Tag Archives: patna HC

Deserting 498A working wife looses right 2 enhanced maintenance. ALL Criminal cases quashed. Super Patna HC order

A 498a filing wife who treated her husband cruelly and deserted her husband with two small kids, tries to enhance the monthly maintenance. Patna HC sees thru her game and denies her any enhancement. It ALSO quashes ALL criminal cases filed by her !!

  • Wife leaves husband and two very small children. Leaves matri home in the middle of the night. Does NOT take any steps for kid’s custody
  • She is employed in a beauty parlor and earning * Her father owns a palatial house
  • On the other hand, husband is maintaining the kids and is providing best education for them
  • couple are divorced as lower court sees the wife’s desertion and cruelty,
  • wife tries to enhance her maintenance to Rs 15000 p.m.
  • Patna HC seeks her cruelty and desertion and refuses to enhance her maintenance
  • Patna HC also orders that “…all criminal cases as between the parties arising out of matrimonial alliance would stand terminated/ quashed, so that the parties are free from any further relationship or harassment….”

This is an excellent judgment that should be used by harassed husbands

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IN THE HIGH COURT OF JUDICATURE AT PATNA

Miscellaneous Appeal No.528 of 2012

Rajiv Roshan, S/O Sri Nand Kishore Lal, R/O Lal Kothi, Tripolia Gate, P.S.- Alamganj, Distt-Patna …. …. Appellant/s

Versus

Sarika, D/O Shri Ishwar Chandra Prasad, W/O Sri Rajiv Roshan, R/O Talabpar, Near Bus Stand, Nasriganj, Distt-Rohtas …. …. Respondent/s

With

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

Miscellaneous Appeal No. 204 of 2013

Sarika, D/O Shri Ishwar Chand Prasad, W/O Sri Rajiv Roshan, R/O Talabper, Near Bus Stand, Nasariganj, Distt-Sasaram …. …. Appellant/s

Versus

Rajiv Roshan, S/O Sri Nand Kishore Lal, R/O Lal Kothi, Tirpolia Ghat, P.S.- Alamganj, Distt-Patna …. …. Respondent/s

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Appearance :
(In MA No.528 of 2012)
For the Appellant : Mr. D.K. Sinha, Sr. Advocate Mr. Abhinay Raj, Advocate
For the Respondent : Mr. Md. Khurshid Alam, Advocate

(In MA No.204 of 2013)
For the Appellant : Mr. Md. Khurshid Alam, Advocate
For the Respondent : Mr. D.K. Sinha, Sr. Advocate Mr. Abhinay Raj, Advocate

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

CORAM: HONOURABLE MR JUSTICE NAVANITI PRASAD SINGH and HONOURABLE JUSTICE SMT. NILU AGRAWAL

C.A.V. JUDGMENT

(Per: HONOURABLE JUSTICE SMT. NILU AGRAWAL)

Date: 06-10-2016

  1. The two miscellaneous appeal being M.A. No. 528 of 2012 (Rajiv Roshan Vs. Sarika) and M.A. No. 204 of 2013 (Sarika Vs. Rajiv Roshan) arise out of judgment and decree dated 28.04.2012, passed by Addl. Principal Judge, Family Court, Patna Patna High Court MA No.528 of 2012 dt.03-10-2016 in Matrimonial Case No. 242 of 2004 by which divorce petition filed by the husband against his wife has been decreed, marriage was dissolved and the divorce granted with direction to the husband to pay Rs. 6,000/- per month as permanent alimony to the wife till her remarriage.
  2. Heard the counsel appearing on behalf of the husband Rajiv Roshan and wife Sarika in both cases and with their consent both the appeals are heard together and being disposed of.
  3. Husband, Rajiv Roshan had filed Matrimonial Case No. 242 of 2004 seeking decree of divorce against his wife Sarika, stating that the marriage between them was solemnized on 04.05.1997 as per Hindu customs and rites. Out of the wedlock one son Arnav was born on 25.01.1998 and another son Pranav was born on 09.12.2000 and from the very beginning the behaviour of the wife was not cordial, hence, divorce was sought on the ground of cruelty. The husband found it very difficult to live with the wife, and the wife on 08.06.2004 (which the wife alleges to be 09.07.2004) left the matrimonial house and the two sons and went alone to her Naihar. The wife appeared before the court below and stated that she led a good conjugal life and it was the husband who was cruel and thrashed her and kept the two children and also demanded dowry for which Complaint Patna High Court MA No.528 of 2012 dt.03-10-2016 Case No. 3235(C)/2008 under Section 498-A of the Indian Penal Code has been filed by the wife.
  4. Wife Sarika has also preferred M.A. No.204 of 2013 arises out of the order passed in Matrimonial Case No. 242 of 2004 for enhancement of alimony from Rs. 6000/- to Rs. 15,000/- per month till her remarriage so that she may maintain herself properly but has not disputed the decree of divorce. She has also demanded jewellery including 25 bhari gold and Rs. 2 lakhs given in her marriage which the husband has withheld.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
  5. The learned court below came to a finding that the act of the wife leaving the matrimonial house in the night and did not take any legal step for custody of her two sons since 2004 shows her lack of love and affection towards her children, who were very small at that time, and also her behaviour was cruel towards her husband, hence, factum of cruelty was established against the wife and hence decree of divorce granted.
  6. It may be noted that by an interim order the learned court below had granted maintenance of Rs. 7,000/- per month. This was challenged by the husband before this Court in C.W.J.C. No. 3863 of 2010 and the interim maintenance of Rs. 7,000/- was reduced to Rs. 3,000/- per month by order dated 30.03.2010 passed by this Court while issuing notice to the wife. Patna High Court MA No.528 of 2012 dt.03-10-2016 However, the said writ petition was disposed of on 05.01.2012. The interim maintenance of Rs. 3,000/- was directed to be continued till final order passed in Matrimonial Case No. 242 of 2004 by the court below. In the final order permanent alimony has been fixed at Rs. 6,000/- to be paid to the wife by the husband till remarriage of the wife, while granting decree of divorce.
  7. The wife although has not challenged the decree of divorce but seeks enhancement of permanent alimony to Rs. 15,000/- per month till her remarriage as well as the ornaments and cash given at the time of marriage. It has been submitted by learned counsel for the wife, Md. Khurshid Alam, that the family of the husband has a palatial house over 5.5 kathas of land and all the four brothers of the husband including the husband are living jointly. The husband also has 5 kathas of agricultural land and one shop from which he gets monthly rent of Rs. 4,000/- and also stated that the husband has a wholesale business of medicine in the name and style of Rap India and Roshan Surgico, hence, seeks maintenance as per status of her husband under Section 25 of the Hindu Marriage Act, 1955.
  8. However, learned Senior Counsel Sri D.K. Sinha for the husband Rajiv Roshan, in his reply submitted that the two sons born in the year 1998 and 2000 are living with him and Patna High Court MA No.528 of 2012 dt.03-10-2016 they are pursuing their studies in the best schools of Patna, namely, St. Michael High School, Digha, Patna and St. Xavier High School, West Gandhi Maidan, Patna in Class XII and VIII respectively. He submits that he has no medicine business and is just a salesman in medicine shop and gets Rs. 3,000/- per month and monthly rent of Rs. 2,000/- and has to look after the two sons and pay a huge amount of money more than two lakhs per year, for their education. It has also been submitted that the wife is the owner of a beauty parlour in the name and style of “Care and Glow” and is earning a very high income and some of her employees are getting Rs. 15,000/- per month from the said beauty parlour. In fact, the father of the wife has a palatial house at Nasriganj, Rohtas as well as an old mill at Delha Par, Gaya having two acres of land apart from 50 acres of agricultural land near Nasriganj, Rohtas. He also submits that the wife has filed a complaint case under Section 498-A of the I.P.C., Maintenance Case No. 102/2015, which is pending in the Family Court at Ranchi and Guardianship Case No. 31/2012, which is pending before the learned Principal Judge, Family Court, Patna. He, thus, submits that he has very little income and with that he has to provide maintenance and studies of the two sons who are growing up.
  9. From the facts aforesaid, it emerges that the father of the wife has a palatial house and substantial agricultural lands and if not as the owner she has admitted that she is working in the beauty parlour receiving income. The husband, on the other hand, is looking after the children maintaining them, who are pursuing their studies and has only a house where the joint family lives and some salary as well as rent.
  10. The finding of the trial Court on the aspect of divorce is not challenged by the wife. She abandoned the matrimonial house and her small children in 2004 never to return. She never claimed custody of her children nor she ever tried to meet them although guardianship case has been filed much after in 2012. Cruelty is not challenged. She is a working lady herself.
  11. The wife has not been living with her husband since 2004 and not having challenged the divorce, the decree of divorce is upheld. The two sons are living with their father who is providing the best of education to them in a reputed school at Patna. The wife even if not owner of beauty parlour but admits that she is a working lady. She has abandoned her two sons long back and had taken no steps for their custody since 2004 although a guardianship case has been filed recently in 2012.
  12. Considering the aforesaid facts, since the Patna High Court MA No.528 of 2012 dt.03-10-2016 husband has means to provide the best of education to the sons incurring huge amount of money as stated by the husband himself and that the wife is a working lady, the order dated 28.04.2012 passed by Additional Principal Judge, Family Court, Patna in Matrimonial Case No. 242 of 2004 requires no interference.
  13. It is also made clear that all criminal cases as between the parties arising out of matrimonial alliance would stand terminated/ quashed, so that the parties are free from any further relationship or harassment.
  14. In the result, both the appeals are dismissed and the order passed by the Additional Principal Judge, Family Court, Patna in Matrimonial Case No. 242 of 2004 dated 28.04.2012 is upheld.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick  

     

    (Nilu Agrawal, J.)

    Navaniti Prasad Singh, J.

    I agree

    (Navaniti Prasad Singh, J.)

    Rajesh/-

    AFR/NAFR       AFR

    CAV DATE 05.09.2016

    Uploading Date 06.10.2016

    Transmission Date

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


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


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Interim maintenance KEEPS building up as husband is begging 4 seedy divorce! Court orders payment or case dismissal !!

As we all know Interim maintenance is one of the most painful things that can befall a husband when he seeks justice from a family court / civil court

This divorce case seems to have been dragging on since 2007. It’s the husband’s contention that wife is NOT eligible for ANY money. However, this husband seems to have been ordered to pay interim maintenance. After initial payments, husband keeps begging the courts for speedy trial and decision and has even obtained a HC order for speedy trial. However the case keeps dragging in the lower court and wife keeps pushing for the arrears , .. moolah !!

Arrears builds up to some lakhs, husband says he is unable to pay and the matter reaches HC.

However Hon HC feels that husband is wantonly delaying / denying maintenance and orders that he has to pay the arrears of interim maintenance (which runs into lakhs !!)

The Hon HC also orders that “…if within that reasonable time, the arrear and current maintenance with cost awarded above is not deposited or paid, the Court shall dismiss the divorce case for disobedience of the order of the trial court …..” !!!


IN THE HIGH COURT OF JUDICATURE AT PATNA

CIVIL MISCELLANEOUS JURISDICTION No.915 of 2016

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Priyanka Devi …. …. Opposite Party/Petitioner
Versus

Kaushal Kishor Gautam …. …. Petitioner/Respondent

Appearance :
For the Appellant/s : Mr. Chandra Kant

For the Respondent/s : Mr. Rakesh Kumar

CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO

C.A.V. ORDER

3 26-09-2016

(1) I have already heard the learned counsel, Mr. Chandra Kant for the petitioner and the learned counsel, Mr. Rakesh Kumar for the respondent.

(2) This Civil Miscellaneous application has been filed by the wife-petitioner for setting aside the order dated 08.06.2016 passed by Principal Judge, Family Court, West Champaran, Bettiah in Divorce Case No.138 of 2007 whereby the learned Court below rejected the application filed by the petitioner for recovery of arrears of maintenance amount of Rs.2,27,200 from the respondent-husband and till then stay of proceeding.

(3) It appears that the husband-respondent filed the aforesaid divorce case under Section 12(i)(d) of the Hindu Marriage Act. The cases of the parties are not required to be mentioned here. The wife appeared and is contesting the said case. During the pendency of the said divorce case, an application under Section 24 of the Hindu Marriage Act was filed by the wife who is petitioner herein. After hearing both the parties, the learned Family Court by order dated 26.06.2009 directed the husband- respondent herein to pay Rs.4,000 per month as maintenance and also Rs.15,000 lump sum as litigation cost.

(4) This order dated 26.06.2009 was challenged before this High Court by the husband in civil revision. The High Court set aside the order and remanded the matter directing to pass a fresh order after recording finding on the question of income of husband. After remand, the Family Court by order dated 13.01.2010 recorded finding about the income and then again directed the husband to pay Rs.4,000 as maintenance and Rs.15,000 as litigation cost. Against the said order, the husband filed CWJC No.20647 of 2011. After hearing both the parties, the said writ application was dismissed on 21.06.2012 which is Annexure 2 to this Civil Miscellaneous application.

(5) After the above order, the husband filed an application before the Family Court for recall of the order dated 13.01.2010. The said application was rejected by the Family Judge on 27.07.2013 and the husband-respondent was directed to comply the order.

(6) On 02.08.2014, the wife filed application for directing the husband to pay Rs.1,76,000, the arrears of maintenance, stating that because of paucity of money, she is unable to contest the case and if maintenance is not paid, she may be permitted to leave the case. Thereafter, the husband again filed CWJC No.2161 of 2014 which was dismissed on 21.04.2015 and while dismissing this writ application this Court directed the Court below to decide the case within six months. Again, CWJC No.1471 of 2016 was filed by the husband-respondent for directing the Court below to decide the matter as early as possible which was again dismissed by order dated 16.05.2016. Thereafter, the wife-petitioner filed application praying for a direction to the husband to pay the arrears of maintenance as directed by the Court. The arrears of maintenance is Rs.2,27,200/- and the wife has no money to contest the case but the learned Court below by the impugned order rejected the application and proceeded to decide the divorce case.

(7) The learned counsel for the petitioner submitted that the order under Section 24 of the Hindu Marriage Act was passed in the year 2009. After some payment, the husband stopped the payment of maintenance. He challenged the order repeatedly before the High Court which has already been rejected but instead of paying that huge amount of arrear, the husband is proceeding for the disposal of the case expeditiously. The petitioner has no money, therefore, she is unable to contest and if amount is not paid, as directed by the Court, it will be denial of justice to the petitioner.

(8) On the other hand, the learned counsel for the respondent submitted that there is already an order by this Court for expeditious disposal of the divorce case. It is incorrect to say that the wife-petitioner has got no money to contest the suit. According to the learned counsel, the wife is not entitled to get the maintenance amount. It cannot be said that unless the arrear amount is paid, the case cannot be decided. The Court below is proceeding to decide the case, therefore, the further proceeding cannot be withheld or stayed because of non-payment of the arrears of maintenance and also the current monthly maintenance. The Court below is deciding the case in view of the direction of the High Court. If the petitioner has no money then how she is filing this case before the High Court. Therefore, the intention of the wife is only to delay the disposal of divorce case. Moreover, the order passed by the Court below is legal and valid, therefore, it cannot be interfered with in exercise of supervisory jurisdiction.

(9) It is admitted fact that the husband has been directed to pay Rs.4,000 per month as maintenance under Section 24 of the Hindu Marriage Act in the year 2009. After some payment, he stopped the payment. Now, there is huge amount of arrears as claimed by the petitioner and this amount, which is an arrear, is not denied by the husband. The wife is repeatedly filing the application and praying for directing the husband to comply the order otherwise she will be unable to contest the suit. The order passed by the Family Court directing the husband to pay the arrears of maintenance and current monthly maintenance has been upheld by the High Court but the husband is not complying the direction of the Court which is upheld by the High Court. The divorce suit is proceeding. Since the wife had no source of income for her maintenance and to defend her in the divorce suit, the Court directed the husband to provide the cost of maintenance and litigation. If the cost of maintenance and the litigation cost is not paid by the husband then the wife will be defenceless. In other words, she will be unable to defend the case filed by the husband and the case will be ex parte against her. However, from the facts stated above, now it becomes clear that intentionally the husband is not obeying the order of the Court and thereby he is depriving the wife of her right to defend the case. In one hand, he is insisting the Court to proceed and decide the case expeditiously and on the other hand, he is disobeying the order of the Court. This conduct of the husband shows that his intention is to get the case decided without the defence of the wife. No doubt, wife can file a petition under Order 21 Rule 37 C.P.C. for recovery of the amount and the husband can be proceeded against the contempt of Court also for disobedience of the Court’s order, but Section 24 of the Hindu Marriage Act empowers the Court to make an order for maintenance and for expenses to a needy and indigent wife. If the amount is not made available then the very object and purpose of this provision shall be defeated. Wife cannot be directed in all cases to proceed for execution for recovery of the amount which will take much time and thereby again it will delay the disposal of the case. Law is not so powerless to bring the husband to book. If the husband has failed to make the payment, as directed by the Court, his defence/case can be struck out. The person who is disobeying the order of the Court cannot be allowed to be heard on merit considering his conduct. After all he is approaching the Court for justice as claimed by him but at the same time, Court has to administer justice to both the parties. The wife is also entitled equally to get justice and for that she needs the maintenance and litigation cost and, therefore, the Court has directed the husband. If the husband is not obeying the order of the Court then why the Court should oblige and proceed to hear his case.

(10) A Division Bench of the Himachal Pradesh High Court in the case of Jai Singh v. Smt. Khimi Bhiklu and another, AIR 1978 Himachal Pradesh 45 has held that the husband who was ordered to pay interim alimony and expenses pendente lite, deliberately and contumaciously flouted the order, it is open to the court to pass an order striking out the defence of the husband by invoking inherent powers under S. 151 C.P.C.

(11) The Odissa High Court also expressed the same view in the case of Ghasiram Das v. Srimati Arundhati Das and another, AIR 1994 Orissa 15. It has been held that the purpose of Section 28 could not be allowed to defeat by driving the indigent spouse to enforce the order of maintenance pendente lite in an execution proceeding in every case. The court in appropriate circumstance can enforce its order by striking out the pleadings of defaulting party.

(12) The Kolkata High Court in AIR 1962 Calcutta 88 Smt. Anita Karmokar and another v. Birendra Chandra Karmokar has held that “the object of S.24 of the Hindu Marriage Act is to enable an indigent spouse, who has no independent means or income of her own, to conduct her defence without being handicapped in any way by poverty. A husband, on whom an order under S.24 has been made, but who refuses to pay under the order and aspires yet to go on with his suit must not be encouraged. The English principle, followed in matrimonial causes, of staying the suit in such circumstances is the best way of dealing with such a situation and the said principle should be applied in proceedings under the Hindu Marriage Act, 1955 as a rule of justice, equity and good conscience.”

(13) A Division Bench of High Court of Punjab in the case of Smt. Malkan Rani v. Krishan Kumar, AIR. 1961 Punjab 42 has held that “if the court directed the husband under S. 24 of the Hindu Marriage Act to pay the wife maintenance pendente lite and the litigation expenses, the court has inherent power to stay the proceedings till the husband paid the amount which he has been ordered to pay under S. 24. The enforcement of the order otherwise than by execution is not prohibited or excluded by S. 28.”

(14) In view of the above decisions of the various High Courts, in my opinion, the orders passed by the Court below, in not staying the further proceeding till the arrears and current monthly maintenance and litigation cost is paid by the petitioner, will occasion failure of justice and put the wife in a position as if she has not defended the case. As stated above, intentionally the husband is disobeying the order of the Court.

(15) In the result, this Civil Miscellaneous application is allowed with cost of Rs.10,000 to be paid by the husband- respondent to the wife-petitioner. The impugned order is set aside. The further proceeding in Divorce Case No.138 of 2007 pending in the Court of Principal Judge, Family Court, West Champaran shall remain stayed till the arrear amounts of maintenance and aforesaid cost is deposited/paid by the husband to the wife within a reasonable time. The Court shall fix the said reasonable time and if within that reasonable time, the arrear and current maintenance with cost awarded above is not deposited or paid, the Court shall dismiss the divorce case for disobedience of the order of the trial court merged in the order of the High Court.

(Mungeshwar Sahoo, J)

Saurabh/-A.F.R.

U T

16 lakhs TOO little for UNCONSUMMATED marriage!! Maint. order sent back 13 years later by Patna HC

  • Marriage in 2003
  • Marriage unconsummated as per parties !
  • They seem to have separated just after a few months of married life !!
  • Husband obtained divorce at lower court and was also asked to pay Rs 16 Lakhs as alimony to wife !!
  • However wife appeals and says 16 Lakhs is too less
  • The Hon Patna HC dismisses that part of the lower court order (pertaining to maintenance) and sends it back for fresh adjudication !!
  • Since both wife and husband have NOT contested the divorce, the divorce is left as is !! meaning wife is free to even get re married !!

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IN THE HIGH COURT OF JUDICATURE AT PATNA

Miscellaneous Appeal No.450 of 2015

Reena Devi, aged about 34 years, wife of Sri Rohit Bishnoi, present resident of Mohalla – Jamtara, G.T. Road, Near Parasnath College, village + P.O. + P.S. – Dumri, District – Giridih (Jharkhand). …. …. Appellant

Versus

Rohit Bishnoi, son of Krishna Chandra Bishnoi, resident of Mohalla D.N. Das Lane, Bangali Akhara, Langar Toli, P.O. Bankipur, P.S. Kadamkuan, District & Town – Patna….. …. Respondent

With

Miscellaneous Appeal No. 271 of 2015

Rohit Bishnoi S/o Krishna Chandra Bishnoi Resident of Mohalla D.N. Das Lane, Bangali Aghara, Langar Toli, P.O. Bankipur, P.S. Kadamkuan, District Patna….. …. Appellant

Versus

Reena Devi W/o Rohit Vishnoi, D/o Om Shankar Agrawal Resident of Village Dumari Jamtara J.T. Road Near Paras Nath College, P.O. Dumari, P.S. Dumari, District Giridih (Jharkhand)….. …. Respondent

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Appearance :
(In MA No. 450 of 2015)
For the Appellant/s : Mr. Manoj Kumar, Advocate For the Respondent/s : None.

(In MA No. 271 of 2015)
For the Appellant/s : None
For the Respondent/s : Mr. Manoj Kumar, Advocate

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CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH And HONOURABLE JUSTICE SMT. NILU AGRAWAL

ORAL JUDGMENT

(Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH)

Date: 06-09-2016

Heard learned counsel for the appellant in M.A. No. 450/2015. No one appears on behalf of the appellant in   M.A. No. 271/2015.

The two Miscellaneous Appeals arise out of the judgment and order dated 29.06.2015, passed by the Additional Principal Judge, Family Court, Patna, in Matrimonial Case No. 445 of 2010.

The case was instituted by Rohit Bishnoi, the husband, for dissolution of marriage under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act”). The sole contesting respondent, Smt. Reena Devi, was the estranged wife. Parties have appeared and led their evidence. The Court, upon consideration of the entire matter, granted the decree for dissolution of marriage by decree of divorce. While doing so, it noted that the parties were married on 06.03.2003, but within months there were serious differences, and since then, they have been living apart. The marriage has not been consummated, nor parties are inclined to forget the past and live together.

The two appeals that have been filed is against the part of the judgment, whereby and while granting the decree of divorce, the Family Court has granted Rs. 16,00,000/- (sixteen lacs) as permanent alimony in terms of Section 25 of the Act, to be paid by the husband to the wife.   Miscellaneous Appeal No. 450/2015 has been preferred by the wife challenging that permanent alimony, so fixed, is too little, whereas Miscellaneous Appeal No. 271/2015, as filed by the husband, is that, considering his status and his property, the alimony is strikingly high. Neither party had challenged the decree of divorce. Therefore, before us, the question is whether Rs. 16 lacs as fixed by the Trial Court is just and reasonable. The legal principles for fixing the permanent alimony are well settled and need not be discussed, but what is the evidence for the same is relevant. All that the wife can say is that the husband has a house in which there are some shops and live with parents on the first floor therein. Therefore, his status is very high and Rs. 16,00,000/- (sixteen lacs) is also very low. There is no evidence as to the valuation, or the other assets or the income of the husband. The husband, on the other hand, says that apart from the said property, which is old ancestral property, there is no income except rental income from those shops, and if he is asked to pay Rs. 16,00,000/- (sixteen lacs), he would first have to sell the entire property and then raise the money.

In our view, the first thing to be noted is that,  alimony has to be fixed upon cogent evidence to be led by the parties. It cannot be on ad hoc findings unsupported by materials on record.

In that view of the matter, there being hardly any evidence, we would set aside the matter and remand the matter to the Principal Judge, Family Court, Patna, only limited to the matter for determination of the quantum of alimony, in terms of Section 25 of the Act. So far as the decree of divorce is concerned, neither party having any objection, the same cannot be interfered with, and it would be deemed to have attained the finality.

Thus, both the appeals are allowed and the matter is remanded for fresh consideration by the Trial Court for the limited purpose as pointed out above. The Trial Court would be well advised to finalize the proceedings, preferably within six months.

(Navaniti Prasad Singh, J.)

(Nilu Agrawal, J.)

Rajeev/-

U

Unconsummated marriage as wife refused access and left 16 years ago but 498a lingering on !! Good jurisdictional quash @ Patna HC

  • Marriage approx 20 years ago but unconsummated !! “…it is also submitted that petitioner no.1 was married to Manisha Sah on 30th May, 1997, but Patna High Court Cr. WJC No.383 of 2015 dt.29-08-2016 the marriage was never consummated, as she never allowed the petitioner no.1 to share her bed. ….”
  • Allegations of beating etc etc. Allegations of second marriage etc
  • Finally Ablaa’s dad files complaint case u/s 498A, 420 and 406 IPC
  • ablaa goes away and gets re married to some one else and the father who gave complaint is dead
  • prosecution also agrees that the woman is NOT co-operating on the investigations !! (why will she when she has got married and gone away ) !!
  • finally husband and party go for quash on jurisdiction !!! and get it quashed on jurisdiction as the offences happened at Varnasi while case was filed in Mothari / Bihar
    * while this case highlights the fate of lingering cases where women fire a 498a, make money or get divorce, go away to get married the state is left with the sh!t !! and your tax money and my tax money is wasted on such nonsense, it is STILL this is a good case to use for jurisdictional quash

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

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Writ Jurisdiction Case No.383 of 2015

Arising Out of PS.Case No. -null Year- null Thana -null District- EASTCHAMPARAN(MOTIHARI)

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

1. Pradeep Kumar Jaiswal son of Prakash Chand Gupta

2. Prakash Chand Gupta @ Prakash Chand son of Late Baldeo Prasad

3. Champa Devi wife of Prakash Chand Gupta

4. Sanjay Jaiswal @ Sanjan Kumar Jaiswal son of Prakash Chand Gupta.

5. Praveen Kumar Jaiswal son of Prakash Chand Gupta

6. Rekha Gupta @ Rekha Jaiswal wife of Sanjay Kumar Jaiswal All residents of 131, Station Road, P.S.- Kotwali Nagar, Town Pratapgarh, District – Pratapgarh, U.P. …. …. Petitioner/s

Versus

1. The State of Bihar through Director General of Police, Bihar, Patna, Old Secretariat, Patna.

2. Superintendent of Police, Motihari, District – East Champaran.

3. The Officer-in-charge, Motihari Town Police Station, At Motihari, District – East Champaran.

4. Manisha Sah daughter of Late Vishwanath Prasad Sah, Sah Bagicha, Mangal Prasad Sah Marg, P.S.-Nagar, P.S.-Motihari, District- East Champaran …. …. Respondent/s

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

Appearance :

For the Petitioner/s : Mr. Anil Jaiswal, Advocate
For the Respondent/s : Mr. N.H.Khan, S.C.-1 : Mr. Md. Naushaduzzoha, A.C. to S.C.-1

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

CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH

ORAL JUDGMENT

Date: 29-08-2016

  1. Be it noted that vide order dated 29.1.2016, this Court had issued notice to respondent no.4 Vishwanath Prasad Sah. Since the process server reported that Vishwanath Prasad Sah had already died, his name was deleted from the cause title and by order dated 5.5.2016, the victim Manisha Sah, the daughter of the informant, was permitted to be impleaded as respondent no.4 in the case. Despite valid service of notice upon Manisha Sah, she has chosen not to appear either in Patna High Court Cr. WJC No.383 of 2015 dt.29-08-2016 person or through counsel.
  2. Heard Mr. Anil Jaiswal, learned counsel for the petitioners and Mr. Naushad Hussain Khan, Standing Counsel No.1, for the State.
  3. In the present application preferred under Articles 226 and 227 of the Constitution of India, the petitioners have prayed for quashing of Motihari Town P.S. Case No.76 of 2000 dated 28.3.2000, as contained in Annexure-1 to the present application, and the entire police investigation made upon it after institution of the police case lodged by Vishwanath Prasad Sah. <SMALL>http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick </SMALL>
  4. Initially, a complaint case being Complaint Case No.251 of 2000 was instituted by the aforesaid Vishwanath Prasad Sah in the court of Chief Judicial Magistrate, Motihari, East Champaran on 1st March, 2000. The aforesaid complaint was referred to the police under Section 156(3) of the Code of Criminal Procedure for investigation pursuant to which East Champran Town P.S. Case No.76 of 2000 was registered on 28th March, 2000 under Sections 498A, 420 and 406 of the Indian Penal Code as also under Sections 3 and 4 of the Dowry Prohibition Act, 1961.
  5. The prosecution case, in short, is that marriage of the informant’s daughter Manisha Sah was performed on 30th May, 1997 with petitioner no.1 at Varanasi in Uttar Pradesh in which the informant and his relatives gave cash, ornaments and other articles Patna High Court Cr. WJC No.383 of 2015 dt.29-08-2016 mentioned in the FIR. After marriage, the informant’s daughter went to her ‘Sasural? at Pratapgarh (U.P.) and lived there for twenty days. Then, she came to her „Maikey? at Motihari in Bihar and after a month’s stay over there she again went to her ‘Sasural? with her husband. On the second visit to her ‘Sasural?, she, without any reason, was abused by the accused persons, who also pressurized her to bring rupees two lakhs as dowry.
  6. It is further alleged that in March, 1998, the informant’s daughter came to know that her husband had married another girl named Purnima and he also had a son from her. The informant’s daughter informed about this fact to the informant and on coming to know about this, the informant went to his daughter’s ‘Sasural? with his son and scolded the accused persons. Then, the informant, after staying at his daugher’s ‘Sasural? for a week, returned to his home at Motihari in Bihar.
  7. It is further alleged that in June, 1998 the petitioner no.1 told the informant’s daughter that he would keep his beloved Purnima throughout his life and when it was protested by the informant’s daughter she was beaten up by the accused persons with fists, slaps and Danda. Thereafter, on getting opportunity, Manisha Sah informed the informant, who again went to her ‘Sasural? on 8th June, 1998 with his son Ravi Kumar and got her treated in the Hospital at Pratapgarh (U.P.) and also got her X-Ray done on the advice of the doctor. It is Patna High Court Cr. WJC No.383 of 2015 dt.29-08-2016 also alleged that while coming to her ‘Maikey’, the accused persons coerced Manisha Sah and got it written by her that she is taking away all her ornaments and belongings. It has been alleged that all her belongings were retained by the accused persons. The informant went to his daughter’s ‘Sasural? several times and asked the accused persons to return her daughter’s ornaments and belongings, but they declined to return the same.
  8. It is submitted by the learned counsel for the petitioners that petitioner no.1 is husband, petitioners no.2 and 3 are father-in-law and mother-in-law respectively, petitioners no.4 and 5 are brothers-in- law of the victim Manisha Sah and petitioner no.6 is wife of petitioner no.4 of the present case.
  9. It is submitted that taking the entire allegations in the FIR to be true, from the FIR it would be obvious that all the cause of action, whatever they may be, took place either at Varanasi (U.P.) or at Pratapgarh (U.P.) and no cause of action of any kind occurred in Bihar; much less, at Motihari within the territorial jurisdiction of the court at Motihari. As such, the officers of the Town Police Station at Motihari have got no jurisdiction to investigate the case and, on this ground alone, the entire investigation in the police case is fit to be quashed.
  10. Advancing the argument, it is also submitted that petitioner no.1 was married to Manisha Sah on 30th May, 1997, but Patna High Court Cr. WJC No.383 of 2015 dt.29-08-2016 the marriage was never consummated, as she never allowed the petitioner no.1 to share her bed. Then, in the year 1998 itself petitioner no.1 filed a divorce case bearing Original Case No.179 of 1998, in the court of Additional Civil Judge, Pratapgrah (U.P.) for decree of divorce under Section 13 of the Hindu Marriage Act on the ground of mental cruelty for having refused to cohabit with him without any reason. In that case, even after due service of court’s summons, Manisha Sah did not appear. Thereafter, that case was decided ex-parte in favour of petitioner no.1 on 1.5.2012 and he was granted decree of divorce.
  11. It is also urged that during pendency of the divorce case, Manisha Sah has married another person and petitioner no.1 has also remarried after his divorce.
  12. Per contra, learned counsel for the State has submitted that the petitioners are not co-operating with the investigation of the case and because of their non-co-operation, the investigation of the case could not be completed till date. He has submitted that steps are being taken to arrest the accused persons so that charge-sheet may be filed before the court. However, he concedes that no part of cause of action ever took place in Bihar.
  13. Having heard learned counsel for the parties and perused the records, I find substance in the arguments advanced by the learned counsel for the petitioners. The facts stated in the FIR arising out of Patna High Court Cr. WJC No.383 of 2015 dt.29-08-2016 complaint would clearly show that all the alleged acts, as per the informant, had taken place in the State of Uttar Pradesh.
  14. It appears that the informant has lodged the complaint at Motihari because of his residence at Motihari and his daughter Manisha Sah resided together with him after she left her matrimonial home.
  15. In a criminal case, the territorial jurisdiction is not decided on the basis of place of residence. It is on the basis of place where the alleged offence occurred.
  16. Section 177 of the Code of Criminal Procedure (for short (‘CrPC’) clearly lays down that every offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed.
  17. Section 178 of the CrPC further lays down:
    • (a) when it is uncertain in which of several local areas an offence was committed, or
    • (b) where an offence is committed partly in one local area and partly in another, or
    • (c) where an offence is a continuing one, and continues to be committed in more local areas than one, or
    • (d) where it consists of several acts done in different local areas, then such offence may be inquired into or tried by a court having jurisdiction over any of such local areas.
  18. Thus, it would be evident from a reading of Sections 177 and 178 of the CrPC that there are certain rules with regard to where the FIR for an offence may be registered and the trial for such an Patna High Court Cr. WJC No.383 of 2015 dt.29-08-2016 offence may be conducted. The FIR has to be registered where the offence took place or where at least a part of the offence took place. The place of residence of the complainant or of the accused is irrelevant in this regard.
  19. In an identical case, in the matter of Bhura Ram and Ors. vs. State of Rajasthan and Anr., since reported in AIR 2008 SC 2666, the Supreme Court had quashed the entire criminal proceedings, which was instituted at Sri Ganganagar, Rajasthan; whereas all the alleged acts, as per the complaint giving rise to FIR, had taken place in the State of Punjab. The operative part of the order of the Supreme Court in Bhura Ram and others (supra) reads as under:
    • “4. The facts stated in the complaint disclose that the
      complainant left the place where she was residing with her
      husband and in- laws and came to the city of Sri Ganganagar,
      State of Rajasthan and that all the alleged acts as per the
      complaint had taken place in the State of Punjab. The Court at
      Rajasthan does not have the jurisdiction to deal with the
      matter. On the basis of the factual scenario disclosed by the
      complainant in the complaint, the inevitable conclusion is that
      no part of cause of action arose in Rajasthan and, therefore,
      the Magistrate concerned has no jurisdiction to deal with the
      matter. As a consequence thereof, the proceedings before the
      Additional Chief Judicial Magistrate, Sri Ganganagar are
      quashed. The complaint be returned to the complainant and if she
      so wishes she may file the same in the appropriate court to be
      dealt with in accordance with law. 
    • The appeal is accordingly allowed.”
  20. Keeping in mind the facts and circumstances of the present case and the ratio laid down by the Supreme Court in the matter of Bhura Ram and others (supra), the first information report of Motihari Town P.S. Case No.76 of 2000 dated 28.3.2000 and the consequential ongoing investigation of the said case are hereby quashed.
  21. The application stands allowed.
  22. The victim Manisha Sah would be at liberty to take steps in accordance with law at the place where the alleged offence is said to have taken place or where at least a part of the offence is alleged to have taken place.

    (Ashwani Kumar Singh, J) Md.S./-

    AFR/NAFR          AFR

    CAV DATE         N/A

    Uploading Date   4.9.2016

    Transmission     4.9.2016

    Date

28 lakhs before anticipatory bail in dowry case, Marriage WITHOUT kids. Patna HC

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Miscellaneous No.4864 of 2016

Arising Out of PS.Case No. -39 Year- 2014 Thana -MAHILA P.S. District- SARAN

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Prashant Kumar Singh @ Sonu, Son of Dilip Kumar Singh Resident of
Sarvamangal E/256 A- Block, Khuntadih Sonari (East), Police Station-
Sonari Jamshedpur, District- East Singhbhum, Jharkhand. …. …. Petitioner/s

Versus

1. The State of Bihar
2. Nutan Kumari Singh, Daughter of Samrendra Kumar Singh, Residing at
Mohalla- Ware House Gudari Bazar Main Road, Police Station- Bhagwan
Bazar, Chapra, District- Saran. …. …. Opposite Party/s

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Appearance :
For the Petitioner/s : Mr. Satya Prakash
For the Opposite Party/s : Mr. S.Ehteshmuddin(App)

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CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH

ORAL ORDER

01-09-2016

The petitioner being the husband of the informant is apprehending arrest in a case registered for the offences punishable under Sections 341, 323, 504 and 498A/34 of the Indian Penal Code and 3/4 of the Dowry Prohibition Act.

The basic accusation is of torture for non-fulfillment of the dowry demand.

It is submitted by the learned counsel for the petitioner that the petitioner admits his marriage with the informant having no issue. The petitioner and the informant have now decided to part ways on payment of permanent alimony. A joint compromise petition has been filed stipulating that the petitioner has agreed to make payment of one time settlement amount of 28,00,000/-, out of which the petitioner has brought a bank draft of15,00,000/- vide draft no. 098028 drawn in Union Bank of India, Tin Plate Branch, Jamshedpur. . Counsel for the petitioner is handing over the draft to the counsel for opposite party no.2 for its being handed over to opposite party no.2. Rest of `13,00,000/- will be paid at the time of filing of Matrimonial Suit under Section 13(B) of the Hindu Marriage Act before the learned Principal Judge, Family Court, Chapra. The parties have also agreed to withdraw all the cases lodged against each other.

Learned counsel for the informant has not controverted the contention of counsel for the petitioner and admits that he has received the draft of `15,00,000/-.

It is expected from the learned counsel for the informant to make endorsement of draft of `15,00,000/- on record.

Considering the present stand of the parties, let the above named petitioner be released on anticipatory bail, in the event of arrest or surrender before the learned Court below within a period of 12 weeks from today, on furnishing bail bond of `10,000/– (ten thousand) with two sureties of the like amount each to the satisfaction of the learned A.C.J.M., 1st Saran at Chapra in connection with Saran Mahila P.S. Case No. 39 of 2014, subject to the conditions as laid down under Section 438(2) Cr.P.C.

(Dinesh Kumar Singh, J)

Amrendra/-

U T

=== Select references ===

Section 341 in The Indian Penal Code : 341. Punishment for wrongful restraint.—Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.

Section 323 in The Indian Penal Code : 323. Punishment for voluntarily causing hurt.—Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.

Section 504 in The Indian Penal Code : 504. Intentional insult with intent to provoke breach of the peace.—Whoever intentionally insults, and thereby gives provoca­tion to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Section 498A in The Indian Penal Code : [498A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun­ished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For the purpose of this section, “cruelty” means—
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.]

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