mensem towards maintenance. Vide its impugned order, the Court directed such sum of Rs.30,000/­ (Rupees Thirty Thousand only) to be adjusted against other orders of maintenance, etc. ….”

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

    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

    CRIMINAL REVISION APPLICATION (FOR MAINTENANCE) NO. 671 of
    2014

    FOR APPROVAL AND SIGNATURE :
    HONOURABLE MS JUSTICE SONIA GOKANI

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

    RAMANDEEP PALVINDERSINGH OBEROI….Applicant(s)
    Versus

    PALVINDERSINGH SAMPURANSINGH OBEROI & 1….Respondent(s)

    Appearance:
    PARTY-IN-PERSON, ADVOCATE for the Applicant(s) No. 1 MR JA ADESHRA,

    ADVOCATE for the Respondent(s) No. 1 MRS HANSA PUNANI, ADDL.PUBLIC PROSECUTOR for Respondent No.2

    CORAM
    HONOURABLE MS JUSTICE SONIA : GOKANI

    Date : 07/07/2015

    CAV JUDGMENT

    (1.) By way of present Revision Application preferred by the applicant­wife under section 397 read with section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the CrPC’), the applicant challenges the legality and validity of the judgment and order dated August 13, 2014, passed by the learned Presiding Officer, Family Court, Ahmedabad in Criminal Miscellaneous Application No.2495 of 2013, whereby the learned Judge granted amount of maintenance of Rs.30,000/­ per mensem to the applicant­wife under section 125 of the the CrPC.

    (2.) The brief facts, if put in a nutshell, are as under :

    2.1 The marriage of the applicant­wife was solemnised on June 22, 2003 with the respondent No.1­husband, as per the tradition and customs of Shikh Community. For both the spouses i.e. the applicant and the respondent No.1­husband, this was their second marriage. The respondent No.1 had already one daughter out of his earlier wedlock. Soon the applicant­wife realised that the second marriage with the applicant was only for getting a male child to be delivered by her. It is the say of the applicant that she was steadily given physical and mental harassment.

    2.2 After her marriage, the applicant­wife used to stay with the respondent No.1­husband at Ambala in the State of Haryana. The applicant has made various allegations, one of which is the demand of dowry to the tune of Rs.40 lakh. She has also alleged that she had to undergo In Vitro Fertilisation (I.V.F.) treatment and a number of times attempts were made to get the male child and the same did not work out, surrogacy was attempted, however, the lady who became the surrogate was a married lady, with whom the respondent No.1 had illicit relationship.

    2.3 In April, 2009, when she had overheard his telephonic talks, in anger the respondent No.1 attempted to throttle her and thereafter, as a result of kick blows, she fell down from the staircase. Various serious allegations are made against the respondent No.1, which do not require further elaboration. Suffice it to note that on realising the continuous cruelty perpetrated on her, she had lodged a first information report and also intimated her parents. She was brought to Ahmedabad on February 07, 2013 and continued to be under treatment for physical ailment.

    2.4 The first information report came to be lodged against the respondent No.1 and others under sections 498A, 323, 325, 504, 506(2) and 114 of the Indian Penal Code and sections 3 and 7 of the Dowry Prohibition Act.

    2.5 The respondent No.1 moved an application for quashing being Criminal Miscellaneous Application No.9529 of 2013 before this Court. However, this Court vide order dated February 07, 2014, dismissed the petition on the ground that the allegations in the first information report are very serious in nature.

    2.6 The respondent No.1­ husband preferred Special Leave Petition before the Apex Court being SLP No.6954 of 2014, which also came to be dismissed by the Apex Court on January 19, 2015.

    2.7 Before the Family Court, an application under section 125 of the CrPC being Criminal Miscellaneous Application No.2495 of 2013, was moved, whereby she had claimed an amount of Rs.5,00,000/­ per mensem, however, the Family Court has granted Rs.30,000/­ per mensem towards maintenance. Vide its impugned order, the Court directed such sum of Rs.30,000/­ (Rupees Thirty Thousand only) to be adjusted against other orders of maintenance, etc. Amongst various grounds raised in the application, she has challenged the legality and validity of such an order and also sought for enhancement of maintenance in this Revision Application.

    (3.) The applicant­ wife has filed her affidavits and also enlisted the income of the respondent No.1­ husband and his various business sources. According to her, as averred in the affidavit, his annual total income is Rs.1,80,20,000/­. It is urged that the respondent No.1 is an extremely rich person and has a luxurious lifestyle. He has only one daughter, who is married and there is no other liability on him of his family or of others. She has also produced some of the photographs to substantiate her version of cruelty. She was treated at the hospital and medical case papers of V.S. Hospital are also brought on record, to corroborate her pleadings. She has also provided the documentary details of the properties of the respondent No.1 and values thereof to state that the properties worth Rs.337.19 crores are owned by the respondent No.1.

    (4.) In reply to the same, the respondent No.1­husband denied all the contentions raised and allegations levelled in the memorandum of the application as well as the affidavits. According to him, this exercise is undertaken only with a view to extort money from the respondent No.1. He contended that she had filed the first information report being I­C.R. No.12 of 2013 before the Mahila Police Station on March 01, 2013 against the respondent No.1 and his daughter. The transit anticipatory bail was obtained by him from Punjab and Haryana High Court and thereafter, he was granted anticipatory bail by the Court at Ahmedabad. She has also filed a case under the provisions of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as ‘the DV Act’) being Application No.79 of 2013 before the Court of Metropolitan Magistrate, Ahmedabad against the respondent No.1 and his other family members, whereby she has claimed a separate accommodation and maintenance of Rs.3 lakh per mensem and also compensation of Rs.1 crore for physical and mental torture, so also interim maintenance of Rs.1.50 lakh per mensem.

    (5.) The Court had ordered the payment of Rs.10,000/­ per mensem towards rent and further sum of Rs.15,000/­ towards interim maintenance to the applicant­wife. The respondent No.1 also has deposited the total amount, which comes to the tune of Rs.5.50 lakh. According to him, the applicant has claimed an amount of Rs.5 lakh per month and 50% share in the moveable and immoveable properties of the respondent No.1. Even the sum of Rs.30,000/­ awarded by the Family Court, according to the respondent No.1, is on higher side. All the allegations of beating and cruelty have been denied. It is his say that the applicant is staying with her parents, who are well to do and she herself is holding the degrees of B.A. and B.Ed. and had done her fashion designing course from the NIFT. She is capable of earning herself and the object of section 125 of the CrPC is to see that the basic needs of the wife are satisfied and these provisions are not meant to be windfall for the wives. It is also his say that he had treated her with care and love. She never used to attend any household chores and used to pick up the quarrels with her servants and family members, including the aged mother of the respondent No.1, who died in October, 2010. The applicant, as alleged, is aggressive and quarrelsome.

       :: SUBMISSIONS ::

    (6.) Shri K.M. Paul, learned counsel, used to appear on behalf of the applicant­ wife. Unfortunately, he passed away during the pendency of the present proceedings. Therefore, this Court had made the applicant aware of her right to get free legal aid, to which she denied. Therefore, an order came to be made on June 12, 2015, directing the Committee to examine the request of the Party­ in­ Person to appear and represent her own case as the applicant had desired with the assistance of her father.

    6.1 The applicant has been permitted by the Committee vide its order dated June 17, 2015 and, therefore, she argued her matter at length. She has urged that her plight is very miserable and her father is also a retired employee. She has no house of her own and her parents are also residing with her brother. She has urged that she had been exposed to various treatments of IVF and the action on the part of the respondent No.1 has made her physically and mentally very weak. Huge amount is spent on her medical expenses and the entire sequence of events has led to her mental depression and other severe physical ailments.

    6.2 The applicant has urged that she had made a request under the Right to Information Act, 2005 and sought for Income ­tax Returns of the respondent No.1 for the period from 2010­-11, 2011­-12, 2012­-13, 2013­-14 and 2014­-15. The Income­ tax Department vide its order dated June 19, 2015, under section 7 of the Right to Information Act, on overruling the objection of the respondent No.1 of not to supply all the information on the ground of this being personal information, chose to furnish the details. While so doing, the Department relied upon the decision rendered on January 14, 2014, by the Delhi High Court in the case of Kusum Sharma v. Mohinder Kumar Sharma, whereby the Court has held that the I.T. Returns, annual returns of assets, investments, etc. though were declared as private or personal or third party information, however, as far as spouses are concerned, they are not private, personal or third party informations, particularly in the context of matrimonial disputes, especially for maintenance purpose. Such request, according to Delhi High Court, cannot be rejected by the PIOs if filed by the spouses on the ground of section 8(1)(j) of the RTI Act saying it is personal information, because the protection of privacy is overridden by the huge public interest in maintaining wives, as provided in the proviso to exception 8(1)(j) of the RTI Act. She has, therefore, urged that these details need to be taken into account while considering her case. The learned Presiding Officer of the Family Court made an error in restricting the amount to Rs.30,000/­ when she used to have a particular way of living and when it is proved that she has no means for maintaining such standards. 6.3 In support of her submissions, she has relied on the decision of this Court rendered on September 08, 2014 in the case of Tanumatiben Mukesh Kumar Parikh v. State of Gujarat while dealing with Criminal Revision Application (for maintenance) No.606 of 2013, whereby the Court has considered as to what percentage income of the husband would be construed as a proper amount of maintenance to the wife under section 125 of the CrPC and 1/3rd income is held to be proper. She has also relied on the decision of the Patna High Court in the case of Rashid Nazfi alias Rashid Najfi v. Shahin Gulab, reported in 2005 Cr.L.J. 4290, on the quantum of maintenance amount, whereby it has also held that the amount of 1/3rd of the basic pay should be the maintenance amount for the wife.

    (7.) A contrario sensu, Shri J.A. Adeshra, learned counsel appearing for the respondent No.1­ husband, has strenuously and fervently objected to the grant of any further amount. According to him, the order passed by the Court in the proceedings under the DV Act have never been revealed while pursuing this remedy under section 125 of the CrPC and, therefore, on the ground of suppression itself, the present Revision Application deserves to be rejected. It is urged that the order impugned has been passed in absence of the husband, however, he has admitted that the respondent No.1 has neither appeared nor has he challenged the impugned order of maintenance. The respondent No.1 is in the business undoubtedly, but, the reckless allegations of cruelty are false and according to him, the properties of the respondent No.1 and his income are shown quite on higher side. He urged that the very purpose and object of section 125 is to prevent vagrancy and destitution. It is not the means to exploit the husband. The wife though is capable of looking after herself, rather than doing anything to get herself financially independent, she has chosen to continue to extract money from her husband. He urged, therefore, that with costs this Revision Application deserves to be rejected. 7.1 In support of his submissions, he has relied upon the following decisions :

       (i) Bhagwan Dutt v. Smt.Kamla Devi and another, reported in AIR 1975 SC 83.

       (ii) K. Vimala v. K. Veeraswamy, reported in 1991(1) GLH 380.

    (iii) Decision of the Madhya Pradesh (Indore Bench) rendered on March 24, 2000, in the case of Smt.Mamta Jaiswal v. Rajesh Jaiswal while dealing with Civil Revision No.1290 of 1999.

       :: FINDINGS ::

    (8.) Upon thus hearing both the sides and on careful consideration of the material on record, so also the impugned decision of the Family Court, this Court is of the opinion that the application deserves to be partly allowed by enhancing the amount of maintenance, of course, not to the extent that the applicant­wife has claimed.

    8.1 At that outset, the law on the subject deserves some consideration.

    8.2 Section 125 of the CrPC profitably requires to be reproduced at this stage, which reads as under :

       “125. Order for maintenance of wives, children and parents.

       (1) If any person having sufficient means neglects or refuses to maintain­

       (a) his wife, unable to maintain herself, or

       (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

       (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

       (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate, as such Magistrate thinks fit, and 10 pay the same to such person as the Magistrate may from time to time direct :

       Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.

       Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub­section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct :

       Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.

       (2) Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.

       (3) If any person so ordered fails without sufficient cause to comply with the order, any Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’s allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due :

       Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

       (4) No Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. (5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.”

    8.3 As the present Revision Application concerns the wife, the discussion that follows hereinafter should have reference of the applicant­wife. The wife would be entitled to get the maintenance if the husband despite having means has neglected to maintain her. She would be disentitled to maintenance as provided in section 125(4) of the CrPC, if she chooses to leave her husband without sufficient cause and otherwise if she is found to be indulging in adultery. There is no allegation of such nature.

    8.4 The learned Presiding Officer of the Family Court after bi partiate hearing had concluded that the wife has no means and she was deserted by the respondent No.1­husband and her husband since had neglected and refused to maintain her, her entitlement was found under section 125 of the CrPC.

    8.5 At this stage it is also to be mentioned that in the wake of no challenge to the amount of maintenance granted from the respondent No.1­husband by this respondent, the only aspect to consider is the request of enhancement. Undoubtedly, the provision of section 125 of the CrPC is in the realm of social justice to prevent the malice of vagrancy and destitution by providing expeditious remedy to the wife, children and parents. At the same time, to say that the grant of amount of maintenance under section 125 of the CrPC should be restricted only on considering its initial inclusion in the CrPC, despite the removal of the cap of sum of Rs.500/­ would amount to disregarding the very purpose for which this ceiling has been removed. It needs to be noted that even when this ceiling was not removed, the Courts have time and again emphasised that the grant of maintenance does not mean providing of food and clothing only nor is it prescribing to animal living. It would mean a dignified life which the wife is entitled to and to award her the same which would entitle her to lead the life she was used to prior to matrimonial discords. It is not only mere survival which is contemplated under the law. It would surely mean living a life with dignity. It also means to allow the wife a reasonable comfort bearing in mind her status and the kind of life she was used to while with the husband.

    8.6 At this juncture, the decision of the Apex Court rendered in the case of Bhuwan Mohan Singh v. Meena and others, reported in AIR 2014 SC 2875, requires a reference, wherein the Apex Court has held and observed that giving maintenance is not for animal living. It would be profitable to quote the relevant findings of the said decision, which read as under :

    “2. The two issues that pronouncedly emanate in this appeal by special leave are whether the Family Court while deciding an application under Section 7 of the Family Court Act, 1984 (for brevity, “the Act”) which includes determination of grant of maintenance to the persons as entitled under that provision, should allow adjournments in an extremely liberal manner remaining oblivious of objects and reasons of the Act and also keeping the windows of wisdom closed and the sense of judicial responsiveness suspended to the manifest perceptibility of vagrancy, destitution, impecuniosity, struggle for survival and the emotional fracture, a wife likely to face under these circumstances and further exhibiting absolute insensitivity to her condition, who, after loosing support of the husband who has failed to husband the marital status denies the wife to have maintenance for almost nine years as that much time is consumed to decide the lis and, in addition, to restrict the grant of maintenance to the date of order on some kind of individual notion. Both the approaches, as we perceive, not only defeat the command of the legislature but also frustrate the hope of wife and children who are deprived of adequate livelihood and whose aspirations perish like mushroom and possibly the brief candle of sustenance joins the marathon race of extinction. This delay in adjudication by the Family Court is not only against human rights but also against the basic embodiment of dignity of an individual.”

    8.7 An unfortunate event must not make her plight miserable and send her from pillar to post arranging for her sustenance. The Apex Court in a decision rendered in the case of Shamima Farooqui v. Shahid Khan, reported in (2015) 5 SCC 705, has at length considered the plight of the women asking for maintenance under the distress. It would be profitable to reproduce some of the relevant findings and observations of the said decision, which read as under :

    “14. Coming to the reduction of quantum by the High Court, it is noticed that the High Court has shown immense sympathy to the husband by reducing the amount after his retirement. It has come on record that the husband was getting a monthly salary of Rs.17,654/­.

    15. The High Court, without indicating any reason, has reduced the monthly maintenance allowance to Rs.2,000/­. In today’s world, it is extremely difficult to conceive that a woman of her status would be in a position to manage within Rs.2,000/­ per month. It can never be forgotten that the inherent and fundamental principle behind Section 125 CrPC is for amelioration of the financial state of affairs as well as mental agony and anguish that woman suffers when she is compelled to leave her matrimonial home. The statute commands there has to be some acceptable arrangements so that she can sustain herself. The principle of sustenance gets more heightened when the children are with her. Be it clarified that sustenance does not mean and can never allow to mean a mere survival. A woman, who is constrained to leave the marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. And that is where the status and strata of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one. As long as the wife is held entitled to grant of maintenance within the parameters of Section 125 CrPC, it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. She cannot be compelled to become a destitute or a beggar. There can be no shadow of doubt that an order under Section 125 CrPC can be passed if a person despite having sufficient means neglects or refuses to maintain the wife. Sometimes, a plea is advanced by the husband that he does not have the means to pay, for he does not have a job or his business is not doing well. These are only bald excuses and, in fact, they have no acceptability in law. If the husband is healthy, able bodied and is in a position to support himself, he is under the legal obligation to support his wife, for wife’s right to receive maintenance under Section 125 CrPC, unless disqualified, is an absolute right. While determining the quantum of maintenance, this Court in Jabsir Kaur Sehgal v. District Judge Dehradun & Ors. has held as follows:­ “The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate.”

    16. Grant of maintenance to wife has been perceived as a measure of social justice by this Court. In Chaturbhuj v. Sita Bai, it has been ruled that :­ “Section 125 CrPC is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Captain Ramesh Chander Kaushal v. Veena Kaushal falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat.” This being the position in law, it is the obligation of the husband to maintain his wife. He cannot be permitted to plead that he is unable to maintain the wife due to financial constraints as long as he is capable of earning.

    17. In this context, we may profitably quote a passage from the judgment rendered by the High Court of Delhi in Chander Prakash Bodhraj v. Shila Rani Chander Prakash wherein it has been opined thus:­ “An able­bodied young man has to be presumed to be capable of earning sufficient money so as to be able reasonably to maintain his wife and child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard. It is for such able­bodies person to show to the Court cogent grounds for holding that he is unable to reasons beyond his control, to earn enough to discharge his legal obligation of maintaining his wife and child. When the husband does not disclose to the Court the exact amount of his income, the presumption will be easily permissible against him.”

    18. From the aforesaid enunciation of law it is limpid that the obligation of the husband is on a higher pedestal when the question of maintenance of wife and children arises. When the woman leaves the matrimonial home, the situation is quite different. She is deprived of many a comfort. Sometimes the faith in life reduces. Sometimes, she feels she has lost the tenderest friend. There may be a feeling that her fearless courage has brought her the misfortune. At this stage, the only comfort that the law can impose is that the husband is bound to give monetary comfort. That is the only soothing legal balm, for she cannot be allowed to resign to destiny. Therefore, the lawful imposition for grant of maintenance allowance.”

    8.8 Shri J.A. Adeshra, learned counsel appearing for the respondent­husband, has placed much reliance on the decision of the Madhya Pradesh High Court rendered in the case of Smt.Mamta Jaiswal (supra), wherein the Court has also insisted on the wife, otherwise who is educationally qualified, to earn her living. In the wake of decisions discussed hereinabove of the Apex Court and the findings and observations followed thereafter, this decision does not require consideration of this Court.

    8.9 Going straight to the question of maintenance, it is an undisputed fact that the respondent ­husband belongs to the upper strata of the society having huge earnings. His lifestyle, status and strata get apparent from various documents and the affidavits of the parties. It can, thus, be noted that in the matter on hand, although the trial Court has granted a sum of Rs.30,000/­ per mensem, as also the applicant­wife is granted an amount of Rs.15,000/­ towards maintenance and Rs.10,000/­ towards rent, in view of the proceedings under the Domestic Violence Act, the question is whether the applicant is entitled to get any enhanced amount of maintenance or the court below committed any error apparent on the face of it, particularly in the wake of the Income­ tax Returns received by the applicant­wife pursuant to the application made under the RTI Act, the claim of the applicant­wife for enhancement of maintenance gets fortified.

    8.10 The Income­tax Returns of the respondent No.1­husband of the assessment years 2012­13 and 2014­-15 are produced by the applicant­wife before this Court.

    8.11 The applicant­wife had made a request for the details of the income of the respondent No.1­husband and had specifically sought for Income­tax Returns, however, they were not at any point of time adduced before the trial Court by the respondent No.1­husband. By preferring an application under the RTI Act, such returns were requested for. The respondent No.1 could have produced these documents before the trial Court. They were well within his knowledge and he would have also possessed the copies thereof. This being a special knowledge under section 106 of the India Evidence Act, 1872, the least he could have done was to come before the Court with clean hands. These are his own documents produced before the tax authorities. He, on the contrary, ought to have done on his own, instead he chose not to part with the same and, hence, the wife who otherwise was pleading orally such aspects needed to take a longer route.

       8.12 There is no separate income of the wife except the amount given to her under the Domestic Violence Act towards maintenance, that, of course, requires to be considered while deciding the total amount of maintenance. This Court does not agree with the contention raised by the learned counsel Shri Adeshra appearing for the respondent No.1­husband that even in absence of ceiling of amount of maintenance under section 125 of the CrPC, beyond a point the amount of maintenance cannot be granted. In the opinion of this Court, once the ceiling is removed by the legislature, acceding such interpretation would amount to disregarding the very reason for such removal. It is also contrary to well settled principle of law on the subject where the Apex Court has held and observed time and again that the amount of maintenance must provide for descent and dignified living for which the wife is used to while at her matrimonial home. Status and strata of the husband would have a decisive role while determining such sum. The lady who is used to certain living standards would surely be in the state of misery if she is not provided the amount that enables her to live a descent life. That is the only ‘soothing legal balm’ the law can offer to allow her the same decency and comforts. As mentioned hereinabove, it is not a mere survival nor animalistic living that law contemplates. Considering the stature and status of the respondent No.1­ husband, where his gross income is running into crores of rupees every year and his total yearly income after all permissible adjustments and deductions comes to nearly Rs.90 to 95 lakh. The wife surely is required to be granted the amount which matches with the life she is used to before this discord. It is to be noted that though she has done her graduation and a special course from NIFT, the fact is hardly in dispute that she is not earning any sum presently. Her educational qualifications even if can make her potential person to sustain herself, what is vital to be seen is whether she is having any means to maintain herself and once the answer is in negation, the theoretical debate of her capabilities may not deny her the maintenance. Moreover, as can be seen from record, her medical condition has prevented her from earning any amount. There is nothing remotely even to suggest that she has any income of her own. She resides at her brother’s house with her parents and thus, not only she has no income, she hardly can be said to have a shelter which is permanent. The Court of learned Chief Judicial Magistrate has granted the applicant­wife an amount of Rs.10,000/­ towards rent. In a Metropolitan City like Ahmedabad, this amount would be grossly insufficient for a lady to have a descent living.

    8.13 The amount of maintenance granted by the Court below is to the tune of Rs.30,000/­ which has been adjusted with the income of maintenance provided under section 18 of the Act, plus amount of rent respectively [Rs.15,000/­ + Rs.10,000/­], being total Rs.25,000/­ and, therefore, the only addition made is of Rs.5,000/­. In the opinion of this Court, this is a gross and manifest error which requires correction.

    8.14 As could be noticed from the compilation of computation of total income submitted to the Income­tax Department by the respondent­husband for assessment year 2012­13, long term investment in quoted Government Securities to the tune of Rs.43,67,275/­ has been made, which even otherwise would qualify for exemption under the provisions of the Income­tax Act, and therefore, for a particular assessment year 2012­13, his gross income was Rs.1.04 crore (rounded off). Whereas, from the computation of total income for the assessment year 2014­15, such long term investment in unquoted Government Securities is made to the tune of Rs.66,18,375/­, which would qualify for exemption, and therefore, for the said period, his gross income works out to be Rs.1.2 crore (rounded off). If the mean is taken, the gross income ranges between Rs.90 lakh to Rs.95 lakh per annum.

    8.15 The applicant has been able to prove before the Court below that her husband has no responsibility as his mother­in­law owns her own properties and income; and his daughter has already married. As mentioned hereinabove, his immovable properties, as per income­tax returns, are worth crores of rupees. Of course, it is for the wife to take appropriate recourse in that regard under the law.

    8.16 As far as the amount of maintenance is concerned, the applicant­wife would be entitled to at least 1/3rd of his income. With an income of Rs.90 lakh to Rs.95 lakh per annum of the respondent No.1­husband, her entitlement could be much more, however, appropriate would be to grant her additional Rs.45,000/­ per mensem, over and above the amount of maintenance of Rs.30,000/­ granted by the Family Court.

    8.17 Thus, in the wake of discussion made hereinabove, bearing in mind the present condition of the applicant and absence of accommodation of her own, and her long term treatment, mental and physical, over and above the amount granted under the Domestic Violence Act being the sum of Rs.15,000/­ and the amount of Rs.30,000/­ granted by the trial Court under section 125 of the CrPC, additional sum of Rs.45,000/­ is required to be granted to the applicant, and accordingly, the order impugned is required to be modified enhancing the same to Rs.75,000/­, which will not be adjusted against the amount which has been granted under the provisions of the Domestic Violence Act.

    (9.) For the foregoing reasons, the present Revision Application succeeds and is, accordingly, partly allowed. The judgment and order dated August 13, 2014, passed by the learned Presiding Officer, Family Court, Ahmedabad in Criminal Miscellaneous Application No.2495 of 2013, is hereby modified and enhanced to total Rs.75,000/­ towards maintenance (i.e. Rs.30,000/­ granted earlier + Rs.45,000/­ granted by this order), which will not be adjusted against the amount of Rs.15,000/­ which has been granted under the provisions of the Domestic Violence Act.

    9.1 The respondent No.1­husband is directed to pay the amount of arrears to the applicant­wife from the date of application under section 125 of the CrPC within a period of eight weeks from the date of receipt of this order.

    Revision Application stands disposed of accordingly. Rule is made absolute accordingly.

    (MS SONIA GOKANI, J.)

    Aakar

    Fake bigamy after loosing 498a cocktail! No proof against husband or 2nd accused! Quashed, GujHC

    Woman files a bigamy case on her husband and another woman some seven years after alleged second marriage. It’s Pertiment to note, that her bigamy case is filed SOON after she lost her earlier 498a cocktail!! Gujarat HC quashes her unproven Bigamy allegations after noticing the abuse of the process of law !!

    “….11. In the present case, no material is produced by the complainant in support of her allegations that the present applicant got married to accused no.1. It is also not stated when the marriage has taken place. Thus, in absence of any material, it cannot be said that the present applicant has, in any way, abetted accused no.1. Even assuming that such marriage has taken place in the year 2005, the impugned complaint has been filed on 13.6.2012 and that too when learned Magistrate has acquitted the original accused no.1 and in-laws in the complaint which was filed under Sections 498A, 323, 506(2) and 114 of Indian Penal Code by an order dated 12.5.2012.

    12. In view of the aforesaid facts and circumstances of the present case, this Court is of the opinion that the complainant has abused the process of the Court and therefore in the interest of justice, this Court is inclined to exercise the powers vested under Section 482 of the Code……”

    #Abuse_of_process_of_Law #494Abuse #fake498 !! #fake_BigamyCase

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    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

    CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 7198 of 2013

    FOR APPROVAL AND SIGNATURE:

    HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI

    DAKSHBEN MAFATLAL PATEL….Applicant(s)
    Versus

    STATE OF GUJARAT & 1….Respondent(s)

    Appearance:
    MR RAXIT J DHOLAKIA, ADVOCATE for the Applicant(s) No. 1
    HCLS COMMITTEE, ADVOCATE for the Respondent(s) No. 2
    MR SHAILESH C SHARMA, ADVOCATE for the Respondent(s) No. 2

    MS RITA CHANDARANA, APP for the Respondent(s) No. 1

    CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI

    Date : 07/07/2016

    ORAL JUDGMENT

     

    1. This application is filed under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as `the Code’), wherein the applicant has prayed that the complaint being Miscellaneous Application No.531 of 2012 registered with 7th Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Surat for the offences punishable under Sections 494, 504, 506(2) and 114 of Indian Penal Code and the process issued thereunder be quashed and set aside qua the applicant.
    2. Heard learned advocate Mr.Raxit Dholakia for the applicant, learned APP Ms.Rita Chandarana for respondent no.1-State of Gujarat and learned advocate Mr.Shailesh Sharma for respondent no.2- original complainant.
    3. Learned advocate Mr.Dholakia appearing for the applicant submitted that the complaint being Miscellaneous Application No.531 of 2012 is filed against the present applicant and four others under Sections 494, 504, 506(2) and 114 of Indian Penal Code interalia alleging that the accused no.1-Mukeshbhai Patel and the original complainant had entered into a wed-lock on 7.3.1997 and in spite of that marriage being in existence, the accused no.1 got married to the present applicant-accused no.2 and thereby the applicant has committed offences punishable under Section 494 of Indian Penal Code. Learned Magistrate has passed the order of issuance of process against the present applicant and other accused.
    4. Learned advocate Mr.Dholakia mainly contended that the offence punishable under Section 494 of Indian Penal Code is not applicable qua the present applicant. The same is applicable to the accused no.1 even if it is believed that accused no.1 got married to the accused no.2-present applicant. He, thereafter, submitted that there is no allegation against the applicant that she has abused the complainant. He therefore submitted that no material is produced along with the complaint that the accused no.1 got married to accused no.2. It is further submitted that after the order of acquittal is passed by learned Magistrate on 1.5.2012 in Criminal Case which was filed under Sections 498A, 323, 506(2) and 114 of Indian Penal Code against the husband and in-laws of the complainant, on 13.6.2012 i.e. within a few days of the order of acquittal, the impugned complaint is filed. Therefore, it is nothing but a gross abuse of the process of the Court wherein the present applicant is falsely implicated. He, therefore, prayed that the impugned complaint be quashed and set aside qua the applicant.
    5. Learned advocate for the applicant placed reliance on the decision rendered by the Allahabad High Court in the case of Rupa & Others V/s State of U.P. & Another, reported in 2013 LawSuit(All)2139.
    6. Learned advocate for the respondent no.2-original complainant submitted that the ingredients of the alleged offences are made out in the impugned complaint and therefore this Court may not exercise the powers under Section 482 of the Code.
    7. Learned APP Ms.Chandarana has supported the submissions canvassed on behalf of learned advocate for respondent no.2.
    8. I have considered the submissions canvassed on behalf of learned advocates for the parties. I have gone through the material produced on record. Section 494 of Indian Penal Code provides as under: “494. Marrying again during lifetime of husband or wife- Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Exception – This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.”
    9. From reading the aforesaid section, it is clear that the complaint under Section 494 of Indian Penal Code can be filed against the husband and not against the present applicant who is alleged to have got married with accused no.1. The complainant has not produced any material suggesting that the accused no.1 got married to the present applicant. Thus, ingredients of alleged offences are not made out against the applicant.
    10. In the case of Rupa & Others (supra), the Allahabad High Court has held in paragraphs 38, 39, 40, 41, 44, 45 as under:
      • “38. Now the question arises as to whether the applicants can be prosecuted for the offence under section 494 IPC or not. Section 494 IPC is as follows:-
      • xxxxxx
      • Section 494 IPC applies to a person who, having a husband or wife living, remarries. In the facts of the instant case, the allegation is that Rajesh Kumar Deorar remarried during subsistence of his first marriage with opposite party no.2. In these circumstances, only Rajesh Kumar Deorar can be prosecuted for the offence punishable under section 494 IPC. The person, with whom second marriage is performed in violation of section 494 IPC, has not been made liable for punishment in this Section.
      • The contention of learned counsel for opposite party no.2 is that even though the applicants cannot be prosecuted directly for the offence punishable under section 494 IPC, they can be prosecuted for having abetted Rajesh Kumar Deorar for committing an offence under section 494 IPC with the help of section 114 IPC.
      • Abetment is defined in section 107 as follows:- “107 IPC. Abetment of a thing – A person abets the doing of a thing, who – First.- Instigates any person to do that thing; or Secondly.- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.- Intentionally aids, by any act or illegal omission, the doing of that thing.”
      • 39. Explanation 1.- A person who, by wilful representation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
      • 40. Explanation 2.- Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.
      • 41. For abetment of an offence, it is necessary that the abettor must have either instigated any person to do such an offence or must have engaged in a conspiracy for doing such an illegal act. In the instant case, there is no allegation against the applicants that they instigated Rajesh Kumar Deorar to commit an offence punishable under section 494 IPC. There is no allegation that the applicants engaged themselves in any criminal conspiracy to commit an offence under section 494 IPC. It is the case of applicant no.1 that she did not know about any prior marriage of Rajesh Kumar Deorar with opposite party no.2. Her presence at the time of incident dated 7.12.2010 has been falsified as held earlier. In the absence of any knowledge of prior marriage of Rajesh Kumar Deorar, the applicants cannot be held guilty for the offence under section 494 IPC read with section 109 or 114 IPC.
      • Xxxxxx
      • 44. In the instant case, there is no evidence to show that there was any intentional abetment on the part of the applicants to commit an offence under section 494 IPC. Mere presence of applicants no.2,3 & 4 at the time of marriage of applicant no.1 with Rajesh Kumar Deorar does not make them criminally liable without any criminal intent on their part.
      • 45. In these circumstances, this Court is of the opinion that Rajesh Kumar Deorar and his family members as well as Chhotey Singh and Ram Sajan, who were present at the house of Rajesh Kumar Deorar on 7.12.2010, may be presumed to have the knowledge of alleged earlier marriage of Rajesh Kumar Deorar with opposite party no.2 and may be prosecuted for the offence punishable under section 494 IPC or its abetment, but as far as applicants are concerned, there is no material to suggest that they had any prior knowledge of the alleged marriage between the opposite party no.2 and Rajesh Kumar Deorar and, therefore, they cannot be prosecuted the offence under section 494 IPC read with section 109 or 114 IPC”.
    11. In the present case, no material is produced by the complainant in support of her allegations that the present applicant got married to accused no.1. It is also not stated when the marriage has taken place. Thus, in absence of any material, it cannot be said that the present applicant has, in any way, abetted accused no.1. Even assuming that such marriage has taken place in the year 2005, the impugned complaint has been filed on 13.6.2012 and that too when learned Magistrate has acquitted the original accused no.1 and in-laws in the complaint which was filed under Sections 498A, 323, 506(2) and 114 of Indian Penal Code by an order dated 12.5.2012.
    12. In view of the aforesaid facts and circumstances of the present case, this Court is of the opinion that the complainant has abused the process of the Court and therefore in the interest of justice, this Court is inclined to exercise the powers vested under Section 482 of the Code.
    13. In view of the aforesaid discussion, this application is allowed. The complaint being Miscellaneous Application No.531 of 2012 registered with 7th Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Surat and the process issued thereunder are quashed and set aside qua the present applicant. Rule is made absolute.

     

    (VIPUL M. PANCHOLI, J.)

    Srilatha