Tag Archives: Madras HC

Madras HC Bench rules that court or police have no such power to impound and hold passports | LatesLaws . com

Bench ruled that the court also had no such power to impound the passport.


Madras High Court has issued a set of guidelines to be followed by police, lower courts and passport authorities in the matter of impounding passports.

Though the police are entitled to seizing a passport under Section 104 of the CrPC, they have no authority to keep it in their custody.

In turn, as soon as possible, the passport must be produced before the court concerned without any unreasonable delay, Justice M V Muralidharan said on February 26 last.

The judge was allowing a revision petition from Dr C Ramesh Babu, an orthopaedic surgeon, seeking return of his passport impounded by police and deposited with a lower court in connection with a criminal case.

The judge said that the court also had no such power to impound the passport. However, the duty of the court is to direct the passport authority to commence the proceedings for impounding passport by strictly adhering to the provision under Section 10(3) of the Passports Act as the same is a special enactment.

In turn, the passport authority is to initiate due process to impound the passport after affording opportunity duly to the holder of the passport as it involves the right to free movement as guaranteed in the Constitution. After considering the necessity pertaining to facts and circumstances of each case, the passport authority, by giving detailed reasons, may take any decision on either side by applying the mind.
Coming back to the case on hand, the judge observed that the petitioner used to travel abroad due to his profession. Further, his son is also pursuing his higher studies in London. “Therefore this court considers that the petitioner’s request is genuine. In view of the discussion above, I have no hesitation to allow this criminal revision,” the judge said and accordingly allowed it.






wife’s #Sec125 #maintenance #dismissed for wrong jurisdiction; #MadrasHC ; K.#Mohan vs #Balakanta #Lakshmi

Educated couple start matrimonial litigation. Since both were residing at Bangalore, before separation, Husband files for divorce at Bangalore. Wife leaves husband, comes to Ambattur, which is outside Madras Metropolitan limits (in 1982 / 83) and files for maintenance under CrPC Sec 125 at Madras court. Husband assails jurisdiction. Husband proves with evidence that wife is outside Madras (and is residing under the jurisdiction of nearby Chengalpattu courts) Madras HC analyses “Domicile” and “jurisdiction”, verifies the facts and dismisses wife’s case, asking her to file at appropriate jurisdiction !!

While such technical victories may be short-lived, these are important to frustrate errant women filing usurious maintenance cases

Madras High Court

K. Mohan vs Balakanta Lakshmi on 13 December, 1982

Equivalent citations: 1983 CriLJ 1316

Author: R Pandian

Bench: R Pandian

ORDER Ratnavel Pandian, J.

..1. This revision is directed against the preliminary order made’ in M. C. 806 of 1980 on the file of the II Metropolitan Magistrate, Edmore, Madras, rejecting the contention of the revision petitioner (respondent in M. C. 806 of 1980 — husband) that the Court below did not have the territorial jurisdiction to entertain an application under Section 125, Cr. P.C. filed by the respondent herein (wife).

..2. It is a very unfortunate case wherein the highly educated couple are perpetually fighting with each other obviously for the reason, that they are not able to get on together amicably. It is seen from the records that after the marriage, both the parties resided at Bangalore and that the revision petitioner filed an original petition for annulment of the marriage before the Principal Civil Judge, Bangalore city. Be that as it may, the respondent had left Bangalore and thereafter had filed an application under Section 125 Cr. P.C. before the Second Metropolitan Magistrate, Edmore, Madras, claiming maintenance from the revision petitioner. In that petition she has stated in the preamble that she is now residing at Madras. The respondent, on receipt of the notice from the Court of the Second Metropolitan Magistrate, Madras, had filed a counter denying the allegations and raising a preliminary objection, stating that the said Court had no territorial jurisdiction to entertain this application under Section 125 Cr. P.C. on the ground that the respondent is not residing within its jurisdiction, viz. in the Madras City, but on the other hand is permanently residing with her parents at Ambattur within the jurisdiction of the Chengalpattu district and therefore the application ought to have been presented before the Court concerned in Chengalpattu district having jurisdiction over Ambattur area. To substantiate his preliminary objection, the petitioner has filed a number of documents marked as Exs. R-l to R-5. No oral evidence was let in by either of the parties. The learned Magistrate, observing that the term ‘resides’ occurring in Section 125 (1) (b) of the Cr. P.C. should be liberally construed, held, on the sole basis of the averment in the preamble of the petition that the respondent is residing at Madras, that he has got the territorial jurisdiction to entertain that application and the preliminary objection raised by the petitioner with regard to the jurisdiction is to be overruled. It is as against this order, the present revision is preferred.

..3. Though the respondent has received the summons, she is neither appearing in person nor appearing through any counsel. Therefore this Court has appointed Mr. A. Sasidharan, as amicus curiae to appear on behalf of the respondent and to assist this Court.

..4. This revision raises the question as to the true construction of the term ‘resides’ appearing in Section 126 (1) (b) of the Criminal P.C. Leaving apart the question about the respondent’s entitlement for maintenance, we have to determine in this case the question about the territorial jurisdiction of the Court at Madras to entertain this application filed under Section 125 Cr. P.C. because the jurisdiction of the Court is to be determined by the residence of the parties. The answer to this question turns upon the interpretation of Causes (a) to (c) of Section 126 (1) of the Code which demarcate the jurisdictional limits of a Court to entertain a petition under Section 125. I shall presently give the present and, the corresponding past provisions of the Code in the following table so that one can easily understand the position of law that stood earlier and the present position consequent upon the amendment made in the present Code.


Sec. 488 (8) of the Criminal   Section 126 (1) of the Criminal
Procedure Code, 1898        Procedure Code, 1973
Proceedings under this Proceedings ‘under Section 125 may be
section may be taken taken against any person in any
against any person district
in any  district (a) where he is, or
where he resides or is, (b) where he or his wife resides, or
or where he last resided (c) where he last resided with his
with his wife, or, as the case may be the wifeor as the case
mother of illegitimate child. case may be, the
mother of illegitimate child.

On a plain reading of Section 488 (8) of the old Code, it can be seen that the place where the wife resided after desertion by her husband was not material. This caused great hardship to wives. who after desertion were living far away from the place where they and their husbands last resided together. So, in order to remove such hardships, on the recommendation made by the Law Commission, the present Section 126 (1) (b) was enacted by introducing the expression ‘or his wife’ between the words ‘he’ and, ‘resides’, so that the venue of the proceedings should also include the place where the deserted or neglected wife may be residing on the date of the application. In the present revision, the crucial word ‘resides’ occurring in Section 126 (1) (b) alone comes up for interpretation. Under the old Code, the Magistrate of the district where the husband or father, as the case may be, resided, only had the jurisdiction. Now the jurisdiction is enlarged or widened. 5. 126 (1) gives three alternative forums as enumerated, in Clauses (a) to (c) there under. These alternative forums are designedly given by the Parliament so as to enable a discarded wife or helpless child to get the much-needed and, urgent relief in one or the other of the three forums that is convenient to them. Needless to say that the proceeding under Section 125 is in the nature of a civil proceeding and the remedy is a summary one, as laid down in Sub-section (2) of Section 126, and the person seeking the remedy, as pointed out above, is ordinarily a helpless person. The introduction of the expression in Section 126 (1) (b) is ‘or his wife.’

..5. So, the word ‘resides’ should be undoubtedly liberally construed, but at the same time, without doing any violence to the language and without defeating the very object of this provision.

..6. The word ‘resides’ has been subject to conflicting judicial opinions. In the Oxford Dictionary it is defined as ‘….to live permanently or for a considerable time, to have one’s settled or usual abode, to live, in or at a particular place.’

..7. The Corpus Juris Secundum, Vol. LXXVII at page 285 states that the word ‘reside’ is employed in a wide variety of significations, that its meaning may differ according to the connection in which it is used, that the particular signification of the term in any given instance depends on the context and the purpose under consideration and that it should be interpreted in the light of the object or purpose of its use. It is. further noted therein as follows:– It has been said that the word, ‘reside’ has two distinct meanings, and that it may be employed in two senses, and in what is sometimes referred to as the strict legal, or technical sense, it means legal domicile as. distinguished from mere residence or. place of actual abode. In this sense the word ‘reside’ means legal residence; legal domicile, or the home of a person in contemplation of law, the place where a person is deemed in law to live, which may not always be the place of his actual dwelling and thus the term may mean something different from, being bodily present, and does not necessarily refer to the place of actual abode. When employed in this sense, the word,’reside’,.includes not only physical presence in a place, but also the accompanying intent of choosing that place as a permanent residence.

..8. Again, at page 288, it is noted thus: Reside’ has been held equivalent to, or synonymous with, ‘abide’, ‘dwell; ‘to have one’s home’, ‘live’, ‘lodge?, ‘remain’, ‘residence’, ‘sojourn’, and ‘stay’ ‘Reside’ is said to be. usually classed as synonymous, with ‘inhabit’; but not., in strictness, properly so.

..9. In the Words and Phrases, Per manent Edn. Volume 37, at page 308 it is defined thus; To ‘reside’ in ordinary acceptation, means to dwell, or to live…’Reside’ means live, dwell, abide, sojurn, stay, remain, lodge.

..10. The above lexicographical meaning of the word, therefore, takes in both the permanent dwelling and the tern porary living in a place and it is therefore capable of different meanings including ‘domicile’ in the strictest and the most technical sense and a temporary residence in the liberal sense. Whatever meaning is given to it, one thing is obvious and it is that it does not include a casual stay in or a flying visit to a particular place. In short, the meaning of the word would in the ultimate analysis depend upon the context and the purpose of the particular statute..

..11. In this case, the context and the purpose of the present statute certainly do not compel the importation of the concept of domicile in its technical sense. The purpose of the statute would, be better served if the word ‘resides’ is understood to include temporary residence. For example, if a person goes from his permanent place ‘A’ to another place ‘B’ either for carrying out certain work or as an invitee or as a tourist and resides or stays there for one or two days, he cannot be said to be residing at ‘B’ in the legal sense. But it he goes to the place ‘B’ and stay there for some length of time, though not permanently, but for the purpose of either educating his children or carrying on a business for a considerable length of time, he resides at ‘B’. One cannot give exhaustive illustrations to explain what the term ‘resides’ means. j But, its meaning has to depend upon the circumstances of each case. The main criteria in determining what the term ‘reside’ means, is the intention or the animus manendi of the person residing in a particular place, and the, cognate expression includes both temporary and permanent residence. But, the expression ‘resides’ used in Section 126 (b) of the new Code will not include a casual or flying visit or a brief, stay. On the other, hand, it implies more than that..

..12. Mr. V. Gopinathan drew the attention of this Court to decisions of the various High Courts and ultimately to the decision of the Supreme Court, all defining the term ‘reside’.

..13. The Full Bench of the. Allahabad High Court, in Arthur Flowers v. Minnie Flowers (1910) ILR 32 All 203, has held, while interpreting the expression ‘resides’ occurring in Section 3 of the Indian Divorce Act, that a mere temporary sojourn in a place, there being no intention of remaining there, will not amount to residence in.that place within the meaning of. the expression, so as to give jurisdiction under, the Act to the Court within the local limits of whose jurisdiction such a place is situate.

..14. In Charan Das v. Surasti Bai AIR 1940 Lah 449 : 1941-42 Cri LJ 105, it was held that the sole test on the question of residence was whether a party had the animus manendi or an intention to stay for a definite,period at one place and if he had such an intention, then alone could he be said to reside there.

..15. In Balakrishna v. Mrs. B. Sakun-lala Bai AIR 194-2 Mad 666 : 194-2 Mad WN Cri 73, it has been pointed, out that the word ‘resides in Section 488 (8) Cr. P.- C. implies the mere intention to rer maJn ata place and not merely to pay it a casual visit intending shortly, to move on to ones permanent residence.

..16. This Court has in Sampoornam v. N. Sundaresan , obseryed as follows at p, 275 of Cri LJ:– In short, Sub-section (8)of Section 488 Cr. P.C. does not necessarily refer to a permanent residence and it refers also to temporary residence, and the word ‘residence’ implies something more than a brief visit but not such a continuity as to amount to domicile. Each case, has to be dealt with on its merits as has been pointed out in Ganga Bai v. Pamanmal AIR 1938 Sind 223 1939-40 : Cri: LJ 117, bearing in mind that the section should not be so strictly cont, strued as to deprive the woman, who often in these cases is helpless, of assistance from the Court/which is most easily accessible to her. The Supreme Court in Jagir Kaur v. Jaswant Singh , after having referred to the meaning of the term ‘resides’ as defined lexicographically and as inter-: preted by the various High Courts, has observed as follows (at p. 415 of Cri LJ):- The decisions on the. subject are legion and it would be futile to survey the entire field. Generally stated no decision goes so far as to hold that ‘resides’ in the sub-section means only’ domicile in the technical sense of that word. There is also a broad unanimity that it means something more than a (lying visit to or a casual stay in a particular place. They agree that there shall be animus manendi or an intention to stay for a period, the length of the period depending upon the circumstances of each case. Having regard to the object sought to be achieved, the meaning implicit in the words used; and the construction placed by decided cases thereon, we would define the word ‘resides’ thus. :,a person resides in a place if, he through choice makes it his abode permanently or even temporarily,; whether a person has chosen to make: a particular place his abode depends upon the facts,of each case.

..17. Therefore, it is clear that the exprecession ‘resides’ occurring in Section 126(1) (b) has to be given a liberal construe ion and the legislature could not have intended to use the said term in the technical sense of ‘domicile’ and it ‘has to be Understood to include a temporary residence also.

..18. Now, let us examine the facts of the present case, giving the word ‘resides’ the liberal interpretation as pointed put in the., above decisions.

..19. Mr. Gopinathan drew the attention of this Court to Exs. R. 1 toR 5,marked in this case and contended that the petitioner herein has unambiguously proved that the respondent is residing in Ambattur. In Ex. R-l, the postal acknowledgment containing the signature of the respondent dated 20-7-1979, her address read,s thus : “Mrs. K. Bala Kanaka Lakshmi, Laxmi Nivasl, No. 5, Kanniah Chetti St. Venkatapurarn, Ambattur P. O., Madras-53”. Ex. R. 2 is the reply notice dated 15-10-1979, sent by the respondent herself to the petitioner’s Counsel. In that reply notice also, she has given the same address as in Ex. R. 1. Ex. R. 5 is yet another postal acknowledgment dated 9-8-1980, containing the signature of the respondent and therein also the respondent’s address is the same as in Ex. R. I-Thus, it is clear that all the correspondence and the communications addressed to the respondent at her address at Ambattur, Madras 53, were duly served on her. Above -all, she -herself has given her address in October 1979′.in Ex. R. 2, stating that she is residing at No. 2 Kanniah Chetti St. Venkatapuram, Ambattur, Madras 53.

..20. As against the above, documentary evidence, the Court below was inclined to base its conclusion holding that the respondent is residing at Madras, solely on the recital made in the preamble of the petition filed under Section 125 Cr. P.C. which reads thus: The petitioner/complainant Balakanaka Lakshmi, aged about 23 years, residing at Madras, solemnly affirm and state as follows. Barring this, there is nothing on record to show that the respondent is residing within the territorial jurisdiction of the Court below or at any rate in any part of the Madras Corporation limits. The respondent would be conspicuously silent about the actual place of her residence in her affidavit. Only if the respondent gives her- residential address, the petitioner would be able to refute it by producing evidence to the contrary. Her bald, and vague statement that she is residing at Madras, will not enable the Court to arrive at any definite conclusion that she is residing within the territorial jurisdiction of the Court. If really the respondent is residing in any part of the Madras City, she should have specifically given the door number and the names of the street and of the locality, so that the Court below could unmistakably take seisin, of the matter. On the other hand, she has not denied the statement in the counter that she is residing at Ambattur, Madras 53 (Madras 53 denotes the postal division). Ex. R. 5 dated 9-8-1980, reveals that the correspondence addres sed to her has been served on her at her Ambattur address, even after her petition for maintenance dated, 20-2-1980 has been filed before the Court below, and the respondent herself has given her Ambattur address in Ex. R-2 Moreover, it may be noted that the notice issued from this Court in this revision sent to the respondent through the II Metropolitan Magistrate, Egmore, Madras, has been served on the respondent only at her residence at Ambattur mentioned above. Therefore, I unhesitatingly hold that the respondent is even now residing only at Ambattur. For all the reasons stated above, I hold that the respondent is not residing within the territorial jurisdiction of the Court below, either temporarily or permanently, but she is proved to be ‘residing’ within the meaning of the said expression used in which area the Court within the Chingalpattu district alone will have the territorial. jurisdiction’.

..21. In the result, the.revision is allowed, the order passed by the II Metropolitan Magistrate is set aside and the objection raised by the petitioner with regard to the territorial jurisdiction is upheld. It is left to the respondent to present the petition before the appropriate and competent Court having jurisdiction over Ambattur.

Fake #498a wife’s #transfer petition on HMOP #dismissed by #Madras #HighCourt

Aunt and uncle arrested in wee hours by police, on the basis of a fake #498a file MUCH after matirmonial discord started

US based NRI husband & relatives accused

HC refuses wife’s transfer petition !!



DATED: 20.01.2009



Tr.C.M.P.No.361 of 2008

Nivashini Mohan .. Petitioner


R.Nivendran .. Respondent

Transfer Civil Miscellaneous Petition is filed to withdraw and transfer the H.M.O.P.No.311 of 2008 from the file of the II Additional Family Court, Chennai to the file of the Sub-Court, Chengalpattu to be tried along with H.M.O.P.No.201/2008.

For Petitioner : Mr.T.R.Senthil Kumar

For Respondent : Mr.Thomas T.Jacob


The petitioner/wife has filed this Transfer C.M.P.361/2008 praying for issuance of an order by this Court, directing the transfer of HMOP.311/2008 from the fire of the II Additional Family Court, Chennai to the file of the Sub-Court, Chengalpattu to be tried along with HMOP.201/2008.

  1. The petitioner/wife in her affidavit in the Transfer Petition has averred that her marriage with the respondent/husband has taken place on 2.7.2006 according to Hindu Rites and Customs at Vemubuli Amman Temple, Aminjikarai, Chennai, though the marriage has been formally registered on 28.06.2006 and later by the threat and compulsion of the respondent/husband registered the marriage at Sub-Registrar Office, Pammal on 26.09.2005 and because of the continuous harassment and demand of dowry by the respondent/husband and his family members, she has faced cruelty and mental agony and that after her marriage, within a short span of three months. She has been driven out of the matrimonial house three times by the family members of the respondent/husband and that she has been compelled to give up her job and that she has been threatened to abort even at the very early stage of her pregnancy and that she has been forced to locate a rented house near her office at Perungudi on intimation to the respondent/husband, as per the advise of the Doctor and that she shifted her residence on 1.12.2006 and that having waited for two months, she sent E-mails to the respondent/husband narrating all the ill-treatments and cruelty meted out to her. The respondent/husband filed HMOP.352/2007 before the Principal Family Court, Chennai under Section 9 of the Hindu Marriage Act alleging as if the petitioner/wife has refused to join with him and on 18.4.2007, the said HMOP has been dismissed based on the endorsement made by the parties and the respondent/husband has come to Perungudi after three days on 21.04.2007 and that during the said stay of the respondent/husband from 21.04.2007, he has threatened the petitioner/wife to give consent for divorce or comply with the demand of his family members and after the birth of the male child, the respondent/husband with his family members identified a rented house, an unfinished one near his parents residence at Arumbakkam and that she has been asked to vacate the house at Perungudi on 31.07.2007 and that the respondent/husband has brought her and the child to Vandalur at the residence of her parents etc.
  2. It is the further case of the petitioner/wife that she has been required to come with the 40 days infant child to Arumbakkam on 8.8.2007 to the newly rented house in the second floor at Arumbakkam and on believing the assurance of the respondent/husband, when she went there on 8.8.2007, the respondent/husband has not taken care of her and her child and used to go to his parents house even without providing food etc and that the child’s eyes were affected and that the respondent/husband sent her out from the matrimonial house on 11.08.2007, on the ill advise of his family members.

  3. Eversince the time she has been driven out by her husband, she has been living at Vandalur with the help of her parents and that she made frequent efforts to contact the respondent/husband to take clothes and medicines for the child etc and later she shifted her house to Tharamani near her office after intimating the same to the respondent/husband and she came to know that the respondent/husband was in abroad in U.S.A during that time. But her efforts to contact him has ended in vain and later she gave a complaint before the Protection Officer, Teynampet, Chennai requesting for arranging a reunion with the respondent/husband, but he participated in the enquiry on 31.1.2007, but failed to yield the advise of the Protection Officer and subsequently, she has been perforced to file a criminal complaint before the Chief Metropolitan Magistrate Court, Egmore, Chennai and the same being forwarded to the Inspector of Police, W7-All Women Police Station, Anna Nagar, Chennai which culminated in filing of charge sheet in C.C.10989/2008 against the respondent and his family members and prior to that she has filed HMOP.201/2008 before the Sub-Court, Chengalpattu under Section 9 of the Hindu Marriage Act praying for restitution of conjugal rights and that the respondent has entered appearance through his counsel and later, she has been informed by her friend that a Paper Publication, dated 5.7.2008 has been effected by the respondent as a public notice for her appearance on 2.9.2008 in a case before the II Additional Family Court, Chennai in O.P.311/2008.

  4. With this background, the learned counsel for the petitioner/wife submits that the petitioner/wife has to spend a minimum of 4 hours for her travel from Chengalpattu to the court at Chennai for her appearance and further that as per the Family Court proceedings, the personal appearance of the parties on the date of hearing is mandatory and as such, the wife may not be able to appear before the II Additional Family Court on every hearing date, since she has a child and living near Chengalpattu and therefore prays for allowing the Transfer Original Petition in the interest of justice.

  5. The respondent/husband has filed a detailed counter inter alia stating that he sent a mail on 16.01.2007, requesting the petitioner/wife to sort out differences if any by going before the marital counselling. But the same has been shunted with retaliatory mails abusing him and his parents and that he filed O.P.352/2007 before the Principal Family Court for restitution of conjugal rights and after the disposal of the complaint, the petitioner/wife has refused to live in his house stating many allegations against his parents and sister that they would be ill treating her etc. and when there were vast difference of opinion at the end of the counselling both have agreed to start a new life forgetting the past and also with an agreement to accept each others parents etc. and that because of the attitude of the petitioner/wife, the marriage has ultimately broken and that the petitioner/wife has filed a complaint under the Domestic Violence Act before the Protection Officer, Teynampet, Chennai against him, his parents, sister, uncle and aunt and he has been in USA during this period and since he returned to Chennai, he informed the Protection Officer who has taken part in the enquiry and later he filed O.P.311/2008 on the file of the II Additional Family Court, Chennai on 1.12.2008 and in the meanwhile, the petitioner/wife has filed a false complaint before the learned Chief Metropolitan Magistrate, Egmore, Chennai under the Dowry Prohibition Act and the Domestic Violence Act and a First Information Report has been registered on the evening of 15.04.2008 and that his parents, sister, uncle and aunt have been taken into custody on 16.4.2008 early morning and that a charge sheet has been filed in C.C.10981/2008 before the Chief Metropolitan Magistrate Court and that complaint has been filed against the suspended Inspector of Police Mrs.Rajalakshmi for her partial attitude and non-investigation of the case as per the Criminal Procedure Code and the same is pending enquiry by the Directorate of Prosecution.

  6. Continuing further, with a view to harass the respondent/husband and his family another case C.C.356/2008 has been filed before the Judicial Magistrate No.II, Chengalpattu by the petitioner/wife in a different jurisdiction upon the same cause of action. When a complaint has been preferred to the Protection Officer, Chennai under the same act is pending and that the petitioner has subjected herself to the jurisdiction of Chennai in the marital case earlier when she has been residing in a residence outside the jurisdiction of the Court and that she has also sought the relief before the Protection Officer, Chennai, when she has been residing outside the jurisdiction and in C.C.10981/2008 pending before the Chief Metropolitan Magistrate Court, she has sought the relief, while she has been outside the jurisdiction and that the restitution of conjugal rights proceedings instituted in Chengalpattu and therefore, the respondent/husband prays for dismissing the transfer petition.

  7. It is true that in transfer of matrimonial petitions, convenience of the wife must be given the prime importance. The important principle for exercising of the powers under Section 24 of the C.P.C. is the convenience and inconvenience of the parties. The question of expediency will depend upon the facts and circumstances of each case. However, the paramount consideration for exercise of the power must be to meet the ends of justice. For the purpose of transfer, the balance of convenience of the parties should be considered. Moreover, the petition under Section 24 of C.P.C. is not to be dealt with lightly and the transfer of a case from one court to another should not be granted readily for any fancied notion of the petitioning party. For the purpose of transfer, a court of law is required to find out whether a particular party has chosen a forum in utter disregard to the convenience of the parties for some ulterior object and in abuse of her position as a arbiter litus. The basic principle is for exercise of power under Section 24 of the CPC. is the convenience and the inconvenience of the parties.

  8. The prayer of the petitioner/wife is that she was residing at Guduvancherry and OP.201/2008 is pending on the file of the Sub-Court, Chengalpattu and that her husband, namely, the respondent has filed O.P.311/2008 on the file of the II Additional Family Court, Chennai and that she has not been in a position to appear before the Family Court, Chennai inasmuch as the Court at Chennai is very near to her residence and that she has to spend a minimum of 4 hours for travel from Chengalpattu to Chennai to appear before the II Additional Family Court, Chennai in connection with the hearing of O.P.311/2008 and therefore, the application for transfer may be allowed by this Court to promote the substantial cause of justice.

  9. Admittedly, the respondent/husband is facing some cases C.C.356/2008 on the file of the Judicial Magistrate No.II, Chengalpattu, C.C.10981/2008 on the file of the Chief Metropolitan Magistrate Court, Chennai and in between the parties, matrimonial Original Petitions are pending. The fact that the petitioner/wife has earlier subjected herself to the jurisdiction of Chennai in a matrimonial case, when she has been residing in a residence outside the Court jurisdiction cannot be disputed. Furthermore, she has also sought the relief of Protection Officer in Chennai, while she has been residing outside the jurisdiction. The case in C.C.10981/2008 pending on the file of the Chief Metropolitan Magistrate Court has been initiated, when the petitioner’s residence has been outside the courts jurisdiction. The petitioner/wife has also filed C.C.356/2008 on the file of the Judicial Magistrate No.II, Chengalpattu under the provisions of the Domestic Violence Act. One cannot brush aside an important fact that the HMOP.201/2008 filed by the petitioner/wife before the Sub-Court, Chengalpattu is only after the filing of the two criminal cases.

  10. Be that as it may, on a careful consideration of the respective contentions, this Court is of the considered view that it is not possible for this court to allow the Transfer Civil Miscellaneous Petition inasmuch as the balance of convenience is not in favour of the petitioner and in that view of the matter, the petition fails and the same is hereby dismissed. No costs. However liberty is given to the petitioner/wife to file necessary application before the II Additional Family Court, Chennai, where O.P.311/2008 is pending and seek exemption of her personal appearance and on such application is being filed by the petitioner/wife, the II Additional Family Court, Chennai is directed to consider the same on merits, after providing due opportunity to the respondent/husband to file his counter in the manner known to law. The II Additional Family Court, Chennai is directed to dispose of the HMOP.311/2008 within a period of four months from the date of receipt of a copy of this Order. Moreover, the parties are directed to co-operate with the II Additional Family Court with regard to the completion of the proceedings.

.01.2009 Index : Yes/No.

Internet: Yes/No.





  1. The II Additional Family Judge, Chennai.
  • The Section Officer, V.R.Section, High Court, Madras.

  • Tr.C.M.P.No.361 of 2008



    Courts can’t impose onerous & unreasonable conditions (huge cash deposit) before bail !! Madras HC

    in this case the lower courts ordered deposit of Rs 15000 by village labour (daily wage earners) and the HON MADRAS HC after considering various HC and SC cases decided that such onerous conditions cannot be imposed. the cases quoted by the HC are very important and strike at the very root of lower courts imposing such onerous conditions

    This case should help husbands who are seeking AB in 498a, 406 cases filed by wife

    The cases referred to should also make good reading


    Before the Madurai Bench of Madras High Court

    Date: 05-02-2015

    The Hon?ble Mr.Justice S.Vaidyanathan

    Crl.O.P.(MD)Nos.19196 of 2014
    & Crl.O.P.(MD)Nos.19197 of 2014
    M.P(MD)No.1 of 2014 in
    Crl.OP.(MD)No.19196 of 2014

    5.Santhana Raju            .. Petitioners in Crl.O.P.(MD)No.
    19196 of 2014
    5.Kalaiyarasan            .. Petitioners in Crl.O.P.(MD)No.
    19197 of 2014


    Rep. by the Inspector of Police,
    Patteeswaram Police Station,
    Thanjavur District.                        .. Respondent

    in both petitions Prayer These Criminal Original Petitions are filed under Section 482 of Cr.P.C., praying to set aside the second condition imposed by the learned Principal Sessions Judge, Thanjavur in his order, dated 14.10.2014 in Crl.M.P.No.3779 and 3827 of 2014.

    !For Petitioners : Mr.M.Karunanithi ^For Respondents : Mr.P.Kandasamy Government Advocate (Crl. Side) for R1 Mr.B.Jameel Arasu for Intervenor :COMMON ORDER By order, dated 14.10.2014 in Crl.M.P.Nos.3779 and 3827 of 2014, while granting anticipatory bail to the petitioners herein, the learned Principal District and Sessions Judge, Thanjavur, apart from other conditions, imposed a condition, directing the petitioners to deposit a sum of Rs.15,000/- each before the learned Judicial Magistrate, Kumbakonam.

    1. Aggrieved by the said condition, the petitioners have come forward with the present petitions, seeking to set aside the same.
    2. The learned counsel for the appearing for petitioner would submit that the petitioners are agricultural coolies and they find difficulty even to eke out their day-to-day livelihood and hence, they are unable to comply with the condition imposed by the Court below in respect of making deposit of Rs.15,000/- before the learned Magistrate. He would contend that the learned Judge is not having jurisdiction to impose such condition and in fact there is no statutory provision nor any judicial pronouncement empowering the learned Judge to impose condition for depositing of money upon a person at the time of granting bail to him. Therefore, he contended that condition imposed by the Court below is onerous and it tantamounts to abuse of the process of the Court. In support of his contention, the learned counsel relied upon decisions of this Court, in ?Alluvdin versus Inspector of Police, Vandhavasi Police Station?(2001 Crl.L.J.2672); ?N.Sasikala versus Enforcement Officer, Enforcement Directorate, Madras?(1997 Crl.L.J.2120) and also of the Hon?ble Supreme Court reported in ?Ramathal & others versus Inspector of Police and another? (2009 Crl.L.J.2271).

    3. On the other, the learned Government Advocate (Crl.side) would contend that in cases where there would be no possibility of granting anticipatory bail, if the Court comes to the conclusion on facts and satisfied that the person is entitled to anticipatory bail on certain terms and conditions, the same should be not ordinarily interfered with by this Court.

    4. Chapter XXXIII of the Code of Criminal Procedure deals with the provisions as to ?Bail and Bonds?.

    5. Section 437 of Cr.P.C. empowers the authority of law to impose any condition while granting bail to any person accused of, which reads as under: “437. When bail may be taken in case of non-bailable offence. 1[(1) When any person accused of, or suspected of, the commission of any non- bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a court other than the High Court or Court of Session, he may be released on bail, but- (i) Such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; (ii) Such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non- bailable and cognizable offence: Provided that the court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm: Provided further that the court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason: Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that the shall comply with such directions as may be given by the court.] (2) If it appears to such officer or court at any stage of the investigation, inquiry or trial as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, 2[the accused shall, subject to the provisions of section 446A and pending such inquiry, be released on bail], or, at the discretion of such officer or court on the execution by him of a bond without sureties for his appearance as hereinafter provided. (3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chatter XVI or Chapter XVII of the Indian Penal Code 45 of 1860 or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1) the court may impose any condition which the court considers necessary- (a) In order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or (b) In order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or (c) Otherwise in the interests of justice. (4) An officer or a court releasing any person on bail under sub-section (1), or sub- section (2), shall record in writing his or its 3[reasons or special reasons] for so doing. (5) Any court which has released a person on bail under sub-section (1), or sub- section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to Custody. (6) If, any case triable by a Magistrate, the trial of a person accused of any non bailable offence is not Concluded within a period of sixty days from the first date fixed for – taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs. (7) If, at any time after the conclusion of the trial of a person accused of a non bailable offence and before Judgment is delivered the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered.”

    6. Sub-Section 2 of Section 438 envisages conditions which can be imposed while granting anticipatory bail, which as under: “438 (2) When the High Court or the Court of Session makes a direction under sub- section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including – (i) A condition that the person shall make himself available for interrogation by a police officer and when required; (ii) A condition that the person shall not, directly or indirectly,- make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer, (iii) A condition that the person shall not leave India without the previous permission of the court; (iv) Such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted -under that section.”

    7. Section 440, 441 and 445 of Cr.P.C. are also relevant and they are extracted as under: ?440. Amount of bond and reduction thereof. (1) The amount of every bond executed under this chapter shall be fixed with due regard to the circumstances of the case and shall not be excessive. (2) The High Court or Court of Session may direct that the bail required by a police officer or Magistrate be reduced. ?441. Bond of accused and sureties. (1) Before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or Court, as the case may be. (2) Where any condition is imposed for the release of any person on bail, the bond shall also contain that condition. (3) If the case so requires, the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Session or other Court to answer the charge. (4) For the purpose of determining whether the sureties are fit or sufficient, the Court may accept affidavits in proof of the facts contained therein relating to the sufficiency or fitness of the sureties, or, if it considers necessary, may either hold an inquiry itself or cause an inquiry to be made by a Magistrate subordinate to the Court, as to such sufficiency or fitness. ?445. Deposit instead of recognizance. When any person is required by any Court or officer to execute a bond with or without sureties, such Court or officer may, except in the case of a bond for good behaviour, permit him to deposit a sum of money or Government promissory notes to such amount as the Court of officer may if in lieu of executing such bond. ?

    8. A careful consideration of the provisions of Sections 437(3) and 438(2) Criminal Procedure Code shows that conditions which can be imposed are primarily with a view to ensure availability of the accused during investigation, enquiry or trial and his non-interference with the course of justice. Other conditions which Court may think fit can also be imposed but idea should be to ensure his presence as and when required and his non- interference with the investigation, enquiry or trial.

    9. Section 440 Cr.P.C. denotes that the amount of every bond executed shall be fixed with due regard to the circumstances of the case and shall not be excessive. Section 441 Cr.P.C. reads that before any person is released on bail or released on his own bond, a bond for such sum of money as the Court thinks sufficient shall be executed by such person. Section 441 does not speak about deposit of any cash security. Only in certain contingencies, where the accused is unable to secure sureties for his release, he is permitted to deposit a sum of money or Government promissory Note as the Court may fix in lieu of executing such bond, under Section 445, Cr.P.C.

    10. Keeping in view of the above, the issue for consideration is whether the Court below can insist for deposit of money as a condition for grant of bail to the petitioners?

    11. In fact, this issue is no longer res integra as in catena of decisions, various High Courts as well as the Hon?ble Supreme Court have consistently held that imposing condition of depositing money is excessively onerous and unreasonable and such condition may even amount to denial of bail itself.

    12. In ?Sreenivasulu Reddy versus State of Tamil Nadu? reported in (2002) 10 SCC 653, wherein, this Court granted anticipatory bail to the accused on condition to deposit total Rs.50 crores apart from other conditions, which was also complied with by the accused, however aggrieved by imposition of such condition, the accused preferred appeal before the Hon?ble Apex Court. While dealing with the same, the Hon?ble Supreme Court had emphasized that while exercising jurisdiction under Section 438(2) of the Cr.PC, the Court ought only to impose such conditions/terms for enlarging an accused on bail as would ensure that the accused does not abscond. In para 6, it has been held as under: ?6. Having considered the rival submissions and the provisions of Section 438 Cr. PC, we are of the considered opinion that the Court while exercising jurisdiction under Section 438 Cr. PC, must bear in mind and be satisfied that the accused will not abscond or otherwise misuse liberty and this can be ascertained from several factors like conduct of the accused in the past, his assets in the country and so on. But, while granting such anticipatory bail, though the Court may impose such conditions as it thinks fit, but the object of putting conditions should be to avoid the possibility of the person hampering investigation. The discretion of the Court while putting conditions should be an exercise of judicial discretion. ?.

    13. In ?Sandeep Jain v. State of Delhi? reported in (2000) 2 SCC 66, wherein, a direction of the Metropolitan Magistrate, to deposit Rs. 2 lacs apart from furnishing of a bond of Rs. 50,000 with two solvent sureties as a condition precedent for bail, was held to be unreasonable. In ?Sheikh Ayub v. State of M.P.? (2004) 13 SCC 457, wherein, the Supreme Court deleted the direction to deposit a sum of Rs. 2,50,000/-, which was the amount allegedly misappropriated by the accused.

    14. In ?Shyam Singh v. State? reported in (2006) 9 SCC 169, wherein, the Hon?ble Supreme Court, has held in para 4 as under : ?4. We are unable to appreciate even the first order passed by the Metropolitan Magistrate imposing the onerous condition that an accused at the FIR stage should pay a huge sum of Rs 2 lakhs to be set at liberty. If he had paid it is a different matter. But the fact that he was not able to pay that amount and in default thereof he is to languish in jail for more than 10 months now, is sufficient indication that he was unable to make up the amount. Can he be detained in custody endlessly for his inability to pay the amount in the range of Rs 2 lakhs? If the cheques issued by his surety were dishonoured, the Court could perhaps have taken it as a ground to suggest to the payee of the cheques to resort to the legal remedies provided by law. Similarly if the Court was dissatisfied with the conduct of the surety as for his failure to raise funds for honouring the cheques issued by him, the Court could have directed the appellant to substitute him with another surety. But to keep him in prison for such a long period, that too in a case where bail would normally be granted for the offences alleged, is not only hard but improper. It must be remembered that the Court has not even come to the conclusion that the allegations made in the FIR are true. That can be decided only when the trial concludes, if the case is charge-sheeted by the police.?

    15. In ?Keshab Narayan versus State of Bihar? reported in AIR 1985 SC 1666, the Hon?ble Supreme Court held that the condition to furnish cash security with sureties for the likesum appears to be excessively onerous and such conditions may virtually amount to denial of bail itself.

    16. In ?Hussainara Khatoon (I) v. Home Secy., State of Bihar, reported in (1980) 2 SCC 81, the Hon?ble Supreme Court has held as under in para 3: ?3. Now, one reason why our legal and judicial system continually denies justice to the poor by keeping them for long years in pre-trial detention is our highly unsatisfactory bail system. It suffers from a property oriented approach which seems to proceed on the erroneous assumption that risk of monetary loss is the only deterrent against fleeing from justice. The Code of Criminal Procedure, even after its re-enactment, continues to adopt the same antiquated approach as the earlier Code enacted towards the end of the last century and where an accused is to be released on his personal bond, it insists that the bond should contain a monetary obligation requiring the accused to pay a sum of money in case he fails to appear at the trial. Moreover, as if this were not sufficient deterrent to the poor, the courts mechanically and as a matter of course insist that the accused should produce sureties who will stand bail for him and these sureties must again establish their solvency to be able to pay up the amount of the bail in case the accused fails to appear to answer the charge. This system of bails operates very harshly against the poor and it is only the non-poor who are able to take advantage of it by getting themselves released on bail. The poor find it difficult to furnish bail even without sureties because very often the amount of the bail fixed by the courts is so unrealistically excessive that in a majority of cases the poor are unable to satisfy the police or the Magistrate about their solvency for the amount of the bail and where the bail is with sureties, as is usually the case, it becomes an almost impossible task for the poor to find persons sufficiently solvent to stand as sureties. The result is that either they are fleeced by the police and revenue officials or by touts and professional sureties and sometimes they have even to incur debts for securing their release or, being unable to obtain release, they have to remain in jail until such time as the court is able to take up their cases for trial, leading to grave consequences, namely, (1) though presumed innocent, they are subjected to psychological and physical deprivations of jail life, (2) they are prevented from contributing to the preparation of their defence, and (3) they lose their job, if they have one, and are deprived of an opportunity to work to support themselves and their family members with the result that the burden of their detention almost invariably falls heavily on the innocent members of the family. It is here that the poor find our legal and judicial system oppressive and heavily weighted against them and a feeling of frustration and despair occurs upon them as they find that they are helplessly in a position of inequality with the non-poor. The Legal Aid Committee appointed by the Government of Gujarat under the chairmanship of one of us, Mr Justice Bhagwati, emphasised this glaring inequality in the following words: ?The bail system, as we see it administered in the criminal courts today, is extremely unsatisfactory and needs drastic change. In the first place it is virtually impossible to translate risk of non-appearance by the accused into precise monetary terms and even its basic premise that risk of financial loss is necessary to prevent the accused from fleeing is of doubtful validity. There are several considerations which deter an accused from running away from justice and risk of financial loss is only one of them and that too not a major one. The experience of enlightened Bail Projects in the United States such as Manhattan Bail Project and D.C. Bail Project shows that even without monetary bail it has been possible to secure the presence of the accused at the trial in quite a large number of cases. Moreover, the bail system causes discrimination against the poor since the poor would not be able to furnish bail on account of their poverty while the wealthier persons otherwise similarly situate would be able to secure their freedom because they can afford to furnish bail. This discrimination arises even if the amount of the bail is fixed by the Magistrate is not high, for a large majority of those who are brought before the courts in criminal cases are so poor that they would find it difficult to furnish bail even in a small amount.?

    17. In ?Mahesh Chandra versus State of U.P.? reported in (2006) 6 SCC 196, wherein, while remitting the matter for fresh consideration, the Hon?ble Supreme Court set aside the order of the High Court of U.P., in and by which, as a condition for grant of anticipatory bail, the High Court has recorded the undertaking of the petitioners to pay to the victim daughter-in-law a sum of Rs. 2000 per month and failure to do so would result in vacation of the order granting bail. The Hon?ble Supreme Court observed that the parties cannot be made liable to deposit Rs.2000 per month for the maintenance for the victim and while deciding a bail application, it is not the jurisdiction of the High Court to decide civil disputes as between the parties.

    18. Therefore, the practice of imposing condition for depositing of money for granting the bail has been deprecated by the High Courts and the Hon?ble Supreme Court. Of course, while granting the bail, the Court of law is entitled to put certain conditions at its discretion, however, it should not be ignored that such conditions must be reasonable and judicious and should not be arbitrary. In fact, no provision in Code of Criminal Procedure contemplates cash deposit as a condition precedent for grant of bail, but may permit the person to deposit a sum of money in lieu of executing a bond and giving surety of one or two persons. It is needless to state that granting or denying the bail depending upon the circumstances of each case, is within the exclusive discretion of the Court of law or authority, however, such discretion should not be exercised arbitrarily. Once the court comes to the conclusion on the facts and circumstances of the case that a person is entitled to the benefit of bail, then no condition other than those enumerated in Section 437(3) or 438(2) can be imposed. Imposition of such unreasonable condition is not only beyond the purview of the provisions of Code of Criminal Procedure but also beyond the powers of the court. Discretion does not mean that it has no arena or boundary. No Court having howsoever absolute power can traverse beyond the arena carved out for it. Even absolute discretion does not admit element of arbitrariness or whimsicality or capriciousness.

    19. Having regard to the above, this Court is of the view that the condition imposed by the learned Principal Sessions Judge, Thanjavur in his order, dated 14.10.2014 in Crl.M.P.No.3779 and 3827 of 2014, while granting anticipatory bail to the petitioners, to deposit a sum of Rs.15,000/-, is onerous and unreasonable and hence, it is set aside.

    Accordingly, these Criminal Original Petitions are allowed. Consequently, the connected Miscellaneous petition is closed.

    Suk                            05-02-2015
    Index: Yes/No


    don’t file Habeas Corpus for child custody !! Madras HC

    “…. Insofar as the custody/entitlement/right over the minor child is concerned, we are of the view that the said question cannot be gone into by this Court, hearing Habeas Corpus Petition. Admittedly, the petitioner has not approached the competent rt/Forum to vindicate his grievance…..”



    Dated: 25/01/2006


    The Hon’ble Mr. Justice P.SATHASIVAM
    The Hon’ble Mr. Justice N.PAUL VASANTHAKUMAR

    Habeas Corpus Petition No.40 of 2006

    R.Suresh Kumar             … Petitioner


    1. K.A.Kalavathi
    2. K.M.Arumugham

    3. The Inspector of Police,
      Kolathur Police Station,
      Kolathur, Chennai-99.            … Respondent

    Petition under Article 226 of the Constitution of India for the issuance of writ of habeas corpus to direct the first respondent to produce bodily the petitioner’s male child by name Siddarth, aged about 4 = years, in the court and hand over the said chi ld to the custody of the petitioner.

    !For petitioner     : O.R.Abul Kalam.

    For Respondents    : Mr.M.K.Subramanian, Government Advocate.
    O R D E R

    (Order of the Court was made by P.SATHASIVAM, J.) The petitioner by name R.Suresh Kumar has filed this petition seeking for a direction to the first respondent K.A.Kalavathi, who is none else than his wife, to produce his male child by name Siddarth, aged about 4 = years, in the Court and for furth irection to hand over the child to his custody.

    1. In the affidavit filed in support of the above petition, the petitioner has stated that the first respondent is his wife and the second respondent is his father-in-law. The petitioner married the first respondent five years ago and he was blesse rough the first respondent with one male child by name Siddarth, now aged 4 = years, studying in Kinder Garden class, Don Bosco Matriculation School, Madras. They also have a female child by name Mathumitha, aged about 2 = years. According to the pet itioner, on 08.11.2005, the first respondent left the house of the petitioner along with the male child without any intimation. There is no dispute that the petitioner has not made any complaint against anyone including the third respondent.
  • Learned counsel for the petitioner, by drawing our attention to Section-6 of the Hindu Minority and Guardianship Act, 1956, vehemently contended that inasmuch the petitioner being father/natural guardian of the minor, he is entitled to the custod the child and that this Court can issue suitable direction to the first respondent for handing over the minor in favour of the petitioner. In support of the above contention, he relied on a decision of this Court reported in AIR 1984 Madras 186 (Suresh Babu v. Madhu) and also a decision of the Kerala High Court in Vasudevan vs. Viswalakshmi (AIR 1959 Kerala 403).

  • Insofar as the custody/entitlement/right over the minor child is concerned, we are of the view that the said question cannot be gone into by this Court, hearing Habeas Corpus Petition. Admittedly, the petitioner has not approached the competent rt/Forum to vindicate his grievance. Inasmuch as even according to the petitioner, the child, aged about 4 = years, is with the first respondent, who is none else than the mother of the child, we are of the view that the claim of the petitioner cannot be gone into by this court in this petition. It is made clear that the petitioner is free to approach the appropriate forum to vindicate his grievance.

  • With the above observation, the Habeas Corpus Petition is dismissed.

  • JI.

    To The Inspector of Police, Kolathur Police Station, Kolathur, Chennai-99.