Tag Archives: P&H HC

Criminal courts cannot mandate surrender of Passport as condition for Bail, Punjab & Haryana HC

 
///But the criminal courts have to take extreme care in imposing such condition. It cannot mechanically, and in every case where an accused has a passport impose a condition for its surrender. Law presumes an accused to be innocent till he is declared guilty. As a presumably innocent person he is entitled to all the fundamental rights guaranteed to him under the Constitution. At the same time, interest of the society has also to be protected. The court has to strike a balance between personal liberty of the accused guaranteed under Article 21 of the Constitution, investigation, rights of the police and the interest of the society. The criminal court has to consider possibility of the accused if released on bail, fleeing justice and thereby thwarting the course of justice which affects the majesty of the law, as also the individual rights of the accused. ///
  IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-42638 of 2018 Date of decision: 09.10.2018 Capt. Anila Bhatia..Petitioner Versus State of Haryana..Respondent CORAM: HON’BLE MRS. JUSTICE DAYA CHAUDHARY Present: Mr. R.S. Rai, Sr. Advocate with Ms. Rubina Vermani, Advocate for the petitioner. Mr. Manish Dadwal, AAG, Haryana for the respondent -State. Mr. Ashit Malik, Advocate for the complainant. *** Daya Chaudhary, J. The petitioner is aggrieved by one condition (d) of the order of bail to the effect that she shall surrender/deposit her passport, if any, with the Police/Court and shall not leave India without prior permission of the trial Court imposed by the Additional Sessions Judg e, Gurugram vide order dated 14.09.2018 while granting anticipatory bail i n case FIR No.614 dated 23.08.2017 registered under Sections 192, 403, 420, 467, 468, 471, 120-B IPC at Police Station DLF, Sector 29, Gurugram. Learned Senior Counsel for the petitioner submits t hat the petitioner is Senior Captain with Air India Airlines and is performing her duties as Pilot. She does not know in advance as to on which flight and to which country, she will have to fly. A self attested copy of flight detail of the petitioner has been annexed as Annexure P-3 wit h the petition to show that sometimes the petitioner has flown from Delhi to Dubail; Delhi to Riyadh; Mumbai to Bangkok and so on. Practicably, it is difficult for the petitioner to approach on each and every day to the trial Court to seek prior permission in a short span of time as the petitione r is given a break of only 2-3 days before flying abroad. Learned counsel further submits that the intervening period of stay in India after returning back and to fly again to a destination is very short and it is very difficult and inconvenient in compliance of the condition mentioned in the bailo rder. Learned counsel also submits that the there is no chance of absconding from the trial and she undertakes to abide by all terms and conditions imposed by the trial Court in the bail order or any condition to be imposed by this Court. It is also the argument of learned counsel for the petitioner that the challan has not been presented so far and trial may take long time to conclude. A prayer has been made by the petitioner for grant of permanent permission to travel abroad in discharge of her official duties by relaxing impugned condition (d) in the bail order passed by the Additional Sessions Judge, Gurugram on 14.09.2018 by considering the nature of official duties and profession. Learned State counsel has raised a preliminary objection that the present petition is not maintainable as in case the petitioner is aggrieved in any manner, firstly she should have approached the lower Court for modification of the condition. Learned State counsel also submits that no blanket permission can be given as the petitioner is involved in a serious offence and there is no emergency and extraordinary reasons for approaching this Court straightway without availing the appropriate remedy available to her before the lower Court. Heard arguments of learned senior counsel for the p etitioner as well as learned State counsel and have also perused impugned order dated 14.09.2018 passed by the Additional Sessions Judge, Gurugram, whereby, the petitioner has been released on anticipatory bail with certain conditions. Admittedly, the petitioner is working as Senior Captain in Air India Airlines and facing trial in the FIR as mentioned above, which was registered on the complaint filed under Section 156 (3) Cr.P.C. The Chief Judicial Magistrate, Gurugram issued a direction to lodge FIR as it was found to be cognizable offence of misappropriation and cheating against the petitioner being Vice President. The anticipatory bail application filed by the petitioner was allowed with certain conditions, which are as under: –

“(a) that, the applicants-accused shall join the investigation as and when required by the investigating officer and shall attend the same in accordance with the conditions of the bond;

(b) that, the applicants-accused shall not commit an offence similar to the offence of which they are accused or suspected of the commission of which they are suspected;

(c) that, the applicants-accused shall not directly or indirectly make any inducement threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with evidence; and

(d) that, the applicants-accused shall surrender/deposit their passport, if any, with the police/court and shall not leave India without prior permission of the trial Court.”

The petitioner is aggrieved by impugned condition (d), whereby, she has been directed to surrender/deposit her passport and not to leave India without the prior permission of the tri al Court. Section 437 of the Code deals with power of the Court to grant bail in non-bailable offences. Under Section 437(3) of the Code, while releasing a person accused, the Court shall impose certain conditions, which are as under: –

“(a) that such person shall attend in accordance with the conditions of the bond executed under this chapter,

(b) That such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and

(c) that such person shall not directly or indirect ly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence. and may also impose, in the interest of justice, su ch other conditions as it considers necessary.”

Even in the case of non bailable offences other than falling under sub sec.(3) of Section 437, the court or Magistrate may in its/his discretion impose conditions while granting bail to the person accused or suspected of commission of such offence.” Sub sec.(3) of Section 437 of the Code requires the Magistrate or Court to impose conditions while granting bail to the petitioner. While granting bail, the Court has to ensure that the accused or person suspected of commission of the offence is available for investigation, enquiry and trial. To ensure that, the Court may impose certain conditions on such person while releasing him/her on bail. In non bailable offences falling outside the scope of sub sec.(3) of Sec. 437 of the Code, the power to impose condition is discretionary. When a person is made to surrender his passport, it curtails his right of movement beyond the country. Article 21 of the Constitution of India says : “ No person shall be deprived of his life or person al liberty except according to procedure established by law.” The expression “personal liberty” is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of a person. The Supreme Court, in Satwant Singh v. Asst. Passport Officer [(1967) 3 SCR 525] held that “personal liberty” guaranteed under Artic le 21 Crl. M.C. No.1734 of 2011 encompassed a right of locomotion, of the right to travel abroad. Every person living in India has a fundamental right to travel, even outside India. Refusal by the Government to issue a passport without a valid law prescribing reasonable restrict ions was held to be an arbitrary exercise of the executive power infringing the equality clause of the Constitution. After the decision in Satwant Singh’s case the Parliament passed the Passport Act, 1967 regulating conditions for the grant and refusal of passport and providing grounds for impounding passport. Even after passing of the said Act, in Maneka Gandhi v. Union of India [(1978) 1 SCC 248] the Supreme Court held that the right to travel abroad is not only encompassed in the right to liberty under Article 21 of the Constitution, but that right could only be denied if the procedural law which governed its excuse is fair. The preamble to the Act says that it is, “to provide for the issue of passports and travel documents, to regulate the departure from India of citizens of India and other persons and for matters incidental ancillary thereto.” Section 10(3 ) of the Act empowers the passport authority to “impound or cause to be impounded or revoke a passport or travel document” in the circumstances stated therein. Thus, power to impound a passport is given to the passport authority under the Act. The Supreme Court in Suresh Nanda’s case (supra) was not considering the power of criminal court to direct a person accused or suspected of commission of a non cognizable offence while he is released on bail to surrender his passport in court to ensure his presence at the investigation, enquiry or trial of the case. Instead, the Supreme Court was only considering the scope and ambit of Section 104 of the Code which said; “ Any court may, it thinks fit, impound any document or thing produced before it” under the code. The power under Section 104 of the Code could be exercised only with respect to a document produced before the court and not, regarding a document not produced before it. In Wharton’s Law Lexicon, the word “impound” is given the meaning, “to place in the custody of the law”. Per Oxford Dictionary the word means “to take legal or formal possession of”. In Suresh Nanda’s case (supra), the Supreme Court considered the distinction between “seizing” and “impounding” and held that impounding is of the document which is seized. It was held that after enactment of the Act which is a special Act, a passport seized (by the CBI in that case) could be impounded only under Sec.10(3) of the Act and that so far as Sec. 104 of the Code is concerned to the extent it related to documents coming under Sec. 10 (3) of the Act, the maxim, ‘generalia specialibus non derogant’ applied. In that case the officials of th e CBI conducted a search and seized the passport of appellant. That document was retained by the CBI. Appellant moved the court of Special Judge to release the passport. The Special Judge allowed the application. That order was set aside by the High Court in revision. The Supreme Court set aside the order of the High Court on the principle above stated. Suresh Nanda was not a case of the criminal court imposing a condition while granting bail in a non bailable offence to surrender the passport. The Supreme Court was not considering the power of criminal court in view of Sec. 10(3) of the Act, to impose a condition to surrender the passport while granting bail in a non bailable offence. Instead, that question was left o pen as is clear from the observation in paragraph 20 (o f Suresh Nanda’s case) that : “We, however, make it clear that we are not expressing any opinion on the merit of the case and are not deciding whether the passport can be impounded as condition for the grant of bail.” The Chhattisgarh High Court in Pushpal Swarnkar v. State of Chhattisgarh 2009(1) KLD 825 (Chh.) only made reference to the observations in paragraph 15 of the decision in Suresh Nanda regarding the power of criminal court to impound the passport under Sec. 104 of the Code which observation, I stated above is made in an entirely different context. Pushpal Swarnkar’s case did not consider, in view of the observation in paragraph 20 of Suresh Nanda quoted above whether the criminal court can, while releasing a person accused or suspected of commission of a non bailable offence to impose a condition to surrender the passport. The decision in Jose Peter v. Vijayakumar 2009(3) KLT 96 also cannot help petitioner in his contention. There, the question considered and decided was only whether a civil court, in execution of a decree could, invoking Sec. 151 of the Code of Civil Procedure impound passport of a judgment debtor on the ground that he is likely to leave the country. The question was answered in the negative. Even after enactment of the Act, in view of Article 21 of the Constitution as explained in Maneka Gandhi’s case (supra) the right to travel abroad is encompassed in the right to personal liberty which cannot be deprived except in accordance with the procedure established by the law. The right to travel abroad can be deprived by following procedure established by the law. Sec. 437(3) of the Code requires and enables the criminal court while releasing a person accused or suspected of commission of a non bailable offence by imposing a condition that such person shall attend in accordance with the conditions of the bond executed under chapter XXXIII of the Code. Even in the matter of non bailable offences not falling within sub sec.(3) of Sec. 437 of the Code, the Magistrate or court has the discretionary power to impose condition while granting bail. The person to whom bail is granted has to execute a bond in Form No.45 given in the second schedule of the Code. The relevant provision of the bond in Form No.45 states. ”…… and required to give security for any attendance before such officer or court on condition that I shall attend such officer or court on every day on which any investigation or trial is held with regard to such charge, and in case of my making default therein……” The function of the criminal court under Sec. 437 of the Code is not merely to impose a condition in the bond that the person accused or suspected of commission of a non bailable offence and to whom bail is granted attended before the officer or court. The court has to ensure that the condition is complied. The court has to enforce it. The court has to ensure that the accused who is released on bail and who has a passport does not flee from justice. The “majesty of the law is affected when a wrong doer escapes its mighty clutches-whether arising out of a voluntary or involuntary situation.” The court has to preserve the majesty of the law. That could be done, in the case of a person holding a valid passport by directing him to surrender the same in court. That the passport authority may, if proceeding in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before a criminal court in India impound or cause to be impounded or revoked such document under Sec.10( 3)(e) of the Act does not deprive the power and duty of the criminal court to enforce its order by appropriate direction. The Supreme Court in Hazarilal Gupta v.Rameswar Prasad and another [AIR 1972 SC 484] has held that sections 496, 497 and 498 of the (old) Code are not exhaustive of powers of the court in regard to terms and conditions of bail particularly when the High Court dealt with cases of that type, it was within the power of court to direct surrender of passport and that if the appellant (in that case) wanted to retain the passport the court might not have granted him bail. Viewed in that line, I am to hold that it is within the power of the criminal court while releasing a person accused or suspected of commission of a non bailable offence on bail under Sec. 437 of the Code to impose a condition that such person shall surrender his passport in court. The power granted by the Code under Sec. 437 of the Code to impose conditions including restriction on movement while granting bail in non bailable offence can be taken as procedure established by law as stated in Article 21 of the Constitution. In that view, with great respect I disagree with the view expressed in Pushpal Swarnkar’s case. But the criminal courts have to take extreme care in imposing such condition. It cannot mechanically, and in every case where an accused has a passport impose a condition for its surrender. Law presumes an accused to be innocent till he is declared guilty. As a presumably innocent person he is entitled to all the fundamental rights guaranteed to him under the Constitution. At the same time, interest of the society has also to be protected. The court has to strike a balance between personal liberty of the accused guaranteed under Article 21 of the Constitution, investigation, rights of the police and the interest of the society. The criminal court has to consider possibility of the accused if released on bail, fleeing justice and thereby thwarting the course of justice which affects the majesty of the law, as also the individual rights of the accused. The court has to consider antecedents of the person accused or suspected of commission of the offence, nature of the offence he is said to have committed, necessity for his presence for investigation, duration of investigation and such other relevant factors. The court has to decide whether notwithstanding the personal liberty of the accused, interest of justice required that his right of movement should be restricted during the pendency of the case by directing him to surrender his passport. If necessary, it is open to the criminal court direct the accused to execute bond in case he has to go abroad for any purpose, for appropriate amount with sureties undertaking to appear before the Investigating Officer or court as the case may be as and when required to do so. These are though not exhaustive, some of the matters to be borne in mind by the court while deciding whether there should be a condition to surrender the passport or when there is a request to release the passport already surrendered in court. Section 10(3)(e) of the Passport Act specifically deals with impounding of passport whereas Section 104 Cr.P.C., allows the Court to impound the document to produce before the Court. The Passport Act overrides the provision of Cr.P.C., for the purpose of impounding passport. In the present case in hand, the order directing to surrender the passport indefinitely amounts to impounding of the passport itself. In the present case, while granting anticipatory bail to the petitioner, a condition has been imposed to surrender his passport before the trial Court. The petitioner is working a Pilot in Air India Airlines and her nature of duties are such that she is to fly aeroplane and as per duty roster assigned to her, she is to fly abroad on certain occasions where she is not aware about the next program as only a short notice is there during which it is very difficult for the petitioner to take prior permission and to have the the passport in case, the same is deposited. No doubt, as per Section 102(1) of Criminal Procedure Code, the power of police officer is there to seize certa in property. The police may have the power to seize a passport under Section 10 2(1) of the Criminal Procedure Code but it does not have the power to impound the same. Impounding of a passport can only be done by the passport authority under Section 10(3) of the Passports Act, 1967. There is a difference between seizing of a document and impounding a document. A seizure is made at a particular moment when a person or authority takes into his possession some property which was earlier not in his/her possession. Thus, seizure is done at a particular moment of time. However, if after seizing of a property or document, the said property or document is retained for some period of time, then such retention amounts to impounding of the property or document. In the Law Lexicon by P. Ramanath a Aiyar (2 nd Edition), the word “impound” has been defined to mean “to take possession of a document or thing for being held in custody in accordance with law”. Thus, the word “impounding” really means retention of possession of a good or a document which has been seized. Hence, while the police may have power to seize a passport under Section 102 Criminal Procedure Code if it is permissible within the authority given under Section 102 of Criminal Proce dure Code, it does not have power to retain or impound the same, because that can only be done by the passport authority under Section 10(3) of the Passports Act. Hence, if the police seizes a passport (which it has power to do under Section 102 Criminal Procedure Code), thereafter the police must send it along with a letter to the passport authority clearly stating that the seized passport deserves to be impounded for one of the reasons mentioned in Section 10(3) of the Act. It is thereafter the passport authority to decide whether to impound the passport or not. Since impounding of a passport has civil consequences, the passport authority must give an opportunity of hearing to the person concerned before impounding his passport. It is well settled that (without?) any opportunity of hearing to a party vide State of Orissa v. Binapani Dei AIR 1967 SC 1269, The trial Court cannot impound a passport. No doubt, Section 104 Criminal Procedure Code states that the Court may, if it thinks fit, impound any document or thing produced before it but this provision will only enable the Court to impound any document or thing other than a passport as impounding a “passport” is provided for in Section 10(3) of the Passports Act. It is a settled law that the special law prevails over the general law. The Passports Act is a special law while the Criminal Procedure Code is a general law. Hence, impounding of a passport cannot be done by the Court under Section 104 Criminal Procedure Code though it can impound any other document or thing. For the reasons recorded here-in-above and law discussed, the present petition is allowed and impugned condition (d) of order dated 14.09.2018 passed by the Additional Sessions Judge, Gurugram is set aside. However, the petitioner is at liberty to move a specific application for release of his passport within a period of two weeks from the date of receipt of certified copy of this order. In case, such an application is moved, the trial Court is directed to consider the application and return the passport forthwith without any delay. It is also directed that the petitioner shall furnish an undertaking in writing before the trial Court in case, long stay is there other than the normal course of her duties prior permission would be taken from the trial Court. 09.10.2018 (DAYA CHAUDHARY) JUDGE

Criminal courts cannot mandate surrender of Passport as condition for Bail, Punjab & Haryana HC

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Wife’s second 498a fails as courts dismiss her case !! Australian Husband and Indian #498a !

2nd dowry complaint filed after 1st compromised &acquitted. All courts incl HC dismiss 2nd complaint!

A woman files a 498a etc on her husband. Husband returns from Australia and at that trial she turns hostile (probably there is a compromise ) !! Then once again she files a second 498a on the same husband on same grounds. All courts dismisse the second case as the accused have already been tried and acquitted !! Wife goes on appeal upto P & H HC who also dismiss her application !!

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In the High Court of Punjab and Haryana at Chandigarh

Crl. Misc. No. M-11357 of 2016 (O&M)

Date of Decision: 08.7.2016

Davinder Kaur                                                                   ……Petitioner

Versus

Nishan Singh and others                                                    ….Respondents

CORAM: HON’BLE MRS. JUSTICE ANITA CHAUDHRY

Present:        Mr. B.S.Jatana, Advocate for the petitioner.


ANITA CHAUDHRY, J(ORAL)

CRM-19880-2016

Heard.

Application is allowed and Annexures P-11 to P-15 are taken on record.

CRM-M-11357-2016

This petition has been filed under Section 482 Cr.P.C. for setting aside the order dated 3.7.2014 passed by SDJM, Sardulgarh vide which the complaint filed by the petitioner under Section 498-A, 406, 34 IPC was dismissed. The order was maintained and the revision filed by the petitioner was dismissed. Aggrieved by both the orders, the complainant has filed this petition. She has also assailed the order dated 17.12.2015 vide which the application for additional evidence had been dismissed.

The backdrop of the case is necessary. The petitioner was married to respondent No. 1 on 3.4.2005. A child was born to them.

Disputes arose between the couple. Allegations were levelled that the husband and his family were greedy and were not satisfied with the dowry and started making demands. It was urged that on 18.9.2007 demand of ` 5,00,000/- was made on the pretext that Nishan Singh was to go to Australia. When the complainant expressed her inability she was beaten up and an attempt was made to set her ablaze by sprinkling kerosene oil. She immediately informed her father telephonically. FIR No. 129 dated 22.11.2009 was registered under Section 498-A, 406 IPC at P.S. Sardulgarh. During the pendency of the case Nishan Singh went to Australia. He returned to India in March 2009. Challan was presented and the trial commenced. The complainant did not support the prosecution story at the trial and turned hostile. The trial ended in acquittal.

Later a complaint on the same allegations was filed against Nishan Singh, his mother and Balwinder Singh. The allegations levelled in the FIR were reiterated. The trial Court recorded preliminary evidence and refused to summon the accused and dismissed the complaint on 3.7.2014. Aggrieved with the order a revision was filed. An application under Section 391 Cr.P.C. was also filed for placing some additional material namely copy of the petition, copy of the judgment in the petition filed under Section 13 of Hindu Marriage Act and the order passed in the complaint filed under the Domestic Violence Act.

Copy of the FIR No. 55 dated 1.4.2010 P.S. City Dhuri registered under Section 420, 465, 467, 468, 471, 120-B IPC is available on record. The Revisional Court dismissed the application as well as the revision. The Revisional Court elaborately dealt with the evidence in para 8 of its judgment. It was also noted that there were no details as to the dowry articles that were given and no proof regarding purchase of the articles had been given and once the accused had faced the trial and were acquitted they could not be summoned to face the trial on similar grounds.

Counsel for the petitioner counsel refers to ‘Smt. Rashmi Kumar vesus Mahesh Kumar Bhada 1999(2) R.C.R. (Criminal) 43’ and urges that after the compromise same demands and harassment started and therefore the complaint had to be filed and at the preliminary stage the Court was only to see whether prima facie case was made out for proceeding further and there was ample material before the Court and they should have acted on the evidence that was led before it.

The petitioner had placed on record the FIR that was registered in 2007 as well as the statements made by the complainant.

A perusal of the complaint shows that the complainant had made the same allegations in the FIR in 2007 and the accused were acquitted as the complainant failed to support her own version. Both the Courts below had noted that there was no details to support her contention that any dowry was given.

I find no infirmity in the findings recorded by the Courts below. Petition is dismissed.

(ANITA CHAUDHRY) JUDGE

July 08, 2016

Gurpreet

I CAN’T live with a low paid Inspector says wife. Husband gets divorce, wife gets 10K p.m. ! P&H HC

A wife leaves her husband and files false cases on him. She files complaints with his superiors etc. The Husband says that the wife deserted him because he was just an Assistant Sub Inspector (ASI) Even the couple’s son who is taken away by the mother, joins the father and testifies in favor of the father. Wife makes various allegations against the husband but the court observes that there is NOT an iota of evidence supporting these allegations. So, the decree of divorce granted in favor of the husband by the learned Additional District Judge, Panchkula, is confirmed by the Hon HC. However considering the salary of the husband and the cost of living, wife gets 10 K maintenance per month !!

This maintenance is in spite of the Hon court clearly stating the fact of desertion by the wife as follows “….Appellant-Kavita RW1 in her cross-examination has specifically deposed that she does not want to live with her husband. This statement coupled with the admitted fact that the appellant had left her matrimonial home on 31.7.2002, clearly proves the animus of desertion on her part…..”

The Husband argues that “…There is no justification for enhancement of the maintenance/alimony to 10,000/- per month. The appellant has to maintain himself, his aged mother and an unmarried son. He also has to provide financial support to his younger sister, who is a widow, along with her three minor children. ….” But the court refuses to accept that argument and dismisses his petition against enhancement of maintenance


FAO Nos. M-66 of 2008 (O&M) and M-361 of 2013

IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH

FAO No. M- 66 of 2008 (O&M)
Date of Decision: Feb. 26,2016
Kavita ……………………………………… Appellant
Versus
Krishan Kumar ……………………….. Respondent

AND

FAO No. M-361 of 2013
Krishan Kumar ………………………….. Appellant
Versus
Kavita ……………………………………. Respondent

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

Present: Mr. G.C.Shahpuri, Advocate
for the appellant (in FAO No. M-66 of 2008)
for the respondent (in FAO No. M-361 of 2013)

Mr. D.K.Singla, Advocate
for the respondent (in FAO No. M-66 of 2008)
for the appellant (in FAO No.M-361 of 2013)


LISA GILL, J.

This judgment shall dispose of FAO No.M-66 of 2008 (Kavita v. Krishan Kumar) and FAO No.M-361 of 2013 (Krishan Kumar v. Kavita), which arise out of a matrimonial dispute between the parties.

FAO No.M-66 of 2008 has been preferred by Kavita being aggrieved of the judgment and decree dated 17.12.2007 passed by the learned Additional District Judge, Panchkula, whereby the petition filed by the respondent-husband Krishan Kumar under Section 13-A of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’) has been allowed thereby dissolving the marriage between the parties.

FAO No.M-361 of 2013 has been preferred by Krishan Kumar challenging the order dated 18.9.2013 passed by the learned Additional District Judge, Panchkula, whereby maintenance under Section 25 of the Act has been enhanced from 3,000/- per month to 10,000/- per month.

The facts as revealed in the petition filed by Krishan Kumar under Section 13-A of the Act for dissolution of marriage are that marriage between the parties was solemnized on 13.9.1984 at Yamuna Nagar according to Hindu rites and ceremonies. Two children were born out of this wedlock. It was averred in the petition that his wife Kavita started taunting and harassing him some time after their marriage on account of his perceived poverty while asserting that she belongs to a rich family. She did not treat his old parents with due respect, refused to cook food and at times would serve half baked food or deliberately put extra chillies in it. It was further alleged that Kavita deserted the matrimonial home on 31.7.2002 without informing him or any other family member. She did not return home despite repeated requests and on the contrary made false allegations that Krishan was having extra marital relations. The appellant Kavita allegedly lodged false and frivolous complaints against Krishan Kumar. In this situation, a petition for divorce on the ground of cruelty and desertion was preferred by Krishan Kumar.

The appellant-wife, Kavita, while admitting the factum of marriage between the parties and birth of two sons denied all allegations of cruelty and desertion. It was asserted that the petition for divorce was filed by the husband as a counter-blast to an application filed by the appellant under Section 125 Cr.P.C. for maintenance, which was allowed. The husband was stated to be a haughty policeman who was cruel and indifferent towards her because of his illegitimate relations with other women. While denying that she left the matrimonial home on 31.7.2002 it is averred that it was the husband who deserted her as well as their two minor sons to fend for themselves without any rhyme or reason. Therefore, the husband should not be permitted to derive any benefit on account of his own wrong and the petition seeking divorce should be dismissed.

The following issues were framed by the trial Court on the basis of pleadings of the parties:-

1.Whether the petitioner is entitled to dissolution of marriage and decree of divorce on the ground that he has been treated with cruelty as alleged? OPP

2.Whether the petitioner is entitled to a decree of divorce on the ground that he had been deserted by the respondent? OPR

3.Whether the petitioner has no cause of action to file the present petition and is not maintainable in the present form? OPP

4.Whether the petitioner is estopped from filing the present petition by his own act and conduct? OPP

5.Relief.

Evidence was adduced by the parties. The respondent-husband deposed as PW1 and examined Deepak Kumar PW2, his son, and Brahm Pal, his brother, and produced documentary evidence. The appellant appeared as RW1 and adduced her evidence. Learned trial Court on the basis of evidence on record directed dissolution of marriage between the parties on the ground of cruelty and desertion on the part of the wife.

Learned counsel for the appellant vehemently argued that the learned trial Court has grossly erred while passing the impugned judgment and decree, especially keeping in view the fact that since the marriage of the parties in the year 1984 there was no trouble upto the year 2002. It is submitted that it is opposed to all probability that the couple would have continued living together without any evidence of discord during all these years and suddenly parted ways in the year 2002 on the ground of cruelty meted out by the appellant since the inception of their marriage. It is urged that the appellant was forced to leave her matrimonial home because of illicit relations developed by the respondent-husband with one Sarabjit Kaur. It is, thus, apparent that the appellant was forced to leave her matrimonial home on account of the acts of the respondent-husband. There is nothing on record to prove cruelty or desertion on the part of the appellant, therefore, the impugned judgment and decree should be set aside.

Per contra learned counsel for the respondent with reference to the evidence on record supports the impugned judgment and decree and prays for upholding the same. It is submitted that desertion on the part of the appellant is apparent on record. She has categorically stated that she does not want to live with her husband who is working as an Assistant Sub Inspector with the Haryana Police. The appellant had withdrawn from her husband’s society without any reasonable or sufficient cause. She had been giving frivolous and false complaints to the police authorities against the respondent. The appellant wife miserably failed to prove adulterous relations of the husband as alleged. therefore, cruelty and desertion is clearly proved on the appellant’s part. He, thus, prays for upholding the impugned judgment and decree.

We have heard learned counsel for the parties and have gone through the pleadings and evidence on record.

It is admitted that marriage between the parties was solemnized on 13.9.1984 and two children were born out of this wedlock. One of the sons of the parties i.e. Deepak Kumar PW2 is residing with the respondent-husband.

A perusal of the record reveals that leaving of the matrimonial home on 31.7.2002 is admitted by the appellant though it is sought to be explained on the ground that it is due to the conduct of the respondent, namely, his illicit relations with one Sarabjit Kaur, that the appellant was forced to leave the matrimonial home. The name, parentage or address of said Sarabjit Kaur was not mentioned in the written statement though her name is mentioned in the cross-examination of the appellant RW1. The appellant has failed to lead any evidence to prove illicit relations of the respondent with the said Sarabjit Kaur or any other woman. All allegations of illicit relations made by the respondent remained unsubstantiated.

PW2 Deepak Kumar, the elder son of the parties, has deposed in favour of his father. Prior to the year 2004 he was living with his mother and younger brother. He has denied allegations of ill-treatment or physical abuse of the appellant at the hands of his father. Deepak Kumar affirms that the parties had separated in the year 2002. He denied that his parents were having normal relations. Averment of the appellant that her elder son Deepak Kumar had left her and joined his father due to greed of a motor-bike or mobile or that he was involved in a theft case in which the respondent helped Deepak Kumar is not substantiated by any evidence on record. Deepak Kumar PW2 has specifically denied that he was involved in a theft case. There is no evidence to show his involvement in such a case.

It is categorically asserted by the respondent- husband that the appellant had left the matrimonial house along with his two sons on 31.7.2002 and they could be located after about a period of one and a half month thereto. The appellant had reported his wife and children to be missing as is apparent from Ex.P2. Various complaints were submitted by the appellant against him. Filing of such complaints is admitted by the appellant. The appellant has admitted that she filed various complaints against the respondent before his superior officers also. The allegations of demand of dowry by the respondent or his family members are not supported by an iota of evidence on record. The appellant’s own testimony to the effect that there was no one in her parental family, thus the demand for dowry raised by her husband and in-laws could not be fulfilled, falsifies her stand for the simple reason that the question of demand of dowry does not arise in such a situation. Furthermore, the appellant categorically states that she was never beaten by the respondent on account of non fulfillment of demand of dowry. The argument on behalf of the appellant that no effort was made by the husband to resettle her along with the children or that there was a reasonable and sufficient cause for withdrawing from the matrimonial home is not borne out from the record. Appellant-Kavita RW1 in her cross-examination has specifically deposed that she does not want to live with her husband. This statement coupled with the admitted fact that the appellant had left her matrimonial home on 31.7.2002, clearly proves the animus of desertion on her part. There is nothing on record to prove that she was turned out of her matrimonial home. The parties have been living separately since the year 2002. The appellant has failed to prove any reason or cause much less sufficient or a reasonable cause to have withdrawn from the company of the respondent husband. Thus, the respondent-husband is entitled to a decree of divorce and we find no illegality or infirmity in the impugned judgment dated 17.12.2007 passed by the learned Additional District Judge, Panchkula.

Krishan Kumar-appellant in FAO No.M-361 of 2013 is aggrieved by the enhancement of maintenance from 3,000/- to 10,000/- awarded to the respondent- wife vide order dated 18.9.2013 passed by the Additional District Judge, Panchkula. Maintenance at the rate of 3,000/- per month was awarded to Smt. Kavita under Section 25 of the Act vide order dated 15.4.2008 after marriage between the parties was dissolved on 17.12.2007. An application was moved by Kavita for enhancement of this amount to 15,000/- as Krishan Kumar’s salary had increased to 24,782/- per month from 13,668/- per month. Furthermore, expenses incurred by her had also increased. Learned Additional District Judge, Panchkula, while taking into account the fact that the gross salary of the husband was 36,475/- per month as per the salary slip placed on record, awarded a sum of 10,000/- per month from the date of filing of the application.

Learned counsel for the appellant-Krishan Kumar submits that the maintenance pendente-lite under Section 24 of the Act was fixed at 4,000/- per month in FAO No. M-66 of 2008. There is no justification for enhancement of the maintenance/alimony to 10,000/- per month. The appellant has to maintain himself, his aged mother and an unmarried son. He also has to provide financial support to his younger sister, who is a widow, along with her three minor children. Such an enhancement could not have been made once permanent alimony and maintenance was fixed vide order dated 15.4.2008.

Learned counsel for the respondent-wife, on the other hand, submits that keeping in view the salary drawn by the appellant and the expenses which are incurred by the respondent-wife, the amount of 10,000/- is not a princely amount which calls for any reduction in the facts and circumstances of the case.

Having heard learned counsel for the parties and going through the file, we do not find any infirmity in the grant of 10,000/- per month to the respondent- wife under Section 25 of the Act. Section 25(2) of the Act specifically provides that, “If the Court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub- section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.” Therefore, the argument in respect to maintainability of the petition is rejected being untenable. It is apparent that the husband was getting a salary of 13,668/- per month when maintenance at the rate of Rs.3000/- per month was fixed. Admittedly the gross salary of the husband was 36,475/- in August 2013 and cost of living has increased as well, thus the learned trial Court has committed no error in increasing the amount to be paid to the wife to 10,000/-. Learned counsel for the appellant-husband is unable to point out any illegality, infirmity or perversity in the impugned judgment and decree calling for a reduction in the amount awarded.

In view of the aforesaid discussion, both the FAO Nos. M-66 of 2008 (O&M) and M-361 of 2013 [ 13 ] appeals i.e. FAO No. M-66 of 2008 and FAO No. M-361 of 2013 are dismissed with no order as to costs.

( RAJIVE BHALLA ) ( LISA GILL )
JUDGE JUDGE

Feb. 26, 2016

rupi

Filing false criminal cases, neglecting household, ill treating cruelty. Divorce granted. HC affirms lower court decree. However that takes 16 years !!

Filing false criminal cases, getting husband arrested, neglecting household, ill treating husband etc are cruelty against husband. Divorce granted to husband. HC affirms lower court decree. However the whole process takes 16 years when Husband and others keep running to courts !!

  • Wife leaves matri home on many occasions
  • Wife breaks mangalsutra throws it on ground during quarrel
  • Wife has written letters to husband’s employer urging them to take action against husband
  • Wife files false 406, 498a case wherein the husband was arrested but the final outcome resulted in acquittal of husband and other accused by the trial court vide judgment dated 23.2.2013
  • The Husband argues that “…acts of the appellant (wife in this appeal) in insisting upon the department to initiate action against the respondent and also to prosecute him for demand of dowry show that the marriage had irretrievably been broken and such acts of the appellant amount to cruelty and were sufficient to dissolve marriage between the parties…”
  • So the Hon HC summarieses that “……The primary question that arises for consideration in this appeal is whether the acquittal of the husband and his family members of matrimonial offences under Sections 406, 498-A of the Indian Penal Code would be sufficient to hold that it has caused mental cruelty to the husband so as to entitle him to a decree of divorce under Section 13(1) (ia) of the Act….”
  • Hence the Hon HC concludes that “… Thus, the irresistible conclusion would be that the appellant-wife had treated the husband-respondent with cruelty….” and “…..Learned counsel for the appellant was unable to demonstrate that there was any error or perversity in the findings recorded by the trial court which may warrant interference by this Court. Accordingly, finding no merit in the appeal, the same is hereby dismissed. No costs….”

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

FAO No. 262-M of 2006 (O&M)

Date of Decision: 26.2.2015

Dr.Anita Rani….Appellant.

Versus

Dr.Suresh Kumar…Respondent.

CORAM:- HON’BLE MR. JUSTICE AJAY KUMAR MITTAL. HON’BLE MRS. JUSTICE SNEH PRASHAR.

PRESENT: Mr. Ashwani Talwar, Advocate for the appellant.

Mr. A.K. Chopra, Senior Advocate with Mr. Gursher Singh, Advocate for the respondent.

AJAY KUMAR MITTAL, J.

1. Feeling aggrieved by the judgment and decree dated 2.11.2006 passed by the Additional District Judge, Rohtak, whereby the petition filed by the respondent-husband under Section 13 of the Hindu Marriage Act, 1955 (in short “the Act”) for dissolution of marriage by a decree of divorce was allowed, the appellant-wife has approached this Court by way of instant appeal.

2. Put shortly, the facts relevant for adjudication of the present appeal as narrated therein may be noticed. The parties are Dental Surgeons and got married on 4.2.1999 at Bahadurgarh according to Hindu rites. After the marriage, the appellant used to provoke the respondent all the times and pressurized him to live separately from the matrimonial home. She left the house on 1.9.1999 and then on 30.10.1999 to her parental house. She was brought back. They were employed at PHC Bhainswal Kalan and Banwasa, situated on two sides of Gohana town. They used to go upto Gohana jointly and part company to go to their respective PHCs. However, the appellant had no talk with the respondent while going upto Gohana. The respondent had met with an accident in February, 2000 and was to take rest for 4-5 days as he was unable to walk but the appellant had left to her parental house. Further, in March and April, 2000, the mother of the respondent had to undergo an eye operation and was admitted in Jiwan Eye Nursing Home, Rohtak but the appellant did not attend him. Thereafter, the appellant left the matrimonial home on 15.6.2000 without the consent of the respondent and returned back on 30.7.2000. To maintain peace in the family, the respondent separated kitchen. Thereafter, the appellant asked the respondent to break all relations with his parents and other family members. On 1.9.2000, the appellant left the matrimonial home in the absence of the respondent. The respondent along with his father went to the parental house of the appellant and on his repeated requests, she returned back. The appellant filed a petition under Section 9 of the Act for restitution of conjugal rights. A compromise was arrived at between the parties on 2.12.2000 and the said petition was dismissed. She agreed to live peacefully with the respondent but outside the court told that she would come in the matrimonial house after 10-12 days. However, she did not turn up despite repeated requests and ultimately she told that she had no interest to live with the respondent. Thereafter, the respondent convened panchayats on 24.12.2000 and 28.1.2001 and went to her parental house and after persuading took her back to the matrimonial home. She also agreed in writing that the respondent and his family members never offended her and she gave affidavit. On 13.4.2001, when the respondent went to purchase the newspaper from the market and to get his hair cutting from the barbar and when he returned back, he found the room locked and she did not turn up and went to her parents house and said that she would go directly from Bahadurgarh to PHC Banwasa and the lock had to be broken. She picked up quarrel with the respondent whenever he expressed his sexual desires. On 3.7.2001 and 10.8.2001, the respondent waited for her on the bus stand of Gohana but she did not turn up. When the appellant did not bring the salary continuously for two months, he inquired about the same in November, 2001. She told that she had been giving major part of her salary to her parents who had brought her up. She also started levelling false allegations against the respondent terming him as womanizer and that he had physical relations with the lady staff of the hospital. She was having a grudge from the very beginning qua the meeting of the respondent with his family members. After the marriage on 4.7.2002, on the asking of his father, the respondent asked the appellant to help his father with cash of ` 20,000/- to make the balance payment of various shopkeepers who supplied articles in the marriage, she got furious and started hurling abuses to him and his family members. She also said that his father had been committing theft of railway goods throughout his service career and what was the necessity to take ` 20,000/- from them. The respondent tried to convince the appellant but she continued levelling such type of false allegations and she snatched her Mangal Sutra and broke the same and asked the respondent to sell it in the market and get ` 20,000/-. Then she left the matrimonial house along with her ornaments. Accordingly, the respondent filed a petition under Section 13 of the Act for dissolution of marriage by a decree of divorce. The said petition was resisted by the appellant by filing a written statement. Besides raising various preliminary objections, it was pleaded that she was harassed for want of dowry and a case was registered against the respondent and his family members under Sections 498-A/406 of the Indian Penal Code on 4.9.2003. On 13.9.2003, a compromise was arrived at between the parties and they lived separately at Rohtak. The other averments made in the petition were denied and a prayer for dismissal of the same was made. Replication was filed controverting the averments made in the written statement. From the pleadings of the parties, the trial court framed the following issues:-

1. Whether the marriage of the parties to the petition is liable to be dissolved on the grounds of cruelties pleaded in the petition and replication? OPP

2. Relief.

3. In support of his case, the respondent besides examining himself as PW1, examined his father Hukam Chand as PW2, Satender Kumar as PW3, his sister Santosh as PW4 and Vinod Kumar PW5. On the other hand, the appellant examined Vinod Sharma as RW1, Satender Kumar as RW2, Vinod Kumar as RW3, Vijay Kumar as RW4, her father Laxman Singh as RW5, Hari Ram as RW7 and herself appeared as RW6. Various documents were also tendered in evidence by both the parties.

4. The trial court on appreciation of evidence led by the parties, decided issue No.1 in favour of the respondent holding that the acts of the appellant in insisting upon the department to initiate action against the respondent and also to prosecute him for demand of dowry show that the marriage had irretrievably been broken and such acts of the appellant amount to cruelty and were sufficient to dissolve marriage between the parties. Accordingly, the trial court vide judgment and decree dated 2.11.2006 allowed the petition and dissolved the marriage between the parties by a decree of divorce. Hence, the present appeal.

5. Learned counsel for the appellant submitted that from the evidence on record, no ground of cruelty was made out. It was further submitted that the respondent made a false story to get a decree of divorce whereas the respondent and his family members treated the appellant with cruelty. She was turned out of the matrimonial home many a times. According to the learned counsel, the allegations levelled by the respondent were general in nature and the respondent could not be allowed to take benefit of his own wrong.

6. On the other hand, learned counsel for the respondent besides supporting the judgment passed by the trial court submitted that the appellant got him suspended and was also pressing hard to the department to initiate criminal proceedings against the respondent. It was contended that in the criminal case bearing FIR No. 220 dated 4.9.2003, registered under Sections 498-A, 406 of the Indian Penal Code, Police Station City Bahadurgarh got registered by the appellant, the respondent and his parents were acquitted by the trial court vide judgment dated 23.2.2013. The said judgment has been taken on record as Annexure A-1 by way of additional evidence by this Court vide order of even date passed in CM No. 4164-CII of 2015.

7. After hearing learned counsel for the parties, we do not find any merit in the contentions of learned counsel for the appellant.

8. The primary question that arises for consideration in this appeal is whether the acquittal of the husband and his family members of matrimonial offences under Sections 406, 498-A of the Indian Penal Code would be sufficient to hold that it has caused mental cruelty to the husband so as to entitle him to a decree of divorce under Section 13(1) (ia) of the Act. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

9. Section 13(1)(ia) of the Act empowers the Court to dissolve the matrimonial ties between the parties by a decree of divorce on a petition by either spouse where the said spouse has been treated with cruelty after the solemnization of the marriage. Cruelty has not been defined in the Act but various pronouncements of the Apex Court and other High Courts have outlined the scope of the term ‘cruelty’. Cruelty is evident where one spouse treats the other and manifests such feelings towards him or her as to cause reasonable apprehension that it will be harmful or injurious to live with the other spouse. Cruelty may be physical or mental. Whether a spouse is inflicted with physical cruelty or not, it can be judged on the basis of direct evidence whereas mental cruelty is to be inferred on analyzing the factual matrix of each case and drawing conclusion thereon.

10. The Apex Court in Parveen Mehta v. Inderjit Mehta 2002 (3) RCR (Civil) 529 had very elaborately analyzed the expression ‘cruelty’ as a ground of divorce under the Act. The relevant portion thereof reads thus:-

“Under the statutory provision cruelty includes both physical and
mental cruelty. The legal conception of cruelty and the kind of
degree of cruelty necessary to amount to a matrimonial offence has
not been defined under the Act. Probably, the
Legislature has advisedly refrained from making any attempt at giving
a comprehensive definition of the expression that may cover all
cases, realising the danger in making such attempt. The accepted
legal meaning in England as also in India of this expression, which
is rather difficult to define, had been ‘conduct of such character as
to have caused danger to life, limb or health (bodily or mental), or
as to give rise to a reasonable apprehension of such danger.

XX XX XX

XX XX XX

21. Cruelty for the purpose of Section 13(1)(ia) is to be taken as a
behavior by one spouse towards the other which causes reasonable
apprehension in the mind of the latter that it is not safe for him or
her to continue the matrimonial relationship with the other.

Mental cruelty is a state of mind and feeling with one of the
spouses due to the behaviour or behavioural pattern by the other.
Unlike the case of physical cruelty the mental cruelty is difficult
to establish by direct evidence. It is necessarily a matter of
inference to be drawn from the facts and circumstances of the case. A
feeling of anguish, disappointment and frustration in one spouse
caused by the conduct of the other can only be appreciated on
assessing the attending facts and circumstances in which the two rt
Chandigarh partners of matrimonial life have been living. The
inference has to be drawn from the attending facts and circumstances
taken cumulatively. In case of mental cruelty it will not be a
correct approach to take an instance of misbehaviour in isolation and
then pose the question whether such behaviour is sufficient by itself
to cause mental cruelty. The approach should be to take the
cumulative effect of the facts and circumstances emerging from the
evidence on record and then draw a fair inference whether the
petitioner in the divorce petition has been subjected to mental
cruelty due to conduct of the other.”

11. Further, setting out illustrative cases of mental cruelty, the Supreme Court in Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 had held as under:-

“No uniform standard can ever be laid down for guidance, yet we deem
it appropriate to enumerate some instances of human behaviour which
may be relevant in dealing with the cases of ‘mental cruelty’. The
instances indicated in the succeeding paragraphs are only
illustrative and not exhaustive.

(i) On consideration of complete matrimonial life of the parties,
acute mental pain, agony and suffering as would not make possible for
the parties to live with each other could come within the broad
parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire
matrimonial life of the parties, it becomes abundantly clear that
situation is such that the wronged party cannot reasonably be asked
to put up with such conduct and continue to live with other party.

(iii) Mere coldness or lack of affection cannot amount to cruelty,
frequent rudeness of language, petulance of manner, indifference and
neglect may reach such a degree that it makes the married life for
the other spouse absolutely intolerable.

(iv) Mental cruelty is a state of mind. The feeling of deep anguish,
disappointment, frustration in one spouse caused by the conduct of
other for a long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating treatment
calculated to torture, discommode or render miserable life of the
spouse.

(vi) Sustained unjustifiable conduct and behaviour of one spouse
actually affecting physical and mental health of the other spouse.
The treatment complained of and the resultant danger or apprehension
must be very grave, substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect, indifference
or total departure from the normal standard of conjugal kindness
causing injury to mental health or deriving sadistic pleasure can
also amount to mental cruelty.

(viii) The conduct must be much more than jealousy,
selfishness, possessiveness, which causes unhappiness and
dissatisfaction and emotional upset may not be a ground for grant of
divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of the
married life which happens in day to day life would not be adequate
for grant of divorce on the ground of mental cruelty.

(x) The married life should be reviewed as a whole and a few
isolated instances over a period of years will not amount to cruelty.
The ill-conduct must be persistent for a fairly lengthy period, where
the relationship has deteriorated to an extent that because of the
acts and behaviour of a spouse, the wronged party finds it extremely
difficult to live with the other party any longer, may amount to
mental cruelty.

(xi) If a husband submits himself for an operation of sterilization
without medical reasons and without the consent or knowledge of his
wife and similarly if the wife undergoes vasectomy or abortion
without medical reason or without the consent or knowledge of her
husband, such an act of the spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for
considerable period without there being any physical incapacity or
valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after marriage
not to have child from the marriage may amount to cruelty.

(xiv) Where there has been a long period of continuous separation,
it may fairly be concluded that the matrimonial bond is beyond
repair. The marriage becomes a fiction though supported by a legal
tie. By refusing to sever that tie, the law in such cases, does not
serve the sanctity of marriage; on the contrary, it shows scant
regard for the feelings and emotions of the parties. In such like
situations, it may lead to mental cruelty.”

12. In addition to the aforesaid, certain other illustrations were added by the Apex Court in K. Srinivas Rao v. D.A. Deepa (2013) 5 SCC 226 as under:-

“Making unfounded indecent defamatory allegations against the spouse
or his or her relatives in the pleadings, filing of complaints or
issuing notices or news items which may have adverse impact on the
business prospect or the job of the spouse and filing repeated false
complaints and cases in the court against the spouse would, in the
facts of a case, amount to causing mental cruelty to the other spouse.”

13. Elucidating ‘mental cruelty’ the Apex Court in K. Srinivas Rao’s case (supra) concluded that if a false criminal complaint is filed against the spouse and his/her relatives regarding matrimonial offences, it would be a case of mental cruelty. Following the aforesaid pronouncement, the Division Bench of this Court in Imlesh v. Amit, AIR 2014 Punjab and Haryana 89, observed as under:-

“So far as the finding of the trial Court regarding cruelty on the
basis of involvement in a false criminal case is concerned, it may be
said that it in itself constitutes sufficient ground for granting
divorce as it amounted to cruelty. Reference in this regard may be
made to the case in K. Srinivas Rao v. D.A. Deepa (2013) 5 SCC 226:
AIR 2013 SC 2176, where it was held by Hon’ble the Supreme Court that
where indecent/ defamatory statements are made in the complaint/
criminal proceedings, the same singly and cumulatively amounted to
mental cruelty warranting grant of divorce. If a false complaint is
filed against the spouse or his/her relatives, it amounted to mental
cruelty. In the said case also, wife had filed a case under Section
498-A IPC and the husband and his family members were acquitted and
decree of divorce was granted to the husband on that ground, as it
amounted to mental cruelty.”

14. Similar view was reiterated by the Supreme Court in K. Srinivas v. K. Sunita Civil Appeal No. 1213 of 2006 decided on 19.11.2014 with the following observations:-

“4. In the case in hand, learned counsel for the Respondent-Wife has
vehemently contended that it is not possible to label
the wife’s criminal complaint detailed above as a false or a
vindictive action. In other words, the acquittal of the Appellant and
his family members in the criminal complaint does not by itself,
automatically and justifiably, lead to the conclusion that the
complaint was false; that only one complaint was preferred by the
Respondent-Wife, whereas, in contradistinction, in K.Srinivas Rao a
series of complaints by the wife had been preferred. The argument was
premised on the averment that the investigation may have been faulty
or the prosecution may have been so careless as to lead to the
acquittal, but the acquittal would not always indicate that the
Complainant had intentionally filed a false case. What should be kept
in perspective, it is reasonably argued, that the Complainant is not
the controlling conductor in this Orchestra, but only one of the
musicians who must deliver her rendition as and when and how she is
called upon to do. Secondly, according to the learned counsel, the
position would have been appreciably different if a specific finding
regarding the falsity of the criminal complaint was returned, or if
the Complainant or a witness on her behalf had committed perjury or
had recorded a contradictory or incredible testimony. Learned counsel
for the Respondent-Wife states that neither possibility has
manifested itself here and, therefore, it would be
unfair to the Respondent-Wife to conclude that she had exhibited such
cruelty towards the Appellant and her in-laws that would justify the
dissolution of her marriage.

5. The Respondent-Wife has admitted in her cross-examination that
she did not mention all the incidents on which her Complaint is
predicated, in her statement under Section 161 of the Cr.P.C. It is
not her case that she had actually narrated all these facts to the
Investigating Officer, but that he had neglected to mention them.
This, it seems to us, is clearly indicative of the fact that the
criminal complaint was a contrived afterthought. We affirm the view
of the High Court that the criminal complaint was “ill advised”.
Adding thereto is the factor that the High Court had been informed of
the acquittal of the Appellant- Husband and members of his family. In
these circumstances, the High Court ought to have concluded that the
Respondent-Wife knowingly and intentionally filed a false complaint,
calculated to embarrass and incarcerate the Appellant and seven
members of his family and that such conduct unquestionably
constitutes cruelty as postulated in Section 13(1)(ia) of the Hindu
Marriage Act.

6. Another argument which has been articulated on behalf of the
learned counsel for the Respondent is that the filing of the criminal
complaint has not been pleaded in the petition itself.
As we see it, the criminal complaint was filed by the wife after
filing of the husband’s divorce petition, and being subsequent events
could have been looked into by the Court. In any event, both the
parties were fully aware of this facet of cruelty which was allegedly
suffered by the husband. When evidence was lead, as also when
arguments were addressed, objection had not been raised on behalf of
the Respondent-Wife that this aspect of cruelty was beyond the
pleadings. We are, therefore, not impressed by this argument raised
on her behalf.

7. In these circumstances, we find that the Appeal is well founded
and deserves to be allowed. We unequivocally find that the Respondent-
Wife had filed a false criminal complaint, and even one such
complaint is sufficient to constitute matrimonial cruelty.”

15. Examining the factual matrix in the present case, it may be noticed that the the parties were employed as Dental Surgeon in two separate Primary Health Centres and they were not having good relations. The respondent had signed on the register and had withdrawn her salary but she kept mum and thereafter started issuing letters to the department for taking action against him. The appellant also got registered a criminal case against the respondent and his family members. During investigation, some of the family members were found innocent and their names were kept in column No.2 of the report filed under Section 173 of the Code of Criminal Procedure but the appellant had moved an application under Section 319 of the Code of Criminal Procedure in which they were summoned. In the said case, the respondent was arrested and he had not informed his department for his absence and obtained casual leave for that period, the appellant got her suspended from the department by sending a letter. PW5 Vinod Kumar who is neighbourer of the respondent had stated that he along with the respondent brought the appellant from her parents house and she had levelled allegations against him that he used to take liquor with Dr.Suresh and once he tried to outrage her modesty who forcibly turned him out of the house. PW4 Santosh, sister of the respondent also stated that the appellant had ignored the family and also humiliated the family. The allegation of demand of dowry was not justified as the appellant was getting salary of ` 15,000/- per month and there was no question to harass her on account of demand of dowry. The respondent had withdrawn the salary of the appellant for the month of September, 2003 for which she kept mum and thereafter she had given an affidavit to the effect that she had no complaint or grudge against her husband or his family members nor they harassed her. Additionally, a criminal case was lodged against the husband and his family members vide FIR No. 220 dated 4.9.2003 under Sections 498-A, 406 of the Indian Penal Code wherein the respondent was arrested but the final outcome resulted in their acquittal by the trial court vide judgment dated 23.2.2013, Annexure A-1, taken on record as additional evidence vide order of even date passed in CM No. 4164-CII of 2015. In such circumstances, it would cause a reasonable apprehension in the mind of the husband that it was not safe for him to live with the wife. Besides, refusing to attend household chores and showing disrespect to the respondent and his family members amounted to cruelty towards the respondent. Thus, the irresistible conclusion would be that the appellant-wife had treated the husband-respondent with cruelty.

16. Learned counsel for the appellant was unable to demonstrate that there was any error or perversity in the findings recorded by the trial court which may warrant interference by this Court. Accordingly, finding no merit in the appeal, the same is hereby dismissed. No costs.

(AJAY KUMAR MITTAL)

(SNEH PRASHAR)

JUDGE

February 26, 2015

GURBACHAN SINGH

2015.03.10

I attest to the accuracy and authenticity of this document High Court Chandigarh

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the actual case is uploaded here http://1drv.ms/1dWM6tv

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist