Tag Archives: is a kick a cruelty

When cruelty desertion alleged by wife NOT true, wife not caring, living away, she canNOT take advantage of own wrong Wife DENIED divorce !!

This is the sad case of a 56 year old woman and 58 year old male fighting in courts. The lady is seeking divorce and alleging that her husband has been cruel and has deserted her. The lower court dismisses her case. The matter moves to HC. The HC appreciates the arguments and states 

We have given the Hon court’s reasoning with some empahsis / addendum in brackets ()

“….18. So, the evidence of R.W. 1 (husband) is that he never ill-treated the petitioner. P.W. 1 (wife) has clearly admitted that the respondent took keen interest as normal father towards his son and he only used to ask the petitioner for some money and he was in the habit of giving his salary cover to the petitioner. So, it is well-evident that the respondent never ill-treated the petitioner and he was very cordial to the petitioner and the petitioner only acted in an indifferent manner towards the respondent. R, W. 1 further says that when he met with an accident and sustained injuries, the petitioner did not attend to him, P.W. 1 has also stated that at one time, she removed the “Thirumangalyam” as she is employed. R.W. 1 has stated that the petitioner removed her “Mangalyam” and he was upset by it. No Hindu women will be so dare enough to remove the “Thirumangalyam” by herself. Her admission that she removed her “Thirumangalyam” goes to establish her indifferent attitude towards the respondent….”

“….21. On going through the evidence of P.W. 1 and R.W. 1, we are clearly of the view that cruelty as alleged by the petitioner is not true and the petitioner is not entitled to divorce on either of the grounds. The Family Court has carefully analysed the entire evidence and has dismissed the petition. We find no infirmity in the order passed by the Family Court…”

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Madras High Court

Sarada vs V. Satyamurthi on 4 December, 2000

Equivalent citations: I (2001) DMC 210, (2001) 1 MLJ 224

Author: A Subbulakshmy

Bench: P Shanmugam, A Subbulakshmy

JUDGMENT A. Subbulakshmy, J.

1. Unsuccessful petitioner, the wife who filed the petition for divorce on the ground of desertion and cruelty is the appellant herein.

2. The case of the petitioner is that she married the respondent on 26.1.1975 according to Hindu ceremonies and customs and their marriage was also registered in the Hindu Marriage Register maintained by the Marriage Registrar and they lived together at T. Nagar, Madras and then they moved to Defence Colony, Nandambakkam, Madras and a son was born to them on 20.3.1976. The petitioner contends that from 1975 to 1989 the petitioner and the respondent were living together and in the month of December/1986 the respondent deserted the petitioner without any cause and consent of the petitioner and the respondent abandoned his duties and thereafter the petitioner lived with her son in the Defence Colony, Nandambakkam and then she moved to Kasturiba Nagar, Adyar, Madras. The petitioner further contends that the conduct of the respondent is against the wish of the petitioner and there is no possibility of the respondent returning again to matrimonial home and the inhuman attitude and the oppressive conduct of the respondent, extracting heavy and unnecessary work by humiliating the petitioner amounts to cruelty and torture to the petitioner and the respondent is not evincing any interest towards the petitioner and the family. The petitioner further contends that the respondent was in the habit of taking non-vegetarian food and he forced the petitioner to cook and serve the same and thus caused great mental agony and thus the petitioner contends that she is entitled to seek for divorce on the ground of desertion and cruelty.

3. The respondent contends that he only admitted his son at Rishi Valley, Madanapalli, a residential school and he is very much interested in the welfare of his son and the family and only the petitioner who was influenced by her widowed sister Visalam and her brother Radhakrishnan, began to neglect the interest in the family and a major portion of the income of the family was spent for her sister and brother and only the petitioner, her sister and brother created a situation and made impossible for the respondent to stay there and the petitioner only never cared the respondent and forced him to stay away from the house and inspite of her attitude the respondent is keeping touch with the petitioner and he also suggested for fixing a separate house without interference of the petitioner’s sister and others and only the petitioner did not listen to that and the petitioner moved to Adyar in 1989 without informing the respondent and the respondent never deserted the petitioner and the respondent has no intention to desert the family and the cruelty alleged is also a myth.

4. The petition was tried by the Family Court Judge and it was dismissed.

5. Aggrieved against that order, the present appeal is filed by the petitioner/ appellant.

6. Point that arises for consideration in this appeal is whether the petitioner is entitled to divorce on the ground of desertion and cruelty.

7. Learned Counsel for the appellant submitted that the respondent completely deserted the family viz., the appellant and her son and there is no possibility of the appellant living with the respondent and because the respondent deserted the appellant and did not attend to the needs of her son and as the appellant was also asked to prepare non-vegetarian food and the respondent did not participate in the household activities, the appellant was subjected to cruelty by the conduct of the respondent and on these grounds, decree for divorce has to be passed.

8. The appellant is now aged about 56 years and the respondent aged about 58 years. The appellant/petitioner who has been examined as P.W. 1 has spoken in her evidence that the respondent left the matrimonial home in the’ month of December, 1986 and thereafter, he did not return at all and he also did not show any interest to return to the matrimonial home and he also did not call the petitioner to live with him and there is no possibility of joining together. So, the appellant/ petitioner contends that without any reasonable cause and without consent of the petitioner, the respondent left the matrimonial home and so, the respondent completely deserted the petitioner.

9. The respondent who has been examined as R.W. 1 has spoken in his evidence that he never deserted the petitioner and only by mutual agreement their son was sent to Rishi Valley School, Madanapalli. He further says that both the petitioner’s sister Visalam and her brother Radhakrishnan started to stay with the petitioner and the respondent during which time more money was spent for them and when he cautioned the petitioner to be careful in spending money, that resulted in the petitioner ill-treating the respondent. He further says that the petitioner stopped talking to him and she did not serve him food and she did not stay with the respondent during night and she stayed only with her brother and sister in the same house. His evidence shows that the respondent was also met with an accident in December, 1986 and he was injured and while he was at home, the petitioner never attended to him and she ignored him completely and only with the help of his brother he got admitted in the hospital and recovered. R.W. 1 further says that even the suggestion by him to move back to Mahalakshmi Street Flat and to live separately was rejected by the petitioner. The specific evidence of R.W. 1 is that he never deserted the petitioner. The evidence of R.W. 1 is that he was very cordial to his wife and only the petitioner never cared for him.

10. The petitioner as P.W. 1 has also admitted in her evidence that the respondent was always in the habit of giving his salary to her and her salary was also credited in the bank account and the salary of the respondent was utilised to run the household and even for his personal requirements, the respondent had to approach the petitioner for some money. So, even the evidence of P.W. 1 establishes that the entire money i.e. the earnings of both the petitioner and the respondent was available only with the petitioner and not with the respondent. The petitioner had also admitted in her evidence that at times both of them used to go for shopping.

11. So, the conduct of the respondent by giving his entire salary to her and then getting money from her for his personal requirements and also going to shopping together and admitting the child in the Rishi Vailley School by both of them together, all these things cumulatively establish that the respondent had no intention to desert the petitioner and the family and only the petitioner was not amenable to the respondent. Animus deserendi for desertion is completely absent in this case. The allegation of the petitioner that the respondent deserted the petitioner is wholly unsustainable on the evidence of P.W. 1 and R.W. 1 adduced in this case and also on the facts and circumstances of the case. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

12. Counsel for the appellant relies upon a decision in Pawan Kumar v. Chanchal Kumari, 1999 CIV. CR 385, wherein the Punjab and Haryana High Court has held that when the parties lived separately for over 13 years and the husband remarried and the wife is unwilling to join her husband, the marriage is irretrievably broken and divorce can be granted. He also relies upon another decision in Bipinchandra Shah v. Prabhavati, , wherein the Apex Court held that for the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there namely, (1) the factum of separation; and (2) the intention to bring cohabitation permanently to an end and similarly two elements are essential so far as the deserted spouse is concerned i.e., (1) the absence of consent; and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention and desertion is a matter of inference to be drawn from the facts and circumstances of each case.

13. In the decision reported in 1999 CIV. CR 385 cited supra, the facts are the husband re-married and there was, irretrievable breakdown of the marriage and hence, divorce was granted. In the case on hand, no question of re-marriage by the husband and this case is entirely on a different footing and the principles laid down in the said decision cannot be applied to the case on hand. In the case on hand, the oral evidence adduced proves that the petitioner who was living with her sister and brother never cared for the respondent and inspite of the request by the respondent to set up a separate family for themselves in a different place was turned down by the petitioner and the petitioner only did not co-operate with the respondent for running their family smoothly. The evidence proves that the conduct of the petitioner was not conducive for the respondent to live with the petitioner. The petitioner must establish that the respondent deserted her completely. In the proceedings for divorce the party who alleges desertion must prove the offence of desertion.

14. On a perusal of the evidence of P.W. 1 and R.W. 1, I find that there is no ground at all to come to the conclusion that the respondent without any reason or cause deserted the petitioner. Nothing transpires from the evidence that inference can be drawn with regard to desertion on the part of the respondent. The evidence of P.W. 1 and R.W. 1 clearly establishes that there was no intention on the part of the respondent to desert the petitioner and the family and the desertion as alleged by the petitioner is not true. The Trial Court has correctly come to the conclusion in this aspect.

15. With regard to cruelty it is the case of the petitioner that the respondent did not show any interest in the education of the child and the respondent did not participate in the household activities and the respondent extracted more work from the petitioner and he also demanded the petitioner to cook non-vegetarian food. It is the case of the respondent that he was having much interest in the family and himself and the petitioner together admitted the child in the Rishi Valley School.

16. P.W. 1 also admitted in her evidence that her child was studying in the Rishi Valley School and only afterwards the child was transferred to Madras School. P.W. 1 admitted in her evidence that herself and the respondent wanted to give best education to their son and so, they admitted the child in the Rishi Valley School and the respondent also joined with her when the child was admitted in the school. She further admits that at times the respondent used to visit the child and she also visited his son and there were occasions when both of them together visited the child. It seems that the respondent has taken keen interest towards his son’s education as normal father. So, it cannot be stated that the respondent did not evince any interest in the education of his son. The evidence of R.W. 1 is that he took all responsibilities of attending of his son’s needs such as giving him bath, taking him to school and bringing him back from school and also preparing him for music class, etc. He further says that he has also helped the petitioner in the household work and for purchase from the market.

17. The petitioner is working as computer consultant in Shaw Wallace, Madras. The evidence of R.W. 1 is that he helped her in the household work also and in purchases from the market. He would further say that when his sister-in-law and brother-in-law joined his family and stayed with the petitioner and the respondent, the respondent, only cautioned the petitioner to be careful in spending and only the petitioner began to ill-treat him and the petitioner stopped talking with the respondent she did not even call him for taking food and she did not serve him food and she also did not stay with the respondent during night and in contrary, her brother and sister stayed in the same apartment and he also did not demand for any non-vegetarian food.

18. So, the evidence of R.W. 1 is that he never ill-treated the petitioner. P.W. 1 has clearly admitted that the respondent took keen interest as normal father towards his son and he only used to ask the petitioner for some money and he was in the habit of giving his salary cover to the petitioner. So, it is well-evident that the respondent never ill-treated the petitioner and he was very cordial to the petitioner and the petitioner only acted in an indifferent manner towards the respondent. R, W. 1 further says that when he met with an accident and sustained injuries, the petitioner did not attend to him, P.W. 1 has also stated that at one time, she removed the “Thirumangalyam” as she is employed. R.W. 1 has stated that the petitioner removed her “Mangalyam” and he was upset by it. No Hindu women will be so dare enough to remove the “Thirumangalyam” by herself. Her admission that she removed her “Thirumangalyam” goes to establish her indifferent attitude towards the respondent. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

19. Counsel for the appellant submitted that removal of Mangalsutra by wife does not amount to cruelty and to substantiate his contention he relies on the decision in S. Hanumahtha Rao v. S. Ramani, 1999 CIV. CR 730=1 (1999) DMC 628, wherein it has been held that removal of Mangalsutra by wife on the instigation of husband does not constitute cruelty.

20. Instant case stands on a different footing. Removal of Mangalsutra by the wife, the petitioner is not at the instigation of the husband. The categorical admission of P.W. 1 in her evidence is that she removed her “Thirumangalyam” as she no longer wanted it as she is employed. She has further admitted that since October, 1986, she stopped wearing “Thirumangalyam” and she herself removed it. The conduct of the petitioner does not show her as an ideal Hindu woman. Removing Mangalyam by herself of her own accord not at the instance of her husband shows only her indifferent attitude.

21. On going through the evidence of P.W. 1 and R.W. 1, we are clearly of the view that cruelty as alleged by the petitioner is not true and the petitioner is not entitled to divorce on either of the grounds. The Family Court has carefully analysed the entire evidence and has dismissed the petition. We find no infirmity in the order passed by the Family Court.

In the result, the appeal is dismissed. The order passed by the Family Court is confirmed. No costs.

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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.
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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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Suicide attempt as husband did NOT set up separate house is cruelty. Husband gets divorce ! Madras HC

GIST
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* Wife attempts suicide on multiple occasions
* She is taken to the Govt Stanley medical hospital and treated
* She claims that she tried to commit suicide because husband refused to set up a separate house
* Lower courts REJECT husband’s plea of cruelty
* Madras HC appreciates the evidence and conduct of parties and concludes that the wife treated the husband with cruelty
* Though desertion is NOT proven by the husband in this case, cruelty is proven and so divorce granted

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Madras High Court

A.P. Ranga Rao vs Vijayalakshmi on 26 September, 1988

Equivalent citations: I (1990) DMC 567

Author: K Natarajan

Bench: K Natarajan

JUDGMENT K.M. Natarajan, J.

1. This second appeal is directed by the petitioner husband challenging the legality and correctness of the judgment passed by the VI Additional Judge, City Civil Court, Madras, in C.M.A. 54 of 1979, confirming the decree and judgment passed by the IV Assistant Judge, City Civil Court, Madras, dismissing the petition for dissolution of marriage.

2. The facts which are necessary for the disposal of this appeal can be briefly stated as follows : The appellant (herein after referred to as the petitioner) married the respondent on 9 9-1968, according to caste custom. On account of the lawful wedlock she gave birth to a daughter on 3-7-1969. The case of the petitioner is that the respondent used to tease him and provoke him often. On several occasions she threatened to commit suicide. She insisted on the petitioner to start a separate establishment after severing his connection with the other members of his family, namely, mother, brother, brother’s wife and unmarried brother. In or about March 1969, the respondent consumed bug poison and she was admitted in the Government Stanley Hospital. She deserted the petitioner in June 1970. By the intervention of mediators, who consisted of close relations, she later joined and she again left the house in February 1971. Subsequently in October 1972 she returned. In June-July 1973, she again attempted to commit suicide by consuming glass pieces. According to him, Mr. V.M. Day, Advocate, attempted to settle the matter amicably, but of no use. On account of the various acts of the respondent, he is put to extreme mental agony and that the respondent has also developed ulcer. Hence, he filed the petition for dissolution of marriage on the ground of desertion and cruelty. In addition he prayed for custody of the minor child.

3. The said position was resisted by the respondent and she would contend that all the allegations in the petition are untrue. The petitioner agreed to pay Rs. 100 per mensem to her as maintenance. He failed to do so. He later filed O.P. 407 of 1973, for judicial separation. It was not pressed. She went to the house of the petitioner to reside with him even after the dismissal of the said petition. But it was only the petitioner who suddenly left the house without intimating the respondent. She would state that she is willing to reside with her husband, the petitioner. To substantiate the allegations, the-petitioner examined himself as PW 1 and also examined seven other witnesses and filed Ex. A. 1 to A. 11. On the side of the respondent, besides examining herself, three other witnesses were examined and Ex. B. 1 to B. 3 were marked.

4. The trial Assistant Judge dismissed the petition holding that the petitioner has not made out any of the grounds of desertion or cruelty. He was unsuccessful before the appellate court. Hence this second appeal.

5. The second appeal was admitted on the following substantial question of law :–

“Whether in view of the conclusion of the lower appellate Court that there had been several attempts on the part of the respondent to commit suicide, the ground of cruelty has not been made out within the meaning of Section 13(1)(i-a) of the Hindu Marriage Act 1955 ?

6. Learned counsel for the appellant, Mr. G.M. Nathan, submitted that within six months the marriage the respondent attempted to commit suicide by consuming bug poison and that she was taken to the Stanley Medical Hospital and examined by the doctor PW 7 who certified that she consumed bug poison. Subsequently in July, 1973, she again consumed glass pieces and that she was taken to the house of one lawyer V.M. Dev (PW 8) who is his family friend. PW 8 directed his son to admit her in the Stanley Medical College Hospital, Madras PW 5, doctor, treated her. It is supported by Ex. A. 6 and A. 7. The lower appellate Court came to the conclusion that it has been established that she attempted to commit suicide on those occasions. But the lower appellate court held that the reason for the respondent to commit suicide was the refusal of the appellant to set up separate residence and his disliking towards her and as such, it cannot be said that the appellant suffered any mental cruelty on account of the above facts, namely, her attempt to commit suicide on more than one occasion which amounted to mental cruelty. Learned counsel for the appellant in this connection submitted that the very approach of the lower appellate Court is not proper especially in view of the introduction of Section 13(1)(i-a), by virtue of the amendment Act 68 of 1976 and the ratio laid down by the Supreme Court and High Courts. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

7. In the instant case, admittedly, the marriage between the parties took place on 9-9-1968 and a child was born on 3-7-1969. According to the appellant the respondent was not behaving like a normal woman and that she was behaving like person affected with hysterical complaint. It is seen that the respondent insisted the appellant to separate from his family which consisted of his mother, elder brother, brother’s wife and married younger brother and set up a separate family, to which the appellant was not agreeable. Even according to the case of the respondent, the appellant’s brother’s wife was responsible for the disharmony and that her efforts to set up a separate residence was not fruitful.

8. It is seen from the evidence of PW 7, who is a Civil Assistant Surgeon, attached to the Stanley Medical Hospital, that the respondent was admitted into the hospital on 14-3-1969 at 8.15 p.m. for consuming bug killer poison. The respondent complained of vomiting and pain in the abdomen. She has stated that she took bug killing poison at 8 p.m. According to AW 7, the diagnosis also showed that she consumed bug killer poison and the medical opinion also was to the same effect. Learned Counsel for the respondent submitted that in cross-examination, this witness has stated that he spoke only from the records and the symptoms noticed by his assistants who treated her and hence no reliance could be placed on this evidence. The learned counsel also submitted that even the finding of the lower appellate Court on this aspect should not be accepted. I do not find any merit in the said contention. The evidence of PW 7 clearly establishes that her respondent took bug killer poison, that she was treated for the same, that there were symptoms of consuming bug killer poison and that that is the diagnosis by the medical authorities. Again, the respondent consumed glass pieces on 30-7-1973 for which she was admitted in the Stanley Medical College Hospital. PW 5, Civil Assistant Surgeon, gave treatment to her. He had stated that the respondent herself stated that she swallowed glass pieces. He had made a note of it in the case sheet Ex. A. 6, and Ex. A. 7 is her O.P. ticket. Learned counsel for the respondent, relying on the answer given by this witness in cross-examination that no glass pieces were detected and that he cannot say whether she consumed glass pieces, contended that it cannot be said that she consumed glass pieces. On a careful reading of the evidence of PW 5,1 find that the respondent not only admitted that she had taken in glass pieces, but also she vomited once or twice. It is also seen that she was given drugs to bring the glass pieces out, that she refused to take them and that she also refused to get proper ., treatment. She also refused to given reasons for consuming glass pieces. Besides the evidence of PW 5, we have got the evidence of PW 8, an advocate, who mediated and who admitted her in the hospital through his son PW 5. The appellant also examined PW 2, 3 and 4 to establish the above act of the respondent in attempting to commit suicide. It is also in evidence that the respondent was in a state of pregnancy when for the first time she consumed bug poison. In evidence she would come forward with the version that she took it by mistake. But such defence was not taken by her in her counter. As regards the reasons for attempting to commit suicide PW 2 would say that there were frequent quarrels and that on account of the same, the respondent took bug poison. The evidence of PW 4 is to the effect that in June 1973, the respondent was actually seen taking glass pieces and was anxious to put an end to her life. With regard to this incident, we have got the evidence of the advocate PW 6 who mediated the dispute between the parties. The finding of the lower appellate Court in para 9 of its judgment is to the effect–

“The lower court has taken these instances and has held that there was no conclusive proof about the consumption of bug poison or of having taken glass pieces. I do not accept this finding of the lower court. As pointed out by the Supreme Court, the court has come to a conclusion on a preponderance of probabilities. The evidence taken as a whole establishes that the respondent was dissatisfied with her marital life and was deeply affected and agitated by the lack of affection and courtesy by her husband. If she had resorted on more than one occasion to put an end to her life, it was not because of any dislike for family life, but because she was dissatisfied with her surroundings.”

Again, in para 10, the lower appellate Court has pointed put–

“Of course, there have been attempts to commit suicide, but on that ground it cannot be said that the petitioner was put to mental agony. It is urged that the behaviour of the wife was such as to cause an extreme mental upset and detriment to the health of the petitioner.”

In para 10, it was also observed–

“His admission that PW I attempted to commit suicide because he was not prepared to set up a separate residence, indicates that cause for dejection of the respondent. It is not a case of mental cruelty by the respondent, but a marked obsession on the part of the petitioner to tear away from the other members of his family.”

Finally, the lower appellate Court gave a finding–

“On the facts of the case, I am satisfied that the respondent has not been guilty of mental cruelty, and if the petitioner entertained feeling that he has been treated with cruelty, it is due to his own making. Point No. 1 is found against the petitioner.”

It is clear from the above finding of the lower appellate court, that the respondent attempted to commit suicide on more than one occasion by consuming bug poison and taking glass pieces. The lower appellate Court held that those acts would not amount to mental cruelty as the appellant was resposible for those acts since he refused to set up separate family and that he did not like her. It is only this reasoning which is now challenged by the learned counsel for the appellant by contending that the refusal of the appellant-husband to set up a separate family and his disliking is quite immaterial and if it is established that there was an attempt on the part of the wife to commit suicide, the reason for the same has no consequence and the very act would amount to mental cruelty. In this connection, my attention was drawn to the fact that prior to the amendment Act 68 of 1976, ‘cruelty’ was not shown as one of the grounds for divorce, but it was shown as one of the grounds for judicial separation after amendment. By virtue of the amendment Act, Section 13(1)(i-a) was introduced under which ‘cruelty’ was also mentioned as one of the grounds for divorce. It is worthwhile to quote Section 13(1)(i-a) of the Act–

“13(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-(i). …

(i-a) has, after the solemnisation of the marriage, treated the petitioner with cruelty.”

This provision came up for interpretation before a Full Bench of the Bombay High Court in the case reported in Keshacrao v. Nisha, it has been held :–

“The cruelty contemplated under Section 13(1)(i-a) of the Act neither attracts the old English doctrine of danger nor the statutory limits embodied in old Section 10(1)(b). The cruelty contemplated is a conduct of such type that the petitioner cannot reasonably be expected to live with the respondent”.

It was therefore held in that case, that the decision in Madanlal Sharma v. Santosh Sharma, 1980 Mah. LJ 391, does not lay down the law on the point correctly.

9. Learned counsel for the appellant invited the attention of this Court to the decision reported in Shobha Rani v. Madhukar Reddi, AIR 1980 SC 121, wherein it was held–

“The demand for dowry is prohibited under law. That by itself is bad enough. That amounts to cruelty entitling the wife to get a decree for dissolution of marriage.”

It was further observed–

“The word ‘cruelty’ has not been defined and could not have been defined. It has been used in relation to human conduct or; human behaviour. It is conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. There may be cases where the conduct complained of itself is bad enough and perse unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.”

The learned Judge further observed–

“A new dimension has been given to the concept of cruelly. Explanation to Section 498-A I.P.C. provides that any wilful conduct which is of such a nature as is likely to drive a woman to commit suicide would constitute cruelty. Such wilful conduct which is likely to cause grave injury or danger to life, limb or health (whether mental or physical of the woman) would also amount to cruelty. 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 would also constitute cruelty. The cruelty as a ground for dissolution of marriage if not admitted requires to be proved on the preponderance of probabilities as in civil cases and not beyond a reasonable doubt as in criminal cases.”

Learned counsel for the appellant submitted that the attempt to commit suicide is per se an offence punishable under the Penal Code, and is like the demand for dowry which is prohibited under law and which by itself is bad enough and the same would amount to cruelty as per the decision of their Lordships of the Supreme Court in the case reported in Shobha Rani v. Madhukar Reddi (supra). Certainly, the attempt to commit suicide would also amount to mental cruelty to the husband by the wife. In para 17 of the judgment, it was observed —

The cruelty treatment may also result by the cultural conflict of the spouses, in such cases, even if the act of cruelty is established, the intention to commit cannot be established. The aggrieved party may not get relief, we do not think that was the intention with which the Parliament enacted Section 13(1)(i-a) of the Hindu Marriage Act. The context and the set up in which the word ‘cruelty’ has been used in the section seems to us, that intention is not necessary element in cruelty. That word has to be understood in the ordinary sense of the term in matrimonial affairs. If the intention to harm, harass or hurt could be inferred by the nature of the conduct or brutal act complained of, cruelty could be easily established. But the absence of intention should not make any difference in the case, if by ordinary sense in human affairs, that act complained of could otherwise be regarded as cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment. The same is also the line of reasoning adopted by the House of Lords in Collins v. Collins, 1963-2-All ER 966, at page 976 where Lord Evershed said–

‘I am unable to accept the premise that ‘cruelty’ in matrimonial proceedings requires or involves of necessity the element of malignity though I do not of course doubt that if malignity be in fact established it would be highly relevant to a charge of guilty.

In my opinion, however, the question whether one party to a marriage has been guilty of cruelty to the other or has treated the other with cruelty does not according to the ordinary sense of the language use by Parliament, involve the presence of malignity (or its equivalent); and if this view be right it follows, as I venture to thick, that the presence of intention to injure on the part of the spouse charged or (which is, I thing, the same thing) proof that the conduct of the party charged was ‘aimed at’ the other spouse is not an essential requisite for cruelty. The question in all such cases is, to my mind, whether the acts or conduct the party charged were ‘cruel’ according to the ordinary sense of that word, rather than whether the party charged was himself or herself a cruel man or woman.. ..”

It is clear from the above decision that the proper approach in matrimonial cases is whether the acts or conduct of the party charged were cruel according to the ordinary sense of that word. Further, the intention to cause such cruelty is not a necessary element and it is no answer that for committing the acts the party charged himself was responsible as was done in case by the lower appellate Judge. In Narayan Ganesh Dastane v. Sucheta Narayan Dastane, , it was held that the threat given by wife to her husband that she will put an end to her life was cruelty towards her husband. In that case, the act of taking poison by wife was held to be cruelty to her husband. In Savitri v. Mulchand, , it was observed in para 28 at page 57 :

“The respondent petitioner husband had deposed that on his return from London the wife took poison when she saw him, and that she was saved by Jethanand. Attempt to commit suicide with a view to coerce the husband into doing something which he is not inclined to do, for whatever reason, I am of the view, is also a cruelty on the husband. Justice Leila Seth in her judgment reported as Shakunlala Kumari v. Om Prakash Ghai, I (1981) DMC 25=AIR 1981 Delhi 53, also said that threat to commit suicide by the wife amounts to cruelty on the husband. In my view attempt to commit suicide by taking poison would also amount to cruelty.”

In that case, the learned Judge referred to the decision reported in Narayana Ganesh Dastane v. Suchita Narayana Dastane, (supra), also. Applying the ratio mentioned in the above quoted decisions to the facts of this case, it can be held that merely because the husband was not agreeable to separate from the members of the family and set up separate family as desired by his wife, she was not justified in resorting to attempt to commit suicide by consuming poison or glass pieces on more than one occasion. She could have worked out her remedy by taking such legal action open to her under law. It is not open to her to remain in the house of the husband and threaten to commit suicide by consuming poison etc. and cause mental cruelty to him. In Harbajan Singh v. Amarjeet Kaur, , it has been held “For these reasons it is established that the defendant respondent held out threats of committing suicide. It is needless to add that such threats constitute cruelty.”

Therein also, reliance was placed on the decision of the Supreme Court, in Dastane’s case (supra). As already stated, in the instant case, the lower appellate Court came to the conclusion, after differing from the view taken by the trial court, that there has been attempts to commit suicide. But, he came to the conclusion that on that ground it cannot be said that the husband was put to mental cruelty. According to the lower appellate Judge, the admission of the husband that his wife attempted to commit suicide because he was not prepared to set up a separate residence, indicates the cause for dejection, the appellant-husband should blame himself for his lapse and it is not open to him to contend that the threat to commit suicide and various acts attributed to the wife would amount to cruelty. In view of the ratio laid down in the above decisions, the said reasoning of the lower appellate judge is not tenable and on the established facts it is clear that the appellant has made out a case for mental cruelty so as to get a decree for dissolution of marriage under Section 13(1)(i-a) of the Hindu Marriage Act, as amended by Act 68 of 1976. Thus the substantial question of law is answered in favour of the appellant and against the respondent.

10. As regards the question of desertion, I do not find any irregularity or illegality in the finding rendered by both the courts below. Though their marriage was celebrated in 1968. they lived together till about 1973 and according to the appellant, there was desertion from 1973. It is seen from the evidence of PW 1 that even after the orders passed in O.P. 407 of 1973 she came and lived with him and subsequently she left only on 22-3-1976. The Original Petition was filed on 25-11-1977 which is less than two years immediately after leaving the appellant, and in view of Section 13(1)(i-b) the said ground is not tenable. It cannot be said from the circumstances that there was any animus deserendi on her part so as to constitute desertion. Hence no interference is called for in the finding on the question of desertion by the respondent wife. However, in view of the finding on the ground of cruelty, the appellant is entitled to the relief of dissolution of marriage. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

11. In the result, the appeal is allowed. The judgment and decree of the courts below are set aside and the petition O.P. 629 of 1977 filed by the appellant is allowed and there will be a decree for dissolution of marriage between the appellant and the respondent under Section 13(1)(i-a) of the Hindu Marriage Act. In the circumstances, of the case, there will be no order as to costs.

12. Before parting with the case, I wish to place on record the valuable assistance rendered by Mr. S. Swaminathan, Advocate, who acted as amicus curiae on behalf of the respondent in the case, and my appreciations to him.

 

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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.
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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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False 498a, falsely alleging that she was forced to sleep with father in etc are cruelty. Divorce granted. Need not stay long, to treat cruelly. Clear case of 498a misuse

Marriage solemnized in 1999. Fight starts immediately after marriage and wife leaves for parental house JUST 1 day after marriage. She promptly files a false dowry case saying husband and co sought 10 lakhs dowry and also alleges that her mother in law asked her to sleep with father in law. After initial compromise on the false dowry case, police make a closure report, but ablaa naari goes to court and gets the dowry case numbered !! Meanwhile husband files for divorce and wife wants restitution! Yeah, she wants restitution! Husband is granted divorce by family court. Wife goes on appeal to HC (against family court decree). In the meanwhile husband looses 498a at magistrate court and immediately wife writes to husband’s office (i.e.) AP High court to remove him from his job! Husband wins appeal on 498a case at Sessions court and wife goes on appeal before AP HC which is not yet finished!

In the meanwhile Hon. AP High court allows wife’s appeal to Husband’s divorce decree and grants her restitution! Hon AP HC states wife could NOT have committed cruelty because she stayed at husband’s house only for a day!

Husband goes on appeal to Supreme court on the divorce decree

Supreme court appreciates the entire case and decrees (a) marriage broken down as parties have been completely living apart (b) various cases filed by wife are cruelty (c) wife NEED NOT have physically lived with husband to create cruelty and grants divorce to husband … Supreme court KINDLY provides the wife with Rs 15,00,000 !! as permanent alimony !!

By the way did I tell you, the husband is the Assistant registrar of AP High court !!


REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1794 OF 2013

(Arising out of Special Leave Petition (Civil) No. 4782 of 2007)

SRINIVAS RAO … APPELLANT

Versus

D.A. DEEPA … RESPONDENT

JUDGMENT (SMT.) RANJANA PRAKASH DESAI, J.

  1. Leave granted.
  2. This appeal, by special leave, has been filed by the appellant-husband, being aggrieved by the judgment and order dated 8/11/2006 passed by the Andhra Pradesh High Court in Civil Miscellaneous Appeal No.797/03, setting aside the decree of divorce granted in his favour.
  3. The appellant-husband is working as Assistant Registrar in the Andhra Pradesh High Court. The marriage between the appellant-husband and the respondent-wife was solemnized on 25/4/1999 as per Hindu rites and customs. Unfortunately, on the very next day disputes arose between the elders on both sides which resulted in their abusing each other and hurling chappals at each other. As a consequence, on 27/4/1999, the newly married couple got separated without consummation of the marriage and started living separately. On 4/10/1999, the respondent-wife lodged a criminal complaint against the appellant-husband before the Women Protection Cell alleging inter alia that the appellant-husband is harassing her for more dowry. This complaint is very crucial to this case. We shall advert to it more in detail a little later. Escalated acrimony led to complaints and counter complaints. The respondent-wife filed a petition under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights before the Family Court, Secunderabad. The appellant-husband filed a counter-claim seeking dissolution of marriage on the ground of cruelty and desertion under Section 13(1)(i-a) and (b) of the Hindu Marriage Act, 1955.

Entire judgement uploaded here : https://docs.google.com/file/d/0B-JZGIVy-RW5dWxmZjVHVldRcTA/edit?usp=sharing

short link : http://bit.ly/13JE0g1

BHASKAR LAL SHARMA & ANR. Vs MONICA

                                                           REPORTABLE

                  IN THE SUPREME COURT OF INDIA

               CRIMINAL APPELLATE JURISDICTION

         CRIMINAL APPEAL NOS.                             OF 2009
   [Arising out of Special Leave Petition (Crl.) Nos. 4125-4126 of 2008]

BHASKAR LAL SHARMA & ANR.                                …APPELLANTS

                                      Versus

MONICA                                                  …RESPONDENT

                            JUDGMENT

S.B. SINHA, J:

      Leave granted.

      Respondent Monica married Vikas Sharma (Vikas), son of the
appellants herein. Vikas was a divorcee. He obtained the decree of divorce
on or about 8th July, 2003 passed by the Civil Court in Lubumbashi, Congo.
He had two children born on 23rd April, 1999 and 8th July, 2000 respectively
from his first wife.
                                          2

      Indisputably, Vikas as also the appellants are engaged in the family
business of import and export of about 150 commodities. Vikas was the
Managing Director of the family managed Company since 1994 having its
operating business places at Delhi, Bangkok, Shanghai, Brussels,
Johannesburg, Kinshasa, Lubumbashi, Uganda, etc.           Vikas and the
appellants ordinarily live in Congo. They have a residential house also at
Lajpat Nagar, New Delhi.

      Negotiation between Vikas and the respondent – Monica took place
through an agency known as `Sycorian Matrimonial Services’.             The
marriage took place at Sanatan Dharam Mandir Hall, Delhi on 16.1.2004. It
was also registered with the Registrar of Marriages, MB Road Saket, New
Delhi on 22.1.2004. Immediately thereafter, i.e., on or about 25.1.2004, the
couple left India and stayed in Johannesburg, South Africa for about 10
days. They thereafter left for Lubumbashi, Conga, Africa. They stayed
there for 2 months in their matrimonial home. The relationship between the
parties was cordial during that period.

      Monica came back to India on 5.4.2004.            She stayed at her
matrimonial home at Lajpat Nagar, New Delhi till 10.5.2004 with the
                                       3

appellants. She again left for Lubumbashi, Africa to join her husband.
However, the relationship between the parties deteriorated thereafter. They
came back to India on 21.5.2004. Monica allegedly took all her belongings
from Congo including clothes and the jewelry which she had been carrying.

      On or about 26.5.2004, Vikas and the respondent visited Dr. Nagpal, a
psychiatrist at Vim Hans Hospital for consultation to ascertain the reason for
the non-compatibility and discord between them. Dr. Nagpal advised them
to make their matrimonial life successful.

      Vikas left for Congo on 27.5.2004 hoping that Monica would change
her mind in regard to the future of their marriage and they should take a
decision in regard to her going back thereto later. She, however, for one
reason or the other, went to her parent’s house on 14.6.2004 and took all her
belongings including the jewelry articles which she had been carrying.

      Allegedly, during that period, appellant No.2 humiliated her by
various acts to which we would advert to a little later.

      It is borne out from the records that during this entire period including
the period after she left her matrimonial home in June 2004, parties
communicated with each other through e-mails.
                                      4

      Monica filed a complaint marked as Complaint No. 287/1A under
Sections 498A, 406 and 34 of the Indian Penal Code (for short, “IPC”)
against her husband Vikas and the appellants on 9.9.2004. On the same day,
an application for grant of maintenance was also filed in the Court of learned
Additional Chief Metropolitan Magistrate, Patiala House Courts, New Delhi
under Section 125 of the Code of Criminal Procedure (for short, “the Code”)
claiming maintenance of a sum of Rs.2 lakhs per month as also an order of
an interim maintenance of Rs.2 lakhs per month till the disposal of the case.
She was examined by the learned Metropolitan Magistrate Patiala House,
New Delhi on 30.11.2004. Evidences were recorded whereafter summons
had been issued on 21.3.2005 by the learned Metropolitan Magistrate. Her
application for grant of interim maintenance was also allowed by the learned
Metropolitan Magistrate by an order dated 10.5.2005 and granted interim
maintenance at the rate of Rs.5,000/- per month.

      Non bailable warrants of arrest were also issued against the appellants
as also Vikas on 29.6.2005.

      The respondent being not satisfied with the quantum of maintenance
as granted by way of an interim arrangement filed a Revision Application
before the High Court marked as Criminal Revision No. 452 of 2005
                                      5

seeking increase in the maintenance granted by the learned Metropolitan
Magistrate.   The High Court enhanced the amount of compensation of
interim maintenance to Rs.50,000/- per month. The amount of maintenance
has since been fixed at Rs.50,000/- per month by the said Court.

      On or about 2.8.2005, appellants as also Vikas filed application
marked as Criminal (Misc.) No. 3673-75 of 2005 under Section 482 of the
Code before the Delhi High Court for quashing the order directing issuance
of non-bailable warrants against them. The High Court by its order dated
8.8.2005 stayed the order issuing non-bailable warrants against the
appellants with an undertaking that Vikas and appellants would appear
before the learned Magistrate.

      Appellants along with Vikas also filed an application marked as
Criminal (Misc.) Main No. 4742 of 2005 under Section 482 of the Code for
quashing of the summoning order dated 21.3.2005 passed by the learned
Magistrate in Complaint No.287/1A summoning them for attending the trial
court under Sections 498A, 406 and 34 of the IPC.

      On 3.10.2005, appellants and their son came to India; they appeared
before the learned Magistrate; they were admitted to bail.
                                       6

      The High Court by its order dated 4.10.2005 passed in Criminal
Revision No. 452 of 2005 directed impounding of the passport of Vikas
stating that the efforts were being made for reconciliation. Admittedly talks
of reconciliation failed. The High Court modified the said finding stating
that the marriage seems to have broken down irretrievably and directed
return of the passport to him by an order dated 6.10.2005. Pursuant to the
liberty granted by the High Court, appellants as also Vikas filed an
application on 15.10.2005 for permission to go abroad, which was allowed
subject to the condition that additional bank guarantees be furnished of Rs.1
lakh for each of the applicant.

      Monica challenged the said order before the High Court which was
dismissed by an order dated 18.10.2005.

      On 21.11.2005, Monica filed a Criminal Complaint No.574/1 under
Section 420 of the IPC against the appellants and Vikas inter alia alleging all
material facts relating to the first marriage and divorce and in particular the
fact that the first wife of Vikas in her divorce suit alleged acts of cruelty on
the part of her husband had not been disclosed.
                                      7

       On 12.12.2005, Monica challenged the order of the Delhi High Court
dated 18.10.2005 before this Court by way of Special Leave Petition
(Criminal) No. 6015-6016 of 2005, which was dismissed by an order dated
12.12.2005.

       Despite the same, Monica filed another petition before the High Court
under Section 482 of the Code inter alia praying that the learned trial court
may be directed not to release the passport of Vikas till the application filed
by her under Section 340 of the Code is disposed off.

       Another petition marked as Criminal Misc. (Main) No. 519 of 2006
was filed by her for a direction upon the learned trial court to dispose of the
case filed by her under Sections 498A/406 IPC and 420 IPC within a time
frame of about 3 months and the appellants as also Vikas be directed to
submit all the papers relating to their properties in India before the learned
trial court.

       The High Court by its order dated 7.2.2006 dismissed the petition
filed by the respondent with costs.
                                       8

      On 20.3.2006, the learned Metropolitan Magistrate, New Delhi took
cognizance of the complaint No. 574/1 under Section 417/415 IPC as the
allegations were not made out under Section 420.

      On 27.3.2006, the order dated 7.2.2006 passed by the High court was
challenged by the respondent before this Court by way of Special Leave
Petition (Criminal) No.1220 of 2006, which was dismissed with a direction
to the trial court to expedite the proceedings.

      Indisputably for one reason or the other (appellants had given some
explanation in this behalf in the Special Leave Petition) appellants having
failed to attend the court of the learned Metropolitan Magistrate, Monica
filed an application for attachment of the ancestral property of the first
appellant. Interpol also was sounded. Orders were passed for attachment of
the property in terms of Section 83 of the Code situated both at Delhi as also
the ancestral house of the first appellant at Jaipur. Although the order of
attachment so far as the Jaipur property is concerned is said to have been
passed in terms of Section 83(4)(c) of the Code, Monica allegedly forged the
said order to show that the order of attachment has been passed in terms of
Section 83(4)(a) thereof.
                                      9

      Brother of the first appellant lodged a First Information Report
(“FIR”) with Moti Dungri Police Station, Jaipur. We are, however, not
concerned with the said case at present.

      Indisputably on 17.11.2007, Monica filed a petition under Section 9 of
the Hindu Marriage Act, 1955 seeking for restitution of conjugal rights
marked as Case No. 683 of 2007, which is pending in the Court of learned
Additional District Judge, Tis Hazari, New Delhi.

      We may place on record that at the instance of Monica several
attempts have been made for reconciliation of matrimonial dispute between
her and Vikas.

      We may also place on record that applications dated 9.5.2008 and
31.5.2008 respectively were also filed before this Court by the respondent
for mediation

      Chandan Sharma, another son of the appellants came from Hong
Kong to India for that purpose. Monica, however, insisted that appellant
No.1 himself should come to India before her husband Vikas comes, which
was not acceptable to the appellants as the reconciliation of the disputes was
to take place between Monica and her husband Vikas.
                                      10

      We may notice that even this Court in the transfer petition filed by
Monica being Transfer Petition (Crl.) No. 258 of 2007 by its order dated
4.2.2008 impleaded Union of India through Ministry of External Affairs as a
party and learned Additional Solicitor General appearing for Union of India
made a statement before this Court on 11.4.2008 that Emergency Travel
Documents would be made available to Vikas and upon his arrival a regular
passport would be issued.      Interpol/Ministry of External Affairs were
directed not to enforce the Red Corner Notice against Vikas Sharma.
Pursuant thereto Vikas traveled to India.

      On 9.5.2008, Vikas appeared before this Court in Transfer Petition
(Criminal) No. 258/2007 and this Court by an order dated 9.5.2008 directed
the complainant and Vikas to report to the Senior Coordinator of the
Mediation Cell at Tis Hazari Courts, Delhi to explore the possibilities of
resolving/settlement of their matrimonial discord.    Pursuant thereto the
parties appeared before the learned Senior Mediator and the mediation
processes were resorted to on day to day basis. Indisputably however, the
said negotiation failed.    The matter was listed before this Court on
                                      11

11.6.2008. The parties were given an opportunity to reconcile their disputes.
However, they could not arrive at any settlement.

      The High Court by reason of the impugned order dated 21.1.2008
dismissed the application for quashing the summoning order dated
21.3.2005 filed by the appellants herein, opining:
             “14. In order to attract the offence under Section
             498A it would have to be proved that the wife was
             subjected to cruelty which could include mental
             cruelty. Whether the conduct was such as to cause
             grave injury or danger to the mental health of the
             woman are all matters to be examined only after
             the detailed evidence is led by the prosecution. At
             this stage, when a prayer is made for quashing of
             the criminal proceedings, this Court is not
             expected to go through the pre-summoning
             evidence in great detail and determine whether in
             fact all the ingredients of the offence as set out
             under Section 498A are actually made out or not.
             15. Likewise the submission of the petitioners
             regarding non-entrustment of property to them by
             the complainant for the purposes of attracting the
             offence under Sections 403 read with 406 IPC is
             without merit. It was attempted to be shown by
             learned counsel for the petitioner that there is no
             specific averment that property was entrusted by
             the complainant to either of these petitioners or
             that they had criminally misappropriated the same.
             This Court is unable to agree. The averments in
             paras 16, 24 and 29 of the complaint when read
             taken collectively do indicate that the property
             which belonged to the complainant was, according
             to the complainant, in the possession of the
             Petitioners and on demand they refused to return
                                      12

             such property. At this stage, in order to examine if
             the complaint makes out a prima facie case, it is
             not necessary to go into the fine details and
             determine whether what is stated in the complaint
             is true or not.
             16. In this context the observations of the
             Supreme Court in Rashmi Kumar v. Mahesh
             Kumar Bhada (1997) 2 SCC 397 would be
             relevant. In that case while examining Section 406
             in some detail, this Court observed as under (SCC
             p. 407): The expression entrustment carries with it
             the implication that the person handing over any
             property or on whose behalf that property is
             handed over to another, continues to be its owner.
             Entrustment is not necessarily a term of law. It
             may have different implications in different
             contexts. In its most general signifance, all its
             imports is handing over the possession for some
             purpose which may not imply the conferment of
             any proprietary right therein. The ownership or
             beneficial interest in the property in respect of
             which criminal breach of trust is alleged to have
             been committed, must be in some person other
             than the accused and the latter must hold it on
             account of some person or in some way for his
             benefit.”

      Mr. Vikas Pahwa, the learned counsel appearing on behalf of the
appellants urged that the High Court committed a serious error in passing the
impugned judgment insofar as it failed to take into consideration that:
      i.     the complaint petition even if given face value and taken to be
             correct in its entirety does not disclose commission of offences
                               13

       either under Section 498A or Section 406 of the IPC so far as
       the appellants are concerned;
ii.    the order summoning the appellants passed by the learned
       Metropolitan Magistrate, New Delhi dated 21.3.2005 would
       categorically show that there has been a complete non-
       application of mind on the part of the learned Magistrate;
iii.   The High Court failed to consider the e-mails exchanged
       between the parties which were annexed to the complaint
       petition itself.   Had the said e-mails been taken into
       consideration, it could have been shown that no allegation of
       dowry demand or misappropriation of her Streedhan had been
       made therein;
iv.    the complaint petition does not disclose that any dowry has
       been demanded by the appellants or any act on their part was
       likely to drive the woman to commit suicide; which are the
       requisite ingredients in regard to commission of an offence
       under Section 498A of the IPC.
v.     Only two purported instances have been given with regard to
       alleged commission of an offence against the appellant No.1
                                        14

              and so far as the appellant No.2 is concerned, the allegations are
              only general in nature.
      vi.     The FIR in question and other spate of litigations started by
              Monica against her husband and her parents-in-law clearly
              show acts of mala fide on her part inasmuch as she not only
              filed the complaint petition in question but also filed an
              application for grant of maintenance, a complaint petition under
              Section 420 of the IPC wherein an order of summoning had
              been issued as also an application under Section 9 of the Hindu
              Marriage Act, 1955 for the purpose of harassing her in-laws but
              at the same time she had been asking for mediation of their
              matrimonial dispute.

      Mrs. Vinay Malhotra, the mother of the respondent, on the other hand,
urged that:
      i.      the appellants had been harassing and torturing the respondent
              in a systematic and planned manner to break her marriage with
              their son so as to compel her to agree for a divorce on receiving
              some amount.
                               15

ii.    Stridhan was entrusted to the appellants/their son and non-
       return thereof had been used as a coercive method to meet the
       unlawful demand of extracting divorce by mutual consent

iii.   Appellants had been taking different stands at different time as
       although no statement has been made before the High Court
       that they had returned the stridhan to the respondent; such a
       stand has been taken for the first time in the Special Leave
       Petition.

iv.    the respondent in her testimony having stated that the appellants
       had refused to call their son to India and had refused to return
       the Stridhan unless the proposal for divorce by mutual consent
       was accepted by her, sufficiently established the offence against
       them.

v.     the appellants having admitted offering of money to the
       respondent for obtaining divorce by mutual consent must be
       held to be guilty of commission of offences.

vi.    the appellants having offered a sum of Rs.25 lakhs for divorce
       by mutual consent would clearly go to show their mind-set that
                                      16

             they have been considering the marriage only in monetary
             terms and not of any emotional values.

       The Parliament by Act No. 46 of 1983 with a view to combat the
menace of dowry deaths and harassment to woman at the hands of her
husband or his relatives introduced Section 498A and Section 304B in the
IPC.
       Section 498A reads as under:
             “498-A. Husband or relative of husband or 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.”

       The `Explanation’ appended thereto defines cruelty to mean: (i) any
willful conduct which is of such a nature as is likely to drive the woman to
commit suicide or to cause grave injury or danger to life, limb or health
whether mental or physical of the woman; or (ii) 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.
                                       17

      Thus, the essential ingredients of the aforementioned provisions are:
.     1.     A woman must be married.
      2.     She must be subjected to cruelty.
      3.     Cruelty must be of the nature of:
             (i)     any willful conduct as was likely to drive such woman:
                     a.    to commit suicide;
                     b.    cause grave injury or danger to her life, limb,
                           either mental or physical;
             (ii)    harassment of such woman, (1) with a view to coerce her
             to meet unlawful demand for property or valuable security, (2)
             or on account of failure of such woman or by any of her relation
             to meet the unlawful demand,

             (iii)   woman was subjected to such cruelty by: (1) husband of
             that woman, or (2) any relative of the husband.

      For constitution an offence under Section 498A of the IPC, therefore,
the ingredients thereof must be held to be existing.

      For proving the offence under Section 498A of the IPC, the
complainant must make allegation of harassment to the extent so as to
                                      18

coerce her to meet any unlawful demand of dowry, or any willful conduct on
the part of the accused 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. We
do not find any such allegation has been made or otherwise can be found out
so as to enable us to arrive at an opinion that the appellants prima facie have
committed such an offence.

      The complaint petition must also be read with several other
documents which form part of the complaint petition. The children from the
first wife of Vikas were with Monica. Vikas affirmed an affidavit so as to
enable Monica to apply for their passports. Vikas, therefore, wanted to have
children with them.

      Monica sent an e-mail on 5.6.2004 to his mother stating that Vikas
sent an e-mail to her on 4.6.2004, which reads thus:
             “My love bubbly.
             Don’t worry everything will be fine. I am very
             happy to have found a person like you, who loves
             durjaya and surya like me. Mona, pls. pray to
             Krishna to help me and help us to do the right
             thing. I want to change my life to better, I want to
             become a sincere devotee of the Lord, I never want
             to drink again, it puts me down. I want to pray
             regularly, we must organize our time together to
             pray to the lord, we must serve him together and
                                       19

             everything will be alright. Pls. try to go everyday
             to the temple and pray to the Lord for us and our
             children, don’t worry all will be ok. I am sorry to
             have caused you so much pain, I will make it up to
             you, promise. I love you my dear, take care.
             HARE KRISHNA
             Baba.”

      In an e-mail sent to everybody concerned explaining her behaviour
vis-`-vis those of Vikas, she referred to even the e-mails which was sent by
Vikas to her to his mother.

      It is not possible for us to deal with the contents of the e-mails in great
details but it is evident that the couple had developed incompatibility in
respect of various aspects of life including the one as to whether Monica did
a favour to Vikas by marrying him. They also include the children, her going
out of the home without informing any senior member of the house,
allegation of extra marital affairs against Vikas; her taking of detergent
powder evidently to commit suicide; they had been staying in separate
rooms, differences in respect of carrying of business, her becoming
hysterical at some point of time. Vikas even thought that she had been
trying to black-mail him by refusing to go back to India and threatening to
commit suicide. The e-mails shows allegations, counter allegations and
                                       20

explanations by Monica in relation thereto. In an e-mail dated 19.6.2004 by
Vikas, it was stated:
              “I have given a lot of thought to our situation and
              as you told me many times before and yesterday
              also, that may be it is better that we split, I think
              that yes it is better to do so. We both are not at all
              compatible to each other monica. And it is not a
              wise decision to live this kind of life. I am not
              interested to living 2 different lives in the same
              house as you had once commented, I think this was
              on our first flight to Dubai. Anyway Monica I
              don’t want anymore of this and neither do you, we
              both have a lot of things we can do with our lives,
              and I want to carry on now.
              I am also going to leave congo and go somewhere
              else, I am presently talking to dad about going on
              my own, but its not easy as I don’t have any
              money and only dad can give me something to
              help me, anyway, congo is finished, I hate that
              place.
              I am not blaming you for anything, but it is better
              that we part, you also know this is better, and
              better to swallow the pain now then live our lives
              like this.
              I am sorry.
              Vikas.”

        In one of the e-mails Vinay Malhotra alleges humiliation by appellant
No.2.
                                     21

      On 14.8.2004, Vikas writes to his father-in-law by e-mail, which reads
as under:
            “I have never written nasty emails to your
            daughter, on the contrary I always respected her
            and sent her lovely and sometimes erotic emails to
            light up our love life. But her nagging and lies that
            she has kept on telling you have made it difficult
            for me to try to live with a person like her. Your
            daughter on many occasions threatened me by
            trying to suicide for example trying to jump out of
            a running car, drinking poisonous substance,
            breaking things in my house, etc. When she does
            not get her way she goes bizark. And not only
            with me but on several occasions she fought with
            my parents, this for me is difficult to accept. I
            have always been truthful to you and her, and if
            you think otherwise then do as you please. I am
            not interested in continuing my relationship with
            your daughter, this is how I feel and I believe that
            we would not be happy together.
            I have already asked my parents to speak to you
            and do what has to be done in a civilized manner.
            If your daughter thinks that I have insulted her or
            hurt her in anyway then frankly she has some
            mental problem, I have done nothing wrong, if I
            had done so then why until last week she was so
            eager to come back to me, when I have told her
            already that I don’t think we can live together. I
            will not be coming to India. I am too busy and I
            have asked my parents to settle this with you,
            please remember that if you try to throw dirt on me
            I will not stay put, I will protect my reputation.
            This can go as far as you want, I don’t fear
            anything because I have nothing to fear.
            I hope that you will do what is best for everyone,
            the ball in is your court.”
                                     22

      A counter allegation was made by Anil Malhotra to Vikas, which
reads as under:
            “After marriage things went well for sometime and
            then suddenly you started crying foul. You along
            with my daughter came back to India on 25th May
            2004. You profusely apologized for treatment
            meted out to my daughter and reassured to behave
            in future and that you were a gentleman. You and
            my daughter stayed at your parents place during
            your India visit when things appeared to be falling
            in line. You left for Africa on 27th May 2004
            leaving behind my daughter at your parental house
            so that she could spend sometime with your
            parents and then join you in South Africa after 10
            days. After returning to Africa, for sometime you
            kept on sending apologetic emails to my daughter
            and then suddenly you told my daughter that you
            were tired of hearing trivial complaints against her
            from your mother. Thereafter, you started writing
            nasty emails to my daughter, which is to your
            knowledge.
            The main purpose of my writing this email is to
            express that anything that has to be done should be
            done with a human face. For that matter you
            should come to India within a week’s time.
            Suggesting you to re introspect may be a futile
            exercise. Rest assured, we are capable of meeting
            any situation in dealing with a gentleman or a
            deceit.
            May like to reply to this email.”
                                     23

      There are many more e-mails exchanged between the couple as also
their parents. However, in none of them any allegation with regard to cruelty
or breach of trust had been made. Such allegations are made for the first
time in the complaint petition as also in the application for grant of
maintenance.
      Respondent, in her complaint petition, made the following allegations
against the appellants, which we may notice:
Appellant No.1           Appellant No.2
SH. BHASKAR LAL SHARMA – SMT.     VIMLA  SHARMA                            –
FATHER IN LAW            (MOTHER IN LAW)
1. He threatened the Complainant to 1. She sent only two unmarried girls
finish her relationship with Mr. for Shagun instead of seven (page
Vikas Sharma as she was trying to 42)
control their house, children and the
business (page 57)

2.   He offered divorce by mutual 2. She said that she would like the
consent on the payment of Rs.25 lacs function of Engagement Ceremony
as compensation. He also refused to to be organized in a 5 Star Hotel
return the clothes/jewelry unless the (page 43)
divorce by mutual consent is granted
by the complainant (Page 63)
24

 3. She also advised the respondents
 to hold the marriage ceremony at
 Iscon Temple (page 44)

 4. She also took all the gifts/cash
 given by the invitees/guests (page
 46)

 5. She made complaints on trivial
 matters. She kicked the respondent
 with her leg and told that her mother
 is a liar (page 51)

 6. She poisoned the ears of her son
 (page 52).

 7. She gave two used lady suits of
 her daughter to the Complainant
 (page 57).

 8. She gave perpetual sermons to the
 Complainant (page 58)

 9. She told her son Vikas Sharma
 over phone that kids do not like
 anything     prepared     by      the
 Complainant (page 59)

 10. She humiliated and harassed by
 repeatedly saying that her son would
 be divorced for the second time
 whereas the Complainant would be
 divorced for the first time.

      Ex facie no case has been made out under Section 498A of the IPC so
far as the appellants are concerned.

      The allegations relating to the place where the marriage took place has
nothing to do with an offence under Section 498A of the IPC. Allegations
that appellant No.2 kicked the respondent with her leg and told her that her
mother to be a liar may make out some other offence but not the one
punishable under Section 498A. Similarly her allegations that the appellant
No.2 poisoned the ears of her son against the respondent; she gave two used
lady suits of her daughter to the complainant and has been given perpetual
sermons to the complainant could not be said to be offences punishable
under Section 498A. Even threatening that her son may be divorced for the
second time could not bring out the offence under Section 498A of the IPC.

      The scope of the aforementioned provision came up for consideration
in some of the decisions of this Court. We may notice a few.
                                        26

        In Noorjahan vs. State rep. by D.S.P, [(2008) 11 SCC 55], this Court
held:
              “16. Consequences of cruelty which are likely to
              drive a woman to commit suicide or to cause grave
              injury or danger to life, limb or health, whether
              mental or physical, of the woman is required to be
              established in order to bring home the application
              of Section 498-A IPC. Cruelty has been defined in
              the Explanation for the purpose of Section 498-A.
              Substantive Section 498-A IPC and presumptive
              Section 113-B of the Evidence Act have been
              inserted in the respective statutes by the Criminal
              Law (Second Amendment) Act, 1983. It is to be
              noted that Sections 304-B and 498-A IPC cannot
              be held to be mutually inclusive. These provisions
              deal with two distinct offences. It is true that
              cruelty is a common essential to both the sections
              and that has to be proved. The Explanation to
              Section 498-A gives the meaning of “cruelty”.
              17. The object for which Section 498-A IPC was
              introduced is amply reflected in the Statement of
              Objects and Reasons while enacting the Criminal
              Law (Amendment) Act, 1983 (46 of 1983). As
              clearly stated therein the increase in the number of
              dowry deaths is a matter of serious concern. The
              extent of the evil has been commented upon by the
              Joint Committee of the Houses to examine the
              work of the Dowry Prohibition Act, 1961. In some
              cases, cruelty of the husband and the relatives of
              the husband which culminate in suicide by or
              murder of the helpless woman concerned,
              constitute only a small fraction involving such
              cruelty. Therefore, it was proposed to amend IPC,
              the Code of Criminal Procedure, 1973 and the
              Evidence Act suitably to deal effectively not only
              with cases of dowry deaths but also cases of
              cruelty to married women by the husband, in-laws
              and relatives. The avowed object is to combat the
              menace of dowry death and cruelty.”

        It was observed in the fact situation obtaining therein:
                                      27
             “18. So far as the present appellant is concerned,
             the evidence is inadequate to show that she was
             party to any demand for dowry. In fact, PW 1
             stated that when she went to the place of her
             daughter the appellant was present along with A-1
             and A-2. The said A-1 demanded jewels and
             presentation of Rs. 5000 for Ramzan. She accepted
             that she told A-1 and A-2 that she will send the
             same within a week. The next statement of this
             witness is very significant. She (the appellant) told
             that two months’ time will be sufficient for
             offering the presentation. In other words, she did
             not make any demand for dowry. That aspect has
             been accepted by PW 1. Significantly, this witness
             in her cross-examination had admitted that the
             appellant is residing at Coimbatore for the last 35
             years. She has categorically admitted that while
             she went to the house of her daughter, she (the
             appellant) was not present. Therefore, there is no
             evidence to show that the appellant was either
             present when the demand was made or she herself
             made any demand.”

      In Sushil Kumar Sharma vs. Union of India & Ors. [(2005) 6 SCC
281], this Court held:
             “10. The object for which Section 498-A IPC
             was introduced is amply reflected in the Statement
             of Objects and Reasons while enacting the
             Criminal Law (Second Amendment) Act 46 of
             1983. As clearly stated therein the increase in the
             number of dowry deaths is a matter of serious
             concern. The extent of the evil has been
             commented upon by the Joint Committee of the
             Houses to examine the work of the Dowry
             Prohibition Act, 1961. In some cases, cruelty of
             the husband and the relatives of the husband which
             culminate in suicide by or murder of the helpless
             woman concerned, constitute only a small fraction
             involving such cruelty. Therefore, it was proposed
             to amend IPC, the Code of Criminal Procedure,
             1973 (in short “CrPC”) and the Evidence Act
             suitably to deal effectively not only with cases of
             dowry deaths but also cases of cruelty to married
             women by the husband, in-laws and relatives. The
             avowed object is to combat the menace of dowry
             death and cruelty.
                         28

19. The object of the provision is prevention of
the dowry menace. But as has been rightly
contended by the petitioner many instances have
come to light where the complaints are not bona
fide and have been filed with oblique motive. In
such cases acquittal of the accused does not in all
cases wipe out the ignominy suffered during and
prior to trial. Sometimes adverse media coverage
adds to the misery. The question, therefore, is what
remedial measures can be taken to prevent abuse
of the well-intentioned provision. Merely because
the provision is constitutional and intra vires, does
not give a licence to unscrupulous persons to
wreak personal vendetta or unleash harassment. It
may, therefore, become necessary for the
legislature to find out ways how the makers of
frivolous complaints or allegations can be
appropriately dealt with. Till then the courts have
to take care of the situation within the existing
framework. As noted above the object is to strike
at the roots of dowry menace. But by misuse of the
provision a new legal terrorism can be unleashed.
The provision is intended to be used as a shield
and not as an assassin’s weapon. If the cry of
“wolf” is made too often as a prank, assistance and
protection may not be available when the actual
“wolf” appears. There is no question of the
investigating agency and courts casually dealing
with the allegations. They cannot follow any
straitjacket formula in the matters relating to
dowry tortures, deaths and cruelty. It cannot be lost
sight of that the ultimate objective of every legal
system is to arrive at the truth, punish the guilty
and protect the innocent. There is no scope for any
preconceived notion or view. It is strenuously
argued by the petitioner that the investigating
agencies and the courts start with the presumptions
that the accused persons are guilty and that the
complainant is speaking the truth. This is too wide
and generalised a statement. Certain statutory
presumptions are drawn which again are
rebuttable. It is to be noted that the role of the
investigating agencies and the courts is that of a
watchdog and not of a bloodhound. It should be
their effort to see that an innocent person is not
made to suffer on account of unfounded, baseless
and malicious allegations. It is equally
undisputable that in many cases no direct evidence
is available and the courts have to act on
circumstantial evidence. While dealing with such
cases, the law laid down relating to circumstantial
evidence has to be kept in view.”
                                     29

      The jurisdiction of the High Court to quash an order of summoning
and/or a criminal proceeding as also this Court are well known. The parties
have relied upon the decisions of this Court in State of Haryana vs. Bhajan
Lal [1992 (Supp.) 1 SCC 335]. We may notice the categories 1, 3, 5 and 7
mentioned in Para 102 of the said decision, which are as under:

            “(1) Where the allegations made in the first
            information report or the complaint, even if they
            are taken at their face value and accepted in their
            entirety do not prima facie constitute any offence
            or make out a case against the accused.
                         xxx          xxx         xxx
            (3) Where the uncontroverted allegations made
            in the FIR or complaint and the evidence collected
            in support of the same do not disclose the
            commission of any offence and make out a case
            against the accused.
                         xxx          xxx         xxx
            (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.
                         xxx          xxx         xxx
            (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.”
                                      30

{See also Chunduru Siva Ram Krishna & Anr. vs. Peddi Ravindra Babu &
Anr. [2009 (4) SCALE 685], Kailashi Bai vs. Aarti Arya & Anr. [2009 (7)
SCALE 304}
      Does this case fall under any of the categories is the question.
      Before however, we consider the necessary ingredients of the
aforementioned dicta vis-`-vis the facts involved in the present case, we may
also notice some other decisions of this Court.

      In Onkar Nath Mishra & Ors. vs. State (NCT of Delhi) & Anr. [2008
(1) JCC 65], this Court opined as under:
             “18. In the present case, from a plain reading of the
             complaint filed by the complainant on 8-11-1994,
             extracted above, it is clear that the facts mentioned
             in the complaint, taken on their face value, do not
             make out a prima facie case against the appellants
             for having dishonestly misappropriated the
             stridhan of the complainant, allegedly handed over
             to them, thereby committing criminal breach of
             trust punishable under Section 406 IPC. It is
             manifestly clear from the afore extracted complaint
             as also the relevant portion of the charge-sheet that
             there is neither any allegation of entrustment of
             any kind of property by the complainant to the
             appellants nor its misappropriation by them.
             Furthermore, it is also noted in the charge-sheet
             itself that the complainant had refused to take
             articles back when this offer was made to her by
             the investigating officer. Therefore, in our opinion,
             the very prerequisite of entrustment of the property
             and its misappropriation by the appellants are
             lacking in the instant case. We have no hesitation
             in holding that the learned Additional Sessions
             Judge and the High Court erred in law in coming
             to the conclusion that a case for framing of charge
             under Section 406 IPC was made out.
             19. As regards the applicability of Section 498-A
             IPC, in the complaint dated 8-11-1994 there is not
                                   31
           even a whisper of a wilful conduct of Appellants 1
           and 2 of harassment of the complainant at their
           hands with a view to coercing her to meet any
           unlawful demand by them so as to attract the
           provisions of Section 498-A read with Explanation
           thereto. The complaint refers to the talk the
           complainant purports to have had with her
           husband, Appellant 3, who is alleged to have told
           her to come to Bijnore if she apologises to his
           father; keeps him happy; obeys his sister and talks
           to her father (the complainant’s) to give her
           Rs.50,000 and VCR and brings these articles to
           Bijnore. We are convinced that the allegation of
           misbehaviour on the part of Appellants 1 and 2 and
           the demand of Rs. 50,000 and VCR by them made
           by the complainant in her subsequent statement
           dated 4-4-1995, was an afterthought and not bona
           fide.”

      In Ramesh & Ors. vs. State of T.N. [(2005) 3 SCC 507], it was
opined:
           “6. Before we proceed to deal with the two
           contentions relating to limitation and territorial
           jurisdiction, we would like to consider first the
           contention advanced on behalf of the appellant
           Gowri Ramaswamy. Looking at the allegations in
           the FIR and the contents of charge-sheet, we hold
           that none of the alleged offences viz. Sections 498-
           A, 406 IPC and Section 4 of the Dowry Prohibition
           Act are made out against her. She is the married
           sister of the informant’s husband who is
           undisputedly living in Delhi with her family.
           Assuming that during the relevant time i.e.
           between March and October 1997, when the 6th
           respondent (informant) lived in Mumbai in her
           marital home, the said lady stayed with them for
           some days, there is nothing in the complaint which
           connects her with an offence under Section 498-A
           or any other offence of which cognizance was
           taken. Certain acts of taunting and ill-treatment of
           the informant by her sister-in-law (the appellant)
           were alleged but they do not pertain to dowry
           demand or entrustment and misappropriation of
           property belonging to the informant. What was
           said against her in the FIR is that on some
                                       32
              occasions, she directed the complainant to wash
              WC and she used to abuse her and used to pass
              remarks such as “even if you have got much
              jewellery, you are our slave”. It is further stated in
              the report that Gowri would make wrong
              imputations to provoke her husband and would
              warn her that nobody could do anything to her
              family. These allegations, even if true, do not
              amount to harassment with a view to coercing the
              informant or her relation to meet an unlawful
              demand for any property or valuable security. At
              the most, the allegations reveal that her sister-in-
              law Gowri was insulting and making derogatory
              remarks against her and behaving rudely against
              her. Even acts of abetment in connection with
              unlawful demand for property/dowry are not
              alleged against her. The bald allegations made
              against her sister-in-law seem to suggest the
              anxiety of the informant to rope in as many of the
              husband’s relations as possible. Neither the FIR
              nor the charge-sheet furnished the legal basis to the
              Magistrate to take cognizance of the offences
              alleged against the appellant Gowri Ramaswamy.
              The High Court ought not to have relegated her to
              the ordeal of trial. Accordingly, the proceedings
              against the appellant Gowri Ramaswamy are
              hereby quashed and her appeal stands allowed.”

       In Chunduru Siva Ram Krishna & Anr. vs. Peddi Ravindra Babu &
Anr. [supra], it is stated:
              “17. The aforesaid discussion clearly pin-point
              the legal position on the subject which is by now
              well settled. The principle that could be culled out
              is that when at an initial stage a prosecution is
              asked to be quashed, the test to be applied by the
              court is as to whether the uncontroverted
              allegations as made in the complaint filed prima
              facie establish the offence. It is also for the court
              to take into consideration any special feature that
              may appear in a particular case while considering
                                      33

             whether it is expedient and in the interest of justice
             to permit a prosecution to continue. This is so on
             the basis that the court cannot be utilized for any
             oblique purpose. The tests that are laid down in
             the case of Bhajan Lal (supra) are required to be
             applied very carefully and minutely when a prayer
             for quashing is laid down before the Court.”

      In Devendra & Ors. vs. State of U.P. & Anr. [2009 (7) SCALE 613],
it has been held:
             “26. There is no dispute with regard to the
             aforementioned propositions of law. However, it
             is now well-settled that the High Court ordinarily
             would exercise its jurisdiction under Section 482
             of the Code of Criminal Procedure if the
             allegations made in the First Information Report,
             even if given face value and taken to be correct in
             their entirety, do not make out any offence. When
             the allegations made in the First Information
             Report or the evidences collected during
             investigation do not satisfy the ingredients of an
             offence, the superior courts would not encourage
             harassment of a person in a criminal court for
             nothing.”

      Reliance has been placed by Mr. Malhotra on the decision of this
Court in Mahila Vinod Kumari vs. State of Madhya Pradesh [2008 (10)
SCALE 97]. We are not concerned with the same as the same deals with the
question of perjury.
                                       34

      The complainant further did not stop there but also filed a complaint
petition that she was cheated as Vikas and his parents did not disclose about
his marital state of affairs in regard to the first marriage and/or the decree of
divorce obtained by him. We do not intend to make any comment with
regard to the correctness or otherwise of the statements made therein as the
matter is not before us.

      We have, however, made note of the litigations filed between the
parties in great detail. These litigations, if a holistic view is taken, depict a
sad state of affairs, namely, that the respondent, on the one hand, intends to
take all coercive measures to secure the presence of her husband and the
appellants in India in various cases filed by her and, on the other hand, she
had     repeatedly         been   making       attempts     of      conciliation.
Endeavour/conciliations were made by the Delhi High Court as also this
Court at various stages. The High Court, as indicated hereinbefore, in its
order dated 6.10.2005 passed in Criminal Revision No. 452 of 2005
categorically held that the marriage has irretrievably broken down. Be that
as it may, we are of the opinion that keeping in view the ingredients of the
provisions of Sections 498A of the IPC, no case has been made out against
the appellants herein.
                                     35

      We may now consider the question as to whether the complaint
petition discloses any offence under Section 406 of the IPC.

      At the outset, we may notice as to what is `Streedhana’

      In Rashmi Kumar (Smt.) vs. Mahesh Kumar Bhada [(1997) 2 SCC
397], the meaning of Stridhana has been taken from Mayne’s Hindu Law &
Usage (13th Edn.). It was opined:
            “9. A woman’s power of disposal, independent
            of her husband’s control, is not confined to
            saudayika but extends to other properties as well.
            Devala says: “A woman’s maintenance (vritti),
            ornaments, perquisites (sulka), gains (labha), are
            her stridhana. She herself has the exclusive right to
            enjoy it. Her husband has no right to use it except
            in distress….” In N.R. Raghavachariar’s Hindu
            Law — Principles and Precedents, (8th Edn.)
            edited by Prof. S. Venkataraman, one of the
            renowned Professors of Hindu Law para 468 deals
            with “Definition of Stridhana”. In para 469 dealing
            with “Sources of acquisition” it is stated that the
            sources of acquisition of property in a woman’s
            possession are: gifts before marriage, wedding
            gifts, gifts subsequent to marriage etc. Para 470
            deals with “Gifts to a maiden”. Para 471 deals with
            “Wedding gifts” and it is stated therein that
            properties gifted at the time of marriage to the
            bride, whether by relations or strangers, either
            Adhiyagni or Adhyavahanika, are the bride’s
            stridhana. In para 481 at page 426, it is stated that
            ornaments presented to the bride by her husband or
            father constitute her Stridhana property. In para
            487 dealing with “powers during coverture” it is
            stated that saudayika meaning the gift of
            affectionate kindred, includes both Yautaka or
            gifts received at the time of marriage as well as its
            negative Ayautaka. In respect of such property,
                                    36
            whether given by gift or will she is the absolute
            owner and can deal with it in any way she likes.
            She may spend, sell or give it away at her own
            pleasure.
            10. It is thus clear that the properties gifted to
            her before the marriage, at the time of marriage or
            at the time of giving farewell or thereafter are her
            stridhana properties. It is her absolute property
            with all rights to dispose at her own pleasure. He
            has no control over her stridhana property.
            Husband may use it during the time of his distress
            but nonetheless he has a moral obligation to restore
            the same or its value to his wife. Therefore,
            stridhana property does not become a joint
            property of the wife and the husband and the
            husband has no title or independent dominion over
            the property as owner thereof.”

      It was furthermore held:
            “…The expression “entrustment” carries with it
            the implication that the person handing over any
            property or on whose behalf that property is
            handed over to another, continues to be its owner.
            Entrustment is not necessarily a term of law. It
            may have different implications in different
            contexts. In its most general significance, all its
            imports is handing over the possession for some
            purpose which may not imply the conferment of
            any proprietary right therein. The ownership or
            beneficial interest in the property in respect of
            which criminal breach of trust is alleged to have
            been committed, must be in some person other
            than the accused and the latter must hold it on
            account of some person or in some way for his
            benefit….”

      The offence of criminal breach of trust as defined in Section 405 of
the IPC may be held to have been committed when a person who had been
entrusted in any manner with the property or has otherwise dominion over it,
                                       37

dishonestly misappropriates it or converts it to his own use, or dishonestly
uses it, or disposes it of, in violation of any direction of law prescribing the
mode in which the trust is to be discharged, or of any lawful contract,
express or implied, made by him touching such discharge, or willfully
suffers any other person so to do.
   The essential ingredients for establishing an offence of criminal breach of
trust as defined in Section 405 and punishable under Section 406 IPC with
sentence for a period up to three years or with fine or with both, are:
   (i) entrusting any person with property or with any dominion over
property;
   (ii) the person entrusted dishonestly misappropriating or converting to his
own use that property; or dishonestly using or disposing of that property or
wilfully suffering any other person so to do in violation of any direction of
law prescribing the mode in which such trust is to be discharged, or of any
legal contract made touching the discharge of such trust.

      We have noticed heretobefore that the correspondences exchanged
between the spouses or by and between Vikas and his in-laws do not
disclose any allegation which would amount to criminal misconduct on the
part of the appellants.
                                      38

       With the aforementioned backdrop of events, we may now notice the
allegations made in the complaint petition filed by the respondent against the
appellants.
       The only allegation which brings the case within the purview of
Section 406 is that appellant No.2 had taken all the gifts/cash given by the
invitees/guests. Technically, this allegation would attract the definition of
breach of trust within the meaning of Section 405 of the IPC.
       Entrustment of some properties and/or dominion over them, if any,
therefore, is attributed only against the appellant No.2. Other allegations
made against the appellants are general in nature.
       Entrustment is said to have been made to the appellants and/or their
son.
       No definite case of entrustment of any property has been made against
the appellant No.1.
       He is only said to have given back to the complainant’s parent the
entire cloth and jewelry. No demand was made by the respondent.
       Offering of Rs.25 lakhs for grant of divorce by mutual consent as
compensation to the complainant, which is three times of the amount of the
value of `Streedhana’ and/or amount spent by the complainant’s father per se
does not constitute any offence of Section 406 of the Code.
                                     39

      Any gift made to the bridegroom or his parents – whether in
accordance with any custom or otherwise also would not constitute any
offence under Section 406 of the Code.

      In State of Punjab vs. Pritam Chand & Ors. [2009 (2) SCALE 457], it
has been held:
            “4. Section 406 IPC deals with punishment for
            criminal breach of trust. In a case under Section
            406 the prosecution is required to prove that the
            accused was entrusted with property or he had
            dominion over the property and that the accused
            misappropriated or converted the property to his
            own use or used or disposed of the property or
            willfully suffered any person to dispose of the
            property dishonestly or in violation of any
            direction of law prescribing the mode in which the
            entrusted property should be dealt with or any
            legal contract express or implied which he had
            entered into relating to carrying out of the trust.”

{See also Harmanpreet Singh Ahluwalia & Ors. vs. State of Punjab &
Ors.[2009 (7) SCALE 85]}

      We, therefore, are of the opinion that prima facie a case under Section
406 of the IPC has been made out only against appellant No.2.

      Before parting, we may observe that courts at all levels have made
endeavours to bring about a settlement between the parties. The High Court
                                    40

in the earlier round of proceedings probably rightly observed that the
marriage between the Monica and Vikas has irretrievably been broken down.

      The appeals are allowed to the extent mentioned hereinabove.

      The summoning order dated 21.3.2005 passed against the appellants
except Appellant No.2 is set aside. It is clarified that the proceedings can
continue only against the appellant No.2, that too in respect of Section 406
IPC only.

                                            ………………………….J.
                                            [S.B. Sinha]

                                            …………………………..J.
                                            [Cyriac Joseph]
NEW DELHI;
JULY 27, 2009

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