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CALCUTTA HC- The future salary not being a tangible corporeal property the same cannot be attached for recovery of the arrear maintenance.

 

 

In the case of Md. Jahangir Khan Vs. Mst. Manoara Bibi, reported in 1992 Cri L.J. 83, a Division Bench of our High Court held that the future salary not being a tangible corporeal property the same cannot be attached for recovery of the arrear maintenance.

 

 

Form No. J (1)

IN THE HIGH COURT AT CALCUTTA

Criminal Revisional Jurisdiction

Appellate Side

Present:

The Hon’ble Justice Ashim Kumar Roy

C.R.R. NO. 399 of 2007

Amal Mukherjee

versus

Pranati Mukherjee & Anr.

For Petitioners : Mr. Jayanta Nath Saha For O.P. No. 1 : Mr. Subhasish Chakraborty Ms. Shreyashi Biswas

Mr. Soumya Chakraborty

Ms. Sasita Halder

Heard On : August 26th, 2008.

Judgment On : 12-11-2008.

In connection with a maintenance proceeding under Section 125 of the code of Criminal Procedure, the present petitioner was directed to pay a sum of Rs. 2,000/- per month to his wife, the opposite party herein as her monthly maintenance. Since the petitioner allegedly made no payment the wife/opposite party moved an application under Section 125 (3) of the Code of Criminal Procedure before the court concerned for enforcement of the said order and for realization and recovery of the amount due i.e. a sum of Rs. 22,000/- relating to the period from February 2005 to December 2005, which give rise to Misc. Case No. 50 of 2006 and the Learned Additional Presiding Judge, Family Court, Calcutta made an order directing that a sum of Rs. 1,000/- per month be deducted from the pension account of the petitioner and be credited to the savings account of the wife/opposite party on and from January, 2007 during the coming 22 months towards the recovery of arrear maintenance in addition to Rs. 2,000/- per month which has already been directed to be deducted from the pension account of the petitioner towards the payment of future maintenance. The petitioner challenged the said order on the ground in default of payment of maintenance allowance and for recovery of the same the future pension cannot beattached.

2. Heard the learned advocates appearing on behalf of the parties. Perused the impugned order as well as other materials on record. Considered their respective submissions.

3. In the case of Md. Jahangir Khan Vs. Mst. Manoara Bibi, reported in 1992 Cri L.J. 83, a Division Bench of our High Court held that the future salary not being a tangible corporeal property the same cannot be attached for recovery of the arrear maintenance.

4. It may be noted that the Learned Judge also in her order observed that no future income can be attached as she was of the view since same was not salary but was pension to which the petitioner is entitled during her lifetime the same can be attached. In this regard the observations made by the Division Bench of our High Court in the aforesaid case of Md. Jahangir Khan Vs. Mst. Manoara Bibi (supra) would be very relevant and is quoted below; Para 13. “A single Judge of Orissa High Court relying on a Karnataka decision in Rudraiah V. Muddagangamma, 1985 Cri LJ 707 sought to make a synthesis in Surekha V. Ramahari, 1990 Cri LJ 639. His Lordship while agreeing that only tangible corporeal property could be attached held that salary when becomes due was liable to attachment. According to the learned Judge, writ of attachment should remain dormant and would revive at the end of the month. With deep respect to the learned Judge, wecannot accept his view for the foregoing reasons. On similar reasons, we are unable to agree with the finding of the referring Judge.”

5. Thus, the future pension of the petitioner not being tangible and still not been earned by him same cannot be attached.

6. The impugned order is thus set aside and accordingly the criminal revision is allowed.

The Learned Judge is directed to proceed with the matter against the petitioner who is in alleged default of making payment of maintenance allowance and to enforce the order of maintenance in accordance with the provisions of Section 125 (3) of the Code of Criminal Procedure. Both the parties are directed to appear before the court concerned within fortnight from this date and the Learned Magistrate is directed to take necessary steps immediately thereafter. In view of the disposal of the main criminal revision C.R.R. No. 399 of 2007, the application for modification and/or variation of the order dated February 2007 passed by the Hon’ble Mr. Justice P.N. Sinha being CRAN No. 1800 of 2007 stands disposed of.

Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible.

 

( Ashim Kumar Roy, J. )

Bombay HC- If there is no Domestic Violence on Woman then the children are not entitle for relief u/s. 20 of PWDVA 2005.

“the monetary relief is available for the children of the aggrieved person if the monetary relief is required to meet the
expenses incurred by the aggrieved person as a result of domestic violence. The monetary relief is also permissible in case losses are suffered by the aggrieved person as a result of the domestic violence.  The monetary relief is available to children of the aggrieved person under Section 20 of the Act. However, the aggrieved person is under obligation to establish that she had to meet the expenses incurred and losses suffered due to domestic violence on   the   part   of   the   respondent.     In   the   present   case,   since   the   learned Magistrate has come to a conclusion that the domestic violence could not be proved   and   since   that   finding   of   the   learned   Magistrate   has   not   been  challenged by the aggrieved person, it follows that no relief could have been given to respondent Nos. 2 and 3 also.

 

 

 

Bombay High Court

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 32 OF 2014

Koushik S/o. Anil Gharami,
Aged about 40 years,
R/o House NO.59, Shayamapalli
Khajurikala, Piplani, Bhopal­462022
Tahsil Hujur and District : Bhopal(MP)          ….  PETITIONER.

//  VERSUS //

1.  Sau. Sangeeta Koushik Gharami,

aged about 36, Occu. Service,
2. Ku. Gayatri Sangeeta Gharami,
3. Ku. Astha Sangeeta Gharami,
Age about 6 years,
Respondent No.2 and 3 being minors are
represented by their ad­litum mother the
Respondent Nos. 1 to 3 all are R/o. C/o.
Thakurdas Mahaldar, Post : Alapalli,
Tahsil : Aheri, District : Gadchiroli.
…. RESPONDENTS.
___________________________________________________________________
Mrs. Sonali Saware, Advocate with Petitioner.
Mr. C.M.Munje,Advocate with the respondent No.1.
___________________________________________________________________
CORAM : M.L. TAHALIYANI, J.
DATED   : MAY 05, 2014.
ORAL JUDGMENT :
1. Heard.

2. ADMIT.  Heard finally by consent of the parties.

3. A short question that arises for determination in present writ petition is, as to whether the minor children of the aggrieved person are entitled for maintenance under Section 20 of the Protection of Women from Domestic Violence Act, 2005 if the trial Magistrate has come to a conclusion that the domestic violence has not been proved.

4. Admittedly, the petitioner is husband of respondent No.1 and father of respondent Nos.2 and 3. Respondent Nos.1, 2  and 3 filed an application under Section 12 of the Domestic Violence Act, 2005 in the Court  of Judicial Magistrate First Class, Aheri.  The said application was heard on merits   and   following   points   were   framed   by   the   Magistrate   for determination:

1. Does Applicant No.1 prove that she was subjected to Domestic
Violence by Non­applicant No.1 as alleged in the application ?
2. Do the applicants are entitled for relief claimed in their claim
clause
3. What order ?
The learned Magistrate had answered point No.1 in negative and point No.2 was answered partly in affirmative.  The learned Magistrate had   come   to   a   conclusion   that   respondent   No.1   had   not   been   able   to  establish that she was  subject to domestic violence by the petitioner.   The  learned Magistrate has also come to a conclusion that respondent No.1 was not entitled for any monetary relief.  However, monetary relief was granted to respondent Nos. 2 and 3.  The final order of the learned Magistrate runs as
under :
“1. The application is partly allowed.
2. Non­Applicant   No.1   shall   pay   Rs.2000/­   per
month to Applicant No.2 and 3 each, for their
education, from the date of application.
3. Non­Applicant   No.1   shall   pay   Rs.1000/­   per
month to applicant no.2 and 3 each, for their
maintenance (monitory relief) from the date of
application.
4. parties to bear their own cost.
5. The amount received by Applicant No. 2 and 3
under interim order, Exh.No.18, be set off against
the amount as mentioned above.”

5. The petitioner had filed a criminal appeal against the said order  of the learned Magistrate. The said Criminal Appeal was also dismissed on 9th December, 2013.

6. As already stated, the question that arises, whether respondent Nos.2  and  3 could be  granted  any monetary  relief  despite  the  fact that domestic violence could not be proved by respondent No.1.  In this regard,  one will have to refer to  certain provisions of the Protection of Women from Domestic Violence Act.  ‘Aggrieved Person’ has been defined in Section 2(a) of the Protection of Women from Domestic Violence Act, 2005 :
“2(a) “aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent
and who alleges to have been subjected to any act of domestic violence by the respondent;”
7. Chapter IV deals with ‘Procedure for obtaining orders of reliefs’.
Section 12 lays down the procedure for presenting application before the
concerned Magistrate.  Sections 18 and 19 of the Act deal with ‘Protection
Orders’   and   ‘Residence   Orders’,   respectively.     Section   20   deals   with
‘Monetary Relief’.

8. In the present petition, this Court is concerned as to whether  any monetary relief could have been given to  respondent  Nos. 2 & 3. Section 20 of the Protection of Women from Domestic Violence Act, 2005
lays down :
“20.  Monetary   reliefs.­   (1)   While   disposing   of   an
application   under   sub­section   (1)   of   Section   12,   the
Magistrate may direct the respondent to pay monetary
relief to meet the expenses incurred and losses suffered
by the aggrieved person and any child of the aggrieved
person as a result of the domestic violence and such relief
may include, but is not limited to ­
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the destruction, damage or
removal   of   any   property   from   the   control   of   the
aggrieved person; and
(d) the maintenance for the aggrieved person as well as
her   children,   if   any,   including   an   order   under   or   in
addition to an order of maintenance under section 125
of the Code of Criminal Procedure, 1973(2 of 1974) or
any other law for the time being in force.”

9. It is thus, clear that the monetary relief is available for the children of the aggrieved person if the monetary relief is required to meet the expenses incurred by the aggrieved person as a result of domestic violence. The monetary relief is also permissible in case losses are suffered by the aggrieved person as a result of the domestic violence.  The monetary relief is available to children of the aggrieved person under Section 20 of the Act. However, the aggrieved person is under obligation to establish that she had to meet the expenses incurred and losses suffered due to domestic violence on   the   part   of   the   respondent.     In   the   present   case,   since   the   learned Magistrate has come to a conclusion that the domestic violence could not be
proved   and   since   that   finding   of   the   learned   Magistrate   has   not   been challenged by the aggrieved person,  it follows that no relief could have been given to respondent Nos. 2 and 3 also.

10. In   my   considered   opinion,   the   learned   Magistrate   had  committed an error in granting monetary  relief to   respondent Nos. 2 and 3 despite the fact that domestic violence could not be established.  Though it is possible to say that the maintenance was permissible for respondent Nos. 2 and 3 (minor children) under Section 125 of the Code of Criminal Procedure, the monetary reliefs could not have been given to them under Section 20 of the Protection of Women from Domestic Violence Act, 2005.  The view taken by the learned Magistrate and the appellate Court, in my opinion, is not correct and hence, I pass the following order.

i. The writ petition is allowed.
ii. The order passed by learned Magistrate in Misc. Criminal Case No. 27 of 2011 on 12th March, 2013 and the order passed by the learned Sessions Judge, Gadchiroli in Criminal Appeal No. 14 of 2013 on 9th
December, 2013 are set aside.
iii. The amount of Rs.Twenty Five Thousand, deposited by the petitioner  in this Court shall  be refunded to him immediately.

The petition stands disposed of accordingly.

JUDGE
RRaut..

Categories: CrPC 125, PWDVA 2005 Tags: ,

Bombay HC- CrPC 125(3) procedure to be followed for recovery of due amount/ arrears in PWDVA 2005 instead of issuing Non Bailable order Directly.

“the   procedure   laid   down   under Section 125(3) of the Code of Criminal Procedure for getting compliance of  the orders passed by the Magistrate under Section 125(1) of the Code will have to be followed for executing the orders passed by the Magistrate under Section 20 (Monetary Reliefs) of the Protection of Women from Domestic Violence Act, 2005.   The reliefs available under Section 125(1)(a) of the Code of Criminal Procedure are analogous to the reliefs available under
Section 20 of the Protection of Women from Domestic Violence Act, 2005. “

 

 

 

Bombay High Court

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO.305 OF 2014.

 

Mr. Sachin s/o Suresh Bodhale,
Aged 36 years,
Occupation – Business,
R/o Plot No.2, Apana Ghar Scheme,
Visava Naka, Godoli, Satara (MH). …. PETITIONER

VERSUS

Sau. Sushma w/o Sachin Bodhale,
Aged 35 years,
Occupation – Nil,
R/o C/o Sau. Savita Sanjay Patil,
Plot No.119, Shri Mahalaxmi Apartment,
Nelco Housing Society, Subhash Nagar,
Nagpur. …. RESPONDENT
___________________________________________________________________
Shri Sudhir Moharir, Advocate for the petitioner,
Shri R.R. Vyas, Advocate for the respondent.
___________________________________________________________________
CORAM : M.L. TAHALIYANI, J.
DATED   : 6th
MAY, 2014.
ORAL JUDGMENT :
1. Heard learned Counsel Shri Sudhir Moharir for the petitioner  and learned Counsel Shri R.R. Vyas for the respondent.

2. Rule.   Rule made returnable forthwith by the consent of the learned Counsel appearing for the parties.

3. The petitioner has moved this Court by invoking powers of this  Court under Article 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure.  The petitioner is aggrieved by the order passed by   the   learned   Magistrate   in   Misc.   Criminal   Application   No.890/2012
(Sushma vs. Sachin).  The order, which is questioned before this Court, reads as under :­
“Perused the application and stay.
Heard learned Advocate for both sides.
Applicant relied on 2013 All M.R.(Cri.) 2572.   Learned
Advocate for N.A. has opposed that Magistrate has no powers.
N.A. has not paid any amount towards interim maintenance.
Learned Advocate has also confessed that N.A. has not paid any
amount towards interim maintenance order which is passed on
Exhibit 13.
Provision under Section 28(2) is very clear when N.A. has
not paid amount and not complied the order, she cannot be kept
high and dray.  Magistrate is empowered under Section 28(2) to
issue N.B.W.  Citation filed by applicant is very much applicable
in the case in hand.  Hence application is allowed.  Issue N.B.W.
against non­applicant.”

4. The petitioner is husband of the respondent.  The respondent has filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 before the learned Magistrate.  An interim order has been passed granting monetary relief.  It appears that the petitioner has not   paid   the   amount   to   the   respondent   as   per   the   interim   order.     A
non­bailable warrant has been issued for non­payment of amount of interim  maintenance to the respondent by the petitioner.  It appears from the order of the learned Magistrate that the learned Magistrate was of the view that he could formulate his own procedure under Section 28(2) of the Protection of Women from Domestic Violence Act, 2005.   It appears that the Magistrate was also of the view that he can lay down his own procedure for recovery of the amount of interim maintenance.   Sub­section (2) of Section 28 of the  Protection of Women from Domestic Violence Act, 2005 reads as under :­
“28(2). Nothing in sub­section (1) shall prevent the court from   laying   down   its   own   procedure   for   disposal   of   an
application under section 12 or under sub­section (2) of section 23.
Sub­section(1) of Section 28 of the said Act reads as under :­“28(1). Save   as   otherwise   provided   in   this   Act,   all  proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions
of the Code of Criminal Procedure, 1973 (2 of 1974)”

5. Therefore,   it   is   abundantly   clear   that   basically   the   learned  Magistrate has to follow the procedure laid down in the Code of CriminalProcedure for recovery of maintenance either final or interim.  Sub­section (2) of Section 28 of the Protection of Women from Domestic Violence Act,  2005 can be pressed  into service when there is no provision available for implementing a particular order passed under the Protection of Women from Domestic   Violence   Act,   2005.     If   the   procedure   is   available   in   Code   of  Criminal Procedure,  that is necessarily to be followed.

6. In   my   considered   opinion,   the   procedure   laid   down   under  Section 125(3) of the  Code of Criminal Procedure  for getting compliance of the orders passed by the Magistrate under Section 125(1) of the Code will have to be followed for executing the orders passed by the Magistrate under Section 20 (Monetary Reliefs) of the Protection of Women from Domestic
Violence Act, 2005.   The reliefs available under Section 125(1)(a) of the  Code of Criminal Procedure are analogous to  the reliefs available under Section 20 of the Protection of Women from Domestic Violence Act, 2005.
The procedure for getting compliance of the order passed under Section 125(1) of the Code of Criminal Procedure is available under Section 125(3) of the Code of Criminal Procedure, which runs as under :­
“125(3). If  any person so  ordered  fails without  sufficient cause to comply with the order, any such Magistrate may, for
every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence  such   person,   for   the   whole   or   any   part   of   each   month’s  (allowance for the maintenance or the interim  maintenance and expenses of proceeding, as the case may be,) remaining unpaid after the execution of the warrant, to imprisonment for a term which  may  extend  to  one  month  or  until   payment  if  sooner made:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made
to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated   by   her,   and   may   make   an   order   under   this   Section  notwithstanding  such offer, if he is satisfied that there is just ground for so doing.”

7. The procedure for levying of fines is available under Section 421 of the Code of Criminal Procedure as under :­
“421.  Warrant for levy of fine – When an offender has been
sentenced to pay a fine, the Court passing the sentence may take
action   for   the   recovery   of   the   fine   in   either   or   both   of   the
following ways, that is to say, it may ­
(a)   issue   a   warrant   for   the   levy   of   the   amount   by
attachment and sale of any movable property belonging to the
offender;
(b)   issue   a   warrant   to   the   Collector   of   the   district,
authorising him to realise the amount as arrears of land revenue
from   the   movable   or   immovable   property,   or   both   of   the
defaulter:”

8. Thus   there   is   absolutely   clear   provision   under   the   Code   of  Criminal Procedure, which lays  down as to  how the  amount of maintenance, final or interim, is to be recovered. The Magistrate, in my opinion, could not have issued  non­bailable warrant directly.   He should have followed  the procedure laid down in sub section (3) of Section 125 &  Section  421 of the Code of Criminal Procedure.  In the scheme of Code of Criminal Procedure, in the first place, the Magistrate was under obligation to issue a warrant for levy of the amount by attachment and sale of any movable property.   The  other remedy available was to issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both of the defaulter.   The Magistrate could   have   sentenced   the   petitioner   for   the   whole   or   any   part   of   each month’s   allowance   for   the   maintenance   or   the   interim   maintenance   and expenses of proceeding, as the case may be, remaining unpaid after the  execution of the warrant, to imprisonment for a term which might extend to one month or until payment if sooner made.

9. As such the first option available to the Magistrate was to issue a   warrant   for   levying   fine.     If   whole   of   the   amount   was   recovered   by adopting   the   procedure   under   Section   421   of   the   Code   of   Criminal  Procedure, the question of putting the defaulter in prison did not arise.  In case amount was not recovered or part of it was recovered and part of it was not recovered, then the question would have arisen as to how much sentence should be imposed on the defaulter as per the provision laid down in the Code of Criminal Procedure.  The stage of issuing warrant comes only after sentencing and not before that.

10. In view of above discussion, it is abundantly clear that the order dated 02­4 2014 passed by the learned Magistrate  in Misc. Criminal Application No.890/2012 cannot be sustained.  It needs to be quashed and is
accordingly quashed.  The respondent is at liberty to take necessary steps in accordance with law.

11. Rule is made absolute in the above terms.
JUDGE
pma

Bombay HC : Wife or husband’s attorney cannot appear in family courts u/s 13 of Family Courts Act.

August 29, 2013 Leave a comment

Bombay High Court

Neelam Dadasaheb Shewale vs Dadasaheb Bandu Shewale on 17 February, 2010

Bench: R. S. Dalvi

1

Amk

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 8954 OF 2009

Neelam Dadasaheb Shewale .. Petitioner Vs.

Dadasaheb Bandu Shewale .. Respondent Mr. Milind N. Jadhav i/b Mr. Sagar G. Talekar for the Petitioner. Mr. R. T. Lalwani for the Respondent.

CORAM : MRS. R. S. DALVI, J.

DATE : 17TH FEBRUARY, 2010

JUDGMENT:

 

1. This writ petition challenges three interim orders passed in MJ Petition No.A1633/97 which was for enhancement of maintenance under 25 (2) of the Hindu Marriage Act.

2. It may be mentioned that an application under that provision can be filed only upon change in the circumstances of either party which would require modification of the order of permanent alimony passed.

3. Two orders are passed upon three applications of the parties.

4. One application was filed by the ex-husband (husband) seeking to restrain his ex-wife (wife) from using his surname (name) since divorce decree has been already passed and has became final. This application came to be filed as an interim application in the fresh petition filed by the wife after divorce.

5. The Advocate on behalf of the wife argued that the separate petition only should have been filed. Both these reliefs, permanent and interim, are between the same parties pursuant to the same marital relationship which has since ceased. Under Section 7 of the Family Courts Act the Family Court has jurisdiction to decide the petition-application as well as a suit or proceeding (permanent or interim), for injunction arising out of the marital relationship. The husband can, therefore, file a separate application/petition for injunction or take out an application in the wife’s application/petition already filed. In fact, the husband can file a counterclaim in any petition with regard to any relief arising out of the marital obligation. An application which may be in the nature of counterclaim, can therefore be allowed an interim application.

6. The substance of the application is required to be considered rather than its form. The substance of the application of the husband is that the wife should not use his name.

 

7. The Advocate on behalf of the wife fairly concedes that since the marriage has been dissolved by a decree for divorce which has become final, the wife cannot use the name of the husband. That is the only substance to be considered by the Family Court. Under the impugned order dated 23rd September, 2009 the Family Court has considered that aspect as an application arising out of a marital relationship. It is correctly considered. The order needs no interference.

8. In fact, the Advocate on behalf of wife mentioned that the bank account of the wife stands in both her names. That statement itself shows that the wife uses the name of the husband even after their marital relationship has been dissolved by an order of the Court. The description of the bank account is therefore improper. It is, therefore, clarified that the wife cannot use the husband’s name anywhere including in her bank account. The injunction granted by the Family Court in the application of the husband shall be effectuated for all purposes.

 

9. The writ petition also challenges another order of the same date between the same parties but in two different applications. One was the application filed by the wife for her to be represented by her constituted attorney on the ground that she is ill, does not know English, she has been mentally tortured at the hands of the husband and she would not be able to stand the court proceeding. The other application is filed by her constituted attorney asking for permission to represent the wife as she cannot financially afford a lawyer, lawyers are otherwise not permitted and that she would be entitled to assistance of the person she has faith in.

10.The legal right of a party in Family Court to be represented by her constituted attorney in place of her Advocate who is registered legal practitioner is required to be seen. Under Section 13 of the Family Courts Act no party is entitled as of right to be represented by a legal practitioner. However, the Court may appoint legal expert as amicus curie to assist her/him. A party has full right to appear before the Family Court. None can object to such appearance. The wife does not desire to have an Advocate. She has refused legal aid offered to her. She contends that she has faith only her constituted attorney. The extent of the right of a constituted attorney is laid down in Order III Rule 1 of the Civil Procedure Code as follows :

ORDER III :

1. Appearances, etc., maybe in person, by recognized agent or by pleader. – Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader [appearing, applying or acting, as the case may be,] on his behalf :

Provided that any such appearance shall, if the Court so directs, be made by the party in person.

(emphasis supplied)

 

11.What is appearance, application or act has been considered by Chief Justice Chagla, as he then was, in the case of Aswin Shambhuprasad Patel and others Vs. National Rayon Corporation Ltd. (AIR 1955 BOMBAY 262). The provision of the aforesaid order was considered taking into account the Bar Councils Act and the Bombay Pleaders Act. It has been held that the aforesaid rule would not apply where a law for the time being in force otherwise expressly provided. It is held that pleading is not included in the expression “appearance, application or act in or to any Court”. This is so because, the right of audience in Court, the right to address the Court, the right to examine and cross-examine the witnesses are dealt with in other parts of the Civil Procedure Code and not under Order 3. It was further held the right of audience in Court is a part of pleading in Court and not “acting” as provided under Order 3. It is further observed that a party in person would have a right of audience in Court and not his recognized agent who would be “appearing, applying or acting” on his behalf. 7

 

12.Further the right of pleaders to plead in a Court of law under authority of the client and to have a right of audience in Court as a member of Bar is not dealt with under Order 3. The members of the Bar have a right in clause 10 of the Letters Patent as they are qualified to plead in Court as required by specific legislation and rules. Under that clause no person except Advocates, Vakils or Attorneys would be allowed to act or plead for and on behalf of any suitor except the suitor himself. Considering Section 8 of the Bar Councils Act under which no person was entitled to practice as an Advocate unless his name was entered in the roll of Advocates, it was observed that the expression “practice” is wider than the expression “plead”. Similarly Section 9 of the Bombay Pleaders Act, which was similar to the above section, was considered. The proviso to that section allowed a party to appear, plead or act on his own behalf but a recognized agent of the party was allowed to only appear or act (and not plead). It was therefore observed that proviso made a distinction between appearing, pleading or acting and appearing or acting. Whereas the party could do all three of the above her/his constituted attorney 8

could do only the above two. Consequently it was held that in the District Courts a recognized agent had no right to plead by relying on provision 9 of the Bombay Pleaders Act. It was observed that the right of audience is a natural and necessary concomitant of the right to plead and as the recognized agent had no right to plead, it follows that he has no right of audience in Court.

 

13.The law that is laid down in the aforesaid judgment holds true and good till now and even within Section 13 of the Family Courts Act. The object of Section 13 of the Family Courts Act is to allow a party to represent her/his case and consequently right of the lawyer to plead, appear and have audience in Court is limited but the right given to the party to appear is not extended to that parties’ constituted attorney. Hence, the general law of procedure under Order 3 Rule 1 as also the special laws contained in the Bar Councils Act and the Bombay Pleaders Act would apply even in a Family Court. The object of that provision is that only qualified persons are entitled to appear in Courts and represent the case of their parties. The qualification is of the knowledge of the law and 9

the enrollment under the Act. If constituted attorneys of all the parties are allowed to appear, the Court would be overrun by any number of unqualified, unenrolled persons. Since Civil Procedure Code would generally apply to a Family Court under Section 10 of the Act, the restraint upon appearance under Order 3 of the Code must hold good.

 

14.In the case of Pavithra Vs. Rahul Raj (AIR 2003 MADRAS 138 it has been held that the recognized agent of the party in a Family Court proceedings cannot be allowed to prosecute it. Considering the various provisions of the Family Courts Act which follow the procedure different from the Civil Courts, it is observed that the parties themselves can be heard. Some times legal assistance can be provided. However, personal appearance of the parties is inevitable to comply with the mandatory provisions of the Family Courts Act. Though the authorized agent, who is not a legal practitioner can file a petition, he can only prosecute or defend it or represent the party only until the Family Court passes an order directing the party to appear in person depending upon the facts and stage of the case. In that case the constituted attorney sought 10

permission to defend the case on the ground that she was not able to come to India to contest the case. Such a permission, it was held, could not be granted.

 

15.In the case of Sudha Kaushik Vs. Umesh prasad Kaushik (AIR 2005 GUJARAT 244) upon considering the law under normal circumstances as aforesaid it was held since that case the petitioner’s life was in danger his father was allowed to represent his son in the interest of justice though it was held that in normal circumstances any citizen or party is not allowed to be represented by his power of attorney unless he is an Advocate of the Court.

 

16.Consequently both the orders of the Family Court, Bandra, Mumbai dated 23.09.2009 are correct and cannot be interfered with. Writ petition is dismissed.

(R. S. DALVI, J.)

Bombay HC:- Service of Notice of Maintenance Case should be served to the Respondent (Husband) personally or to the Family of the Respondent and not to the advocate appearing on behalf of Respondent in other matters.

August 27, 2013 Leave a comment

Bombay High Court

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL REVISION APPLICATION NO.74 OF 2012.

 

Atul S/o. Bhaskarrao Thakre (Deshmukh),
aged about 34 years, R/o. C/o.
Bhaskarrao Sheshrao Thakre, Near Samaj
Mandir Khedkar Nagar, Akola, Dist. Akola. …. APPLICANT.
…..VERSUS…..

1. Sau. Anuja W/o. Atul Thakre,
(Deshmukh), Aged 31 years,
Occu. Housewife, R/o. S.B.I. Colony,
No.4, Gajanan Peth, Akola, Tq. and
Distt. Akola.
2. The State of Maharashtra, through
P.S.O. Akola.                      …. RESPONDENTS.
_____________________________________________________________________
Mr. A.V.Bhide, Advocate for Applicant.
Mr. U.J.Deshpande, Advocate for Respondent No.1.
Mr. V.A.Thakre, Additional Public Prosecutor for Respondent No.2.
_____________________________________________________________________
CORAM : M.L. TAHALIYANI, J.
DATED   : MARCH 01, 2013.
ORAL JUDGMENT :
1. Heard.
2. ADMIT.
3. Heard finally by consent.
4. The applicant is aggrieved by the order passed by learned Family Court   in   Petition   No.E­11/2011   directing   the   applicant   to   pay   a   sum   of Rs.8,300/ per month to respondent No.1 by way of maintenance.  Respondent No.1 is wife of the applicant.  Respondent No.1 has filed an application for grant of maintenance under Section 125 of the Code of Criminal Procedure before  the  Family Court.    The  said  application was  finally  decided  by  the impugned order.
5. During   the   course   of   hearing   it   was   pointed   out   by   learned counsel Mr. Bhide  that  the application  filed by non­applicant under Section 125 of the Code of Criminal Procedure was not served upon the applicant in
accordance with law.  He has brought to my notice contents of the impugned judgment at paragraph No.10 which can be reproduced as under :
“10.   The   non   applicant   had   filed   the   petition   for   divorce  which was pending in this Court.  His advocate received the service  of  the  notice  of   the  present   proceeding.     The  non­ applicant did not remain present nor filed his say inspite of various  opportunities  given  to  him  hence  by  an  order  dtd 16.6.2011 the applicant was directed to proceed without say.”
6. It   is,   thus,   clear   that   there   was   no   service   of   maintenance  application on the applicant personally or on any of his family members.  The application  was served through the Advocate who was appearing on behalf of the applicant in separate proceedings under the Hindu Marriage Act, 1955.
7. In my considered view, the service effected by the Family Court was not ‘good service’ in law.  For this reason the order passed by the Family Court cannot be sustained.  The applicant will have to be given opportunity of being heard and the application will have to be decided afresh.

i. The application is allowed.
ii. The   order   passed   by   Family   Court   in   Petition   No.E­11/2011 directing  the  applicant  to  pay  a  sum  of Rs.8,300/­  by way of maintenance   to   respondent   No.1   and   all   other   consequential orders are set aside.
iii. The application filed by respondent No.1 shall be heard afresh.
iv. The applicant and respondent No.1 both shall appear before the Family Court on 18th March, 2013 at 11.00 a.m.
v. It is made clear that now Family Court is not under obligation to effect fresh service on the applicant.
The application stands disposed of accordingly.

JUDGE.

RRaut..

Delhi HC- Suppression of Facts. Wife guilty of contempt,maintenance dismissed with cost.

“The conduct of the wife (respondent herein) of not disclosing to this Court about a petition being pursued by her and her conduct of concealing the material information from the Court of Judicial Magistrate, Jallandhar obtaining an ex parte order was contemptuous and violation of an undertaking given by her.”

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: January 07, 2010

Date of Order: January 25, 2010

+ Cont. Cas(C) 482 of 2008

% 25.01.2010

Gurbinder Singh …Petitioner Through: Mr. V.M. Issar, Advocates

Versus

Manjit Kaur …Respondents Through: Mr. Anish Dhingra, Advocate along with respondent in person.

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment?

2. To be referred to the reporter or not?

3. Whether judgment should be reported in Digest?

JUDGMENT

1. The petitioner has preferred this contempt petition against respondent alleging violation of an undertaking given to the Court of Additional District Judge, Jallandhar on 8th September 2000.

2. The petitioner and respondent are husband and wife. The petitioner was in the Army and the wife was working as a teacher in S.D. Model School, Jalandhar Cantt. The divorce and various other proceedings were going on between the parties. The parties with the intervention of their counsels entered into a settlement and this settlement was recorded by the Court. In that settlement, the respondent (wife) agreed that she will not initiate any type of action against petitioner or against children of the parties or against the parents of the petitioner and other relatives of the petitioner (the children were at that time living with the petitioner) before the Court of law or before any other authority and she would not do anything which would affect the character, status or reputation of the petitioner. The petitioner also gave a similar undertaking that he would not disturb respondent in any manner and he Cont.Cas(C) 482/2008 Gurbinder Singh v. Manjit Kaur Page 1 Of 3 would not institute any action against her either before the Court of law or before any authority and he will not try to castigate honour or character or reputation in any manner. Thereafter, before this Court in April’05, she (respondent) again filed an affidavit that she would abide by the undertaking given to the learned ADJ on 8th September 2000 and she would not harass or humiliate the petitioner in future and will not create any cause of action afresh. This undertaking was given by way of an affidavit. Thereafter, the respondent herein filed an application under Section 125 Cr.P.C. before the Jallandhar Court in August’ 04 claiming maintenance from the petitioner on the ground that the petitioner had neglected to maintain her and she had no source of income. There is no doubt that the respondent had a right to claim maintenance from the petitioner, if she was not able to maintain herself. A perusal of the ex parte order obtained by her from the Court of Jallandhar shows that she concealed all material facts from the Court at Jallandhar. She did not disclose that she was working as a teacher in a school at Jallandhar and that there was an agreement between the parties arrived before learned ADJ, Delhi and that she had also filed an affidavit in the High Court that she would not unnecessarily harass the husband. Where a person after concealing the material facts about her own employment and about the undertaking given to the Court, files an application for maintenance just to harass the opposite side, after giving an undertaking to the Court that she would not harass the petitioner (husband), I consider this amounts to violation of undertaking given by her. The respondent appeared in person today in the Court and admitted that at the time she filed the petition in the Jallandhar Court, she was gainfully employed as a teacher and she continued to remain in employment till 2008 i.e. even after passing of the order under Section 125 of Cr.P.C. A perusal of the ex parte order passed by learned JM would show that the respondent had concealed from the JM about her own employment, her salary from the school and her assets and contended that the respondent was drawing a pension of Rs.10,000/- per month and his income from other sources was Rs.20,000/- per month and she obtained an order of grant of maintenance @ Rs.3,000/- per month from the date of application. She did not disclose to this Court when she filed her affidavit in this Court in April, 2005 that Cont.Cas(C) 482/2008 Gurbinder Singh v. Manjit Kaur Page 2 Of 3 she had filed a petition at Jallandhar Court which was going on ex parte or that she had already preferred a petition under Section 125 of Cr.P.C which was pending.

3. I consider that the conduct of the wife (respondent herein) of not disclosing to this Court about a petition being pursued by her and her conduct of concealing the material information from the Court of Judicial Magistrate, Jallandhar obtaining an ex parte order was contemptuous and violation of an undertaking given by her.

4. I, therefore, hold the respondent guilty of contempt and a fine of Rs.10,000/- is imposed on her.However, after her retirement, if she seeks maintenance for herself after disclosing to the Court concerned about her pension and other income and properties, which she holds in Delhi and other places, she would be free to make a petition regarding maintenance before the Court of competent jurisdiction.

5. With above order, the petition stands disposed of.

January 25, 2010 SHIV NARAYAN DHINGRA J. rd

Bombay High Court:- No maintenance u/s 125 CrPC of Wife is able to maintain herself.

18. The   learned   Judge   has   considered   how   the   wife   can maintain   herself.     He   has   also considered   that   parties   lived together only for 9 months during 6 to 7 years of marriage after which   the   wife   went   to   her   father’s   flat   where   she   lives   in reasonable luxury.     She  went  for  vacations  to  various  places enumerated in the order in India as well as abroad.  She looked after financial affairs of her husband in his absence.  She refused to give her marriage another chance after being supported by her community elders.   She has also not  filed her income  tax returns and has suppressed her material facts of income.   The learned Judge has considered the fallout of various visits abroad whilst she is a school teacher. Hence the Court rejected maintenance to the wife who is the school teacher.

 

Bombay High Court
1 CR.REVN.APLN.106/2013(1)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE CRIMINAL JURISDICTION
CRIMINAL REVISION APPLICATION NO. 106  OF 2013

Shabnam Badri  …Applicant(Orig. Applicant)
Vs.
Shabbir Badri  …Respondent(Orig.Respdt.)
Mrs. Anita Agarwal for Applicant
Mr. Shoib Menon  for Respondent No.1
CRIMINAL REVISION APPLICATION NO. 435  OF 2012
Shabbir Badri      …Applicant(Orig. Respondent)
Vs.
Shabnam Badri       …Respondent(Orig.Applicant)
Mr. Shoib Menon for Applicant
Mrs. Anita Agarwal for Respondent No.1
CORAM : MRS. ROSHAN DALVI, J.
DATED  : 11TH MARCH, 2013
P.C. :
1. The   Criminal  Revision  Application  No.435   of   2012  had
appeared on board on 14th December, 2012 since the applicant
husband was not present it has been dismissed.  It is restored to
hear both the parties, the husband and wife on merits.
2. The husband is a Seaman.   His cross examination shows
that he was a Radio Officer till 1998.  In 2005 he became a Chief
Officer.  Thereafter he was the Master of Ship until 2010.  His
job was on contract basis.   He could not produce  the written
contract.  He claims to be earning about Rs. 1 lakh.  He has not
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2 CR.REVN.APLN.106/2013(1)
produced any documentary evidence to show that fact. He was
asked   about   this  in  his   evidence.     He   failed   to   produce   the
documents   of   service   showing   his   emoluments.     He   instead
produced his income tax returns.  His salary is in US dollars.  It
is tax free.  It would not be reflected in income tax returns.  His
income   tax   returns   would   show   income   otherwise   from   his
salary.   His income tax returns show only the first page of the
returns   without   any   annexures   showing   the   computation   of
income.  It is shown only to be rejected.  His income tax returns
do not carry his case any further.
3. The husband claims that he lost his job.  This would have
to be proved by showing the bank account of the earning whilst
he   admittedly   was   a  master  of     ship   and   then   to   show  the
continuance of that bank account having no credits.  That is not
produced.
4. The   evidence   has   considered   certain   insurance   policies.
The husband in his cross examination has admitted that he had
a Current Bank Account in HSBC Bank, UK. He corrected to state
that that was a  Midland bank and then corrected to state that
he did not recollect the bank account.   He admitted that he had
HSBC NRE Bank    account  at Fort.   He  admitted  that he had
HSBC  NRO   Bank   account  at  Bandra(W),   Branch.     He  has   a
saving account with ICICI Bank at Mira Road Branch and he has
ICICI   Bank   account   with   Santacruz   Branch.     He   refused   to
produce the statements of the bank account.  He accepted that
some of them are of joint accounts.  He also accepted that he has
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3 CR.REVN.APLN.106/2013(1)
a  shop which  he  has  disposed  of  for Rs.4 lakhs  after  having
purchased it for Rs. 5 lakhs.  Such real estate value has had no
parallel in  Mumbai.
5. His case of income has to be seen only from his admitted
employment position as the Master of the Ship.  The wife claims
that  he  would  be   earning  Rs.5  lakhs.     He   claims  that  he  is
earning only Rs. 1 lakh.   The learned Judge has considered a
reasonable figure based upon an analysis of what he earns. That
would have to be accepted by the Court.
6.   The husband’s evidence is seen to be wholly evasive and
dishonest.  The husband who is the Master of Ship is bound and
liable to maintain his wife who is a school teacher.  The husband
has   shown   his   bank   account   having   paltry   figures   as   bank
balance.  From   cross  examination it  would  show   and  suggest
that there is another account in which his entire salary has been
credited.  No such bank account is shown.
7. He has deposed that he used to obtain his salary in cash or
cheques depending on situation.
8. The   husband   contends   that   he   was   asked   in   the   cross
examination  and  he  has  produced  thereupon  his  continuance
discharge  certificate  which  would  show  that  he  was  actually
employed for only a few months each year.   The husband has
tendered his continuance certificate to this Court also.  There are
entries of certain years showing certain months in which he was
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4 CR.REVN.APLN.106/2013(1)
under  contract.    The  entries  are  for  the years  2001  to  2010
showing  him as Chief Officer and Master.  These entries are for
about six months at a time.
9. Persons on offshore jobs are given allowance during  the
period when  they  are  on  shore.   These  allowances would  be
lesser  than while  they work offshore while  they are on actual
duties.   The husband has not shown his offshore   emoluments
during his contractual period of his service.
10. The   husband   has   shown   that   he   has   to   incur   personal
expenses of Rs.2 lakhs p.m whilst he is on offshore.  Hence his
income would be at least more than Rs. 2 lakhs.  The learned
Judge has computed the income of the husband upon rational
analysis.
11. It is seen that the husband has also produced statements of
his   mutual   funds.     There   are   various   investments   in   mutual
funds.   They   are   in   tax   relief   fund–dividend   payout   option,
SBMPP – dividend option etc.  The husband also has individual
health insurance policy which is also required for tax relief.
12. The wife is a School Teacher.  She has also not produced
her   salary   slips.   Her   salary   has   only   been   stated   like   her
husband’s.     Both   have   given   figures   of   the   salary   allegedly
earned  and  thought  to  be  earned.    Both  such  figures  per  se
cannot be accepted.  The learned Judge has computed her salary
also.  That also would, therefore,  have to be accepted.
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5 CR.REVN.APLN.106/2013(1)
13. The   wife’s  parental  home  is  at  Khar.     Her matrimonial
home is in Mira Road.  She went to reside in Mira Road.  She
could not reside because  there were no servants  to assist her.
She has many servants in her father’s house.  She went back to
her parental house and refused to go back to her matrimonial
home.  It would have  to be seen whether it is justified  for  the
wife   of   a   Master   of   the   ship   to   expect   to   have   a   domestic
assistant by way of a maid.  For the wife of a Clerk that same
would be unjustified.  These basic differences are required to be
kept in mind.
14. Oblivious of  that difference,  the husband claims  that he
has called his wife to stay in his home but the wife refused to
stay and hence she is not entitled to maintenance.  The analogy
is incorrect and must be rejected.
15. The   evidence   of   the   wife   shows   that   she   uses   a   car
purchased by the Respondent.   That would show the status of
the  respondent.   The respondent has given a car, but not  the
maintenance  amount.   Hence  she was  constrained  to  sue  for
maintenance.
16. It is seen that the husband has not fully shown his income
as also his investments.  However the wife has also not shown
her income  as  a  teacher.    Adverse inference  must  be  drawn
against both the parties.
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6 CR.REVN.APLN.106/2013(1)
17. The   wife   has  only   shown   the   expenses  of   the  children
whose custody she has.  The parties have two children they are
in VIII standard and IX standard.  They attend Leelawati Poddar
High   School.     The   term   fees   per   child   is   in   a   range   of
Rs.20,000/­ to Rs.24,500/­.
18. The   learned   Judge   has   considered   how   the   wife   can
maintain   herself.     He   has   also   considered   that   parties   lived
together only for 9 months during 6 to 7 years of marriage after
which   the   wife   went   to   her   father’s   flat   where   she   lives   in
reasonable luxury.     She  went  for  vacations  to  various  places
enumerated in the order in India as well as abroad.  She looked
after financial affairs of her husband in his absence.  She refused
to give her marriage another chance after being supported by
her community elders.   She has also not  filed her income  tax
returns and has suppressed her material facts of income.   The
learned Judge has considered the fallout of various visits abroad
whilst she is a school teacher.  The learned Judge has reasonably
considered the suppression by both the parties, the income and
investments  of   both   the  parties,   and   their  usual  standard   of
living.
19. The learned Judge has considered the respective salaries of
the parties and granted maintenance based upon the aforesaid
evidence  of  Rs.10,000/­  each  to  the  children.      The learned
Judge has not granted any maintenance  to  the wife who is a
school teacher.
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7 CR.REVN.APLN.106/2013(1)
20. The conclusion of the learned Judge that she is capable of
maintaining  herself  cannot  be  faulted.    Hence  the impugned
order   cannot   be   interfered   with   in   her   criminal   revision
application.  Similarly the payment of maintenance only for the
children  which  is  also   challenged  by  the  husband  cannot   be
faulted in view of his shown and suppressed earnings.
21. Of course this is only in the petition under Section 125 of
Cr.P.C   where   the   wife   must   show   that   she   cannot   maintain
herself.  She would be entitled to alimony and maintenance as
per law in other proceedings between the husband and wife.
22. For  the expenses  she claims  for her children Rs.10000/­
per month  each granted to the children is seen to be reasonable.
23. Consequently   the   impugned   order   which   has   been
challenged by both the parties does not require any interference.
Both the petitions are dismissed.
24. The   husband   shall   forthwith   pay   all   the   arrears   of
maintenance already granted.
(MRS. ROSHAN DALVI, J.)
http://bombayhighcourt.nic.in/generatenew.php?path=./data/criminal/2013/&fname=REVN48912110313.pdf&smflag=N

Categories: CrPC 125 Tags:

Delhi High Court:- DV is not maintainable once there is decree of Divorce. Also, parents of Husband cannot be made Respondents in DV if the Husband and Wife have not stayed with Parents under one roof.

January 11, 2013 Leave a comment

-There can be no domestic relationship of the wife of son with the parents when the parents are not living along with the son and there can be no domestic relationship of a wife with the parents of her husband when son along with the wife is living abroad, maintaining a family there and children are born abroad.

-The definition of “wife” as available under Section 125 Cr.P.C could not be imported into Domestic Violence Act. The Legislature was well aware of Section 125 Cr.P.C. and if Legislature intended, it would have defined “wife” as in Section 125 Cr.P.C in Domestic Violence Act as well. The purpose and object of Domestic Violence and provision under Section 125 Cr.P.C. is different. While Domestic Violence Act has been enacted by the Parliament to prevent acts of domestic violence on women living in a shared household.

Delhi High Court

Nagesh Malik vs Payal Malik on 29 July, 2010

Author: Shiv Narayan Dhingra

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: 6th July, 2010

Date of Order: 29th July, 2010

+ Crl. Rev. P. No. 253/2010

29.07.2010

Harbans Lal Malik … Petitioner Through: Mr. Dharam Raj, Advocate

Versus

Payal Malik … Respondents Through: Mr. R.Jain, Mr. Deepak Aggarwal &

Mr. D.Jain, Advocates

+ Crl. Rev. P. No. 252/2010

% 29.07.2010 Varun Malik … Petitioner Through: Mr. Dharam Raj, Advocate

Versus

Payal Malik … Respondents Through: Mr. R.Jain, Mr. Deepak Aggarwal &

Mr. D.Jain, Advocates

+ Crl. Rev. P. No. 338/2010

% 29.07.2010 Nagesh Malik … Petitioner Through: Mr. Dharam Raj, Advocate

Versus

Payal Malik … Respondents Through: Mr. R.Jain, Mr. Deepak Aggarwal &

Mr. D.Jain, Advocates

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment? Yes.

2. To be referred to the reporter or not? Yes.

3. Whether judgment should be reported in Digest? Yes.

JUDGMENT

These petitions arise out of order passed by the learned Additional Sessions Judge on 7th May, 2010 while disposing of two appeals against the order dated 27th July, 2009 passed by the learned MM. Nagesh Malik vs Payal Malik on 29 July, 2010

2. The undisputed facts are that Ms. Payal Malik used to live with her parents before marriage at Hissar. Her marriage took place with Mr. Nagesh Malik whose parents used to live at Panipat. Marriage of the parties was solemnized at Panipat on 30th August, 2001. Nagesh Malik was already working in USA and after marriage both of them went to USA on 20th September, 2001 where they settled their matrimonial home and lived together. On 24th October, 2002 a female child was born to the couple at USA, who was named as Vanishka. The parties continued living together in USA till 2008. It seems deep differences arose between the parties and they could not pull on together. There are allegations and counter allegations made by wife and husband which are not relevant for the purpose of deciding this petition. However, husband alleged that on 6th August, 2008 due to these differences, parties executed a post-nuptial agreement and decided to obtain divorce from each other, sticking to the agreement. Wife refutes having signed the agreement voluntarily and alleges that she was turned out from USA by her husband on 22nd August, 2008. Whereas the husbandâ..s contention is that she of her own left USA without joining the husband for obtaining divorce through a Court in USA. The husband filed a divorce petition before Superior Court of New Jersey Chancery Division Family Court USA on 27th August, 2008. The notice of divorce suit was duly served on her. The Court of New Jersey allowed the divorce petition and a decree of divorce was granted on 4th December, 2008.

3. On 13th January, 2009 wife filed a complaint before CAW Cell Hissar against husband and in-laws. Ms. Sushila, Inspector of CAW Cell Hissar, vide her report dated 20th January, 2009, observed that the allegations in the complaint were not true and it was useless to keep the complaint pending further. Thereafter, wife filed a complaint in the Court of MM at Delhi making her husband (Nagesh Malik), father-in-law (Harbans Lal Malik), mother-in-law (Neelam Malik) and brother-in-law (Varun Malik) as parties under Section 12 of Protection of Women from Domestic Violence Act, 2005 [in short - Domestic Violence Act] with a prayer that Court should pass a protection order under Section 18, residence order under Section 19,  monetary relief order under Section 20, compensation order under Section 22 and interim orders under Section 23 of the Act. She made allegations of mal-treatment at the hands of respondents from day one of the marriage till she left USA and came to India. She stated, after coming back from USA she went to her in-lawsâ.. house at Panipat but found the house locked as her parents-in-law had gone to USA. She also stated that her husband had sent a complaint to SP Panipat leveling certain scandalous allegations against her. She graduated from Delhi University in 1998 and had done interior designing course from South Delhi Polytechnic. She alleged that her in-laws had three houses and an industrial unit in Panipat. They had properties in Delhi as well and respondent no.1 (her husband) had share in properties of her in- laws. She submitted that her complaint at CAW Cell Hissar could not be pursued by her as her in-laws had tried to mislead Haryana police and also because of a tragedy in her family. She left her parents.. house and came to Delhi to pursue her career prospects. She was presently residing at Malviya Nagar, Delhi. Till the time she was not given back her matrimonial home (at Panipat), she would live in Delhi, so the Court of MM at Delhi had jurisdiction. She prayed that custody of child Vanshika should be given to her. She should be given shares in properties at Panipat and Delhi as well as a house in New Jersey, USA. She should be given Rs.20,000/- per month for her maintenance and education as she intended to pursue further study and Court should direct for return of her dowry articles. Along with main application under the Domestic Violence Act, applications for interim reliefs were made. She in the application under Section 23 of the Act prayed for a residence or in lieu thereof a sum of Rs.20,000/- per month and Rs.50,000/- as onetime payment to meet education expenses, a car or Rs.8,000/- per month in lieu of the car and Rs.20,000/- per month for her day-to-day expenses and Rs.50,000/- as onetime payment to repay her debts.

4. The learned MM, by her order dated 27th July, 2009 directed that an amount of Rs.50,000/- per month be paid to wife as interim maintenance jointly or severally by respondents no. 1,2 & 4. She dropped respondent no.3 from the array of respondents on the ground that petition against a female respondent was not maintainable.

5. It was pleaded before the learned MM by the petitioner that there was a decree of divorce granted by a Competent Court of New Jersey, Chancery Division after following due procedure as laid down in USA. After grant of divorce there was no domestic relationship of Ms. Payal Malik with any of the respondents. (It is noted in the order of MM that the decree of divorce passed by the Court of US was placed on record.) Reliance was also placed by the petitioner on post nuptial agreement as entered into between husband and wife. The learned trial Court did not think it proper to deal with the issue whether an application under Section 12 of Domestic Violence Act could be entertained at all in respect of a divorced wife and whether the decree of divorce granted by the foreign Court where the parties had lived together for more than seven years, had some value or not.

6. The trial Court after discussing the objects and aims of The Protection of Women Against Domestic Violence Act, 2005 and after reproducing a quote from novelist Joseph Conrad “being a woman is a terribly difficult task, since it consists principally in dealing with men” [as if men, though given birth by women, are ferocious animals and not human beings, but cannibals] passed an order for grant of maintenance.

7. In appeal before the learned Sessions Judge, an argument was pressed that the judgment given by New Jersey Court was conclusive evidence of status of the parties and in view of Section 14 of Code of Civil Procedure and Section 4 of The Indian Evidence Act, unless the judgment was set aside the trial Court Crl. Rev. P. No.252/2010, 253/2010 & 338/2010 Page 4 of 16 should not have entertained the petition under Section 12 of The Protection of Women Against Domestic Violence Act. It was pleaded that only an application under Section 125 Cr.P.C. (which is applicable to divorced wife) could have been entertained by a Court, if moved. It was argued by wife that decree of divorce was obtained by fraud and was hit by Section 13 CPC and therefore could not stand in the way of entertaining an application under Section 12 of Domestic Violence Act.

8. The learned Sessions Judge while deciding appeal observed that the provisions of Domestic Violence Act are to be interpreted taking help of Section 125 Cr.P.C. and the explanation given under Section 125 Cr.P.C. of “Wife” is to be read in Domestic Violence Act also. He further observed that the Court has to take pragmatic approach and unless the dissolution of marriage was proved by evidence, the Court has not to act on the decree. He therefore dismissed the appeal filed by husband and other respondents observing that there was no illegality in the order of learned trial Court in granting maintenance. He allowed an appeal filed by wife in respect of execution of the order of of MM and directed that Ministry of External Affairs be sent a request to execute the order dated 27th July, 2009 as per law.

9. The first issue arising in this case is whether an application under Section 12 of Domestic Violence Act made by the respondent could have been entertained against all the respondents (petitioners herein) as arrayed in her application and whether the Court without discussing the domestic and legal relationship of different respondents with the petitioner, could have passed an order against the petitioners making them jointly and severally liable to pay maintenance of Rs.50,000/-.

10. Under Section 12, an „aggrieved person‟ can file an application to Magistrate against the respondents. The respondent has been defined under Section 2 (q). The definition reads as under:

“respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.

11. It is apparent that in order to make a person as respondent in a petition under Section 12, there must exist a domestic relationship between the respondent and the aggrieved person. If there is no domestic relationship between the aggrieved person and the respondent, the Court of MM cannot pass an order against such a person under the Act. Domestic relationship is defined under Section 2 (f) of the Act and is as under:

“domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;

12. It is apparent that domestic relationship arises between the two persons, who have lived together in a shared household and when they are related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. The definition speaks of living together at any point of time however it does not speak of having relation at any point of time. Thus, if the domestic relationship continued and if the parties have lived together at any point of time in a shared household, the person can be a respondent but if the relationship does not continue and the relationship had been in the past and is not in the present, a person cannot be made respondent on the ground of a past relationship. The domestic relationship between the aggrieved person and the respondent must be present and alive at the time when complaint under Domestic Violence Act is filed and if this relationship is not alive on the date when complaint is filed, the domestic relationship cannot be said to be there. The first respondent made by the wife in her complaint before the learned MM in this case was husband with whom the wife had lived under the same roof in a shared household till 22nd August, 2008 in USA. She had not lived for last 7 ½ years with respondent no.1 in India. Respondent No.4 is Varun Malik who is brother of the husband. Under no circumstances it can be said that brother of husband, who was a major and independent, living separately from this husband and wife, had any kind of domestic relationship or moral or legal responsibility/obligations towards his brother‟s wife. He had not lived in domestic relationship with Payal Malik at any point of time. Merely because a person is brother of the husband he cannot be arrayed as a respondent, nor does an MM gets authority over each and every relative of the husband, without going into the fact whether a domestic relationship or shared household was there between the aggrieved person and the respondent.

13. The other respondent made in this case is Harbans Lal, father of Nagesh Malik. Nagesh Malik was living in USA he came to India to solemnize his marriage with an appropriate person. After marriage was solemnized he left India and went to USA. He lived all along with his wife in USA, birth of the child had taken place in USA. In all such cases where boy lives abroad and is settled abroad but comes to India for marriage, it is known to the girl as well as to the parents of the girl that they are choosing a groom who is not living with his parents but settled abroad. His links with the parents are only as with any other relative. He is not dependent on parents may be parents, if poor, take financial help from him.

14. The girl and the parents of the girl knew it very well that they had selected a person for marriage with whom the girl was going to live abroad and the matrimonial home and the shared household was going to be outside India. This act of marrying a person settled abroad is a voluntary act of the girl. If she had not intended to enjoy the fat salary which boys working abroad get and the material facilities available abroad, she could have refused to marry him and settled for a boy having moderate salary within India. After having chosen a person living abroad,  putting the responsibility, after failure of marriage, on the shoulders on his parents and making them criminals in the eyes of law because matrimonial ties between the two could not last for long, does not sound either legally correct or morally correct. How can the parents of a boy who is working abroad, living abroad, an adult, free to take his own decisions, be arrayed as criminals or respondents if the marriage between him and his wife failed due to any reason whatsoever after few years of marriage. If the sin committed by such parents of boy is that they facilitated the marriage, then this sin is equally committed by parents of the girl. If such marriage fails then parents of both bride and groom would have to share equal responsibility. The responsibility of parents of the groom cannot be more. Shelter of Indian culture and joint family cannot be taken to book only relatives of boy. A woman‟s shared household in India in such cases is also her parents‟ house where she lived before marriage and not her in-laws‟ house where she did not live after marriage.

15. When the shared household of husband and wife had not been in India for the last 08 years at any point of time, it is strange that the learned MM did not even think it proper to discuss as to how the father or the brother of the boy could be made respondents in proceedings of domestic violence, after husband and wife had not been able to pull on together. In the present case, Mr. Harbans Lal Malik petitioner could not be said to have shared household with the respondent since the respondent had not lived in his house as a family member, in a joint family of which Harbans Lal Malik was the head.

16. It is important to consider as to what “family” is and what “joint family” is. As per Black‟s Law Dictionary (VI Edition) “family” means a collective body of persons who live in one house under one head or management. Dictionary states that the meaning of word “family” necessarily depends on field of law in which word is used, but this is the most common meaning. “Family” also means a group of blood relatives and all the relations who descend from a common ancestor or who spring Crl. Rev. P. No.252/2010, 253/2010 & 338/2010 Page 8 of 16 from a common root. However, for the purpose of domestic violence act where the object is to protect a woman from domestic violence, “family” has to be defined as a collective body of persons who live in one house under one head or management. In Chamber‟s Dictionary (1994-95) again the “family” is defined as all those who live in one house i.e. parents, children servants; parents and their children. In Shorter Oxford English Dictionary (1993 ed.) “family” is defined as a group of persons living in one household including parents and their children, boarders, servants and such a group is a organizational unit of society.

17. A Hindu Joint Family or Hindu Undivided Family (HUF) or a Joint Family is an extended family arrangement prevalent among Hindus of the Indian subcontinent, consisting of many generations living under the same roof. All the male members are blood relatives and all the women are either mothers, wives, unmarried daughters or widowed relatives, all bound by the common sapinda relationship. The joint family status being the result of birth, possession of joint cord that knits the members of the family together is not property but the relationship. The family is headed by a patriarch, usually the oldest male, who makes decisions on economic and social matters on behalf of the entire family. The patriarch‟s wife generally exerts control over the kitchen, child rearing and minor religious practices. All money goes to the common pool and all property is held jointly. The essential features of a joint family are:

 Head of the family takes all decisions

 All members live under one roof

 Share the same kitchen

 Three generations living together (though often two or more brothers live together or father and son live together or all the descendants of male live together)

 Income and expenditure in a common pool – property held together.

 A common place of worship

 All decisions are made by the male head of the family – patrilineal, patriarchal.

18. Thus, in order to constitute a family and domestic relationship it is necessary that the persons who constitute domestic relationship must be living together in the same house under one head. If they are living separate then they are not a family but they are relatives related by blood or consanguinity to each other. Where parents live separate from their son like any other relative, the family of son cannot include his parents. The parents can be included in the family of son only when they are dependent upon the son and/or are living along with the son in the same house. But when they are not dependent upon the son and they are living separate, the parents shall constitute a separate family and son, his wife and children shall constitute a separate family. There can be no domestic relationship of the wife of son with the parents when the parents are not living along with the son and there can be no domestic relationship of a wife with the parents of her husband when son along with the wife is living abroad, maintaining a family there and children are born abroad. I, therefore consider that Harbans Lal Malik could not have been made as a respondent in a petition under Domestic Violence Act as he had no domestic relationship with aggrieved person even if this marriage between her and her husband was subsisting.

19. I, also consider that the definition of “wife” as available under Section 125 Cr.P.C could not be imported into Domestic Violence Act. The Legislature was well aware of Section 125 Cr.P.C. and if Legislature intended, it would have defined “wife” as in Section 125 Cr.P.C in Domestic Violence Act as well. The purpose and object of Domestic Violence and provision under Section 125 Cr.P.C. is different. While Domestic Violence Act has been enacted by the Parliament to prevent acts of domestic violence on women living in a shared household. Section 125 of Cr.P.C. is to prevent vagrancy where wife is left high and dry without maintenance. Law gives a right to claim maintenance under Civil Law as well as Section 125 Cr.P.C. even to a divorced wife, but an act of domestic violence cannot be committed on a divorced wife, who is not living with her husband or family and is free to live wherever she wants. She has a right to claim maintenance and enforce other rights as per law. She has a right to claim custody of children as per law but denial of these rights do not amount to domestic violence. Domestic Violence is not perceived in this manner. The definition of “Domestic Violence” as given in Section 3 of The Protection of Women from Domestic Violence Act, 2005 and is under:

3. Definition of domestic violence.- For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it -

(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or (b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

Explanation I.-For the purposes of this section,-

(i) “physical abuse” means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;

(ii) “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;

(iii) “verbal and emotional abuse” includes- insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and

(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.

(iv) “economic abuse” includes-

(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;

(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the

aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and (c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.

20. This definition pre supposes that the woman is living with the person who committed violence and domestic relationship is not dead buried or severed. This does not speak of past violence which a woman suffered before grant of divorce.

21. The next question which arises is whether the learned Court of MM could have ignored the decree granted by the Court of New Jersey, USA. Section 14 of CPC reads as under:

14. Presumption as to foreign judgments. – The Court shall presume upon the production of any document purporting to be a certified copy of a foreign judgment that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction.

22. It is evident from the reading of this provision that the Court has to presume, if a certified copy of foreign judgment is produced that such judgment was pronounced by a Court of competent jurisdiction unless the contrary appears on record or is proved. Obtaining of divorce by husband from New Jersey Court is not denied in this case. Prima facie New Jersey, USA Court had jurisdiction is evident from the fact that husband and wife lived together in New Jersey for 7 ½ years. The laws of New Jersey provided that the jurisdiction in a matrimonial matter can be assumed by the Court if the parties have ordinarily lived there for one year. In the present case admittedly the parties lived there for 7 ½ years thus prima facie there was no issue whether the Court of New Jersey had jurisdiction or not.

23. Section 13 of CPC provides as under:

13. When foreign judgment not conclusive.

A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-

(a) where it has not been pronounced by a Court of competent jurisdiction;

(b) where it has not been given on the merits of the case; (c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of 1[India] in cases in which such law is applicable; (d) where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) where it has been obtained by fraud;

(f) where it sustains a claim founded on a breach of any law in force in 1[India].

24. It is evident that a foreign judgment has to be on the face of it considered to be final. The explanations as mentioned in Section 13 are to be proved by a person who alleges that the foreign judgment was not to be relied on and should not be considered. A foreign judgment can be set aside by a competent Court, only when the person aggrieved from foreign judgment asks for a declaration that the judgment should not be acted upon. So long as the foreign judgment is not set aside and the issue regarding foreign judgment is not adjudicated by a competent Court, the judgment cannot be ignored and a Court cannot brush aside a foreign judgment as a non- consequential. Section 13 & 14 of CPC provide how a foreign judgment is to be dealt with. A Court in India has to presume that the judgment delivered by a foreign Court where the parties had lived for 7 ½ years and given birth to a girl, is a judgment given by a competent court and if anyone wants that this judgment be disregarded, he has to prove the same before the Court. So long as he does not prove it, the judgment is considered as a valid judgment and has to be given effect to.

25. It was argued by the respondent Counsel that the respondent did not participate in proceedings before the Court of New Jersey, USA. Participating or not participating before the Court is not a ground for setting aside its judgment. The grounds for setting aside a foreign judgment are given in Section 13 CPC and this is not one of the grounds.

26. The question of jurisdiction was considered by the Court of New Jersey, USA that awarded decree of divorce and it is not shown by the Counsel for respondent how Court of New Jersey had no jurisdiction when the two parties lived there for 7 ½ years and gave birth to a US citizen within the jurisdiction of that Court. Learned Counsel for the respondent relied upon Y. Narasimha Rao v. Venkata Lakshmi (1991) 3 SCC 451 to press the point that a decree of divorce granted by a foreign Court should not be relied upon since the parties were married in India and they were governed by Hindu Marriage Act. A bare perusal of the judgment of New Jersey Court would show that the divorce was granted on the ground of cruelty which is one of the grounds available under Hindu Marriage Act.

27. In Y. Narasimha Rao‟s case (supra), decree of divorce was obtained by husband from the Circuit Court of St. Louis Country Missouri, USA by creating a jurisdiction of that Court as the condition for invoking jurisdiction of that Court was 90 days residence. Supreme Court observed that the residence does not mean a “temporary residence” for the purpose of obtaining divorce but it must be “habitual residence “which is intended to be a permanent residence for future as well, since it was not the case, the decree was found to be null and void. It is not the position in this case. The parties had made New Jersey as their home for 7 ½ years thus the Court of New Jersey could not be said to have assumed jurisdiction only on the basis of temporary residence of husband. I also consider that issue of assuming jurisdiction on the basis of temporary residence may have no force today when statutory provisions in India allow assumption of jurisdiction on the basis of a temporary residence [Section 27(1)(a) of Protection of Women from Domestic Violence Act, 2005].

28. I am surprised that the Courts below did not give weight to the judgment of New Jersey where parties lived for 7 ½ years but assumed jurisdiction under Domestic Violence Act because of the pure temporary residence (as pleaded by her) of wife in Delhi who is otherwise resident of Hissar. The Court of ASJ wanted that the order of the Court of MM should be honoured by the US while the Court here would not honour a decree of Court of USA where the husband and wife lived for 7 ½ years.

29. I consider that the decree of divorce granted by the Court of New Jersey, USA where husband and wife lived together for 7 ½ years and gave birth to a child could not be ignored and it could not be said that domestic relationship of the wife continued with her husband in New Jersey or her in-laws living at Panipat.

30. The learned MM and learned ASJ committed jurisdictional error by assuming jurisdiction under Domestic Violence Act, in view of admitted fact that the wife had all along, before filing the petition under Domestic Violence Act, lived with her husband in USA. Her shared household had been in USA, her husband was still living in USA the child was born in USA. The courts below also committed grave error by making brother or father of the husband and father of the husband jointly responsible for payment of Rs.50,000/- to the wife. There was no justification for directing brother of the husband to pay this amount. Once a son grows and he starts earning, marries, makes his separate home, and sires children the burden of his wife cannot be put on the shoulders of his father or brother on an estrangement between husband and wife. This burden has to be borne by the husband alone and not by the parents or bothers or sister of the husband, unless and until the husband had been contributing to the joint family as a member of HUF and has a right of deriving benefits from the joint family. If the husband had not been contributing or deriving benefits from the joint family, had not been member of the joint family and the parents had been treated like any other relative, how can the parents be burdened with the responsibility of his wife.

31. In view of my above discussion, order dated 27th July, 2009 passed by learned MM and order dated 7th May, 2010 passed by learned ASJ, directing payment of Rs.50,000/- jointly and severally, ignoring the decree of divorce and without devolving upon the domestic relationship are illegal and not tenable. The orders are set aside. No order as to costs.

July 29, 2010

SHIV NARAYAN DHINGRA, J. vn

Delhi Session Court:- Wife is not entittle for maintenance as she is able to maintain to herself which is proved by the IT assessment.

November 1, 2012 1 comment

IN THE COURT OF SHRI RAJNEESH KUMAR GUPTA,
ADDITIONAL SESSIONS JUDGE­01, DISTT. WEST, TIS
HAZARI COURTS, DELHI.

Crl. (R) No. 24/2012
Unique Case I.D. No. 02401R0173942012
Smt. Shakuntala
W/o Sh. Balender Kumar Vayas
D/o Late Shri Gopal Dass Malhotra
R/o H.No. F­207, C/o Smt. Kanta
W/o Chamanlal Puri, Moti Nagar, Delhi.
… Petitioner
Versus
Shri Balender Kumar Vyas
S/o Late Shri Mayudeen Vayas
R/o H.N. C­21, Srichand Park,
Near Matiala Uttam Nagar,
Delhi­110059 …     Respondent
Date of Institution  :  18.04.2012
Date or arguments :  10.10.2012
Date of orders :  30.10.2012
ORDER
This is a revision against the order dated 15.03.12 passed by the   trial   court   in   case   no.   705/04   of   PS   Moti   Nagar,   whereby   the application of the petitioner for interim maintenance U/s 125 Cr.PC has been dismissed.

2.  I   have   heard  the  Ld. Counsel   for  the   petitioner   and  Ld. counsel for the respondent and perused the file.
3. The   petitioner   has   filed   the   application   U/s   125   Cr.PC against the respondent alleging that the petitioner has married with the respondent on 20.1.1993 and out of the said wedlock one female child was born.  The maternal uncle of the petitioner Shri Buta Ram Chopra constructed a temple and handed over the reins of the said temple to the petitioner.  The petitioner also acquired another plot adjacent to it from her   own   funds.     The   respondent   used   to   humiliate   and   assault   the petitioner and also indulged in extra marital affairs.  The petitioner was thrown out of the house.  The respondent is working as a Pujari in the temple and is earning more than Rs. 35,000/­ per month.  The petitioner is   penniless   and   is   on   the   mercy   of   her   sister   for   her   minimum requirements. In the application of interim maintenance, the petitioner has prayed that the respondent be directed to pay Rs. 15,000/­ per month as interim maintenance.
In reply,  the respondent has alleged that the marriage with the   petitioner   was   solemnized   on   14.1.95.     The   said   marriage   was dissolved by a decree of divorce on 21.10.09.  The respondent is earning Rs.   2500  to   3000/­   per   month   by   doing   his   job   of   Puja   Path.   The petitioner  is   running   a Bhajan  Mandli   and  is   earning  more  than  Rs. 50,000/­ per month.  The petitioner is the co­owner of the house bearing No. F­207, Sudershan Park, Moti Nagar, New Delhi.  The petitioner is a income tax payee.   The respondent has denied the other allegations of the petitioner.
4. Ld. counsel for the petitioner has argued that the trial court has passed the impugned order on the basis of conjecture and surmises and which is against the facts and the law.  The trial court has passed the impugned order without considering the material on record.  The income tax   return   filed   by  the   respondent   pertains  to  the   year   2004­05   and 2005­06, while the  petitioner was living with the  respondent and the same were filed by the respondent in her name.  The petitioner has not made any concealment in her petition. On these grounds, it is prayed that the impugned order be set aside.
On   the   other   hand,   Ld.   counsel   for   the   respondent   has argued   that   the   trial   court   has   passed   the   impugned   order   after considering the material on record.  There is no illegality or infirmity in the impugned order.  The revision petition is without any merits and it be dismissed.
5. The   income   tax   returns   of   the   assessment   year   2004­-05 which is in the name of the petitioner shows the income of the petitioner as  1,04,502.   The income tax  return  of the  assessment   year  2005-­06 which is in the name of the petitioner shows the income of the petitioner as 1,67,267.   The petitioner has also alleged in her petition that she is  acquired  one  plot   adjacent  to the   plot in  which  the temple  has  been situated.  The petitioner has not specifically denied the allegations of the respondent that she is running a Bhajan Mandli and she is the head of said Bhajan Mandli and that she is the co­owner of the House bearing No. F­207, Sudershan Park, Moti Nagar, Delhi.
Keeping in view these facts which are showing the financial position   of the  petitioner,  I am  of the  opinion that the  petitioner  has failed to show that she is unable to maintain herself. Accordingly, I do not find any infirmity in the impugned order dated 15.03.12 passed by the trial court in case no. 705/04 of PS Moti Nagar and it is upheld. The revision   petition  is  without   any  merits   and  it  is   dismissed.    Nothing expressed herein shall tantamount to an opinion on the merits of the case.
Trial court record be sent back to the concerned trial court along with the attested copy of this order. Revision file be consigned to Record Room.

Announced in the open court                                                                      (Rajneesh Kumar Gupta)
today i.e. on 30.10.12                                                                          Additional Sessions Judge­01 (West)
Tis Hazari Courts, Delhi.
 

http://www.judis.nic.in/judis_cat/detail_dc.aspx

Categories: CrPC 125 Tags: ,

Culcutta High Court:-Mahommedan Muslim Women cannot have two Husbands at a same time hence not entitled to claim Maintenance U/S 125 from Present husband.

October 22, 2012 Leave a comment
Mulla’s Principles of Mahommedan Law particularly Sections 255 and 256. Section 255 prescribes that a Mahommedan may have as many as four wives at the same time but not more. Section 256 of Mahommedan Law prescribes that it is not lawful for a Mahommedan woman to have more than one husband at the same time. A marriage with a woman, who is her husband alive and who has not been divorced by him is void.

Calcutta High Court

Mosammat Mamuda Bibi
vs
Sk. Maniruddin @ Monirul And Anr.
on 23 March, 2005
Equivalent citations: 2005 (3) CHN 62
Author: P Sinha
Bench: P Sinha

JUDGMENT

P.N. Sinha, J.

1. As the factual matrix and principles of law involved in these two revisional applications are identical I intend to dispose of both the revisional applications by this common judgment and order.

2. Mosammat Mamuda Bibi as petitioner filed CRR No. 1594/04 in this Court assailing the judgment and order dated 21.4.04 passed by the learned Judicial Magistrate, 3rd Court, Diamond Harbour in Misc. Case No. 197/97 thereby allowing maintenance @ Rs. 1500/- per month for herself and @ Rs. 1000/- per month for her minor son totalling Rs. 2500/- per month as maintenance with effect from the date of the order. During the course of hearing in this Court it transpired that, challenging the same order the husband Sk. Maniruddin has preferred a criminal revision before the learned Sessions Judge, South 24-Parganas at Alipore which was registered in that Court as Criminal Motion No. 330 of 2004. This Court under its supervisory power and to avoid conflicting decisions called for the records of the said criminal motion from the Court of the learned Sessions Judge, South 24-Parganas, and after receipt of the record of Criminal Motion No. 330 of 2004 it has been registered in this Court as CRR No. 647/05.

3. The facts of the case as it appears from the application under Section 125 of Cr. PC filed by Mamuda Bibi is that she is the legally married wife of Sk. Maniruddin (petitioner of CRR 647/05 and O.P. of CRR 1594/04). The marriage was solemnised on 30.5.9.1 according to their Muslim Sariyat and Customs and after marriage the wife went to husband’s house and lived together as husband and wife. In the marriage ‘Den Mohor’ was fixed at Rs. 20,000/-. Since marriage the wife was subjected to torture by the husband for more dowry. They were blessed with a son who was about 10 years in age when the application was filed. Finally on 16.4.94 the wife was driven out from her matrimonial home by the husband after severe assault. She filed one application for maintenance on 6.1.95 but, after appearance of the husband the said case was withdrawn on the assurance of the husband that he would pay maintenance to her and to her son. But the husband did not pay any maintenance either to her or to her minor son. Finding no other alternative, the wife Mamuda Bibi instituted the present application under Section 125 of Cr. PC and after end of the trial the learned Magistrate allowed her prayer in part and passed maintenance order in favour of wife @ Rs. 1500/- per month and in favour of the minor son @ Rs. 1000/- per month. Initially in her application the wife claimed maintenance @ Rs. 1500/- and 1000/- per month respectively for herself and for her minor son. Subsequently, by filing a petition for amendment she claimed maintenance @ Rs. 10,000/- each for herself and for her minor son.

4. It appears that the wife has preferred the instant revisional application for enhancement of inadequate amount of maintenance granted by the learned Magistrate. On the contrary, the husband has preferred the criminal revision challenging illegality of the order passed by the learned Magistrate so far as it relates to granting of maintenance to the wife.

5. Mr. Abdulla Rahamani, learned Advocate for the wife submitted that the learned Magistrate acted illegally by observing in the body of the judgment that the wife was a woman who has been divorced and also illegally framed a point as to whether a ‘talaqi woman’ is entitled to claim maintenance. He submitted that there was no averment in the written objection that the husband Sk. Maniruddin gave her divorce or ‘talaq’. In the evidence it did not transpire at all that the husband gave her divorce. The husband earns more than Rs. 2,00,000/- per month by running a Nursing Home. The husband is a quack doctor and has sufficient means of income from his profession. The husband did not produce any paper or document or did not adduce any cogent oral evidence to establish his income. It is the duty of the husband to prove his own income as it is within special knowledge of the husband regarding his income and burden of proof is on the husband to prove his income.

6. He further submitted that the husband in the written objection introduced the story that the wife was married previously. But in evidence the husband did not lead any evidence to prove previous marriage of the wife with another man namely Abdul Hai Molla. The learned Magistrate did not consider that by amendment the wife claimed enhanced maintenance and prayed for maintenance @ Rs. 10,000/- each per month for herself and for her minor son. The learned Magistrate did not- at all consider the income of the husband and maintenance amount granted by the learned Magistrate was not only inadequate, but it was shockingly below. The learned Magistrate also made illegality by making the maintenance order effective from date of order whereas, the trend of decisions is that, the maintenance order should be from date of application. In support of his contention he cited the decisions in Sk. Safique v. Papia Bibi, reported in 2001 C Cr LR (Cal) 64, Nirendra Nath Dey and Anr. v. State of West Bengal, reported in 1997 C Cr LR (Cal) 14, Rousseau Mitra v. Chandana Mitra, reported in 2003 CWN 1136, Ali Hossain v. Baby Farida Khatoon, reported in 1998 Cri. L. J. 2762, Chandana Guha Roy v. Goutam Guha Roy,reported in 2004(1) CLJ (Cal) 1, Sudipta Mukherjee v. Dibyendu Mukherjee, reported in 1998 CWN 38, Sankar Prosad Ghosh v. Lakshmi Rani Ghosh, reported in 1998 C Cr LR (Cal) 101, Jolly Paul v. Ram Chandra Paul, reported in 2000 C Cr LR (Cal) 146, Amina .v. Hassn Koya, reported in JT 2003(4) SC 363 and Ashoka Dutta Gupta and Anr. v. Sujit Dutta Gupta and Anr., reported in 2000 C Cr LR (SC) 459.

7. Mr. Debasish Roy, learned Advocate for the husband and petitioner of CRR No. 647/05 submitted that marriage between the parties and birth of child out of the wedlock is admitted. The learned Magistrate granted interim maintenance @ Rs. 900/- in all and challenging that order the wife filed CRR No. 801/01 and this Court enhanced interim maintenance for the wife @ Rs. 900/ – per month and for the child @ Rs. 600/- per month and the husband is paying that amount. The evidence of the wife as P.W. 1 in the Court below particularly in cross-examination, reveals that her previous husband was Abdul Hai Molla and she did not keep any touch with her previous husband. She did not enquire whether her previous husband Abdul Hai Molla is alive or dead. Evidence of OPW 2 Julfikar Laskar reveals that he knows Abdul Hai Molla of village Moruiberia under P.S. Diamond Harbour and Abdul Hai Molla is a mohorar of BL & LRO office at Magrahat. There was no cross-examination of OPW 2 on the part of the wife. It establishes that the previous husband of Mamuda Bibi namely Abdul Hai Molla is alive. There was no evidence before the learned Magistrate that there was divorce between Mamuda Bibi and Abdul Hai Molla. The first marriage of Mamuda Bibi with Abdul Hai Molla is still existing and that marriage tie was not severed by pronouncement of talaq or decree of divorce. The subsequent marriage of Mamuda Bibi with Maniruddin Sk. is the second marriage of Mamuda Bibi and Muslim Law does not permit second marriage of Muslim woman. A Muslim man may have as many as four wives but, it is not lawful for a Mahommedan woman to have more than one husband at same time. Therefore, Mamuda is not the legally married wife of Sk. Maniruddin. That being the legal position, Mamuda Bibi cannot claim any maintenance from Sk. Maniruddin. Order of learned Magistrate granting maintenance to the wife Mamuda Bibi being illegal should be set aside.

8. Mr. Roy further submitted that Mamuda Bibi herself is a quack doctor, and she earns sufficiently otherwise she could not have spent huge amount as expenses for the education of her son who is reading in a school where monthly tuition fee is Rs. 1175/-. It shows that she has her own income. She is an accused in a case under Section 313 of Indian Penal Code. The order of the learned Magistrate granting maintenance to the wife should be cancelled. The husband has nothing to say so far as it relates to the order of maintenance for the minor son.

9. After considering the submissions made by the learned Advocates of the parties and going through the pleadings of the parties as well as the contents of revisional applications and materials on record, I find that the marriage between Mamuda Bibi and Sk. Moniruddin is admitted, and it is also admitted that out of their wedlock one son namely, Mijanur Rahaman @ Sk. Mijanur was born to them, who is now a student of Class VI at Sishu Bikas Academy at Chakraberia Mokrampur More. The marriage between the said couple was registered also as it transpires from evidence of P.W. 1 Mamuda Bibi. Wife’s case is that she was driven out of matrimonial home on 16.4.94 after assault and during her stay in matrimonial home she was subjected to torture both physically and mentally for further dowry. It appears from the evidence of the parties that the wife has also filed a case against the husband for torturing her. As the husband did not pay any money or maintenance she filed an application under Section 125 of Cr. PC in which there was order of interim maintenance @ Rs. 900 /- per month in all which was subsequently enhanced to Rs. 1500/- per month by this Court in CRR No. 801/01. Thereafter, the learned Magistrate by the impugned order dated 21.4.04 disposed of the application under Section 125 of Cr.PC and granted maintenance of Rs. 2500/- in all to the wife and her minor son, and the said order is under challenge by both the parties in these revisional applications.

10. Before entering into merits of the revisional applications I clearly observe that the learned Magistrate acted illegally by mentioning in the judgment that the wife is a ‘talaqi woman’ and also framing a point for decision whether a talaqi woman is entitled to claim maintenance and if so, what would be the quantum. There was no pleading either by the wife herself, or by the husband in his written objection that there was divorce or talaq between Mamuda Bibi and Sk. Maniruddin. The remarks of the learned Magistrate that Mamuda Bibi is a ‘talaqi woman’ is therefore, bad in law and the said remark being extraneous and not pleaded or canvassed by either of parties in evidence and argument is hereby expunged. There was no evidence that Sk. Maniruddin gave her talaq or that there was any decree of divorce from a competent Civil Court severing the marital tie between Mamuda Bibi and Sk. Maniruddin. It is crystal clear that the learned Magistrate failed to understand the nature of the case of the parties, as it was the specific case of the husband that, Mamuda Bibi was previously married with one Abdul Hai Molla and, there was no divorce between Abdul Hai Molla and Mamuda Bibi, and being so, Mamuda Bibi is not the legally married wife of Sk. Maniruddin. I would enter into discussion regarding this point later on but, I make it clear that the observation of the learned Magistrate that Mamuda Bibi was a ‘talaqi woman’ was unfortunate and the said remark shows non-application of mind by the learned Magistrate.

11. It is well-settled that the husband has the duty to prove his own income and in view of provisions of Section 106 of the Evidence Act, the burden of proof is on the husband as it is within his special knowledge regarding his income. The wife’s case was that the husband runs a Nursing Home under the name and style ‘Orient Nursing Home’ and that the husband is the quack doctor and very popular doctor in that area and earns more than Rs. 2 lakhs per month. On the other hand, the husband took the plea that he is a confirmed unemployed person and works sometimes in a Nursing Home and earns hardly Rs. 1000/- to Rs. 1500/- per month. The wife could not produce relevant papers and documents before the Trial Court to prove the exact or probable income of the husband, but at the same time the husband also did not produce any paper and document to show his actual or probable income per month or annually. On a consideration of evidence of both parties and considering that this quasi civil proceeding, the preponderance of probabilities would be in favour of the evidence of the wife. Moreover, the decisions of this Court reported in Chandana Guha Roy (supra) and in Sushil Mondal v. Shibdas Patra, reported in 2005(1) C Cr. LR (Cal) 150, established that the burden of proof was on the husband to disclose his income as it was within his special knowledge in view of provisions of Section 106 of the Evidence Act. Considering the evidence of the parties I am of opinion that, the husband Sk. Maniruddin is a solvent person, rather a rich person, and his monthly income is not less than Rs. 40,000/- per month otherwise, he could not have constructed a three-storied building to run a Nursing Home. The neglect of the husband to maintain his wife and children was already established when the wife had to take shelter of the Court to claim maintenance and the Court allowed interim maintenance in favour of the wife and her minor son and there was no evidence to prove that during her stay in father’s house, the husband sent her money or maintenance.

12. The next crucial and pertinent point is whether the wife Mamuda Bibi is entitled to claim maintenance for herself as the husband has denied her legal right to claim maintenance from him disclosing that she is not his legally married wife, which is one of the essential conditions of claiming maintenance under Section 125 of Cr. PC. The husband has admitted before this Court that he is agreeable to pay maintenance to his son born out of Mamuda Bibi namely Sk. Mijanur. In this connection, I intend to refer Mulla’s Principles of Mahommedan Law particularly Sections 255 and 256. Section 255 prescribes that a Mahommedan may have as many as four wives at the same time but not more. Section 256 of Mahommedan Law prescribes that it is not lawful for a Mahommedan woman to have more than one husband at the same time. A marriage with a woman, who is her husband alive and who has not been divorced by him is void. From evidence of Mamuda Bibi as P.W. 1 it transpires that Abdul Hai Molla was her first husband and she has a son who is now major, born out of wedlock with Abdul Hai Molla. She in her evidence stated that she did not keep any news of her previous husband and she has no connection with Abdul Hai Molla. She also stated that she does not know whether Abdul Hai Molla is dead or alive. Evidence of P.W. 2 Kuddus Sk. also reveals that Mamuda Bibi has a son by another man whose name he does not know. Sk. Maniruddin as OPW 1 stated that Abdul Hai Molla is the first husband of Mamuda Bibi and Abdul Hai Molla is a mohorar of BL & LRO Office at Magrahat. OPW 2 Julfikar Laskar in his evidence stated that he knows Abdul Hai Molla of village Moruiberia who is a mohorar at BL & LRO Office at Magrahat. There was no cross-examination of OPW 2 at all by the wife and cross-examination of OPW 1 by Mamuda Bibi regarding Abdul Hai Molla was also not proper on this fact. The evidence that was led in the Trial Court clearly proves that Mamuda Bibi was previously married with Abdul Hai Molla of village Moruiberia and Abdul Hai Molla is still alive. There was no pleading and evidence by the wife or by the husband Sk. Maniruddin that there was talaq given by Abdul Hai Molla to Mamuda Bibi, or that there was divorce from a competent Civil Court severing the marital tie between Mamuda Bibi and Abdul Hai Molla. It has been proved that when Mamuda Bibi married Sk. Maniruddin she had her previous husband Abdul Hai Molla alive with whom there was no divorce or talaq. In view of provisions of Section 256 of the Mahommedan Law, Mamuda Bibi being a Muslim lady cannot have more than one husband at same time. Her marriage with Sk. Maniruddin, when her previous husband is alive and when there was no divorce between her and Abdul Hai Molla is, therefore, void or “batil’ in accordance with Mahommedan Law. Though Section 256 of Mahommedan Law established that marriage of Mamuda Bibi with Sk. Moniruddin was not valid, though the marriage was registered, neither this Court nor the Court of learned Magistrate can pass any order snapping their marital tie and severing their status of husband and wife. A competent Civil Court can only pass decree declaring the marriage between them as irregular (fasid) or void (batil). They may continue to remain as husband wife without approaching the Court for such declaration or the husband not giving her talaq in accordance with the rules or ordains of the Holy Quoran. Even if there is no talaq in accordance with law or decree of divorce from competent Civil Court, still it will operate as a bar for the wife Mamuda Bibi to claim maintenance under Section 125 of Cr. PC from Sk. Maniruddin as her marriage was not valid under provisions of Mahommedan Law. Such a marriage does not confer her right to claim maintenance from Sk. Maniruddin under Section 125 of Cr. PC.

13. One interesting question may arise as to whether in view of provisions of Section 255 of Mahommedan Law, marriage of Mamuda Bibi with Maniruddin became valid as a Mahommedan may have as many as four wives, and conferred on her right to claim maintenance under Section 125 of Cr. PC. It is true that a Muslim male who has attained marriageable age can marry as many as four wives but, that would not validate the marriage of Sk. Maniruddin and Mamuda Bibi to give her status of legally married wife to claim maintenance. Marriage with Mahommedan woman by a Mahommedan would clearly indicate that the woman must be either spinster, or if married earlier, has obtained talaq or divorce from her previous husband. In the instant case Mamuda Bibi did not obtain talaq from her previous husband Abdul Hai Molla, and there was also no divorce between her and Abdul Hai Molla by decree of competent Court. Not only that in view of provisions of Section 273 of the Mahommedan Law, Mamuda Bibi did not exercise her option of repudiating the marriage with Abdul Hai Molla after attaining puberty or age of 15 years and before completing age of 18 years. Rather evidence reveals that she stayed with Abdul Hai Molla as husband and wife and out of that wedlock a son was also born to them. Section 125 of Cr. PC does not make any distinction between a Hindu wife and a Muslim wife so far as it relates to claim of maintenance by second wife. In the present case Mamuda Bibi, being the second wife of Sk. Maniruddin, and the marriage was against principles of Mahommedan Law, cannot claim maintenance from her present husband. The learned Magistrate did not consider this aspect that provisions of Section 256 of Mahommedan Law is a clear bar for Mamuda Bibi to claim maintenance from Sk. Maniruddin under Section 125 of Cr. PC. The order of the learned Magistrate granting maintenance to Mamuda Bibi for herself being illegal and improper is set aside.

14. The decisions cited by the learned Advocate for the petitioner of CRR No. 1594/04 requires no discussion as the principles laid down in the said decisions are well-settled. The said decisions are not applicable in the facts and circumstances of the present case and particularly in view of provisions of Section 256 of Mahommedan Law, when there was no divorce between Mamuda Bibi and her first husband Abdul Hai Molla. Even the decision of Amina v. Hassn Koya (supra) is not properly applicable in this case as in the reported case of Hassn Koya there was no previous marriage of the said wife who was pregnant at the time of marriage, whereas in the present case Mamuda Bibi, the wife of Sk. Maniruddin was previously married with Abdul Hai Molla and there was no divorce or talaq between her and Abdul Hai Molla.

15. Mamuda Bibi is entitled to claim maintenance for her minor son Sk. Mijanur @ Mijanur Rahaman. The said son is now a student of a school whose monthly fee is Rs. 1155/- per month excluding costs of hostel charge. Besides that, the said child has to maintain his dresses for the school as well as clothing for his daily need, books, costs of daily required articles, tuition fee etc. Considering all these aspects and considering income of the husband and increase of price of all essential commodities, I am of opinion that the maintenance amount granted by the learned Magistrate for the minor son of Mamuda Bibi was inadequate. It is a fit case where this Court should interfere into the order of learned Magistrate so far as it relates to quantum of maintenance to the minor son, and in my opinion, the husband Sk. Maniruddin should pay maintenance to his son @ Rs. 4000/- per month and this order would become effective from the date of the application for enhancement or amendment of maintenance amount filed by the wife Mamuda Bibi. The entire payment made by Sk. Maniruddin in terms of interim maintenance order passed by this Court in CRR No. 801/01 and also in terms of order of the learned Sessions Judge, South 24-Parganas at Alipore at the time of admitting Criminal Motion No. 330/04 shall be adjusted against the arrear maintenance amount that has to be paid by the husband to his son. The husband Sk. Maniruddin shall pay the maintenance amount to his son at the aforesaid rate till change of circumstances within 7th of the each succeeding month according to English calendar.

16. In view of the discussions made above the revisional applications being CRR No. 1594/04 and CRR No. 647/05 are allowed in part and dispose of accordingly in the light of the observations made above.

17. This order will govern both the revisional applications bearing CRR No. 1594/04 and CRR No. 647/05.

18. Send a copy of this order to the learned Sessions Judge, South 24-Parganas at Alipore for information regarding noting of disposal of Criminal Motion No. 330/04 of his Court which has been registered as CRR No. 647/05 in this Court, if not already noted in his register, and also a copy of order to the learned Judicial Magistrate, 3rd Court, Diamond Harbour for information and necessary action.

19. Urgent xerox certified copy be given to the parties, if applied for, expeditiously.

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