Tag Archives: P & H HC

Court orders IT dept. 2 to report how wife & co could spend 40 Lakhs on marriage. Classic P&H HC bail !

A husband harassed with 406 & 498 cocktail approaches the Hon for AB

during the course of the hearing, the court notices that the wife seems to have made fake and exaggerated claims on dowry items and marriage expenses (to the extent of 40 lakhs !!).

The Hon HC notices these exagerated claims and orders investigation into the wife’s family finances and their source of funds . “….During the course of arguments, this Court asked the complainant side to explain where from 40,00,000/- were acquired by the complainant and her parents so as to spend such a huge amount in the marriage, but they could not give any satisfactory answer and to arrive at a correct conclusion, this Court directed the Commissioner of Income-tax, Jalandhar Range, Jalandhar, to verify the said fact. The private parties were directed to appear before the Commissioner of Income-tax, Jalandhar. The report has been received wherein it has been mentioned that the mother of the complainant has no means to spend beyond22,71,900/-……”

The Honourable court also reiterates that sections 406 & 498-A IPC, are not meant for recovery of dowry articles and grants anticipatory bail to husband !! “….9. So far as the recovery of dowry articles are concerned, the provisions of Sections 406 and 498-A, IPC, are not meant for the said purpose. Reference can be made to Jagdish Thakkar v. State of Delhi, 1992 (3) CCR 2764, wherein Delhi High Court held that in a case under Sections 406 and 498-A, IPC, the anticipatory bail cannot be denied only on the ground that jewellery and the dowry articles were not recovered. It has further been held that the proceedings under Sections 406 and 498-A, IPC, are not meant for the recovery of the jewellery and the dowry articles. The wife (complainant) if so chooses can move the Civil Court for the recovery of the said articles…..”

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CRM-M-29829-2012 (O&M)

Date of Decision: August 23, 2013

Prit Pal Singh   …Petitioner

Versus

State of Punjab and another …Respondents

CORAM:       HON’BLE MR. JUSTICE NARESH KUMAR SANGHI

Present:     Mr. Vijay Pal, Advocate, for the petitioner.

Mr. K.S. Pannu, DAG, Punjab, for respondent No. 1.

Mr. Mandeep Singh Sachdev, Advocate, for respondent No. 2.

NARESH KUMAR SANGHI, J.

  1. Prayer in this petition is for grant of anticipatory bail to the petitioner, Prit Pal Singh, son of Gurjit Singh Walia, resident of G-77/A, Opposite Ansal Plaza Mall, Palam Vihar, Gurgaon, who has been booked for having committed the offences punishable under Sections 406 and 498-A, IPC, in a case arising out of FIR No. 47, dated 23.8.2012, registered at Police Station, Women Cell (now Police Station, Women), Jalandhar City, District Jalandhar.
  2. Learned counsel contends that vide order dated 25.9.2012, the investigating agency was directed not to take coercive steps against the petitioner; the petitioner has joined the investigation several time and fully cooperated with the investigating agency; most of the alleged dowry articles have already been recovered from the house of the petitioner; and that it was a love marriage and the petitioner and the complainant- respondent No. 2 could not pull on well, therefore, just to put pressure on the petitioner and to grab his property, a false case has been registered against him. He further submits that even during the pendency of the application before the learned Additional Sessions Judge, Jalandhar, ad-interim anticipatory bail was granted to the petitioner and he joined the investigation and fully cooperated with the investigating agency. It has also been contended that the complainant has alleged that approximately `40,00,000/- were spent in the marriage, but the report sought by this Court from the Commissioner of Income-tax, Jalandhar-II, Jalandhar, belies the said fact. It has also been contended that the provisions contained in Sections 406 and 498-A, IPC, are not meant for recovery of the dowry articles etc.

  3. Learned counsel for the State on instructions from ASI Ravi Kumar of Police Station, Women, Jalandhar City, District Jalandhar, very fairly concedes that the petitioner has joined the investigation and no more required by the investigating agency. However, all the dowry articles as alleged by the complainant, have not been recovered and for that purpose further interrogation of the petitioner is required.

  4. Learned counsel for the complainant-respondent No. 2 submits that the factum of the love marriage, as alleged by the petitioner, is belied from the compact discs which have been placed on record by her; the petitioner has not joined the investigation and cooperated with the investigating agency; the report received from the Commissioner of Income-tax is incomplete, wrong and perverse; except the husband, no other member of his family has been involved in this case; the grant of anticipatory bail at this stage would prejudice the investigation; and that the previous investigating officer was colliding with the petitioner, therefore, the case could not be effectively investigated.

  5. I have heard learned counsel for the parties and with their able assistance gone through the material available on record.

  6. The marriage of the petitioner with the complainant- respondent No. 2 was solemnized on 1.12.2009. According to the petitioner, it was a love marriage and with the consent of the parents of the petitioner and the complainant, it was performed at Jalandhar. The husband and wife could not pull on well and, hence, the matter was reported to the police, resulting into registration of the present case. The petitioner and the complainant-respondent No. 2 resided at Gurgaon after the marriage, where the petitioner was employed as a Software Engineer in some multinational company. After registration of the case, the petitioner made an application for grant of anticipatory bail before the learned Court of Session and he was granted ad-interim bail. In compliance of the said order, he joined the investigation, but ultimately the said application was dismissed. Hence, he approached this Court.

  7. By virtue of the interim orders passed by this Court, the petitioner further joined the investigation and some of the dowry articles were recovered from him. It is the conceded position that in accordance with the Dowry Prohibition (Maintenance of Lists of Presents to the Bride and Bridegroom) Rules, 1985, no list of the gifts was prepared. During the course of arguments, this Court asked the complainant side to explain where from 40,00,000/- were acquired by the complainant and her parents so as to spend such a huge amount in the marriage, but they could not give any satisfactory answer and to arrive at a correct conclusion, this Court directed the Commissioner of Income-tax, Jalandhar Range, Jalandhar, to verify the said fact. The private parties were directed to appear before the Commissioner of Income-tax, Jalandhar. The report has been received wherein it has been mentioned that the mother of the complainant has no means to spend beyond22,71,900/-.

  8. According to the learned counsel for the State, the petitioner has joined the investigation and some of the dowry articles have been recovered, but few dowry articles as disclosed by the complainant side are yet to be recovered.

  9. So far as the recovery of dowry articles are concerned, the provisions of Sections 406 and 498-A, IPC, are not meant for the said purpose. Reference can be made to Jagdish Thakkar v. State of Delhi, 1992 (3) CCR 2764, wherein Delhi High Court held that in a case under Sections 406 and 498-A, IPC, the anticipatory bail cannot be denied only on the ground that jewellery and the dowry articles were not recovered. It has further been held that the proceedings under Sections 406 and 498-A, IPC, are not meant for the recovery of the jewellery and the dowry articles. The wife (complainant) if so chooses can move the Civil Court for the recovery of the said articles.

  10. In Uday Singh v. State of Haryana, 2001 (1) R.C.R. (Criminal) 354, this Court held that the accused who had approached this Court for grant of anticipatory bail in a case arising out of the offences punishable under Sections 406 and 498-A, IPC, had joined the investigation and certain articles of dowry were recovered, in that eventuality, anticipatory bail could not be refused on the ground that some articles were still to be recovered.

  11. In Anil Rajput and others v. State of Haryana, 2010 (6) R.C.R. (Criminal) 1126, this Court also held that during pendency of the anticipatory bail petition in a matrimonial dispute case, the petitioner joined the investigation and in spite of the fact that recoveries were yet to be effected, would not dis-entitle the petitioner/accused to the concession of anticipatory bail.

  12. In Beant Singh and another v. State of Punjab, 2011 (2) R.C.R. (Criminal) 381, this Court also held that where there is a claim and counter claim with regard to the dowry articles, in the said circumstances the concession of anticipatory bail should not be withheld.

  13. In Vishal Gulati v. State of Punjab (CRM-M-17915-2012, decided on 5.7.2012), this Court also expressed the view that the provision contained in Sections 406 and 498-A, IPC, are not meant for recovery of the dowry articles.

  14. Hon’ble the Supreme Court in the matter of Siddharam Satingappa Mhetre v. State of Maharashtra, 2011 (1) R.C.R. (Criminal) 126, held that the arrest should be the last option and it should be restricted to those exceptional cases where arrest of the accused is imperative, in the facts and circumstances of the case.

  15. No contrary view has been produced either by the learned counsel for the State or the learned counsel for the complainant-respondent No. 2.

16. Without discussing much on the merits of the case, but keeping in view the facts that the petitioner has joined the investigation and most of the dowry articles have already been recovered, as well as the ratio of the judgments cited herein above, the present petition for grant of anticipatory bail to the petitioner, Prit Pal Singh, son of Gurjit Singh Walia, resident of G- 77/A, Opposite Ansal Plaza Mall, Palam Vihar, Gurgaon, is allowed. In the event of his arrest, the petitioner shall be admitted to bail, subject to his furnishing bail bonds to the satisfaction of the Arresting Officer.

  1. The petitioner shall continue to join the investigation as and when required to do so and abide by all the conditions laid down under Section 438(2), Cr.P.C.

(NARESH KUMAR SANGHI)
August 23, 2013                                  JUDGE
Pkapoor

Kapoor Prashant
2013.08.31 13:56
I attest to the accuracy
of this order

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NO interim maintenance 2 qualified (doctor &498a) wife even IF husband can’t prove her earnings! P&H HC

Punjab and Haryana HC denies Interim maintenance to a well qualified doctor wife who files 498a and CrPC 125 cocktail !! Court categorically asserts that “…Everyone has to earn for himself or herself or at least make an effort and would not sit idle…..”

A classic case where a doctor wife is first refused maintenance by the Magistrate court, then on revision before the sessions court she is granted Rs 10000 p.m. and the P & H HC rightfully orders that she IS NOT ELIGIBLE for maintenance as she is a well qualified Physiotherapist doctor !!

The Hon HC orders and we quote “….The wife in her petition filed under Section 125 Cr.P.C. did not disclose that she was a Physiotherapist or was earning but in the First Information Report lodged with the police in September 2013 she had mentioned that she was a Physiotherapist (doctor). The information was provided by the complainant. There was no reason for the complainant to mention that. When it has been specifically mentioned it can be assumed that she was a practicing Physiotherapist. The husband is posted in Rajasthan. It is not possible for him to collect the information whether she was running a clinic or about her income. The trial Court had noted this and had declined the application for interim maintenance and rightly so. The Revisional Court based on assumptions wrongly allowed maintenance at the interim stage. It should have taken some affidavit from the wife. The wife had to explain how that fact was introduced in the FIR. There was a categoric assertion in the FIR that she was a Physiotherapist, it appears that the wife was hiding facts. She is capable of earning. The trial Court is yet to consider the case on merits. It will have to determine whether a qualified woman who can get a job can sit idle and insist on maintenance. Everyone has to earn for himself or herself or at least make an effort and would not sit idle. See Mamta Jaiswal versus Rajesh Jaiswal 2000(3) MPLJ 100. The order passed by the Revisional Court is set aside……”

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In the High Court of Punjab and Haryana at Chandigarh

Criminal Revision No. 2625 of 2014 (O&M)

Date of Decision: 29.09.2016

Monu Songra ….Petitioner

Versus

Pinki ….Respondent

CORAM: HON’BLE MRS. JUSTICE ANITA CHAUDHRY

Present: Mr. Ashish Gupta, Advocate for the petitioner.

Mr. P.K.Ganga, Advocate for the respondent.


ANITA CHAUDHRY, J (ORAL)

The petitioner has assailed the order dated 13.6.2014 passed by the Additional Sessions Judge, Sirsa who allowed interim maintenance of Rs. 10,000/- per month to the wife reversing the order of the Magistrate who had dismissed the application filed under Section 125 Cr.P.C.

The parties were married on 27.11.2010. The husband is a Constable in Rajasthan. There is no child from this marriage. The wife had claimed that she had conceived but it resulted in miscarriage on 1.3.2011. Allegations were made that there were demands of dowry and she was not treated well. She claimed that she was thrown out of the matrimonial home. The petition under Section 125 Cr.P.C. was filed in February 2013. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

The Chief Judicial Magistrate vide its order dated 3.10.2013 dismissed the application and the reasons are disclosed in para 8 of the order which reads as under:- “After hearing ld. Counsel for the parties and having gone through record carefully I am of the considered opinion that the application is liable to be dismissed. It is admitted case of the parties that they married to each other. It is also admitted case of the parties that they got strained relations between them. It is also admitted fact that no child was born out this wedlock. It is also admitted fact that criminal case u/s 498-A IPC has been registered against the respondent at the instance of the complainant. It is also admitted case that the petitioner filed a petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 which was dismissed as withdrawn. No doubt there are counter allegations against each other and both the parties are trying to make the other party responsible for disturbing the matrimonial life. But in this application, only one this is to be examined as to whether the petitioner is unable to maintain herself or whether he or she is having any sufficient means of income. The copy of FIR mentioned above clearly shows that the petitioner has categorically stated therein that she is physiotherapist doctor meaning thereby that she is well educated and respondent has categorically stated that she is earning 25,000/- per month. Even this amount may be exaggerated however it can be easily inferred that she might have been earning sufficient income maintain herself.”

Aggrieved by the judgment, a revision was preferred by the wife. The Additional Sessions Judge, Sirsa vide its order dated 13.6.2014 was of the view that even if the wife had a professional degree it would not matter and she would have to gain sufficient experience to earn and there was no allegation that she was working as a doctor in an institute or had opened her own clinic. It allowed the revision and awarded Rs. 10,000/- per month as maintenance.

The petitioner claims that the wife did not want to live with him and she had filed a petition under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights but later the petition was withdrawn as he had appeared and made a statement that he was willing to keep her at his place of posting but the wife refused to accompany him. It was pleaded that the wife had got an FIR registered against him. It was also pleaded that the petitioner had concealed that she was a Physiotherapist before her marriage and was working and she did not mention this fact in her petition and it was a case of concealment. It was pleaded that his basic salary was Rs. 8550/- per month and after deduction, the carry home salary was 15065/- and the Court below had allowed Rs. 10,000/- taking the major portion of his salary, when he had his old parents to look after.

I have heard submissions of both the sides.

Counsel for the petitioner has placed on record a copy of the judgment dated 30.4.2016 to show that the trial had ended in acquittal. He has placed on record a copy of the FIR where the wife had described herself as a physiotherapist (doctor).

The submission on behalf of the petitioner was that the wife had deserted the husband and she did not want to go and live in Rajasthan and she herself withdrew the petition and it was a case of concealment of fact. It was urged that the wife had done her diploma in Physiotherapy after her 12th class and thereafter had completed her Graduation sometime in 3 of 5 2007 and the marriage took place in 2010 and the wife was working even before marriage and the Revisional Court assumed that it would take a number of years for her to settle in her profession. It was urged that the Court did not consider the fact that there was an admission that she was a Physiotherapist and this information was given by her at the time of lodging of the FIR in September 2013. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

The submission, on the other hand, was that the respondent was not earning and the husband is under a duty to provide for the wife.

The wife in her petition filed under Section 125 Cr.P.C. did not disclose that she was a Physiotherapist or was earning but in the First Information Report lodged with the police in September 2013 she had mentioned that she was a Physiotherapist (doctor). The information was provided by the complainant. There was no reason for the complainant to mention that. When it has been specifically mentioned it can be assumed that she was a practicing Physiotherapist. The husband is posted in Rajasthan. It is not possible for him to collect the information whether she was running a clinic or about her income. The trial Court had noted this and had declined the application for interim maintenance and rightly so. The Revisional Court based on assumptions wrongly allowed maintenance at the interim stage. It should have taken some affidavit from the wife. The wife had to explain how that fact was introduced in the FIR. There was a categoric assertion in the FIR that she was a Physiotherapist, it appears that the wife was hiding facts. She is capable of earning. The trial Court is yet to consider the case on merits. It will have to determine whether a qualified woman who can get a job can sit idle and insist on maintenance. Everyone has to earn for himself or herself or at least make an effort and would not sit idle. See Mamta Jaiswal versus Rajesh Jaiswal 2000(3) MPLJ 100. The order passed by the Revisional Court is set aside.

Before parting with the order, it is necessary to mention that the petition filed in 2013 has still not been decided. The litigation can really corrode human relationship and it is the duty of the Court to curtail it. There is no need to hurry but procrastination should not be manifest. The Courts should be in complete control over the proceedings and should not permit the lis to be prolonged and if either party is delaying the proceedings, necessary steps should be taken.

The petition is allowed. Order dated 13.6.2014 passed by the Additional Sessions Judge, is set aside.

Nothing contained in this order shall be taken as an opinion on merits. The trial Court would independently decide the case on the basis of the evidence that shall be adduced by the parties.

(ANITA CHAUDHRY)
JUDGE

September 29, 2016

Gurpreet


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


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


Even callous husband NOT paying maintenance, CAN’T b arrested b4 coercive measures u/Sec 421 exhausted. P & H HC

Any husband (even callous husband ) NOT paying maintenance under Sec 125 CrPC, CANNOT be arrested BEFORE other coercive measures u/Sec 421 CrPC, like attaching property etc, are exhausted. Punjab-Haryana High Court

In this classic case the Hon P & H HC states that unless other modes of recovery (as contemplated under sec 421 are ) are exhausted a husband CANNOT be arrested for NON payment of arrears maintenance !! So the executive magistrate has (a) issue a warrant for the levy of the amount by attachment and sale of movable property belonging to the offender or (b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter. Also, NO warrant could be issued if the arrears is MORE than 1 year !!

This is VERY useful case for husbands to use when they are unable to pay maintenance i/s 125 CrPC !!

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Punjab-Haryana High Court

Om Parkash vs Vidhya Devi on 21 March, 1991

Equivalent citations: 1992 CriLJ 658

Author: J Sekhon

Bench: J Sekhon

ORDER J.S. Sekhon, J.

 

  1. In proceedings under Section 125 of the Code of Criminal Procedure, 1973, Smt. Vidya Devi was awarded maintenance allowance at the rate of Rs. 150/- per month for herself and Rs. 100/ – per month for her minor daughter against her husband Om Parkash from the date of application, i.e., 9-5-1984. It is not disputed that the order of the Judicial Magistrate has become final as the revision petition filed against it has since been dismissed by the Additional Sessions Judge and petition under Section 482 of the Code was also dismissed by the High Court in Cr. Misc. 4919-M of 1989. Om Parkash, husband or the father, as the case may be, failed to pay the amount of maintenance allowance to his wife and daughter which resulted in taking execution proceedings by Vidya Devi respondent against him. On 25-1-1990, Om Parkash, the husband failed to turn up before the Court of the Additional Chief Judicial Magistrate, Kurukshetra, despite service inferred from the refusal to accept service. The trial Cour under these circumstances, ordered the arrest of Om Parkash, and issued conditional warrants of arrest for 16-2-1990 stating that if he pays Rs. 15,500/- as arrears of maintenance allowance he shall not be arrested. Aggrieved against this order, the husband-petitioner has invoked the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, contending that without exhausting coercive methods provided under Section 421 of the Code of Criminal Procedure like attachment of property etc. etc., the arrest of the petitioner could not be ordered. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
  2. I have heard the learned counsel for the parties besides perusing the record.
  3. The provisions of Sub-section (3) of Section 125 of the Code read as under:–
    • (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’s allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made;
    • Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.
    • Provided further that if such person offers to maintain his wife on condition of her living with him and she refused to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
    • Explanation : If a husband has contracted marriage with another woman or keeps a mistress  it shall be considered to be just ground for the wife’s refusal to live with him.
    • A bare glance through the same leaves no doubt that if any person fails to comply with the order of the Magistrate to pay maintenance allowance without sufficient cause, such Magistrate may issue warrant for levying the amount due in the manner provided for levying fines and may sentence such person for the whole or any part of each month’s allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made.
  4. The procedure for levying fine is contained in Section 421 of the Code of Criminal Procedure which reads as under:–
    • 421. Warrant for levy of fine.
    • (1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may–
    • (a) issue a warrant for the levy of the amount by attachment and sale of movable property belonging to the offender.
    • (b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter.
    • Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under Section 357.
    • (2) The State Government may make rules regulating the manner in which warrants under Clause (a) of Sub-section (1) are to be executed, and for the summary determination of any claims made by any person other than the Offender in respect of any property attached in execution of such warrant.
    • (3) Where the Court issues a warrant to the Collector under Clause (b) of Sub-section (1), the Collector shall realise the amount in, accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law; Provided that no such warrant shall be executed by the arrest or detention in prison of the offender.”
    • The perusal of the above-quoted Section 421 reveals that there are two methods for levying fine and the Court has been empowered to opt for either of these two modes or both at one and the same time. One of these modes provided under Sub-section (1) (a) is to issue a warrant for levy of the amount by attachment and sale of movable property belonging to the offender and the other being issuance of a warrant to the Collector authorising him to realise the amount as arrears of land revenue from the movable property, or both. In the case in hand, the trial Court had not resorted to any of these coercive measures for the recovery of the arrears of maintenance allowance although it is mentioned in the impugned order of the trial Court that the husband is a man of means. Thus, legally the impugned order of the trial Court being not sustainable calls for quashment.
  5. Before parting with the judgment, I am constrained to remark that Om Parkash petitioner appears to be a callous sort of person as he failed to pay even half of the maintenance allowance, as ordered by this Court, to his wife and daughter. Although he deserves no sympathy yet all the same in view of the legal position, there is no option but to accept this petition and quash the impugned order of the trial Court. The petitioner is directed to appear before the trial Court on 26-4-1991 and furnish details of the movable and immovable property owned by him to the trial Court. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
  6. The trial Court is directed to dispose of the execution petition expeditiously preferably within six months.

 


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


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

 

Already divorced Sikh woman leaves christian (2nd) hubby in 25 days, claims & wins maintenance S125CrPC-P&H HC

An already divorced Sikh woman marries a Christian male under a Hindu / Sikh Ceremony, leaves him in approx 25 days and claims maintenance ! The Husband avers that the woman was ALREADY divorced and had extracted a large amount from the earlier husband !! However, the woman wins maintenance against this husband at the lower court. So husband appeals to HC on grounds that the marriage is VOID (as between a Sikh and a Christian). The Hon Court rules that “…it cannot be held that the marriage between the husband and the wife, who are Hindu and Christian respectively, is not valid for purposes of granting the relief u/s 125 Cr.P.C. ..” !! The Hon court goes on to say “..At the same time, it is open to the aggrieved party to seek appropriate remedy from the Civil Court for a declaration that the marriage is void or voidable, inasmuch as the finding of the Criminal Court in these summary proceedings is neither conclusive nor decisive in the civil proceedings that may be initiated…”

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

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

Crl. Misc. No. M-25780 of 2015

Date of decision : 03.06.2016

Robin …… Petitioner

versus

Jasbir Kaur … Respondent

CORAM:- HON’BLE MRS. JUSTICE ANITA CHAUDHRY

Present:
Mr. Nand Lal Sammi, Advocate for the petitioner
Mr. Rajinder Sharma, Advocate for the respondent

ANITA CHAUDHRY, J.

This petition has been filed under Section 482 Cr.P.C. for quashing the order dated 18.02.2015 passed by Addl. Sessions Judge, Amritsar who dismissed the revision filed by the petitioner seeking quashing of the order dated 07.05.2014 passed by Addl. CJM Amritsar who had allowed interim maintenance of Rs. 2500/- per month to the respondent in the application filed under Section 125 Cr.P.C.

A petition seeking maintenance was filed under Section 125 Cr.P.C. in November 2012. The wife sought interim maintenance and had pleaded that their marriage was solemnized in May 2011 as per Hindu/Sikh rites at a Gurdwara in Amritsar. The parties had cohabited as husband and wife but they had no issue. Difference arose and the wife was beaten and turned out from the house on 25.05.2011.

The applicant had claimed that the husband was teacher in a Senior Secondary School and was drawing Rs. 27,000/- p.m. as salary.

In the reply, the respondent had submitted that application was not maintainable as the marriage was never solemnized as per Sikh Religion and he was a Christian, the petitioner was a hindu and no marriage between the Christian and Sikh could be solemnized. It was pleaded that the petitioner was a divorcee and was highly educated and the alliance had been fixed through an advertisement in the newspaper. It was pleaded that wife had taken divorce earlier from different persons and had extracted huge amount. It was pleaded that since there was no legal or valid marriage, therefore, the petitioner did not have the status of a wife and she was a teacher and had sufficient resources.

The trial Court allowed application and granted Rs. 2500/- as maintenance from the date of appellation.

Aggrieved against the order, the petitioner had filed a revision before the Addl. Sessions Judge who passed the following order:- “The respondent wife filed the petition under Section 125 Cr.P.C. claiming maintenance from the petitioner herein. Alongwith the petition the application for interim maintenance was also filed which has been partly allowed by the Ld. Trial Court vide impugned order. The provisions of Section 125 Cr.P.C. are in the nature of beneficial legislation in order to avoid vagrancy and to provide help to wife, children and parents who are not able to maintain themselves at that stage. Section 125 Cr.P.C. also provided for interim maintenance during the pendency of the petition. The case law relied upon by the Ld. Counsel for the petitioner is not applicable in the facts and circumstance of the present case. As such the present case pertains to a petition under Section 125 Cr.P.C. whereas the case law relates to cases under Section 13 of the Hindu Marriage Act and Section 16 of the Hindu Marriage Act. The nature of relationship between the parties is yet to be proved by way of leading evidence between the parties before the Ld. Trial Court. At this stage no opinion can be expressed on the legality of the marriage. The pleading have to be taken at the face value. It has been contended by the respondent wife that she has no source of income in order to maintain herself. At this stage strict proof of marriage is also not required. The allegations and counter allegations between the parties are yet to be proved by leading evidence. The interim maintenance of Rs. 2500/- per month at this stage can not be termed as on higher side. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

I have heard both the side.

Learned counsel for the petitioner had contended that there was no legal and valid marriage between the parties as the petitioner is a Christian and the respondent is Sikh and when the validity of marriage is an issue, maintenance could not have been allowed. Reliance was placed upon Sarabjit Singh vs. Lourdes Serrato, 2014(3) RCR(Civil) 783, Gullipilli Sowria Raj vs. Bandaru Pavani @ Gullipili Pavani, (Civil Appeal No. 2446 of 2005) decided on 4.12.2008, Badshah vs. Sou. Urmila Badshah Godse & Anr. (Special Leave Petition (Crl.) No. 8596/2013 decided on 18.10.2013, Sangeeta vs. Preston Gomes, MAT.APP. 116/2010, decided on 13.12.2010 and Dwarika Prasa Satpathy vs. Bidyut Prava Dixit, 1999(4) RCR(Criminal) 577.

On the other hand it was submitted that the petitioner had filed a civil suit for declaration that the marriage was null and void and their suit was dismissed in default and the judgments referred to by the petitioner were under the Hindu Marriage Act.

Admittedly, the husband is a Christian whereas the wife is a Sikh and the marriage between them took place as per Hindu rites. The question that arises for consideration is whether the marriage is valid for the purposes of granting maintenance under Section 125 Cr.P.C.

To decide the issue, it is first necessary to refer to the provisions of the Hindu Marriage Act and the other Marriage Laws.

Section 2 of the Hindu Marriage Act reads thus :

“2. Application of Act :- (1) This Act applies –
(a) to any person who is a Hindu by religion …..;
(b) xx xx xx xx
(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion ……

Explanation :- The following persons are Hindus …….
(a) xx xx xx
(b) xx xx xx
(c) any person who is a convert or reconvert to the Hindu ……………… religion.
(2) xx xx xx
(3) The expression “Hindu” in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is nevertheless a person to whom this Act applies by virtue of the provisions contained in this section.”

Section 5 of the Hindu Marriage Act basically contemplates solemnisation of the marriage between two Hindus and prescribe certain conditions thereof for its validity. The said section reads as follows :

“5. Conditions for a Hindu Marriage :- A marriage may be solemnised between any two Hindus, if the following conditions are fulfilled, namely :
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party –
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children or;
(c) has been subject to recurrent attacks of insanity or epilepsy.
(iii) the bridegroom has completed the age of 21 years and the bride the age of 18 years at the time of marriage;
(iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;
(vi) omitted by Act 2 of 1978.”

Section 11 of the Hindu Marriage Act reads thus :
“11. Void Marriages :- Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5.”

The section as seen provides for grant of a decree declaring the marriage to be null and void on an application made by either party thereto when the marriage is performed in contravention of any of the conditions specified in Clauses (i), (iv) and (v) of Section 5 of the Hindu Marriage Act i.e., living spouse, degrees of prohibited relationship and sapinda relationship respectively.

Section 12 of the Hindu Marriage Act provides for grant of a decree of nullity of voidable marriages on any of the grounds mentioned thereof. It reads as follows :

“12. Voidable marriages :- (1) Any marriage solemnised, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely :-
(a) that the marriage has not been consummated owing to the impotence of the respondent; or
(b) that the marriage is in contravention of the conditions specified in Clause (ii) of Section 5; or
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978, the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or by any material fact or circumstance concerning the respondent; or
(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
(2) xx xx xx.”

To sum up, as per Section 11 of the Hindu Marriage Act, the marriages performed in contravention of Clauses (i), (iv) and of Section 5 of the Hindu Marriage Act are void, whereas under Section 12 of the said Act, for contravention of any of the conditions enumerated therein, the marriages are voidable.

It is necessary to notice that neither Section 11 nor Section 12 of the said Act renders a marriage between a Hindu and a Christian void or voidable on the ground that the parties belong to two different religions.

The rigour of voidness covered by Section 4 of the Indian Christian Marriage Act is stressed and attached more to the persons that officiate in the solemnisation of the marriages, and it does not envisage as regards the validity or otherwise of a marriage simpliciter that took place between a Hindu and a Christian. This view is again fortified by Section 4 of the Special Marriage Act, which permits a marriage between two persons of different faiths. Therefore, a Hindu can marry a Christian under the Special Marriage Act. Such a marriage cannot be held to be void on the ground that it was not performed according to the provisions of Section 5 of the Indian Christian Marriage Act. Similarly, Section 4 of the Foreign Marriage Act permits a marriage between parties, one of whom at least is an Indian citizen residing outside India. On a similar anology as noted supra, even a marriage under this Act, if performed between a Hindu and a Christian both or one of whom is an Indian citizen, cannot be held to be void on the ground that it is not performed in accordance with the provisions of Section 5 of the Indian Christian Marriage Act. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

Accordingly, in view of the above discussion, it has to be held that the marriage between a Christian and a Hindu performed as per the Hindu rites with the full consent of both parties cannot be said to be invalid for purposes of claiming maintenance u/S. 125, Cr.P.C.

In Kunhiraman Nair v. Annakutty, 1967 Ker LT 24, it is noteworthy that the marriage was performed in accordance with the customs prevalent in Nair community between a Nair male and a woman following Roman Catholic faith. It was held that the very performance of the marriage and the fact that the parties thereto lived together as husband and wife were sufficient to confer on the woman the status of wife for claiming maintenance u/S. 488, Cr.P.C., 1898.

In Pahtan Maung v. Ma San, (1939) 40 Cri LJ 653 : AIR 1939 Rangoon 207, a Budhist woman married a Mohammadan and claimed maintenance. It was held that although the marriage was not strictly in accordance with Mohammadan Law, she was entitled to relief u/S. 488, Cr.P.C., 1898.

In Smyth v. Mrs. Hannah Smyth, , a Roman Catholic married a woman professing Jewish faith. It was held that the marriage was not invalid so as to render an order of maintenance passed by a Criminal Court illegal.

In Sethurathinam Pillai v. Barbara Dolly @ Sethurathinam, (1970) 1 SCWR 589, the Madras High Court upheld the marriage between a Christian woman and a Hindu male as also the claim for maintenance on the ground that there is nothing in Hindu Law forbidding a marriage between a Hindu and non-Hindu. On appeal, the order granting maintenance by the Madras High Court was confirmed by the Supreme Court observing : “We do not think it necessary in this case to decide the case on the merits. The order passed in an application filed u/S. 488, Cr.P.C. is a summary order which does not finally determine the rights and obligations of the parties thereto. It is an order made in a proceeding under a provision enacted with a view to provide a summary remedy for providing maintenance, and for preventing vagrancy. The decision of the Criminal Court that there was a marriage between Barbara and Sethurathinam and that it was a valid marriage will not operate as decisive in any civil proceeding between the parties for determining those questions.”

In view of the above, it cannot be held that the marriage between the husband and the wife, who are Hindu and Christian respectively, is not valid for purposes of granting the relief u/s 125 Cr.P.C. At the same time, it is open to the aggrieved party to seek appropriate remedy from the Civil Court for a declaration that the marriage is void or voidable, inasmuch as the finding of the Criminal Court in these summary proceedings is neither conclusive nor decisive in the civil proceedings that may be initiated. The quantum of maintenance was not seriously challenged before me.

For the foregoing reasons, the petition is dismissed.

(ANITA CHAUDHRY)
JUDGE
June 03, 2016

reena

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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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Having taken 1.25 crores I will NOT defame him thru social networking sites & electronic medium !! Mutual consent , P & H HC

  • 1 crore 25 lakhs for divorce.
  • Daughter to remain with father, so woman free to find next guy !
  • The fate of matrimony in India

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

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

FAO No.1509 of 2015 (O&M)

Date of Decision: 18.02.2016

Amar Somany                                   …..Petitioner No.1
And
Prerna Sharma                                   ….Petitioner No.2

CORAM:           HON’BLE MR. JUSTICE RAJIVE BHALLA
        HON’BLE MRS. JUSTICE LISA GILL

Present:    Ms. Ritu Pathak, Advocate with Mr. Gaurav Arora, Advocate for
Mr. Ashish Aggarwal, Sr. Advocate  for petitioner No.1  with petitioner No.1 in person.
Ms. S.P.S.Aulakh, Advocate for petitioner No.2 with petitioner No.2 in person.

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

RAJIVE BHALLA, J (ORAL)

Amar Somany, filed a petition for grant of a decree of divorce, which was dismissed by the District Judge, Family Court, Gurgaon, on 31.01.2015. The appeal filed was pending when parties entered into a settlement and decided to dissolve their marriage by a written compromise (Annexure A-1) dated 07.08.2015, on the following terms and conditions:-

“(i) That parties have agreed for dissolution of marriage by mutual consent.
(ii) The parties have agreed to withdraw the entire litigation if any pending in any court or before any other authority against each other.
(iii) That the First Party shall pay Rs.1,25,00,000/- (Rs. One Crore Twenty Five Lacs only) to the Second Party in the Court against full and final settlement of claims.
(iv) That as submitted above, the First Party shall pay Rs.1,25,00,000/- (Rs. One Crore Twenty Five  Lacs only) to the Second Party in the Court towards full and final settlement of all claims regarding any Jewellery lying in the safe deposit box at SBBJ (Kath Mandi, Rewari), Clothes, Istridhan, gift articles and Maintenance amount i.e. of present, past and future alimony and towards any of her other claims in this respect whatsoever against First Party. Out o the total amount of Rs.1,25,00,000/- (Rs. One Crore Twenty Five Lacs only) the First Party shall pay Rs.12,50,000/- (Rupees Twelve Lacs Fifty Thousand) through Demand Draft No.051913, dated 6.8.2015, HDFC Bank, to the Second Party after signing the Compromise Deed and other relevant documents to be filed in the Hon’ble High Court and the balance amount i.e. Rs.1,12,50,000/- (Rupees One Crore Twelve Lacs Fifty Thousand) shall be paid to the Second Party by way of Demand Draft at the time of final decision before this Hon’ble Court.
(v) That the custody of the minor daughter namely Sara aged about 6 years shall remain with the First Party. The Second Party shall only be entitled to meet the child four times in a one year, as per the convenience of the child and as per mutual adjustments of both the parties. It has been decided that the Second Party will met the child for 3-4 hours on the day of the visit (i.e. for each visit). Furthermore, the Second Party shall not claim the custody of the child in future.
(vi) That the Second Party shall not claim any other maintenance and shall not claim any right, title or interest in any manner in the moveable or immoveable property of the First Party.
(vii) That the Second Party shall have no future interference in the education, social welfare and upbringing of the child and furthermore no direct or indirect contact shall be maintained by the Second Party with the child either by herself or through anyone else/relatives, except for the purpose of meeting the child as per Clause (v) above.
(viii) That both the parties shall be bound to withdraw all the other criminal and civil cases pending against each other and their respective family members. Furthermore, they shall not initiate any litigation against each other and their family members in future and shall not defame through any means of communication and through social networking sites and electronic medium.”

The parties thereafter filed CM No.16302-CII of 2015, for altering the original petition filed under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act”) to a petition under Section 13-B of the Act. The application was allowed and the original petition was altered into a petition under Section 13-B of the Act on 17.08.2015.

The separate statements of parties in first motion were also recorded, which read as follows:-

“Statement of Mr.Amar Somany, son of Ashok Somany, resident of Flat No.1402, Tower No.15, Orchid Petals, Sohna Road, Sector-49, Gurgaon, on SA. My affidavit dated 07.08.2015 may be read as my statement in first motion.

Statement of Prerna Sharma, daughter of Prem Kishore, wife of Amar Somany, R/o House No.1285, Sector-3, New Housing Board Colony, Rewari (1st Address), resident of H.No.R-69, Gali No.4, Phase-II, Model Town, New Delhi (IInd Address), on SA. My affidavit dated 07.08.2015 may be read as my statement in first motion.”

A perusal of their respective affidavits reveal that the parties have agreed to dissolve their marriage on account of irreconcilable differences, settled permanent alimony, maintenance, past, present and future at Rs.1,25,00,000/-, to be paid in terms of the settlement and decided to pray for   dissolution of their marriage by mutual consent.

The petition has come up for consideration after expiry of six months. Counsel for the parties and the parties, who are present, pray that there is no change in their view as they are still of the opinion that it is not possible for them to reside together as husband and wife and, therefore, statements of parties may be recorded in second motion and their marriage may be dissolved.

The parties were directed to record statements in second motion.

Statement of Amar Somany, petitioner No.1 recorded in second motion reads as under:-

“I was married to Prerna Sharma on 03.10.2008 but on account of irreconcilable differences, I filed a petition for grant of a decree of divorce. The petition was, however, dismissed by the District Judge, Family Court, Gurgaon, on 31.01.2015. I filed the present appeal and during pendency of the appeal, we arrived at a settlement and executed a compromise deed. I acknowledge my signatures on compromise deed dated 07.08.2015. I have complied with all terms and conditions of the settlement. The petition under Section 13-B of the Hindu Marriage Act, 1955, has been filed without collusion, coercion, mis-representation or fraud, pray that our marriage be dissolved by grant of a decree of divorce by mutual consent. I also handed over a demand draft, of the remaining amount i.e. Rs.1 crore to Ms.Prerna Sharma in Court today, in full and final settlement of all claims of maintenance, past, present or future or of permanent alimony. Our minor child Sara, as agreed between us, shall remain in my custody and guardianship and I shall have no objection to visitation rights as recorded in the settlement. I shall withdraw all cases/ applications/complaints whether made before a Court, quasi-judicial authority or any other department filed by me or my family members   against Prerna Sharma or her family members. I pray that our marriage be dissolved.”

Statement of Prerna Sharma, petitioner No.2 recorded in second motion reads as follows:-

“I was married to Amar Somany on 03.10.2008. My husband filed a petition for grant of a decree of divorce, which was dismissed, on 31.01.2015. He filed an appeal and during pendency of the appeal, we arrived at a settlement which was reduced into a compromise deed dated 07.08.2015. I acknowledge my signatures on the compromise deed. I have received an amount of Rs.1.25 crores in total (Rs.1 crore having been received today), in full and final settlement of all claims of maintenance, past, present or future of permanent alimony. I have also agreed that the custody and guardianship of our minor child Sara shall remain with Amar Somany, as recorded in settlement. I shall, however, be entitled to visitation rights as agreed. I shall withdraw all cases/applications/ complaints whether made before a Court, quasi-judicial authority or any other department filed by me or my family members against Amar Somani or his family members. I pray that our marriage be dissolved.”

A demand draft bearing No.001280 amounting to Rs.1,00,00,000/- (Rs.One Crore only) has been handed over to Prerna Sharma, petitioner No.2.

Counsel for the parties pray that as parties have resolved their dispute and agreed to part ways by mutual consent, the petition may be allowed and their marriage may be dissolved.

We have heard counsel for the parties, perused averments in the petition, the affidavits filed in support thereof and statements recorded at first and second motion and the settlement.

The parties were personally asked whether there is any possibility of their residing together but both parties emphatically ruled out any possibility of residing together.

The parties stated that they have taken a conscious decision that as it is not possible for them to live together on account of irreconcilable differences, the best course for them is to part ways. We are satisfied that the parties have taken a conscious decision to dissolve their marriage as it is not possible for them to live together as husband and wife.

In the absence of any malafide, coercion, misrepresentation or fraud, the petition is allowed and marriage between the parties is dissolved by grant of a decree of divorce by mutual consent. The parties shall, however, remain bound by the terms and conditions of the settlement and perform their respective obligations as set out in the settlement. In case of any difficulty in the performance of any part of the settlement, the parties would be at liberty to approach this Court for further directions. Prerna Sharma has received a bank draft bearing No.001280 amounting to Rs.1,00,00,000/- (Rs. One Crore only).

A decree sheet be drawn up accordingly.

[ RAJIVE BHALLA ]
JUDGE

[ LISA GILL ]
JUDGE

18.02.2016