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Supreme Court:- Mere kicking or slapping or divorce threats do not come under the purview of Section 498A

December 5, 2011 Leave a comment
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Supreme Court of India
 
Bhaskar Lal Sharma & Anr. Vs. Monica on 27 July, 2009
Author: S.B. Sinha
Bench: S.B. Sinha, Cyriac Joseph

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. OF 2009 [Arising out of Special Leave Petition (Crl.) Nos. 4125-4126 of 2008]

BHASKAR LAL SHARMA & ANR. …APPELLANTS

Versus

MONICA …RESPONDENT

JUDGMENT

S.B. SINHA, J:

Leave granted.

Respondent Monica married Vikas Sharma (Vikas), son of the

appellants herein. Vikas was a divorcee. He obtained the decree of divorce

on or about 8th July, 2003 passed by the Civil Court in Lubumbashi, Congo.

He had two children born on 23rd April, 1999 and 8th July, 2000 respectively

from his first wife.

2

Indisputably, Vikas as also the appellants are engaged in the family

business of import and export of about 150 commodities. Vikas was the

Managing Director of the family managed Company since 1994 having its

operating business places at Delhi, Bangkok, Shanghai, Brussels,

Johannesburg, Kinshasa, Lubumbashi, Uganda, etc. Vikas and the

appellants ordinarily live in Congo. They have a residential house also at

Lajpat Nagar, New Delhi.

Negotiation between Vikas and the respondent – Monica took place

through an agency known as `Sycorian Matrimonial Services’. The

marriage took place at Sanatan Dharam Mandir Hall, Delhi on 16.1.2004. It

was also registered with the Registrar of Marriages, MB Road Saket, New

Delhi on 22.1.2004. Immediately thereafter, i.e., on or about 25.1.2004, the

couple left India and stayed in Johannesburg, South Africa for about 10

days. They thereafter left for Lubumbashi, Conga, Africa. They stayed

there for 2 months in their matrimonial home. The relationship between the

parties was cordial during that period.

Monica came back to India on 5.4.2004. She stayed at her

matrimonial home at Lajpat Nagar, New Delhi till 10.5.2004 with the 3

appellants. She again left for Lubumbashi, Africa to join her husband.

However, the relationship between the parties deteriorated thereafter. They

came back to India on 21.5.2004. Monica allegedly took all her belongings

from Congo including clothes and the jewelry which she had been carrying.

On or about 26.5.2004, Vikas and the respondent visited Dr. Nagpal, a

psychiatrist at Vim Hans Hospital for consultation to ascertain the reason for

the non-compatibility and discord between them. Dr. Nagpal advised them

to make their matrimonial life successful.

Vikas left for Congo on 27.5.2004 hoping that Monica would change

her mind in regard to the future of their marriage and they should take a

decision in regard to her going back thereto later. She, however, for one

reason or the other, went to her parent’s house on 14.6.2004 and took all her

belongings including the jewelry articles which she had been carrying.

Allegedly, during that period, appellant No.2 humiliated her by

various acts to which we would advert to a little later.

It is borne out from the records that during this entire period including

the period after she left her matrimonial home in June 2004, parties

communicated with each other through e-mails. 4

Monica filed a complaint marked as Complaint No. 287/1A under

Sections 498A, 406 and 34 of the Indian Penal Code (for short, "IPC")

against her husband Vikas and the appellants on 9.9.2004. On the same day,

an application for grant of maintenance was also filed in the Court of learned

Additional Chief Metropolitan Magistrate, Patiala House Courts, New Delhi

under Section 125 of the Code of Criminal Procedure (for short, "the Code")

claiming maintenance of a sum of Rs.2 lakhs per month as also an order of

an interim maintenance of Rs.2 lakhs per month till the disposal of the case.

She was examined by the learned Metropolitan Magistrate Patiala House,

New Delhi on 30.11.2004. Evidences were recorded whereafter summons

had been issued on 21.3.2005 by the learned Metropolitan Magistrate. Her

application for grant of interim maintenance was also allowed by the learned

Metropolitan Magistrate by an order dated 10.5.2005 and granted interim

maintenance at the rate of Rs.5,000/- per month.

Non bailable warrants of arrest were also issued against the appellants

as also Vikas on 29.6.2005.

The respondent being not satisfied with the quantum of maintenance

as granted by way of an interim arrangement filed a Revision Application

before the High Court marked as Criminal Revision No. 452 of 2005 5

seeking increase in the maintenance granted by the learned Metropolitan

Magistrate. The High Court enhanced the amount of compensation of

interim maintenance to Rs.50,000/- per month. The amount of maintenance

has since been fixed at Rs.50,000/- per month by the said Court.

On or about 2.8.2005, appellants as also Vikas filed application

marked as Criminal (Misc.) No. 3673-75 of 2005 under Section 482 of the

Code before the Delhi High Court for quashing the order directing issuance

of non-bailable warrants against them. The High Court by its order dated

8.8.2005 stayed the order issuing non-bailable warrants against the

appellants with an undertaking that Vikas and appellants would appear

before the learned Magistrate.

Appellants along with Vikas also filed an application marked as

Criminal (Misc.) Main No. 4742 of 2005 under Section 482 of the Code for

quashing of the summoning order dated 21.3.2005 passed by the learned

Magistrate in Complaint No.287/1A summoning them for attending the trial

court under Sections 498A, 406 and 34 of the IPC.

On 3.10.2005, appellants and their son came to India; they appeared

before the learned Magistrate; they were admitted to bail. 6

The High Court by its order dated 4.10.2005 passed in Criminal

Revision No. 452 of 2005 directed impounding of the passport of Vikas

stating that the efforts were being made for reconciliation. Admittedly talks

of reconciliation failed. The High Court modified the said finding stating

that the marriage seems to have broken down irretrievably and directed

return of the passport to him by an order dated 6.10.2005. Pursuant to the

liberty granted by the High Court, appellants as also Vikas filed an

application on 15.10.2005 for permission to go abroad, which was allowed

subject to the condition that additional bank guarantees be furnished of Rs.1

lakh for each of the applicant.

Monica challenged the said order before the High Court which was

dismissed by an order dated 18.10.2005.

On 21.11.2005, Monica filed a Criminal Complaint No.574/1 under

Section 420 of the IPC against the appellants and Vikas inter alia alleging all

material facts relating to the first marriage and divorce and in particular the

fact that the first wife of Vikas in her divorce suit alleged acts of cruelty on

the part of her husband had not been disclosed. 7

On 12.12.2005, Monica challenged the order of the Delhi High Court

dated 18.10.2005 before this Court by way of Special Leave Petition

(Criminal) No. 6015-6016 of 2005, which was dismissed by an order dated

12.12.2005.

Despite the same, Monica filed another petition before the High Court

under Section 482 of the Code inter alia praying that the learned trial court

may be directed not to release the passport of Vikas till the application filed

by her under Section 340 of the Code is disposed off.

Another petition marked as Criminal Misc. (Main) No. 519 of 2006

was filed by her for a direction upon the learned trial court to dispose of the

case filed by her under Sections 498A/406 IPC and 420 IPC within a time

frame of about 3 months and the appellants as also Vikas be directed to

submit all the papers relating to their properties in India before the learned

trial court.

The High Court by its order dated 7.2.2006 dismissed the petition

filed by the respondent with costs.

8

On 20.3.2006, the learned Metropolitan Magistrate, New Delhi took

cognizance of the complaint No. 574/1 under Section 417/415 IPC as the

allegations were not made out under Section 420.

On 27.3.2006, the order dated 7.2.2006 passed by the High court was

challenged by the respondent before this Court by way of Special Leave

Petition (Criminal) No.1220 of 2006, which was dismissed with a direction

to the trial court to expedite the proceedings.

Indisputably for one reason or the other (appellants had given some

explanation in this behalf in the Special Leave Petition) appellants having

failed to attend the court of the learned Metropolitan Magistrate, Monica

filed an application for attachment of the ancestral property of the first

appellant. Interpol also was sounded. Orders were passed for attachment of

the property in terms of Section 83 of the Code situated both at Delhi as also

the ancestral house of the first appellant at Jaipur. Although the order of

attachment so far as the Jaipur property is concerned is said to have been

passed in terms of Section 83(4)(c) of the Code, Monica allegedly forged the

said order to show that the order of attachment has been passed in terms of

Section 83(4)(a) thereof.

9

Brother of the first appellant lodged a First Information Report

("FIR") with Moti Dungri Police Station, Jaipur. We are, however, not

concerned with the said case at present.

Indisputably on 17.11.2007, Monica filed a petition under Section 9 of

the Hindu Marriage Act, 1955 seeking for restitution of conjugal rights

marked as Case No. 683 of 2007, which is pending in the Court of learned

Additional District Judge, Tis Hazari, New Delhi.

We may place on record that at the instance of Monica several

attempts have been made for reconciliation of matrimonial dispute between

her and Vikas.

We may also place on record that applications dated 9.5.2008 and

31.5.2008 respectively were also filed before this Court by the respondent

for mediation

Chandan Sharma, another son of the appellants came from Hong

Kong to India for that purpose. Monica, however, insisted that appellant

No.1 himself should come to India before her husband Vikas comes, which

was not acceptable to the appellants as the reconciliation of the disputes was

to take place between Monica and her husband Vikas. 10

We may notice that even this Court in the transfer petition filed by

Monica being Transfer Petition (Crl.) No. 258 of 2007 by its order dated

4.2.2008 impleaded Union of India through Ministry of External Affairs as a

party and learned Additional Solicitor General appearing for Union of India

made a statement before this Court on 11.4.2008 that Emergency Travel

Documents would be made available to Vikas and upon his arrival a regular

passport would be issued. Interpol/Ministry of External Affairs were

directed not to enforce the Red Corner Notice against Vikas Sharma.

Pursuant thereto Vikas traveled to India.

On 9.5.2008, Vikas appeared before this Court in Transfer Petition

(Criminal) No. 258/2007 and this Court by an order dated 9.5.2008 directed

the complainant and Vikas to report to the Senior Coordinator of the

Mediation Cell at Tis Hazari Courts, Delhi to explore the possibilities of

resolving/settlement of their matrimonial discord. Pursuant thereto the

parties appeared before the learned Senior Mediator and the mediation

processes were resorted to on day to day basis. Indisputably however, the

said negotiation failed. The matter was listed before this Court on 11

11.6.2008. The parties were given an opportunity to reconcile their disputes.

However, they could not arrive at any settlement.

The High Court by reason of the impugned order dated 21.1.2008

dismissed the application for quashing the summoning order dated

21.3.2005 filed by the appellants herein, opining:

"14. In order to attract the offence under Section 498A it would have to be proved that the wife was subjected to cruelty which could include mental cruelty. Whether the conduct was such as to cause grave injury or danger to the mental health of the woman are all matters to be examined only after the detailed evidence is led by the prosecution. At this stage, when a prayer is made for quashing of the criminal proceedings, this Court is not expected to go through the pre-summoning evidence in great detail and determine whether in fact all the ingredients of the offence as set out under Section 498A are actually made out or not.

15. Likewise the submission of the petitioners regarding non-entrustment of property to them by the complainant for the purposes of attracting the offence under Sections 403 read with 406 IPC is without merit. It was attempted to be shown by learned counsel for the petitioner that there is no specific averment that property was entrusted by the complainant to either of these petitioners or that they had criminally misappropriated the same. This Court is unable to agree. The averments in paras 16, 24 and 29 of the complaint when read taken collectively do indicate that the property which belonged to the complainant was, according to the complainant, in the possession of the Petitioners and on demand they refused to return 12

such property. At this stage, in order to examine if the complaint makes out a prima facie case, it is not necessary to go into the fine details and determine whether what is stated in the complaint is true or not.

16. In this context the observations of the Supreme Court in Rashmi Kumar v. Mahesh

Kumar Bhada (1997) 2 SCC 397 would be

relevant. In that case while examining Section 406 in some detail, this Court observed as under (SCC p. 407): The expression entrustment carries with it the implication that the person handing over any property or on whose behalf that property is handed over to another, continues to be its owner. Entrustment is not necessarily a term of law. It may have different implications in different contexts. In its most general signifance, all its imports is handing over the possession for some purpose which may not imply the conferment of any proprietary right therein. The ownership or beneficial interest in the property in respect of which criminal breach of trust is alleged to have been committed, must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit."

Mr. Vikas Pahwa, the learned counsel appearing on behalf of the

appellants urged that the High Court committed a serious error in passing the

impugned judgment insofar as it failed to take into consideration that:

i. the complaint petition even if given face value and taken to be

correct in its entirety does not disclose commission of offences 13

either under Section 498A or Section 406 of the IPC so far as

the appellants are concerned;

ii. the order summoning the appellants passed by the learned

Metropolitan Magistrate, New Delhi dated 21.3.2005 would

categorically show that there has been a complete non-

application of mind on the part of the learned Magistrate;

iii. The High Court failed to consider the e-mails exchanged

between the parties which were annexed to the complaint

petition itself. Had the said e-mails been taken into

consideration, it could have been shown that no allegation of

dowry demand or misappropriation of her Streedhan had been

made therein;

iv. the complaint petition does not disclose that any dowry has

been demanded by the appellants or any act on their part was

likely to drive the woman to commit suicide; which are the

requisite ingredients in regard to commission of an offence

under Section 498A of the IPC.

v. Only two purported instances have been given with regard to

alleged commission of an offence against the appellant No.1 14

and so far as the appellant No.2 is concerned, the allegations are

only general in nature.

vi. The FIR in question and other spate of litigations started by

Monica against her husband and her parents-in-law clearly

show acts of mala fide on her part inasmuch as she not only

filed the complaint petition in question but also filed an

application for grant of maintenance, a complaint petition under

Section 420 of the IPC wherein an order of summoning had

been issued as also an application under Section 9 of the Hindu

Marriage Act, 1955 for the purpose of harassing her in-laws but

at the same time she had been asking for mediation of their

matrimonial dispute.

Mrs. Vinay Malhotra, the mother of the respondent, on the other hand,

urged that:

i. the appellants had been harassing and torturing the respondent

in a systematic and planned manner to break her marriage with

their son so as to compel her to agree for a divorce on receiving

some amount.

15

ii. Stridhan was entrusted to the appellants/their son and non-

return thereof had been used as a coercive method to meet the

unlawful demand of extracting divorce by mutual consent

iii. Appellants had been taking different stands at different time as

although no statement has been made before the High Court

that they had returned the stridhan to the respondent; such a

stand has been taken for the first time in the Special Leave

Petition.

iv. the respondent in her testimony having stated that the appellants

had refused to call their son to India and had refused to return

the Stridhan unless the proposal for divorce by mutual consent

was accepted by her, sufficiently established the offence against

them.

v. the appellants having admitted offering of money to the

respondent for obtaining divorce by mutual consent must be

held to be guilty of commission of offences.

vi. the appellants having offered a sum of Rs.25 lakhs for divorce

by mutual consent would clearly go to show their mind-set that 16

they have been considering the marriage only in monetary

terms and not of any emotional values.

The Parliament by Act No. 46 of 1983 with a view to combat the

menace of dowry deaths and harassment to woman at the hands of her

husband or his relatives introduced Section 498A and Section 304B in the

IPC.

Section 498A reads as under:

"498-A. Husband or relative of husband or a woman subjecting her to cruelty.– Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine."

The `Explanation’ appended thereto defines cruelty to mean: (i) any

willful conduct which is of such a nature as is likely to drive the woman to

commit suicide or to cause grave injury or danger to life, limb or health

whether mental or physical of the woman; or (ii) harassment of the woman

where such harassment is with a view to coercing her or any person related

to her to meet any unlawful demand for any property or valuable security or

is on account of failure by her or any person related to her to meet such

demand.

17

Thus, the essential ingredients of the aforementioned provisions are:

. 1. A woman must be married.

2. She must be subjected to cruelty.

3. Cruelty must be of the nature of:

(i) any willful conduct as was likely to drive such woman:

a. to commit suicide;

b. cause grave injury or danger to her life, limb,

either mental or physical;

(ii) harassment of such woman, (1) with a view to coerce her

to meet unlawful demand for property or valuable security, (2)

or on account of failure of such woman or by any of her relation

to meet the unlawful demand,

(iii) woman was subjected to such cruelty by: (1) husband of

that woman, or (2) any relative of the husband.

For constitution an offence under Section 498A of the IPC, therefore,

the ingredients thereof must be held to be existing.

For proving the offence under Section 498A of the IPC, the

complainant must make allegation of harassment to the extent so as to 18

coerce her to meet any unlawful demand of dowry, or any willful conduct on

the part of the accused of such a nature as is likely to drive the woman to

commit suicide or to cause grave injury or danger to life, limb or health. We

do not find any such allegation has been made or otherwise can be found out

so as to enable us to arrive at an opinion that the appellants prima facie have

committed such an offence.

The complaint petition must also be read with several other

documents which form part of the complaint petition. The children from the

first wife of Vikas were with Monica. Vikas affirmed an affidavit so as to

enable Monica to apply for their passports. Vikas, therefore, wanted to have

children with them.

Monica sent an e-mail on 5.6.2004 to his mother stating that Vikas

sent an e-mail to her on 4.6.2004, which reads thus:

"My love bubbly.

Don’t worry everything will be fine. I am very happy to have found a person like you, who loves durjaya and surya like me. Mona, pls. pray to Krishna to help me and help us to do the right thing. I want to change my life to better, I want to become a sincere devotee of the Lord, I never want to drink again, it puts me down. I want to pray regularly, we must organize our time together to pray to the lord, we must serve him together and 19

everything will be alright. Pls. try to go everyday to the temple and pray to the Lord for us and our children, don’t worry all will be ok. I am sorry to have caused you so much pain, I will make it up to you, promise. I love you my dear, take care.

HARE KRISHNA

Baba."

In an e-mail sent to everybody concerned explaining her behaviour

vis-`-vis those of Vikas, she referred to even the e-mails which was sent by

Vikas to her to his mother.

It is not possible for us to deal with the contents of the e-mails in great

details but it is evident that the couple had developed incompatibility in

respect of various aspects of life including the one as to whether Monica did

a favour to Vikas by marrying him. They also include the children, her going

out of the home without informing any senior member of the house,

allegation of extra marital affairs against Vikas; her taking of detergent

powder evidently to commit suicide; they had been staying in separate

rooms, differences in respect of carrying of business, her becoming

hysterical at some point of time. Vikas even thought that she had been

trying to black-mail him by refusing to go back to India and threatening to

commit suicide. The e-mails shows allegations, counter allegations and 20

explanations by Monica in relation thereto. In an e-mail dated 19.6.2004 by

Vikas, it was stated:

"I have given a lot of thought to our situation and as you told me many times before and yesterday also, that may be it is better that we split, I think that yes it is better to do so. We both are not at all compatible to each other monica. And it is not a wise decision to live this kind of life. I am not interested to living 2 different lives in the same house as you had once commented, I think this was on our first flight to Dubai. Anyway Monica I don’t want anymore of this and neither do you, we both have a lot of things we can do with our lives, and I want to carry on now.

I am also going to leave congo and go somewhere else, I am presently talking to dad about going on my own, but its not easy as I don’t have any money and only dad can give me something to help me, anyway, congo is finished, I hate that place.

I am not blaming you for anything, but it is better that we part, you also know this is better, and better to swallow the pain now then live our lives like this.

I am sorry.

Vikas."

In one of the e-mails Vinay Malhotra alleges humiliation by appellant

No.2.

21

On 14.8.2004, Vikas writes to his father-in-law by e-mail, which reads

as under:

"I have never written nasty emails to your daughter, on the contrary I always respected her and sent her lovely and sometimes erotic emails to light up our love life. But her nagging and lies that she has kept on telling you have made it difficult for me to try to live with a person like her. Your daughter on many occasions threatened me by trying to suicide for example trying to jump out of a running car, drinking poisonous substance, breaking things in my house, etc. When she does not get her way she goes bizark. And not only with me but on several occasions she fought with my parents, this for me is difficult to accept. I have always been truthful to you and her, and if you think otherwise then do as you please. I am not interested in continuing my relationship with your daughter, this is how I feel and I believe that we would not be happy together.

I have already asked my parents to speak to you and do what has to be done in a civilized manner. If your daughter thinks that I have insulted her or hurt her in anyway then frankly she has some mental problem, I have done nothing wrong, if I had done so then why until last week she was so eager to come back to me, when I have told her already that I don’t think we can live together. I will not be coming to India. I am too busy and I have asked my parents to settle this with you, please remember that if you try to throw dirt on me I will not stay put, I will protect my reputation. This can go as far as you want, I don’t fear anything because I have nothing to fear.

I hope that you will do what is best for everyone, the ball in is your court."

22

A counter allegation was made by Anil Malhotra to Vikas, which

reads as under:

"After marriage things went well for sometime and then suddenly you started crying foul. You along with my daughter came back to India on 25th May 2004. You profusely apologized for treatment meted out to my daughter and reassured to behave in future and that you were a gentleman. You and my daughter stayed at your parents place during your India visit when things appeared to be falling in line. You left for Africa on 27th May 2004 leaving behind my daughter at your parental house so that she could spend sometime with your parents and then join you in South Africa after 10 days. After returning to Africa, for sometime you kept on sending apologetic emails to my daughter and then suddenly you told my daughter that you were tired of hearing trivial complaints against her from your mother. Thereafter, you started writing nasty emails to my daughter, which is to your knowledge.

The main purpose of my writing this email is to express that anything that has to be done should be done with a human face. For that matter you should come to India within a week’s time.

Suggesting you to re introspect may be a futile exercise. Rest assured, we are capable of meeting any situation in dealing with a gentleman or a deceit.

May like to reply to this email."

23

There are many more e-mails exchanged between the couple as also

their parents. However, in none of them any allegation with regard to cruelty

or breach of trust had been made. Such allegations are made for the first

time in the complaint petition as also in the application for grant of

maintenance.

Respondent, in her complaint petition, made the following allegations

against the appellants, which we may notice:

Appellant No.1 Appellant No.2

SH. BHASKAR LAL SHARMA – SMT. VIMLA SHARMA – FATHER IN LAW (MOTHER IN LAW)

1. He threatened the Complainant to 1. She sent only two unmarried girls

finish her relationship with Mr. for Shagun instead of seven (page

Vikas Sharma as she was trying to 42)

control their house, children and the

business (page 57)

2. He offered divorce by mutual 2. She said that she would like the

consent on the payment of Rs.25 lacs function of Engagement Ceremony

as compensation. He also refused to to be organized in a 5 Star Hotel

return the clothes/jewelry unless the (page 43)

divorce by mutual consent is granted

by the complainant (Page 63)

24

3. She also advised the respondents

to hold the marriage ceremony at

Iscon Temple (page 44)

4. She also took all the gifts/cash

given by the invitees/guests (page

46)

5. She made complaints on trivial

matters. She kicked the respondent

with her leg and told that her mother

is a liar (page 51)

6. She poisoned the ears of her son

(page 52).

7. She gave two used lady suits of

her daughter to the Complainant

(page 57).

8. She gave perpetual sermons to the

Complainant (page 58)

9. She told her son Vikas Sharma

over phone that kids do not like

anything prepared by the

Complainant (page 59)

10. She humiliated and harassed by

25

repeatedly saying that her son would

be divorced for the second time

whereas the Complainant would be

divorced for the first time.

Ex facie no case has been made out under Section 498A of the IPC so

far as the appellants are concerned.

The allegations relating to the place where the marriage took place has

nothing to do with an offence under Section 498A of the IPC. Allegations

that appellant No.2 kicked the respondent with her leg and told her that her

mother to be a liar may make out some other offence but not the one

punishable under Section 498A. Similarly her allegations that the appellant

No.2 poisoned the ears of her son against the respondent; she gave two used

lady suits of her daughter to the complainant and has been given perpetual

sermons to the complainant could not be said to be offences punishable

under Section 498A. Even threatening that her son may be divorced for the

second time could not bring out the offence under Section 498A of the IPC.

The scope of the aforementioned provision came up for consideration

in some of the decisions of this Court. We may notice a few. 26

In Noorjahan vs. State rep. by D.S.P, [(2008) 11 SCC 55], this Court

held:

"16. Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical, of the woman is required to be established in order to bring home the application of Section 498-A IPC. Cruelty has been defined in the Explanation for the purpose of Section 498-A. Substantive Section 498-A IPC and presumptive Section 113-B of the Evidence Act have been inserted in the respective statutes by the Criminal Law (Second Amendment) Act, 1983. It is to be noted that Sections 304-B and 498-A IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the sections and that has to be proved. The Explanation to Section 498-A gives the meaning of "cruelty".

17. The object for which Section 498-A IPC was introduced is amply reflected in the Statement of Objects and Reasons while enacting the Criminal Law (Amendment) Act, 1983 (46 of 1983). As clearly stated therein the increase in the number of dowry deaths is a matter of serious concern. The extent of the evil has been commented upon by the Joint Committee of the Houses to examine the work of the Dowry Prohibition Act, 1961. In some cases, cruelty of the husband and the relatives of the husband which culminate in suicide by or murder of the helpless woman concerned,

constitute only a small fraction involving such cruelty. Therefore, it was proposed to amend IPC, the Code of Criminal Procedure, 1973 and the Evidence Act suitably to deal effectively not only with cases of dowry deaths but also cases of cruelty to married women by the husband, in-laws and relatives. The avowed object is to combat the menace of dowry death and cruelty."

It was observed in the fact situation obtaining therein: 27

"18. So far as the present appellant is concerned, the evidence is inadequate to show that she was party to any demand for dowry. In fact, PW 1 stated that when she went to the place of her daughter the appellant was present along with A-1 and A-2. The said A-1 demanded jewels and presentation of Rs. 5000 for Ramzan. She accepted that she told A-1 and A-2 that she will send the same within a week. The next statement of this witness is very significant. She (the appellant) told that two months’ time will be sufficient for offering the presentation. In other words, she did not make any demand for dowry. That aspect has been accepted by PW 1. Significantly, this witness in her cross-examination had admitted that the appellant is residing at Coimbatore for the last 35 years. She has categorically admitted that while she went to the house of her daughter, she (the appellant) was not present. Therefore, there is no evidence to show that the appellant was either present when the demand was made or she herself made any demand."

In Sushil Kumar Sharma vs. Union of India & Ors. [(2005) 6 SCC

281], this Court held:

"10. The object for which Section 498-A IPC was introduced is amply reflected in the Statement of Objects and Reasons while enacting the Criminal Law (Second Amendment) Act 46 of 1983. As clearly stated therein the increase in the number of dowry deaths is a matter of serious concern. The extent of the evil has been commented upon by the Joint Committee of the Houses to examine the work of the Dowry

Prohibition Act, 1961. In some cases, cruelty of the husband and the relatives of the husband which culminate in suicide by or murder of the helpless woman concerned, constitute only a small fraction involving such cruelty. Therefore, it was proposed to amend IPC, the Code of Criminal Procedure, 1973 (in short "CrPC") and the Evidence Act suitably to deal effectively not only with cases of dowry deaths but also cases of cruelty to married women by the husband, in-laws and relatives. The avowed object is to combat the menace of dowry death and cruelty.

28

19. The object of the provision is prevention of the dowry menace. But as has been rightly contended by the petitioner many instances have come to light where the complaints are not bona fide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreak personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the courts have to take care of the situation within the existing framework. As noted above the object is to strike at the roots of dowry menace. But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used as a shield and not as an assassin’s weapon. If the cry of "wolf" is made too often as a prank, assistance and protection may not be available when the actual "wolf" appears. There is no question of the investigating agency and courts casually dealing with the allegations. They cannot follow any straitjacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that the ultimate objective of every legal system is to arrive at the truth, punish the guilty and protect the innocent. There is no scope for any preconceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the courts start with the presumptions that the accused persons are guilty and that the complainant is speaking the truth. This is too wide and generalised a statement. Certain statutory presumptions are drawn which again are

rebuttable. It is to be noted that the role of the investigating agencies and the courts is that of a watchdog and not of a bloodhound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally undisputable that in many cases no direct evidence is available and the courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view."

29

The jurisdiction of the High Court to quash an order of summoning

and/or a criminal proceeding as also this Court are well known. The parties

have relied upon the decisions of this Court in State of Haryana vs. Bhajan

Lal [1992 (Supp.) 1 SCC 335]. We may notice the categories 1, 3, 5 and 7

mentioned in Para 102 of the said decision, which are as under:

"(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

xxx xxx xxx

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

xxx xxx xxx

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. xxx xxx xxx

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

30

{See also Chunduru Siva Ram Krishna & Anr. vs. Peddi Ravindra Babu &

Anr. [2009 (4) SCALE 685], Kailashi Bai vs. Aarti Arya & Anr. [2009 (7)

SCALE 304}

Does this case fall under any of the categories is the question.

Before however, we consider the necessary ingredients of the

aforementioned dicta vis-`-vis the facts involved in the present case, we may

also notice some other decisions of this Court.

In Onkar Nath Mishra & Ors. vs. State (NCT of Delhi) & Anr. [2008

(1) JCC 65], this Court opined as under:

"18. In the present case, from a plain reading of the complaint filed by the complainant on 8-11-1994, extracted above, it is clear that the facts mentioned in the complaint, taken on their face value, do not make out a prima facie case against the appellants for having dishonestly misappropriated the stridhan of the complainant, allegedly handed over to them, thereby committing criminal breach of trust punishable under Section 406 IPC. It is manifestly clear from the afore extracted complaint as also the relevant portion of the charge-sheet that there is neither any allegation of entrustment of any kind of property by the complainant to the appellants nor its misappropriation by them. Furthermore, it is also noted in the charge-sheet itself that the complainant had refused to take articles back when this offer was made to her by the investigating officer. Therefore, in our opinion, the very prerequisite of entrustment of the property and its misappropriation by the appellants are lacking in the instant case. We have no hesitation in holding that the learned Additional Sessions Judge and the High Court erred in law in coming to the conclusion that a case for framing of charge under Section 406 IPC was made out.

19. As regards the applicability of Section 498-A IPC, in the complaint dated 8-11-1994 there is not 31

even a whisper of a wilful conduct of Appellants 1 and 2 of harassment of the complainant at their hands with a view to coercing her to meet any unlawful demand by them so as to attract the provisions of Section 498-A read with Explanation thereto. The complaint refers to the talk the complainant purports to have had with her husband, Appellant 3, who is alleged to have told her to come to Bijnore if she apologises to his father; keeps him happy; obeys his sister and talks to her father (the complainant’s) to give her Rs.50,000 and VCR and brings these articles to Bijnore. We are convinced that the allegation of misbehaviour on the part of Appellants 1 and 2 and the demand of Rs. 50,000 and VCR by them made by the complainant in her subsequent statement dated 4-4-1995, was an afterthought and not bona fide."

In Ramesh & Ors. vs. State of T.N. [(2005) 3 SCC 507], it was

opined:

"6. Before we proceed to deal with the two contentions relating to limitation and territorial jurisdiction, we would like to consider first the contention advanced on behalf of the appellant Gowri Ramaswamy. Looking at the allegations in the FIR and the contents of charge-sheet, we hold that none of the alleged offences viz. Sections 498- A, 406 IPC and Section 4 of the Dowry Prohibition Act are made out against her. She is the married sister of the informant’s husband who is undisputedly living in Delhi with her family. Assuming that during the relevant time i.e. between March and October 1997, when the 6th respondent (informant) lived in Mumbai in her marital home, the said lady stayed with them for some days, there is nothing in the complaint which connects her with an offence under Section 498-A or any other offence of which cognizance was taken. Certain acts of taunting and ill-treatment of the informant by her sister-in-law (the appellant) were alleged but they do not pertain to dowry demand or entrustment and misappropriation of property belonging to the informant. What was said against her in the FIR is that on some 32

occasions, she directed the complainant to wash WC and she used to abuse her and used to pass remarks such as "even if you have got much jewellery, you are our slave". It is further stated in the report that Gowri would make wrong

imputations to provoke her husband and would warn her that nobody could do anything to her family. These allegations, even if true, do not amount to harassment with a view to coercing the informant or her relation to meet an unlawful demand for any property or valuable security. At the most, the allegations reveal that her sister-in- law Gowri was insulting and making derogatory remarks against her and behaving rudely against her. Even acts of abetment in connection with unlawful demand for property/dowry are not alleged against her. The bald allegations made against her sister-in-law seem to suggest the anxiety of the informant to rope in as many of the husband’s relations as possible. Neither the FIR nor the charge-sheet furnished the legal basis to the Magistrate to take cognizance of the offences alleged against the appellant Gowri Ramaswamy. The High Court ought not to have relegated her to the ordeal of trial. Accordingly, the proceedings against the appellant Gowri Ramaswamy are hereby quashed and her appeal stands allowed."

In Chunduru Siva Ram Krishna & Anr. vs. Peddi Ravindra Babu &

Anr. [supra], it is stated:

"17. The aforesaid discussion clearly pin-point the legal position on the subject which is by now well settled. The principle that could be culled out is that when at an initial stage a prosecution is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made in the complaint filed prima facie establish the offence. It is also for the court to take into consideration any special feature that may appear in a particular case while considering 33

whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose. The tests that are laid down in the case of Bhajan Lal (supra) are required to be applied very carefully and minutely when a prayer for quashing is laid down before the Court."

In Devendra & Ors. vs. State of U.P. & Anr. [2009 (7) SCALE 613],

it has been held:

"26. There is no dispute with regard to the aforementioned propositions of law. However, it is now well-settled that the High Court ordinarily would exercise its jurisdiction under Section 482 of the Code of Criminal Procedure if the allegations made in the First Information Report, even if given face value and taken to be correct in their entirety, do not make out any offence. When the allegations made in the First Information Report or the evidences collected during investigation do not satisfy the ingredients of an offence, the superior courts would not encourage harassment of a person in a criminal court for nothing."

Reliance has been placed by Mr. Malhotra on the decision of this

Court in Mahila Vinod Kumari vs. State of Madhya Pradesh [2008 (10)

SCALE 97]. We are not concerned with the same as the same deals with the

question of perjury.

34

The complainant further did not stop there but also filed a complaint

petition that she was cheated as Vikas and his parents did not disclose about

his marital state of affairs in regard to the first marriage and/or the decree of

divorce obtained by him. We do not intend to make any comment with

regard to the correctness or otherwise of the statements made therein as the

matter is not before us.

We have, however, made note of the litigations filed between the

parties in great detail. These litigations, if a holistic view is taken, depict a

sad state of affairs, namely, that the respondent, on the one hand, intends to

take all coercive measures to secure the presence of her husband and the

appellants in India in various cases filed by her and, on the other hand, she

had repeatedly been making attempts of conciliation.

Endeavour/conciliations were made by the Delhi High Court as also this

Court at various stages. The High Court, as indicated hereinbefore, in its

order dated 6.10.2005 passed in Criminal Revision No. 452 of 2005

categorically held that the marriage has irretrievably broken down. Be that

as it may, we are of the opinion that keeping in view the ingredients of the

provisions of Sections 498A of the IPC, no case has been made out against

the appellants herein.

35

We may now consider the question as to whether the complaint

petition discloses any offence under Section 406 of the IPC.

At the outset, we may notice as to what is `Streedhana’

In Rashmi Kumar (Smt.) vs. Mahesh Kumar Bhada [(1997) 2 SCC

397], the meaning of Stridhana has been taken from Mayne’s Hindu Law &

Usage (13th Edn.). It was opined:

"9. A woman’s power of disposal, independent of her husband’s control, is not confined to saudayika but extends to other properties as well. Devala says: "A woman’s maintenance (vritti), ornaments, perquisites (sulka), gains (labha), are her stridhana. She herself has the exclusive right to enjoy it. Her husband has no right to use it except in distress…." In N.R. Raghavachariar’s Hindu Law — Principles and Precedents, (8th Edn.) edited by Prof. S. Venkataraman, one of the renowned Professors of Hindu Law para 468 deals with "Definition of Stridhana". In para 469 dealing with "Sources of acquisition" it is stated that the sources of acquisition of property in a woman’s possession are: gifts before marriage, wedding gifts, gifts subsequent to marriage etc. Para 470 deals with "Gifts to a maiden". Para 471 deals with "Wedding gifts" and it is stated therein that properties gifted at the time of marriage to the bride, whether by relations or strangers, either Adhiyagni or Adhyavahanika, are the bride’s stridhana. In para 481 at page 426, it is stated that ornaments presented to the bride by her husband or father constitute her Stridhana property. In para 487 dealing with "powers during coverture" it is stated that saudayika meaning the gift of affectionate kindred, includes both Yautaka or gifts received at the time of marriage as well as its negative Ayautaka. In respect of such property, 36

whether given by gift or will she is the absolute owner and can deal with it in any way she likes. She may spend, sell or give it away at her own pleasure.

10. It is thus clear that the properties gifted to her before the marriage, at the time of marriage or at the time of giving farewell or thereafter are her stridhana properties. It is her absolute property with all rights to dispose at her own pleasure. He has no control over her stridhana property. Husband may use it during the time of his distress but nonetheless he has a moral obligation to restore the same or its value to his wife. Therefore, stridhana property does not become a joint property of the wife and the husband and the husband has no title or independent dominion over the property as owner thereof."

It was furthermore held:

"…The expression "entrustment" carries with it the implication that the person handing over any property or on whose behalf that property is handed over to another, continues to be its owner. Entrustment is not necessarily a term of law. It may have different implications in different contexts. In its most general significance, all its imports is handing over the possession for some purpose which may not imply the conferment of any proprietary right therein. The ownership or beneficial interest in the property in respect of which criminal breach of trust is alleged to have been committed, must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit…."

The offence of criminal breach of trust as defined in Section 405 of

the IPC may be held to have been committed when a person who had been

entrusted in any manner with the property or has otherwise dominion over it, 37

dishonestly misappropriates it or converts it to his own use, or dishonestly

uses it, or disposes it of, in violation of any direction of law prescribing the

mode in which the trust is to be discharged, or of any lawful contract,

express or implied, made by him touching such discharge, or willfully

suffers any other person so to do.

The essential ingredients for establishing an offence of criminal breach of

trust as defined in Section 405 and punishable under Section 406 IPC with

sentence for a period up to three years or with fine or with both, are:

(i) entrusting any person with property or with any dominion over

property;

(ii) the person entrusted dishonestly misappropriating or converting to his

own use that property; or dishonestly using or disposing of that property or

wilfully suffering any other person so to do in violation of any direction of

law prescribing the mode in which such trust is to be discharged, or of any

legal contract made touching the discharge of such trust.

We have noticed heretobefore that the correspondences exchanged

between the spouses or by and between Vikas and his in-laws do not

disclose any allegation which would amount to criminal misconduct on the

part of the appellants.

38

With the aforementioned backdrop of events, we may now notice the

allegations made in the complaint petition filed by the respondent against the

appellants.

The only allegation which brings the case within the purview of

Section 406 is that appellant No.2 had taken all the gifts/cash given by the

invitees/guests. Technically, this allegation would attract the definition of

breach of trust within the meaning of Section 405 of the IPC.

Entrustment of some properties and/or dominion over them, if any,

therefore, is attributed only against the appellant No.2. Other allegations

made against the appellants are general in nature.

Entrustment is said to have been made to the appellants and/or their

son.

No definite case of entrustment of any property has been made against

the appellant No.1.

He is only said to have given back to the complainant’s parent the

entire cloth and jewelry. No demand was made by the respondent.

Offering of Rs.25 lakhs for grant of divorce by mutual consent as

compensation to the complainant, which is three times of the amount of the

value of `Streedhana’ and/or amount spent by the complainant’s father per se

does not constitute any offence of Section 406 of the Code. 39

Any gift made to the bridegroom or his parents – whether in

accordance with any custom or otherwise also would not constitute any

offence under Section 406 of the Code.

In State of Punjab vs. Pritam Chand & Ors. [2009 (2) SCALE 457], it

has been held:

"4. Section 406 IPC deals with punishment for criminal breach of trust. In a case under Section 406 the prosecution is required to prove that the accused was entrusted with property or he had dominion over the property and that the accused misappropriated or converted the property to his own use or used or disposed of the property or willfully suffered any person to dispose of the property dishonestly or in violation of any direction of law prescribing the mode in which the entrusted property should be dealt with or any legal contract express or implied which he had entered into relating to carrying out of the trust."

{See also Harmanpreet Singh Ahluwalia & Ors. vs. State of Punjab &

Ors.[2009 (7) SCALE 85]}

We, therefore, are of the opinion that prima facie a case under Section

406 of the IPC has been made out only against appellant No.2.

Before parting, we may observe that courts at all levels have made

endeavours to bring about a settlement between the parties. The High Court 40

in the earlier round of proceedings probably rightly observed that the

marriage between the Monica and Vikas has irretrievably been broken down.

The appeals are allowed to the extent mentioned hereinabove.

The summoning order dated 21.3.2005 passed against the appellants

except Appellant No.2 is set aside. It is clarified that the proceedings can

continue only against the appellant No.2, that too in respect of Section 406

IPC only.

………………………….J.

[S.B. Sinha]

…………………………..J.

[Cyriac Joseph]

NEW DELHI;

JULY 27, 2009

Categories: 498A Tags:

Husband entitled to get maintenance: Allahabad HC

December 5, 2011 Leave a comment

LUCKNOW: A husband, unable to support himself, is entitled to get maintenance from his earning wife, the Allahabad High Court has ruled.

On a petition filed by one Santosh Kumar Gupta seeking maintenance from his working wife on the ground that his income was too meager to enable him to maintain himself, the Lucknow Bench of the Court recently ruled that the provision of interim maintenance during proceedings of the matrimonial disputes was applicable to both the spouses.

The single-judge Bench headed by Justice D P Singh directed the wife to pay Rs 2,000 per month to Kumar, an employee in the state owned Uptron Corporation, which had been declared a sick unit following which the petitioner was getting only Rs 1,000 per month.

His wife, working in a bank, got a salary of Rs 13,000 per month, had filed the divorce petition against him in a family court.

The husband also filed an application before the court seeking direction to the wife to pay him maintenance and litigation expenses. The family court, however, rejected the husabnd’s application.

Allahabad HC-498-A offence–Law procedure for mediation and directions for making 498-A IPC offence compoundable

December 5, 2011 Leave a comment
This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Deputy Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD 

Court No. – 46

Case :- CRIMINAL MISC. WRIT PETITION No. – 3322 of 2010

Petitioner :- Re: In The Matter Of Matrimonial Disputes
Respondent :- State Of U.P. & Others
Petitioner Counsel :- P.N. Gangwar
Respondent Counsel :- Govt. Advocate,Abhay Raj Singh,Pankaj Naqvi

Hon’ble Amar Saran,J.
Hon’ble Shyam Shankar Tiwari,J.
On 8.8.2011, there was an extensive hearing in this case when Ms. Leena Jauhari, Secretary (Home), Government of U.P. Lucknow, Smt. Poonam Sikand, Additional L.R and Tanuja Srivastava, I.G.( Public Grievances), Ms. G. Sridevi, Secretary, U.P. State Legal Services Authority, Sri Ashok Mehta, Organising Secretary, Allahabad High Court, Mediation and Conciliation Centre, Sri Pankaj Naqvi, Sister Sheeba Jose Advocates on behalf of the intervenor ‘Sahyog,’ Sri D.R. Chaudhary, learned Government Advocate and Sri Bimlendu Tripathi, learned A.G.A appeared and were heard at length.
An affidavit has also been filed on behalf of the Director General of Police on 10.8.2011. Another affidavit was also filed on behalf of Special Secretary (Home), U.P. on 12.8.2011. An application was also moved by the intervenor ‘Sahyog.’
This Court appreciates the positive contributions and suggestions of all the aforesaid advocates and other State officials and that this pro bono litigation is being taken up in the right non-adversarial spirit, with the aim to ensure that wherever allegations are not very grave, in order to save families, and children and indeed the institution of marriage, an effort be first made for reconciling matrimonial disputes by mediation before steps can be taken for prosecuting offenders, if they are called for. In Preeti Gupta v. State of Jharkhand, AIR 2010 SC 3363 the learned members of the bar have been reminded of their noble profession and their noble tradition and of their responsibility to ensure that the social fibre of family life is preserved by desisting from over-implicating all in-laws and their relations as accused persons in 498-A IPC reports, and from filing exaggerated reports. They are also to make an endeavour to bring about amicable settlements to this essentially human problem. It has also been rightly pointed out in Sushil Kumar Sharma v Union of India, AIR 2005 SC 3100 (para 18) whilst upholding the vires of section 498-A IPC, that it should be ensured that complaints are not filed with oblique motives by unscrupulous litigants so that a “new legal terrorism” is not unleashed, and that the well-intentioned provision is not misused.
In Kans Raj v State of Punjab, AIR 2000 SC 2324, it has been held that there is a tendency in cases of 498-A IPC and 304 B IPC to rope in a large number of in-laws of the victim wife, and not only the husband. In para 5 of the law report it has been observed: “….In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case.”
Specifically as a result of the interaction and suggestions which emerged after a dialogue with the Advocates and officials, this Court requires to formulate its opinion on the following points:
1.Whether registration of an FIR is mandatory once an aggrieved woman or the eligible family members as specified under section 198A Cr.P.C approaches the police station giving information that an offence under section 498A IPC or allied provisions such as under section � D.P. Act or under section 406 I.P.C have been committed by the husband or other in-laws and their relations.
2.Should the concerned police officers immediately proceed to arrest the husband and other family members of the husband whenever such an FIR is lodged.
3.Can a distinction be made between the cases where arrest is immediately necessary and other cases where arrest can be deferred and an attempt be first made for bringing about mediation between the parties.
4.What is the appropriate place where mediation should be conducted.
5.Should a time frame be laid down for concluding the mediation proceedings.
6.Who should be the members of the mediation cell in the district.
7.What is the procedure to be followed by the police when a report of a cognizable offence under section 498A IPC or allied provisions is disclosed.
8.Is training of mediators desirable and who should conduct the training?
9.Should the offence under Section 498A be made compoundable and what steps the State Government may take in this direction.

Discussions on the points requiring formulation by the Court.
1. Whether registration of an FIR is mandatory?
Section 154 of the Code of Criminal Procedure mandates that when any information regarding information of a cognizable offence is given orally to the officer in charge of the Police Station, he is required to reduce it in writing and to enter it into the general diary. The said provision gives no option to the concerned Police Officer to refuse to lodge the F.I.R. once information of a cognizable offence is given to the police officer.
In paragraph No. 30 and 31 in State of Haryana and others Vs. Bhajan Lal, 1992 Cri. L.J. 527, it has been laid down that section 154 (1) of the Code provides that whenever an information is given that a cognizable offence has been committed, the Police Officer cannot embark upon an inquiry to ascertain as to whether the information was reliable or genuine or refuse to register the case on that ground. The officer in charge of the Police Station is statutorily obliged to register the case and then to proceed with the investigation, if he even has reason to suspect the commission of an offence.
(2) Whether arrest of husband and family members mandatory once FIR is lodged
It is noteworthy that section 154 Cr.P.C. which deals with the powers of investigation and the necessity of lodging an FIR when a cognizable offence only speaks of “information relating to the commission of a cognizable offence” given to an officer. No pre-condition, as pointed out above, is placed under this provision for first examining whether the information is credible or genuine. In contrast section 41(1)((b) Cr.P.C dealing with the powers of the police to arrest without a warrant from a Magistrate requires the existence of a “reasonable complaint,” or “credible information” or “reasonable suspicion” of the accused being involved in a cognizable offence as pre-conditions for effecting his arrest.
The two provisos to section 157 also speak of two exceptions when investigation (and consequent arrest) may not be necessary. These two situations are:
(a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot;
(b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case. However in such situations the police officer is to mention in his report the reasons for not investigating the case. In the second case, where a police officer is of the opinion that there is no sufficient ground for investigating a matter, he is to also inform the informant of his decision.
The proviso (b) to section 157 (1) Cr. P. C. has been discussed in paragraphs No. 53 and 54 in Bhajan Lal (supra). The law report clarifies that clause (b) of the proviso permits a police officer to satisfy himself about the sufficiency of the grounds even before entering on an investigation. However, at that stage, the satisfaction that on the allegations, a cognizable offence warranting investigation is disclosed, has only to be based on the F.I.R. and other materials appended to it, which are placed before the Police Officer. Therefore, if it appears to the Police Officer that the matrimonial dispute between the spouses is either not of a grave nature or is the result of a conflict of egos or contains an exaggerated version, or where the complainant wife has not received any injury or has not been medically examined, he may even desist or defer the investigation in such a case.
Recently by Act No. 5 of 2009, the newly introduced section 41 (1) (b), has been given effect to from 1.11.2010. This sub-section provides that if some material or credible information exists of an accused being involved in a cognizable offence punishable with 7 years imprisonment or less with or without fine, the Police Officer has only to make an arrest, if he is satisfied that such arrest is necessary (i) to prevent such person from committing any further offence, (ii) for proper investigation of the offence; (iii) to prevent such person from causing the evidence of the offence to disappear or tampering with the evidence in any manner; (iv) for preventing such person from making any inducement, threat or promise to a witness to dissuade him from disclosing such facts to the Court or the Police Officer (v) or unless such a person is arrested, he may not appear in the Court when required. This new provision has forestalled any routine arrests simply because a person is said to be involved in a cognizable offence punishable with imprisonment up to 7 years. The arrest is only to be effected if any or all of the five conditions abovementioned are fulfilled. For making or for not making such arrest, the Police Officer has to record his reasons. In contrast to this provision, under section 41 (1) (ba) such a limitation has not been provided for those cases, where credible information has been received that a person has committed an offence punishable with imprisonment of over 7 years.
A new provision, section 41 A Cr.P.C has also been added by Act No. 5 of 2009 (with effect from 1.11.2010) which gives powers to a Police Officer to issue a notice directing the person against whom a reasonable complainant has been made or credible information or reasonable suspicion exists to appear before him or at any place that he may specify in the notice where the police officer is of the opinion that the arrest is not required under the provisions of section 41(1) Cr.P.C. but the accused is to comply with the notice and he would not be arrested, if he continues to comply with the terms of the notice. However, where the person fails to comply with the notice, the police has all powers to arrest him, unless there is some order of the Court granting him bail or staying his arrest.
Now an offence under section 498A IPC is punishable with imprisonment only up to three years and fine. If there are no injuries on a victim, in our opinion, it constitutes a fit case for the police officer to exercise powers conferred by the newly introduced section 41(1)(b) read with section 41 (A), where instead of straight away arresting the accused, it would be a better option at the initial stage for the police officer to require the said person to appear before him or before the Mediation Centre. As pointed out above section 41 A Cr.P.C. permits calling the person concerned before the police officer himself or to any specified place. Hence a notice can be given to the accused to appear before the mediation centre. This restraint on arrest, and placing of conditions or terms for arrest would also apply a fortiori to the accused family members of the husband of the aggrieved wife.
It may be pointed out that if the FIR is immediately registered that will placate the concerns of the aggrieved wife to some extent that action is being taken on her complaint, and it has not been put on the back burner.

(3) Whether distinction possible between cases necessitating immediate arrest, and cases where attempt for mediation should first be made
Arrest may be necessitated, if the husband or other in-laws have given a grave beating to the wife endangering her life or where the wife has been subjected to repeated violence or there are any other circumstances of exceptional cruelty against the wife, where future recurrence of violence or cruelty seems likely, or for preventing the husband and his accused family members from trying to browbeat witnesses or to tamper with the course of justice, or for ensuring the presence of the husband or his accused family members at the trial, or for effective investigation. In all other cases, we are of the opinion that an attempt should be first made for bringing about reconciliation between the parties by directing the complainant wife and her natal family members and the husband and other family members to appear before the Mediation Centre when the wife or other eligible relations under section 198-A Cr.P.C. approaches the police station for lodging the report.
The advantage of not immediately arresting the accused husband and his family members in a trivial case where there appear to be no injuries on the aggrieved wife, is that in sudden matrimonial disputes, because of clash of egos between the wife and her natal family members and the husband and in-laws, the wife’s side at the initial stage usually insists on effecting the arrests of the husband and other in-laws. Once the husband or his family members are arrested, and subsequently bailed out, little motivation remains for the parties to try and resolve their disputes by mediation. This may prove disadvantageous for the wife in the long run who may not have a source of independent livelihood for running her life in the future.
4.Appropriate place where mediation should be conducted.
The officials as well as the learned Government Advocate and other lawyers present unanimously recommended that the Mediation Cell should not be at the police station. The I.G. (Public Grievances) pointed out that the police officer before whom the report is lodged lack proper training for conducting mediations sessions. Also if the police officer refrains from arresting the accused persons pursuant to the wife’s FIR, by attempting to mediate in the dispute between the parties, even if it is a case of no injury, and even where he is only acting in accordance with the general directions of the Court, questions about his integrity are unnecessarily raised.
Moreover it is pointed out by the Secretary of the Legal Services Authority that now Mediation or Conciliation Centres have been established in all the District Courts. We, therefore, think that the mediation proceedings should be carried out in the said Mediation Centre.
5.Need for time frame for concluding the mediation proceedings.
The I.G. (Public Grievances) and others present rightly pointed out that a time frame must be laid down for concluding the mediation proceedings as when an aggrieved wife approaches the police for relief, because she has been subjected to cruelty. If the matter is unduly prolonged in the mediation process, the delay could act as a shield to protect the accused from facing the penalty of law, causing frustration and bitterness for the aggrieved wife. Notice should as far as possible be served personally on the accused and the parties should be directed to appear before the Mediation Centre within a week or 10 days of the lodging of the report by the aggrieved wife or family members. Thereafter we think, that as far as possible, the mediation proceedings should be concluded within two months of the first appearance of both the parties before the Mediation Centre.
6.Who should be the members of the mediation cell in the district?
The Mediation Cell in the district should be headed by the Secretary of the Legal Services Authority in the district, (at present, the Civil Judge, Senior Division has been made the Secretary), other panel or retainer lawyers appointed by the District Legal Services Authority, other lawyers, who volunteer for giving free services before the Mediation centre, especially female lawyers should also be made members of the Mediation Cell. It is also desirable to have three or four social workers (especially female) in the Cell. A female police officer of the rank of Dy. S.P. may also be appointed an ex-officio member of the Mediation Cell.
7.Procedure to be followed by the police when a report of a cognizable offence under section 498A IPC or allied provisions is reported
The report regarding commission of cognizable offence under section 498A IPC or other allied sections may be lodged at the concerned police station where the incident takes place or at the ‘Mahila Thana’ especially created in the district for investigation of such cases. The police officer concerned will get the aggrieved woman medically examined for injuries if the same are present. If the report has been lodged at some police station other than the Mahila Thana, the injury report and relevant police papers shall be forwarded to the Mahila Thana for investigation of the case, and in appropriate cases the investigating police officer at the Mahila Thana may refer the matter to the mediation centre in the Civil Court, and direct the complainant to be present at the mediation centre on a fixed date 7 to 10 days thereafter. The accused should as far as possible also be personally given notice to appear before the mediation centre on the date fixed. We would also like the presence of trained social workers (especially female) or legal aid panel lawyers to be present at the Mahila Thana for counselling the aggrieved woman and her family members for first trying to solve their dispute by mediation, when the case is registered at the mahila thana. The notice to the husband and other family members should mention that in cases the husband or the family members of the aggrieved wife fail to appear on the date fixed or on future dates, as directed by the Mediation Centre or fail to comply with any condition that may be imposed by the police officer or Mediation Centre, steps shall be taken for arresting the accused. The accused husband or other in-laws should be directed to report before the police officer on a date two months after the date of first appearance before the Mediation Centre and inform the Police Officer about the progress in the mediation. The in-charge of the mediation proceeding may also direct the husband or other family members to appear before the Police Officer at an earlier date fixed in case mediation has failed or it has been successfully concluded and the parties concerned shall appear before the Police Officer on the said date. It would also be open to the complainant wife to inform the police officer about the progress (or lack of it) of the mediation process. The notice should also clarify that in case mediation is pronounced as unsuccessful at an earlier date, and information is given by either party or the Mediation centre to the Police Officer, he may require the presence of the accused husband or his relations at an earlier date. If mediation has been successfully concluded, it will be open to the Police Officer to submit a final report in the matter. In cases, where it has not been successfully concluded and the Police Officer is of the view that arrest may not be necessary in a particular case, he may direct the accused persons to obtain bail from the Competent Court. In case, he is of the opinion that the arrest is necessitated at a subsequent stage, it will be open to the Police Officer to take such accused persons in custody. He should of course record his reason for making the said arrest as provided under section 41 (1) (b) (ii).
8.Necessity of training to mediators.
We endorse the opinion of the intervening lawyers, the learned Government Advocate, Sri Ashok Mehta, Organizing Secretary of the Mediation Centre of the Allahabad High Court and the Government officials present, including the Secretary of the Legal Services Authority, that training for mediators is a sine qua non for effective mediation. The Organizing Secretary of the Allahabad High Court Mediation Centre (AHMC) and Secretary of the U.P. Legal Services Authority (UPLSA) stated that the centre and authority are prepared to impart training to the mediators. We welcome this offer and direct that there should be co-ordianation between the AHMC and UPLSA for giving effect to this offer. By and by as the State Government is able to create a cadre of trainers for mediation, their services may also be utilised for training mediators in the districts.
We think training is necessary because the responses to our queries from the subordinate district courts reveal the poor success rate in the cases referred by the High Court or where the concerned subordinate court has itself initiated the process of mediation. By contrast the success rate at the Mediation Centre in the Allahabad High Court, which has independent trained mediators (usually lawyers) is much higher. The first requirement for successful mediation is the patience on the part of the mediator, and his willingness to give sufficient time to the contesting parties and especially to the wife to express her bottled up grievances. Thereafter, in a disinterested manner, the mediator should encourage the parties to come up with solutions, giving useful suggestions for bringing about reconciliation, as the mediator cannot impose his solution on the parties.
The guidelines hereinabove have been spelt out by the Court because of the specific request of the officials and lawyers present to spell out the terms of the same, as guidance for the State government (esp. the home department), the Legal Services Authority and the police for issuing appropriate circulars or government orders.
(9) Should offences under section 498-A IPC be made compoundable?
We have received considerable feedback from subordinate judicial authorities that unless the offence under section 498-A IPC is made compoundable, much benefit cannot be derived by trying to bring about mediation between the parties. A dilemma then arises before the concerned Court, (which cannot close the trial because the spouses have compromised their dispute) or even before the aggrieved wife, if she decides to settle her dispute with her spouse and in-laws either by agreeing to stay with them or to part amicably, usually after receiving some compensation. Even if she is no more interested in repeatedly visiting the court for prosecuting the accused, in the absence of provisions for compounding the offence, she has willy nilly to perjure by making a false statement that her initial report was untrue or lodged under influence of X or Y. If on the basis of this statement the trial Court acquits the husband and his family members, and the aggrieved wife returns to her matrimonial home, in the cases where she is again maltreated, if she lodges a fresh report, its reliability will be open to question.
The Apex Court in Ramgopal v. State of M.P., 2010 SCALE 711 observed that an offence under section 498-A IPC is essentially private in nature, and it should be made compoundable if the parties are willing to amicably settle their dispute. Directions were given to the Law Commission of India to consider the matter and to make appropriate recommendations to the Government to bring about suitable amendments in the statute.
In Rajeev Verma v. State of U.P., 2004 Cri.L.J. 2956, which was a decision given by a bench in which one of us (Amar Saran J) was a member, a similar suggestion was made to the Law Commission of U.P. to recommend to the State government to make the offence under section 498-A IPC compoundable with the permission of the Court under section 320 Cr.P.C. The reasons for the suggestion were that such FIRs are often lodged in the heat of the moment, without reflection after a sudden quarrel, and sometimes as a result of wrong advice or influences. But the complaining wife, who usually has no source of independent livelihood (as a key problem in our society is the lack of economic and social empowerment of women) and is unable to provide for herself in the future, may have to suffer later if the relationship with her husband is irrevocably ruptured due to the hasty filing of the criminal case, particularly in view of the fact that the offence is non-compoundable. To meet this situation B.S. Joshi v State of Haryana, AIR 2003 SC 1386, Manoj Sharma v State, 2008 SC(Suppl) 1171, and Madan Mohan Abbot v State of Punjab, AIR 2008 SC 1969 recommended quashing of the complaint in proceedings under section 482 Cr.P.C or in the writ jurisdiction where the aggrieved wife compounded the offence. In the latter case it was observed that where the dispute is purely personal in nature, (i.e. the element of the offence being a crime against society is secondary), and the wife decides to compound the offence, as there would be little likelihood of conviction, quashing of the offence should not be refused on the hyper-technical view that the offence was non-compoundable “as keeping the matter alive with no possibility of a result in favour of the prosecution is a luxury which the Courts, grossly overburdened as they are, cannot afford and that the time so saved can be utilized in deciding more effective and meaningful litigation”
The following passage in paragraph 12 in G.V. Rao v L.H.V. Prasad, AIR 2000 SC 2474 has been cited with approval in B.S. Joshi:
“There has been an outburst of matrimonial disputes in recent times. The marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a Court of law where it takes years and years to conclude and in that process the parties lose their “young” days in chasing their “cases” in different Courts.”
In Rajeev Verma however relying on B.S. Joshi it was mentioned that whilst the trial could be quashed in an application under section 482 Cr.P.C or under Article 226, being a fruitless prosecution where there was little likelihood of conviction as the parties had settled their dispute, but the proper forum for deciding the matter whether the compromise application was voluntary and bona fide or whether it was coerced was the lower court which could decide whether it was a fit case for granting permission to the wife to compound the offence under section 320(2) Cr.P.C. This was only possible if the offence under s. 498-A IPC was made compoundable with the permission of the Court.
A good option for providing recompense to the maltreated woman is “The Protection of Women from Domestic Violence Act, 2005″ which provides for a gamut of civil rights for the aggrieved woman who has entered into a domestic relationship with a man, with or without marriage. Such civil rights include “Protection orders” (section 18) prohibiting the respondent from committing any act of violence, visiting the place of work, operating the common bank locker, making telephonic contact etc. “Residence orders” (section 19), which restrain the respondent from dispossessing a woman from the shared household, or from alienating or renouncing his rights to the property or by directing him to remove himself, or by providing alternate accommodation to the aggrieved woman at the existing level. By providing “monetary reliefs” (sections 20 and 22) by paying for loss of earnings or medical expenses, or loss due to destruction of property by domestic violence, or for maintenance of the woman and her dependent children, or by payment of compensation for causing injuries (including mental torture). “Custody orders” (section 21) for custody of the child to the woman (including visiting rights) for the respondent. Criminal proceedings under this Act have been allowed only as a last resort, under section 31 when the respondent commits a breach of a protection order, or where at the stage of framing charges for breach of the protection order he finds that an offence under section 498-A IPC has also been committed by the respondent.
The Act also provides under section 14 for the Magistrate to send a matter for “counselling” before a registered “service provider,” who is qualified to provide counselling in such matters to the contesting parties or to provide shelter etc. to the aggrieved woman.
In the counter-affidavit dated 12.8.11 filed on behalf of the Home Secretary, U.P., it has specifically been mentioned that the State government has given its consent to the Union of India to make offences under section 498-A IPC compoundable, and the letter of the Home (Police) Section-9 to the Union Home Ministry dated 4.2.10 has been annexed. Whereas we appreciate this positive attitude of the State government in not objecting to section 498-A IPC being made a compoundable offence. However we find that Andhra Pradesh, by Act 11 of 2003 (w.e.f 1.8.03) has added section 498 A (wrongly described as 494 A) after section 494 in the table in section 320(2) Cr.P.C. and has permitted the woman subjected to cruelty to compound the offence with the permission of the Court, but added a proviso that a minimum period of three months be allowed to elapse from the date of application for compromise before a Court can accept the request, provided any of the parties do not withdraw in the intervening period. The U.P. government may consider bringing out a similar amendment, as it has already expressed its opinion that the offence under section 498-A IPC be made compoundable.
Before parting we must clarify that the Court is of the firm view that acts of cruelty or violence against women have neither ceased, nor have they been reduced, and the special provision for meeting this problem must be retained in the statute book. We quote with approval the view expressed in paragraph 11 of the recent Law Commission of India, Consultation Paper-cum-Questionaire regarding section 498-A of Indian Penal Code:
“While the Commission is appreciative of the need to discourage unjustified and frivolous complaints and the scourge of over-implication, it is not inclined to take a view that dilutes the efficacy of s. 498-A to the extent of defeating its purpose especially having regard to the fact that atrocities against women are on the increase. A balanced and holistic view has to be taken on weighing the pros and cons. There is no doubt a need to address the misuse situations and arrive at a rational solution ? legislative or otherwise.”
List this case on 8.11.2011 before the regular bench to be headed by one of us (Hon’ble Amar Saran J)
The State government through the Chief Secretary, U.P., the Principal Secretary, (Home), U.P., Secretary Law/ L.R. U.P., Director General Police U.P., and Member-Secretary, U.P. Legal Services Authority may issue appropriate guidelines or circulars for laying down a system for proceeding in matters where reports are lodged of commission of offences under section 498 A IPC where immediate arrests may not be necessary, for laying down the appropriate criteria in this regard, and for sending the matters for mediation before the mediation cells in the Civil Courts, in accordance with the aforesaid directions of this Court. The Principal Secretary, (Finance), U.P. may apprise the Court as to the provision for finance for appointing social workers/panel lawyers at the Mahila Thanas, for ensuring that appropriate training is given to the social workers, legal aid lawyers, and concerned police officers for facilitating the mediation process, for making available adequate infrastructure/ manpower at the mediation cells in the Civil Courts, and for meeting expenses on other contingencies. Let the aforesaid authorities submit their compliance reports within 4 weeks. We would also like reports from all the Secretaries of the District Legal Services Authorities to submit their compliance reports (through the District Judges) for getting the aforementioned minor matters relating to offences under section 498 A IPC settled through mediation and the difficulties they encounter or forsee in complying with the directions of this Court by the next listing. The State government is also directed to submit its report on the next listing on the suggestion of the Court to take steps for making the offence under section 498-A IPC compoundable with the permission of Court by amending section 320 Cr.P.C in U.P. as has been done in the case of Andhra Pradesh. Registrar-General is directed to forward copies of this order within a week to the Chief Secretary, Principal Secretary, (Home), Law Secretary/LR, U.P., Principal Secretary (Finance), U.P., D.G.P., U.P., Member-Secretary, U.P., Legal Services Authority, U.P., Secretaries/ Civil Judges (Senior Division) through District Judges in all districts in U.P., Sri Ashok Mehta, Organizing Secretary, Allahabad High Court, Mediation Centre, Sri Pankaj Naqvi, and Sister Sheeba Jose, Advocates for the intervenors, Government Advocate, U.P. and other advocates and officials present in the hearing on 8.8.11 for information and compliance.

Order Date :- 30.9.2011
HSM 

Categories: 498A Tags:

Mere kicking or slapping or divorce threats do not come under the purview of Section 498A: Supreme Court

December 5, 2011 Leave a comment

Apex court rules anew on cruelty by husband and relatives

 

“The Supreme Court does not just decide individual cases — it lays down the law of the land. A recent ruling in which the apex court held that kicking a woman and threatening her with divorce do not amount to cruelty could set an unhealthy precedent”

A recent Supreme Court judgment regarding acts that constitute “cruelty” by the husband or his relatives, punishable under Section 498 A of the Indian Penal Code (IPC), has led to protests by activists. The law minister has promised to look into the matter and consider changes in the legislation.

The provision making cruelty by the husband or his relatives an offence punishable with three years imprisonment was brought in, in 1983. For several years there have been frequent articulations about “misuse” of the provision and a demand for the removal of this section from the statute books.

The workings of the criminal justice system rest on the assumption of lack of bias and requisite impartiality on the part of those entrusted with the responsibility of its functioning. However judges, police officers, collectors and magistrates all fall prey to the values, biases and prejudices of the society in which they live. The limited impact of legislations like the Dowry Prohibition Act or provisions dealing with matrimonial cruelty, on the prevalence of dowry or occurrence of cruelty (at times even leading to suicide or murder) is beyond dispute. The dowry amount in the market for Indian Administrative Services (IAS) and Indian Police Service (IPS) officers — the very people entrusted with implementing these laws — are common knowledge! There have also been instances of complaints with regard to dowry and cruelty against judicial officers entrusted with trials under these laws, by daughters-in-law and wives.

In the recent case of Bhaskar Lal Sharma versus Monica, 2009(10) SCALE 744, the Supreme Court examined the ingredients of “cruelty” to determine which acts would fall within the ambit of the offence of cruelty by the husband or his relatives, under Section 498 A of the IPC.

Vikas and Monica got married on January 16, 2004, in Delhi’s Sanatan Dharm Mandir Hall. The marriage was registered on January 22, 2004, with the Registrar of Marriages. Negotiations for the couple’s marriage took place through a matrimonial agency. The husband Vikas had been married earlier and had obtained a decree of divorce in July 2003 from the civil court in the Congo. Vikas had two children, born on April 23, 1999, and July 8, 2000, respectively, from his first wife. Immediately after the marriage, the couple left India for South Africa where they stayed for around 10 days. Thereafter, they lived in their matrimonial home in the Congo for two months. The relationship between Vikas and Monica was cordial during this period.

Vikas worked in the family import and export business and was managing director of the company. The business was extensive and spread across many countries. The family also had a residential house in Lajpat Nagar, New Delhi.

Monica returned to India on April 5, 2004, and stayed in Lajpat Nagar with her in-laws until May 10, 2004. Thereafter, she re-joined her husband in the Congo.

Their relationship deteriorated. The couple came back to India on May 21, 2004. Monica allegedly brought all her belongings back with her including clothes and jewellery.

In an attempt to sort out their relationship, Monica and Vikas consulted a psychiatrist in Delhi who advised them to try and make their marriage work. Vikas left for the Congo on May 27, 2004, hoping that Monica would change her mind with regard to their marriage and return to the Congo. Monica stayed on at Lajpat Nagar till June 14, 2004; then took her belongings, including her jewellery, and went to her parents’ house. The allegations of mistreatment and humiliation by her in-laws pertain to the period of her stay in Lajpat Nagar.

On September 9, 2004, Monica filed a complaint of cruelty and criminal breach of trust under Sections 498 A and 406 of the IPC, respectively, against her husband Vikas and her mother-in-law and father-in-law. She also moved an application claiming maintenance of Rs 2 lakh per month, and interim maintenance of the same amount. The magistrate examined Monica, recorded her evidence, and issued a summons on March 21, 2005. By order dated May 10, 2005, the magistrate granted Monica interim maintenance of Rs 5,000 per month. The magistrate also issued non-bailable warrants, dated June 29, 2005, against Vikas and his parents. Monica subsequently went to the high court, which fixed maintenance at Rs 50,000 per month.

Vikas and his parents approached the Delhi High Court for a quashing of the order directing the issuance of non-bailable warrants against them. The high court, by order dated August 8, 2005, stayed the issuance of non-bailable warrants with an undertaking that Vikas and his parents would appear before the magistrate. The husband and in-laws also approached the high court for a quashing of the order summoning them for trial under Sections 498 A and 406 of the IPC, for cruelty and criminal breach of trust respectively. Vikas and his parents came to India, appeared before the magistrate and were released on bail. The high court directed that Vikas’ passport be impounded on grounds that efforts were being made for a reconciliation. But the reconciliation talks broke down and his passport was returned with permission to go abroad subject to a bank guarantee of Rs 1 lakh.

On November 21, 2005, Monica filed a criminal complaint of cheating with regard to property, under Section 420 of the IPC, against her husband Vikas and her in-laws. It was alleged that material facts with regard to Vikas’ first marriage, particularly that the first wife had alleged acts of cruelty by the husband, had not been disclosed. The magistrate took cognisance under Sections 417/415 of the IPC for cheating, as the allegations were not made out under Section 420 of the IPC, as property was not involved. At the instance of the wife, several attempts at a reconciliation between her and Vikas were made.

The high court, by an order dated January 21, 2008, dismissed the in-laws’ application for a quashing of the summons with regard to the criminal case of cruelty and criminal breach of trust. The high court held that whether the conduct of the in-laws amounted to cruelty or not would be determined only after detailed evidence by the prosecution at the trial. With regard to criminal breach of trust, the high court held that the allegations indicated that property belonging to the wife was in the possession of her in-laws and that they had refused to return it when they were asked to. The order observed that it was not necessary, at the stage of the quashing, to determine whether the contents of the complaint were true or not. Whether or not the ingredients of criminal breach of trust were made out would be determined at the trial. The father-in-law and mother-in-law appealed to the Supreme Court against the high court’s order refusing to quash the summons with regard to the criminal case.

The Supreme Court examined the ingredients of Section 498 A of the IPC and observed that, in order to constitute cruelty under the provision, the husband and relatives’ conduct should be such as to be likely to drive the woman to suicide or cause grave injury or danger to her life, limb or to her mental or physical health.

The wife did make a number of allegations with respect to her in-laws. It was alleged that the father-in-law “threatened the complainant to finish her relationship with Mr Vikas Sharma”. That he offered her a sum of Rs 25 lakh as compensation for a divorce by mutual consent and refused to return clothes/jewellery unless a divorce was granted. There were a number of allegations of a general nature against the mother-in-law, such as “poisoning the ears of the son”, giving used lady suits (sic) to the daughter-in-law and “giving perpetual sermons to the complainant”, which would clearly be outside the ambit of the offence of cruelty under the provision.

The three allegations that deserve scrutiny are that the mother-in-law kicked the daughter-in-law; that she humiliated and harassed her by repeatedly saying that her son would be a second-time divorcee while the complainant would have been divorced for the first time; and that gifts/cash given by invitees/guests had been appropriated by the mother-in-law.

It is important to keep in mind that summons to appear are quashed when, even if the allegations made are taken to be true, they do not constitute an offence or make out a case against the accused. The correctness or falsity of the allegations is generally left to be determined by the trial court, based on the evidence adduced. In the present case, the apex court judgment declared that even if the allegations made in Monica’s complaint were taken at face value and accepted in their entirety, they did not constitute the offence of cruelty under Section 498 A and that no case had been made out against the in-laws. This, in effect, means that kicking by the mother-in-law, or harassing and humiliating by threatening the daughter-in-law with divorce have been held not to amount to cruelty under Section 498 A.

After holding that no case for cruelty had been made out under Section 498 A, the judgment adverts to the allegation that the mother-in-law had taken the gifts/cash given by invitees/guests and holds that this prima facie would fall within the offence of criminal breach of trust, under Section 406 of the IPC. Applying the view taken to the case, the court quashed the summons issued to the mother-in-law and father-in-law to appear before the magistrate with regard to the offence of cruelty under Section 498 A. It directed that proceedings against the mother-in-law could continue with respect to criminal breach of trust, under Section 406 of the IPC.

The Supreme Court does not just decide individual cases — it lays down the law of the land. The proposition that kicking and threats of divorce do not cause a woman to feel suicidal, nor do they gravely injure her physical or mental health seems too broad a proposition. Apart from the factor of a divorced woman’s status in our society, circumstances can indeed be visualised where a woman feels suicidal when she is threatened by divorce. It could gravely injure and traumatise her psyche, thereby jeopardising her mental health. Today, the law recognises that words, barbs and acts that are not physical or violent could be wounding and hurtful enough to amount to cruelty. Even if kicking may not cause grave physical injury, it could be extremely degrading, demeaning and traumatic to the individual. The importance of the judgment is not confined to the two acts of kicking and threatening divorce being taken out of the purview of cruelty, under Section 498 A in the present case. Following the precedent set by the apex court, numerous other acts and conduct thought “akin” or similar to kicking and threats of divorce may be taken out of the ambit of the offence of cruelty to a married woman by her husband or his relatives by the courts.

(Rakesh Shukla is a Supreme Court lawyer)

Categories: 498A Tags:

Top 10 most expensive divorces

November 28, 2011 Leave a comment

Celebrity divorces are big business these days. Some of them last only a couple of months, and there are crazy weddings like that of Britney Spears’ which lasted only a few hours. The more popular the celeb is, the more is the alimony. Some of you might actually be inspired to marry a star after watching this video. After all, a broken marriage is indeed a good business!

 

http://video.yahoo.com/alltime10s-18191558/video-18191561/top-10-most-expensive-divorces-21481322.html

Categories: Divorce, News

Filing 498a/ 406, 307 & 34 IPC after 17-20 mths of incident shows an after Thought attempt, cant prove statements, and contrary statements- Delhi HC dismissed CrPC 125

November 7, 2011 3 comments

“the fact that the Complaint under Sections 498A, 406, 307 & 34 IPC was filed by the Petitioner after about 17-20 months of the incident shows that the same was an after thought. “

Anita vs Rati Ram Chauhan on 4 November, 2011
Author: Mukta Gupta

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ Crl. Rev. P. 726/2010 & Crl. M.A. 17479/2011 % Reserved on: 8th August, 2011 Decided on: 4th November, 2011

ANITA ….. Petitioner Through: Mr. Ratnesh Bansal, Advocate

versus

RATI RAM CHAUHAN ….. Respondents Through: Mr. Shailender Dahiya, Advocate with Respondent in person.

Coram:

HON’BLE MS. JUSTICE MUKTA GUPTA

1. Whether the Reporters of local papers may Not Necessary be allowed to see the judgment?

2. To be referred to Reporter or not? Yes

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

MUKTA GUPTA, J.

1. By this petition the Petitioner seeks quashing of the Judgment dated 10th September, 2010 passed in case number 95/2010 by the learned Additional Principal Judge dismissing the application of the Petitioner seeking maintenance from the Respondent under Section 125 Cr. P. C.

2. Briefly the facts are that the marriage between the parties was solemnized on 23rd February, 1996. The Petitioner claims that the Respondent and his family members were not satisfied with the dowry articles presented at the time of marriage. They started ill treating her and raised a demand of Rs. 1 Lac and a car. On 17th April, 1996 the Respondent, his father and sister pushed her down from the roof of the matrimonial home resulting in serious injuries to the Complainant. She was then removed by the neighbors to Gupta Nursing Home. The nursing home however did not admit her and referred her instead to Mata Chanan Devi Hospital. On 27th April, 1996 the Petitioner was discharged from Mata Chanan Devi Hospital and since then she has been staying in her parental home. After about 17-20 months, the Petitioner lodged a complaint with the police for the said incident and a case FIR No. 34/98 was registered under Section 498A/307/406/34 IPC. In the said trial the Respondent and his family members were acquitted by the learned Additional Session Judge. The Respondent in May, 1998 filed a petition for dissolution of marriage on the ground of cruelty and the marriage was dissolved by learned District Session Judge vide Judgment and decree dated 26th May, 2007. Vide this Judgment, the Petitioner was granted Rs. 3,000/- per month as alimony. There is however an appeal pending in this court filed by the Petitioner vide Mat. App. 46/2007. The Petitioner  claims that after her injury, she is unable to move and the Respondent has not made any provision for her medical treatment or maintenance and is refusing to maintain her without any sufficient cause. Hence the present petition.

3. The learned Counsel for Petitioner contends that the learned Additional Principal Judge in the impugned Judgment has placed great reliance on the fact that the Respondent and his family members have been acquitted by the learned Additional Session Judge. According to him this acquittal was not binding on the family court and therefore the maintenance application should have been decided on its own merits de- hors the findings of the learned Additional Sessions Judge in the criminal trial.

4. It is stated that as per Section 125 Cr. P. C if a person with sufficient means neglects or refuses to maintain his wife then he is liable to pay her maintenance. Learned Counsel states that the learned Additional Principal Judge failed to appreciate the fact that during trial the Respondent admitted his liability to maintain the Petitioner but had not shown any intention to take the Petitioner back to the matrimonial home.

5. Learned Counsel for Petitioner further states that the Petitioner has appealed against the Judgment dated 26th May, 2007 passed by the learned Additional Session Judge dissolving her marriage which is still pending in this Court. Under these circumstances the alimony of Rs. 3,000/- per month granted to the Petitioner in the divorce proceedings should have been disregarded by the learned Additional Principal Judge while deciding the petition for maintenance.

6. Learned Counsel for Respondent on the other hand contends that the Respondent had never neglected to maintain the Petitioner. On the 17th April 1996, the Petitioner slipped from the stairs when the Petitioner and his father were not at home. The entire medical expenses were borne by the Respondent. The Respondent being a Government employee is entitled to all the facilities of medical treatment under CGHS and had repeatedly asked the Petitioner to get treated at any CGHS hospital. But all she did was demand money in lieu of medical expenses, trying to cause the Respondent wrongful loss. The Petitioner was never meted with cruelty. It is the Petitioner who has deserted the Respondent as she was not interested in maintaining the relations.

7. I have heard learned Counsels for the parties. While adjudicating any issue it is the responsibility of the Judge to consider all the facts and circumstances. Proceedings under Section 125 CrPC are summons trial proceedings. The Court is justified on relying upon the findings of the competent Court in a criminal trial for the offences alleged and regarding cruelty by the matrimonial Court. In Inderjit Kaur vs. Union of India (1990) 1 SCC 344 it was held that, that Section 125 CrPC provides a speedy remedy against starvation of the civil liabilities of the parties, the order made thereunder is tentative and is subject to final determination of the rights in civil court. Further in Teja Singh vs. Chhoto 1981Crl. L.J. 1467 (Punjab & Haryana) while dealing with a similar issue it was held that even if an order granting maintenance had been passed in favour of the wife and if thereafter a decision between the parties is rendered by the civil court which has a bearing on the question which came up for consideration earlier before the Court dealing with the petition under Section 125 of the Code of Criminal Procedure, it has to give effect to the civil court order by cancelling the order granting maintenance if such is the import of the judgment of the civil court. In case of Sri Jasholal Agrawala @ Jain vs. Smt. Puspabati Agrawala, 1994 Crl.LJ 185 the High Court of Orissa it was held that it has to be taken as an accepted principle that the finding of the civil court in a matrimonial proceeding is binding on the criminal court and the criminal court is not entitled to question the correctness or validity of the civil court decision.

8. The learned Additional Principal Judge was therefore justified in relying on the fact that the learned Additional District Judge by Judgment dated 26th May, 2007 had dissolved the marriage of the parties on the ground of cruelty by the Petitioner and had the Respondent actually been harassing or neglecting the Petitioner then he would have never succeeded in the divorce petition. The fact that the Respondent allowed bed ridden Petitioner to go to her parental home so that she could be looked after by her mother was also found to be convincing since the Respondent had no female member in his family.

9. It is relevant to note that the Petitioner in her statement has admitted before doctor in the Hospital that she had slipped from the stairs on the day of incident. The Petitioner has not placed anything on record to show that there was any pressure from the side of Respondent on her to give that statement. Further, the father of the Petitioner in his statement before Court admitted that when he visited his daughter in the Hospital she did not tell him anything. From a perusal of the statements of witnesses, it is clear that the claim of the Petitioner that Respondents failed to maintain her and willfully neglected her is not substantiated.

10. As per the record the Respondent had filed the medical bills of Mata Chanan Devi Hospital as evidence of making payment of the same. The father of the Petitioner in his explanation for the bills being in possession of the Respondent had stated that the respondent had stolen the bills from him. But this story is completely contradictory to his other statement wherein he had said that the Respondent never visited the Petitioner in the hospital or thereafter. Thus the Respondent had no occasion to commit the theft of the bills from the Petitioner or her father. Therefore it can be safely held that the Respondent bore the expenses of the Petitioner’s treatment in the hospital and he was not negligent in his responsibilities towards the Petitioner.

11. The Petitioner has not been able to adduce any evidence to support her contention of being neglected by the Respondent. Moreover there is no explanation rendered by the Petitioner as to why she did not inform her neighbour or any other person who allegedly removed her to the nursing home that she was thrown by the Respondent or his father. Further the fact that the Complaint under Sections 498A, 406, 307 & 34 IPC was filed by the Petitioner after about 17-20 months of the incident shows that the same was an after thought. The Respondent on the other hand has adduced evidence to show that he had not neglected to maintain the Petitioner and is even paying Rs. 3,000/- per month regularly as directed by the learned Additional District Judge vide the Judgment dated 26th May, 2007.

12. Learned Additional Principal Judge has considered all the relevant issues and scrutinize the matter. I do not find any infirmity in the Judgment dated 10th September, 2010.

The revision petition and the application are accordingly dismissed. (MUKTA GUPTA)

JUDGE

NOVEMBER 04, 2011

vkm

 

Categories: CrPC 125 Tags:

Father gets Custody from Grandparents as wife is Dead and 498a/304 is acquitted-Delhi Court

November 7, 2011 Leave a comment

IN THE COURT OF SH. GAUTAM MANAN

GUARDIAN JUDGE (CENTRAL) DELHI

G.P. NO. 137/2004

IN THE MATTER OF :­

SH. SUKHBIR SINGH

S/O SH. RAM SWAROOP

R/O VILL. BEGUM PUR,

DELHI­110041             …….PETITIONER

V E R S U S

1. SH. PRABHATI LAL

2. SMT. SHANTI DEVI

W/O SH. PRABHATI LAL

3. SH. JITENDER

S/O SH. PRABHATI LAL

4. SH. BAL RAJ

S/O SH. PRABHATI LAL

5. SH. OMI

S/O SH. PRABHATI LAL

ALL R/O, H.NO. 3772, GALI RAMNATH,

PATUA TAIL MANDI PAHAR GANJ,

NEW DELHI­110055.            …….RESPONDENTS

UNDER   SECTION     25   OF   THE   GUARDIAN   & WARDS ACT FOR  THE  CUSTODY OF THE MINOR  MASTER ‘MOHIT’

Date of Institution                :   09.07.2004

Judgment Reserved on        :   17.09.2011

Judgment Delivered on        :   24.10.2011

J U D G M E N T

1.   The present petition under section 25 of the Guardian and Wards Act has  been filed  by the father of minor child namely ‘Mohit’ against the respondents  (Nana, Nani &  Mama) for seeking permanent custody of minor child, who is now aged about 10 years.

2. As   per   the   case   of   the   petitioner,   he   was   married   to RoshniDevi(deceased),   daughter   of   the   respondent   no.1,   on 12.05.1998.   Out  of   the   said   wedlock   two   children   were   born,   one female   child   ‘Kanta @Kirti’    and   a   male   child namely ‘Mohit’ on and 24.07.2001 respectively. It is averred that the mother of the minors Smt. Roshni Devi got expired on 29/12/2002 in the LokNayak Jai Parkash Hospital,Delhi due to some disease. The minor ‘Mohit’ son of the petitioner  is only 3 years of age and  as such tender age hence presently needs the care, love and custody of the petitioner (father) which is in the welfare and development of the minor. The minor ‘Mohit’ was taken  from the custody of the petitioner forcibly and deceitful after the death of his mother on 29/12/2002.

3. It is stated that after the death of mother of the children, the   petitioner   and   his   relative        several   times   approached   to   the respondents to hand over  the custody of the child  ‘Mohit’ but of no avail and they categorically refused all requests. The petitioner  also sent a legal notice  through his counsel seeking custody but to no effect. It is stated In the absence of the company of his son Master ‘Mohit’  the petitioner  is very mentally depressed. The   female child   ‘Kanta’  is residing with the petitioner. The minor ‘Mohit’   is in the custody of her grand­parents and maternal uncle. The company of the minors with each   other   is   very   necessary   for   playing,   love,   affection   and development. It is further submitted that petitioner (father)  is natural

Guardian of minor child   and fit for taking the custody of the minor child hence the present  petition seeking permanent custody of minor child has been filed.

4. In  the written  statement, the respondent no. 1&2  have submitted  ‘Mohit’    was   born   in   August,   2001   on   the   day   of   Teej festival.   The   petitioner   committed   various   cruelties,   physical   and mental to   the  daughter   of   the   respondent  no.  1  & 2   namely,  Smt. Roshni Devi and consequently, the said daughter of the respondents have   died.   A   case   U/s.   498A/34   IPC   bearing   FIR   No.   961   dated 08/08/2002 P.S. Sultanpuri  was also  registered against petitioner and his parents. The petitioner even did not maintain his wife and after death of

Smt. Roshni Devi on 28/12/2002 ‘Mohit’   is in the care and custody of

the respondent no. 1 and 2 . It is stated that even the petitioner has not

flamed the last rites of his wife and since the petitioner himself is a wrong doer,  he is not entitled to the discretionary relief of the custody of the minor  children. The petitioner  has got no love and affection with    the   minor    children.  and   is  not  in  the   welfare  of  the   minor children.  The petitioner  did not even cared to maintain his wife and further did not take care of her Smt.  Roshni Devi was suffering from various ailments and was admitted in LNJP  Hospital, New Delhi. Even during her treatment, the minor children were living  in the care and custody of the respondent no. 1 & 2.  The welfare of the minor children is with the respondent no. 1 & 2 who are maintaining and looking after  the   minor   child   since   he   was   only   about   7   months.   It   is   further  submitted that the petitioner has solemnized the second marriage after the death  of Ms. Roshni Devi and  the said lady,  Smt. Prem @Babli is the daughter of Sh.  Fateh, who is  also having two children and the petitioner is keeping  the s said  two children with him. The petitioner has no   love   and   affection   for   the   minor   children.   Not   only   this,   the  petitioner is not maintaining  the minor  daughter who is living in the care and custody of the petitioner.

6. It   is   stated   that   a   case   is   still   pending   against   the petitioner u/s 498A/34 IPC. The petitioner was hasty to marry another lady  Smt. Prem @  Babli after the death of Smt.  Roshni Devi, his first wife. The  respondents are the best persons to maintain and look after the welfare of the minor children.

7. Petitioner filed replication wherein he has reasserted the avernments   made   in   the   petition   while   denying   those   made   in   the written statement.

Vide order dated 31/07/2007, the following issues were framed:­

1.  Whether    petitioner   is     entitled   for  permanent  custody    of   minor child

Master ‘Mohit’ as prayed ? OPP

2.  Relief.

9.   The   Ld.   Predecessor   of   the   Court   had   a   Chamber interaction  with  the  minor  child  ‘Mohit’   on  03/01/2007. The  child  informed that  he is studying  in Rana School. The child stated that  he

has many friends in his School and that Piyush is his best friend. The

child denied that   he knows the petitioner.

10.  The petitioner  examined himself  as  PW1  and tendered

his evidence by way of an affidavit Ex. PW1/A. The petitioner proved

the  birth Certificates of both the kids are Ex. PW1/2 and Ex. PW1/3. A

FDR as  Ex PW1/4. Blood donor Card is  Ex. PW1/5. The copy of the

legal notice is Ex. PW1/6 & Postal Receipts as Ex. PW1/7­11.

G.P. No.137/04                                                                      page 7/2411. The petitioner during his cross examination deposed that

he is matriculate and is earning a sum of Rs. 12,000/­ per month. The

petitioner admitted income of respondents at Rs.15­20,000/­ and that

respondent no.1 he is a Govt. Servant.   It is admitted that the child

Mohit was about 7 months old when his wife left the house along with

the child and also admitted that he has solemnized the second marriage.

He has one daughter from the 2

nd

marriage and his second wife has got

two children from her previous marriage but denied that those children

are living with them. The petitioner deposed that he is paying Rs. 300/­

per month for the  education of his daughter who is studying in class 3

rd

and the daughter from 2

nd

wife is not studying anywhere as she is of

two year old only.

12. The petitioner also examined PW2 Sh. Ram Swaroop his

father who tendered his examination in chief by way of an affidavit Ex.

PW2/A.

G.P. No.137/04                                                                      page 8/2413. In defense respondent appeared in witness box as  RW1

and tendered her evidence by way of affidavit Ex. RW1/A. The medical

bills and receipts are collectively  Ex.  RW1/1  (1to40) Clinical test of

Kumar Diagnostic are collectively  Ex RW1/2  (1to 3). Clinical test of

Dr.   Disujas   Diagnostic   are   collectively  Ex.   RW1/3  (1   to   11).

Prescription of LNJP Hospital is collectively Ex. RW1/4 (1 to 4 ). Copy

of FIR is Mark X.

14. During his cross examination RW1 deposed that he has

five daughters and six sons. Out of five daughters one has expired. Out

of   six   sons,   three   are   married   and   his   three   sons   namely   Balraj,

Yudhbir   & Jitender  are  living   separately.  His   son  Balraj has   three

daughters and two sons and he is residing at South Delhi.   His son

Yudhvir  is   having  two   daughters   and   one  son.  His  son   Jitender  is

having three daughters. Out of his five daughters, one married daughter

has expired, two are married and two daughters are living with him. It

G.P. No.137/04                                                                      page 9/24is deposed that respondent no.1 is income tax assesse. He sell idols of

Gods after purchasing them from Kolkatta. He sell the same from road

side stand as well as from his house and from fair etc. It is also deposed

that except the child in question, petitioner does not have any other

male child and deposed that he does not know whether the petitioner is

bringing up the daughter properly or that if he is sending her in a public

school.

15. The  respondent also  examined  Sh. Jitender  Kumar  his

son   as  RW­2  and this witness tendered his examination in chief by

way of an affidavit Ex. RW2/A. The witness deposed that he is a retired

person. He is a property dealer.

16.  I have heard counsel  for parties and perused the entire record.

G.P. No.137/04                                                                      page 10/2417. ISSUE   NO.1: Whether   petitioner   is   entitled   for

permanent custody of minor child Master ‘Mohit’ as prayed ? As

per the settled law it is the objective of the Guardian and Wards Act

that every trial is only to ensure paramount welfare and interest of the

children. The guardianship  Court is  not a platform where litigation

parties can be permitted to vent their grudges and her feelings against

each other and that matters and relevant is as to what would be done to

secure   the   welfare   and   interest   of   the   minors   since   in   all   the

guardianship  cases  it is  the  minors  only  who  are  the  victims  even

through   they   have   no   role   to   play   in   the   failed  marriages   of   their

parents.

18. It has been contended on behalf of the respondents that

the child ‘Mohit’ has been in their care and custody since his infancy

and the petitioner has never taken the care to look after the welfare of

G.P. No.137/04                                                                      page 11/24the child. It has  been  argued  that the  respondents  have  proved  the

following facts which dis­entitles the petitioner to have the custody of

the minor, such as :­

a) The petitioner always treated mother of the child with cruelty

and a case under section 498A was registered against the petitioner.

b) That the minor is in their custody since he was barely 7 months

old and has adjusted well in company of the respondents.

c) That the respondents have sufficient means to up­bring the child

and to take care of his welfare.

d)  The petitioner has shown no interest in the growth of the child.

e) In an interaction with Court, the child has failed to recognize the

petitioner as his father and has desired to live with his maternal grand­

parents.

G.P. No.137/04                                                                      page 12/24f)  The   petitioner   has   remarried   and   has   also   to   look   after   the

children of his second wife.

19.   In support of their case the respondents have relied upon:

AIR   2007   Rajasthan   190,   in   this   case,   the   child   was

residing with his father since beginning and the Hon’ble

Court held that” the child is living with the father and his

family members. …… the child is very much attached with

his grandmother and the child considers her to be his real

mother and expressed no inclination to leave the present

surroundings and he was found to be happy. In view of the

facts and circumstances of the case, when both the parties

are   residing   in   the   same   vicinity   at  Ajmer,   though

separately as their relations are not cordial, it would not

be in the interest and well being of the child to disturb him

from   the   present   surroundings   and   to   hand   over   his

custody to the appellant­wife while she is  staying away

from the husband though there has been no ‘Talaq’ as yet.

AIR 2006 MP 234,  in this case the Hon’ble Court held

that”……In this case also the minor child is not willing to

go with his mother. This he repeatedly expressed before

the Court during his statement in the trial Court and also

at   the   time   of   final   hearing   of   this   case   before   us.

Therefore,   the   view  taken  by  the Court is erroneous to

G.P. No.137/04                                                                      page 13/24send the child in the custody of the natural guardian, who

is  mother  (respondent No. 1). There  is  no  evidence  on

record that the grand­father, who is appellant had kept the

child forcefully or the child is also not willing to go with

his grand­father.  In his statement in the lower Court he

categorically stated that he is not willing to go with his

mother. He suspects that his father was murdered by his

mother. He also apprehends that his mother will kill him.

It may be that his apprehension may not be on a sound

footing or even baseless but a child of 10­11 years cannot

be permitted to live under such apprehension which may

hamper his mental growth.”

AIR 2006 Jharkhand 124, in this case, where the question

of custody of 14 years old boy was in question, the Hon’ble

Court held that ” admittedly minor has been brought up

with love and care by grand parent since after unnatural

death of his mother when he was 7 months old, now boy is

14 years old. Father of child had never shown any interest

in his upbringing and never visited him all these years.

Father is remarried and having two children from second

marriage and has been convicted in criminal charge in

connection   with   death   of   first   wife.  Grand   father   has

sufficient   means   to   properly   bring   up   said   minor.   In

circumstances placing minor in custody of natural parent,

whom he had never  seen and heard of, may cause him

emotional   and   psychological   break   down.   Considering

paramount   welfare   of   child,   appointment   of   his   grand

father as his guardian instead of father, is proper”.

G.P. No.137/04                                                                      page 14/24AIR 1992 SC 1447 wherein Hon’ble Apex Court declined to

handover  custody of children to their father on grounds

that children were not ready to live with their father and

there were episodes  of ill treatment of their  mother  by

their father and he was also facing charge under section

498A IPC.

AIR 2006 Orissa 179, In a claim for custody by maternal

grandfather mere fact that maternal grandfather had filed

application under S.125 Cr.P.C. for grant of maintenance

to child  against father was held to be no ground to infer

that grandfather has no sufficient means to maintain child.

In this case it was also taken into consideration that minor

child aged about 5 years when asked to identify her father

she failed to do so and expressed her desire to     remain with

her maternal grandfather. The finding by trial Court that

grandfather   was   entitled   to   be   appointed   as   guardian

based on statement of minor girl was not interfered with.

20. There can be no denial that after the death of the mother,

father of the child is the next best person to be his guardian. In present

case the respondents have not proved that the petitioner or his family

members were convicted for the offences under section 498A/34 IPC

rather a copy of judgement passed by Ld Mahila Court has been placed

G.P. No.137/04                                                                      page 15/24on record by the petitioner  in order  to show that petitioner  and his

family members stands acquitted in that case.

21. It is  also not disputed that the real sister  of  the minor

‘Mohit’  is  in custody  of  the petitioner  namely  ‘Kanta @ Kirti’. The

female child was born in the year 1999 and since then is in custody of

the   petitioner.   It   has   come   in   evidence   that   she   is     student   of

Indrapastha  Government Senior Secondary School, Begumpur, Delhi.

This goes to show that the petitioner is taking good care of the female

child and nothing is on record that either the petitioner or his second

wife has maltreated the girl child.

22. On the other  hand there is no evidence on record that

whether   the   minor  ‘Mohit’  is   getting   proper   education   or   not.   The

respondents have not named any person who is responsibly taking care

of the education of the child.

G.P. No.137/04                                                                      page 16/2423. The respondent no.1 is an old aged person. He has a big

family consisting of 5 daughters and 6 sons. His three married sons are

residing   separately   from  him.   as   per   his   deposition   two   unmarried

daughters   and   three   sons   are   residing   with   him.   At   the   time   of

recording of evidence   in the year 2008 the respondent no.1 was 73

years old.

24. The son of the respondent no.1 who appeared as RW2 in

his affidavit has testified that minor should live with respondent’s no.1

& 2. Neither the RW2 has deposed that he will help his father in up­

bringing the minor nor any any of other children of respondents 1 & 2

have been examined by the respondents in order to show that any of

their   children   are   ready   to   take   care   of   the   child   in   absence   of

respondents   no.   1   &   2.   There   is   a   huge   age   difference   between

petitioner & respondent no.1. It cannot be ruled out that in their old age

the respondent 1 & 2 may face difficulty in taking care of the child.

G.P. No.137/04                                                                      page 17/2425.    The   respondents   have   alleged   that   the   petitioner   has

shown no interest in welfare of the child. The fact that the petitioner in

litigating with the respondents to claim the custody of the minor since

2004 cannot be ignored. The petitioner has also proved a notice sent to

the respondents directing them to hand over the custody of the child to

him. Thus, it cannot be concluded that the petitioner was not having

any interest in custody of child or he was not interested in his welfare.

26. As per the deposition made by the petitioner and he is

owning  a  Tempo  and  is  earning  Rs12000­15,000/­  per  month. The

income   of   respondent  no.1   is   stated   to   be   around  Rs10,000/­.   The

financial condition  of  the petitioner  is  no  different than  that of  the

respondent no.1  but the fact that the respondent no.1 has to take care

of his 5 unmarried children makes his financial position  little difficult.

The petitioner has proved a fixed deposit Ex  PW1/4 in order to show

his bonafides that he is ready to take responsibility of education of his

son as well.

G.P. No.137/04                                                                      page 18/2427.    ‘Mohit’ was merely seven months old since when  he is

custody of the respondents. But the existence of this situation cannot be

attributed to the petitioner as the petitioner has been litigating for past 7

years to have his custody. The child is merely ten years and the child

can adjust well if his custody is given to the petitioner specially when

the child has a elder real sister to comfort & support him.

28.  The  child  has  failed  to  recognize  the  petitioner  as  his

father and has desired to live with his maternal grand­parents in facts

of the case does not seem to be a disability as this statement was made

by the child when he was merely 4 years old. Thereafter, it was ordered

that the petitioner shall meet the minor twice a month and the sister of

minor  shall  also   meet the  child.  Now,  the   petitioner  is   not  a   total

stranger to the minor and it   is the right age when the minor can be

asked to join the company of his father & real sister.

G.P. No.137/04                                                                      page 19/2429. It has  been submitted that the petitioner  has  remarried

and has also to look after the children of his second wife as such the

child   may  feel repulsion  in  presence   of  step  mother.  But it is  not

disputed   that  the   daughter   of   the   petitioner  Kanta   @  Kirti  is   also

residing with the petitioner and her step mother. There is nothing on

record to suggest that second wife of petitioner has ever maltreated her

step daughter.

30. I   am   afraid   that   none   of   the   judgments   cited   by   the

respondents   support  their   claim   as   facts   of   those   cases   were   quite

different to the case in hand.

31. In  AIR 2009  SC 557  has  held  that when  the  court is

confronted with conflicting demands made by the parents, each time it

has to justify the demands. The Court has not only to look at the issue

on legalistic basis, in such matters human angles are relevant for deciding those issues. The court then does not give emphasis on what

the parties say, it has to exercise a jurisdiction which is aimed at the

welfare   of   the   minor.   As   observed   recently   in  Mousami   Moitra

Ganguli’s case 2008 AIR SCW 4043, the Court has to due weight­age

to   the   child’s   ordinary   contentment,   health,   education,   intellectual

development and favorable surroundings but over and above physical

comforts, the moral and ethical values have also to be noted. They are

equal if not more important than the others.

32. In the light of the evidence recorded it is concluded that:

a) that the financial status of the respondents

is no better than that of the respondent, rather the

respondents 1 & 2 have to take care of their five

unmarried children.

b) that the minor although is living separately

from his  father  but he  is  likely  to  benefit from

having the company of the his real sister  if his

custody is given to the petitioner.

G.P. No.137/04                                                                      page 21/24c) that the minor who at present is in custody

of the respondents is not shown to be getting good

education.

d) The   respondents   1   &   2   are   old   aged

persons and none of children of the respondents

have   come   forward   to   support   the   cause   of

upbringing the minor.

e)  The petitioner has brought up the sister of

the  minor  well and  being  natural father  of the

minor the petitioner is more likely to  imbibe the

moral and ethical values in the child.

f)  The petitioner has already been held not guilty

of   offenses   under   section   498A/34   IPC   of

maltreating mother of minors.

g) If the minor will live in company of real

elder   sister,   his   sister   can   not   only   provide   a

comfort zone to the minor and her company can

be quite fruitful in growing age of the minor as

sisterly love can provide the minor warmth of a

good relationship.

h) Second marriage of the petitioner  cannot

be held to be disability as there is  no evidence

that the step mother of the child has  maltreated

the  sister  of the  minor  who  is    living  with  the

petitioner and step mother rather it is in evidence

the sister of minor, Kirti @ Kanta is getting good

education in a good School.

In the light of the aforesaid conclusions, it is held   that

the paramount welfare of the  minor Mohit is with the petitioner. Thus,

the issue stands answered in favor  of  the petitioner  and against the

respondents.

34. However, keeping in view the fact that minor remained in

custody of the respondents, the respondents 1 & 2 are granted visitation

rights to meet the minor twice in a month.  The petitioner shall produce

master Mohit on first and third Saturday of each calender month at 3:00

pm at Children’s room at Tis Hazari Courts. The meeting hours shall be

3:00 PM to 4:30 PM.  In case either of the parties is not able to make it

for the visitation venue for any justified reason then they shall inform

the other party at least 24 hours in advance. The respondents shall also

be allowed a telephonic conversation with the minor twice a week.

 RELIEF:  In   view   of   the   aforesaid   discussions,   the

petition seeking permanent custody of  child  Mohit    is allowed. The

respondents are directed to hand over the custody of master  Mohit to

the   petitioner.   The   respondents   are   granted   visitation   rights   as

aforesaid. Parties to bear their own costs.

File be consigned to Record Room.

ANNOUNCED IN THE OPEN COURT

ON :  24TH   OCTOBER 2011

(GAUTAM MANAN)

GUARDIAN JUDGE(CENTRAL)

DELHI

Categories: Child Custody Tags:

Father Gets Custody of his 2 children: Delhi Court

November 7, 2011 Leave a comment

IN THE COURT OF SH. GAUTAM MANAN:
GUARDIAN JUDGE (CENTRAL) DELHI.
G.P. NO. 37/2007

PRIYANKA
D/O SH. S.N. KAPOOR,
W/O GEORGE LAWRENCE
R/O, 34/492, TRILOK PURI,
DELHI.            …….PETITIONER

V E R S U S

GEORGE LAWRANCE
S/O, SH. RAMESH ROMEL
R/O, 126, IIIRD FLOOR,
MALVIYA NAGAR, NEW DELHI.
…….RESPONDENT
PETITION SEEKING PERMANENT CUSTODY OF MINORS
ROHAN & PRIYA
DATE OF INSTITUTION  :   13.02.2007
JUDGMENT RESERVED ON        :   30.09.2011
JUDGMENT DELIVERED ON :   29.10.2011
1 G.P. No.37/07JUDGMENT
1. The   present   petition  U/s     6   (A)   of   the   Hindu   Minority  &  Guardian ship & Wards Act  has been filed by the mother   of   minor   children  ‘Priya’   and ‘Rohan’  against   the respondent  (father)  for   seeking   permanent   custody   of
minor children. The children are now aged about 14 years & 9 years respectively.
2. As   per   the   case   of   the   petitioner,   she   got married to the  respondent  on 05/05/1996 and out  of  the said wedlock   female child  ‘Priya’ was  born  on  11/03/1997  and a male child ‘Rohan’  was born on 15/12/2002. After the
marriage that the respondent started behaving rudely with the petitioner and the respondent used to tell the petitioner
that his marriage was solemnized without his consent and respondent   is   not   happy   with   this   marriage   with the  petitioner. The behavior of respondent became intolerable as he started criticizing and taunting to the petitioner  that
she does not possess a  good looking personality and she is not   of   his   status   hence   he   will   never   accompany the petitioner  publicly or any  functions  and ceremonies. It is stated   that   the   respondent   has   never   performed   his
matrimonial   duties   towards   the   petitioner   and   he   never  looked after  and  cared about children since their birth. The respondent used to return at late night hours and just after
return he used to  quarrel and abuse the petitioner & even treated the  children with cruelty. For the respondent it was
a   routine   matter   to   beat   children.   In   August   2005,   the  respondent  quarreled with petitioner and threatened to kill the petitioner and her children. The respondent threw the
petitioner form his house and since then the petitioner has been residing separately.
3.It is stated that petitioner requested and prayed to the respondent  to  handover  the custody of her minor children
but the respondent flatly refused. The welfare and future of minors   is   not   safe   with   the   respondent   who   has   always neglected   them  as   he   has   no   love   and   affection   for   the petitioner. It is stated that the respondent is  working as a Security Guard and is doing duty 24 hours and there is none
in the family of the respondent to look after minor children. On   the   other   hand   the   petitioner’s   family   includes her mother,  sister and other  family  members who can look after and take care of the children and the children will be quite
happy   and   satisfied   with   the   petitioner.   Hence,   the petitioner   is   fully   entitled   for   the   custody   of   her   minor  children  for their  welfare,  bright  future and good health.
4. In   the   written   statement,  the   respondent   has submitted that  he is  poor person and having   his parents and two children, moreover   he is sole  bread earner in his house.  Soon  after  his  marriage,  he  came to know that the
petitioner has been suffering from the fits and tuberculosis
disease   and   is   under   treatment.   It   is     submitted   that
petitioner has three names as Preety, Priyanka and Rano.
The married   life of  the husband and wife was going very
happy but after the birth of the female child the petitioner
decided to give her baby to her younger sister because her
younger sister had no issue. The respondent and his family
did not agree to give the child to her younger sister because
it   was   the   first   and   only   one   baby   in   the   family.   It   is
submitted   that   the   petitioner   is   suffering   from   inherent
Tuberculosis  disease   and  the   Doctors  have  suggested  the
respondent’s   family   to   save   her   child   with   it’s   infection,
because  it  is  an infectious  disease  and the  child shall  be
infected with her mother’s diseases. It is further stated that
since 29/02/2000 the petitioner is not living regularly with
her husband the respondent. After some time a male child
was born on 15/12/2002.
5 G.P. No.37/075. The   respondent   has   submitted   that   a   false
complaint   was   filed   by   the   petitioner   before   the   Crime
Woman cell on 23/09/2005 but the same was withdrawn by
the petitioner. Meanwhile, during the period between the
year   2000   to   2005,   the   petitioner   had   been   coming   at
respondent’s house for some time and when he was to leave
the respondent’s house then she was been writing a letter.
It is also submitted that  she never wanted to reside in her
matrimonial home regularly, however the respondent  and
his   poor   family   have   always   been   associating   her   and
requesting her  to stay in her  matrimonial home and take
care her children and his family. It is submitted that both
the   children   are   very   happily   residing   with   respondent’s
family since their birth and they have a  bright future.
6. Vide   order   dated  19/05/2008,  following  issues
were framed:­
6 G.P. No.37/071.  Whether  it   would   be   in the
interest    &    welfare    of   the
children namely baby   ‘Priya’
and    master ‘Rohan’           aged
around  10  years  and 4 years
respectively     in     case    their
permanent custody is granted
to   their     petitioner   mother
Priyanka as prayed. (OPP).
2.  Relief.
7.   The Court had a Chamber interaction with the
both   the     children    ‘Priya’  and  ‘Rohan’   on   27/08/2011.
Master  ‘Rohan’  disclosed his name as  ‘Maxwell’    and he is
studying in class 2
nd
at  Nagar Nigam Prathmik  Vidayalya,
Malviya   Nagar   and   informed   that   his   father   and   grand
mother takes good care of him. The minor submits that he is
happy in the custody of the respondent and he does not like
his mother. However, the minor was not  able to give any
specific reason why he does not like his mother except that
the petitioner suffers from fits.
7 G.P. No.37/078. In her interview ‘Priya’  has informed that she is
studying in Class 5
th
at Nigam Girls Prathmik School and she
also attends her tuition classes. The  minor informs that her
mother had left the matrimonial home and she did not take
care of the children as such the she does not wish to reside
with  her   mother.    The   minor   has   also  informed   that   the
respondent is a Security Guard and   his duty hours are at
night and he is available at home to take their care in the
day time.   It is told that in the absence of their father, the
children are looked after by their grand mother, who is also
working in a hospital. ‘Priya’  has also desired to reside with
her father, respondent.
9. I  have heard counsel   for parties and perused
the entire record.  The issue wise findings are as follows :­
8 G.P. No.37/07ISSUE NO.1: In   order   to   prove   her   case   petitioner
examined herself as PW1 and tendered her evidence by way
of   an   affidavit  Ex.   P1.     The   petitioner   during   her   cross
examination deposed that she is residing at 34/492, Trilok
Puri,   Delhi­91   and   in   the   said   house   seven   people   are
residing. It is deposed that she is doing the stitching work at
her home and her average monthly income is Rs. 2000/­. It
is admitted that  she  was  suffering  from  TB even prior  to
marriage.   The   petitioner   admitted   that   she   was   earlier
suffering   from   fits   and   she   even   got   treated   for   a
neurological problem. Petitioner   testified that  she  cannot
tell in which class her children are studying and she never
went  to meet  her  children at  their  School. The petitioner
also admitted that she has availed visitation rights to meet
her children only 5­6 times.
9 G.P. No.37/0710. In defense respondent appeared in witness box
as  RW1  and tendered his evidence by way of  affidavit  Ex.
RW1/A.    The respondent testified that he is christian and at
the   time   of   marriage   the   petitioner   also   converted   to
Christianity. His marriage was solemnized as per Christian
rites   and   ceremonies   and   proved   the   photographs   of   his
marriage as  Ex R­1. Respondent testified that petitioner is
suffering from epilepsy & tuberculosis her medical record is
Ex R­2 & R­4.   The respondent disclosed his income at Rs.
6,000/­ per month.
11. It is the objective of the  Guardian and Wards
Act that every trial is only to ensure paramount welfare and
interest   of   the   children.  The   guardianship   Court   is   not   a
platform where litigation parties can be permitted to vent
their grudges and her feelings against each other and that
10 G.P. No.37/07matters  and  relevant  is as to what would be done to secure
the   welfare   and   interest   of   the   minors   since   in   all   the
guardianship cases it is the minors only who are the victims
even   through   they   have   no   role   to   play   in   the   failed
marriages of their parents.
12. While lying the guidelines for the court dealing
with   the   guardianship   matter   and   elucidation   the
importance of the role played by Guardian Judge , Hon’ble
Supreme Court & Hon’ble High Courts have held that:
Again,   in  Thrity   Hoshie   Dolikuka   v.
Hoshiam Shavaksha Dolikuka, (1982) 2
SCC   544,   the   Hon’ble   Apex   Court
reiterated that the only consideration of
the   Court   in   deciding   the   question   of
custody of  minor should be the welfare
and interest  of  the minor. And it  is the
special   duty   and   responsibility   of   the
Court.   Mature   thinking   is   indeed
necessary   in   such   situation   to   decide
what   will   enure   to   the   benefit   and
11 G.P. No.37/07welfare of the child.
Merely because there is no defect  in his
personal care and his attachment for his
children   ­   which   every   normal   parent
has,   he   would   not   be   granted   custody.
Simply   because   the   father   loves   his
children   and   is   not   shown   to   be
otherwise   undesirable   does   not
necessarily   lead   to   the   conclusion   that
the   welfare   of   the   children   would   be
better   promoted   by   granting   their
custody   to   him.   Children   are   not   mere
chattels   nor   are   they   toys   for   their
parents.   Absolute   right   of   parents   over
the   destinies   and   the   lives   of   their
children, in the modern changed social
conditions   must   yield   to   the
considerations of their welfare as human
beings   so   that   they   may   grow  up   in   a
normal   balanced   manner   to   be   useful
members of the society and the guardian
court   in   case   of   a   dispute   between   the
mother   and   the   father,   is   expected   to
strike a just and proper balance between
the requirements of welfare of the minor
children and the rights of their respective
parents over them.
The  Hon’ble Supreme Court in AIR 2009
SC 557  has held that  when the court is
confronted   with   conflicting   demands
made by the parents, each time it has to
justify the demands. The Court  has  not
only   to   look   at   the   issue   on   legalistic
basis, in such matters human angles are
12 G.P. No.37/07relevant   for   deciding   those   issues.   The
court then does not give emphasis on
what the parties say, it has to exercise a
jurisdiction   which   is   aimed   at   the
welfare of the minor. As observed recently
in Mousami Moitra Ganguli’s case 2008
AIR   SCW   4043,   the   Court   has   to   due
weight­age   to   the   child’s   ordinary
contentment,   health,   education,
intellectual   development   and   favorable
surroundings   but   over   and   above
physical comforts, the moral and ethical
values   have   also   to   be   noted.   They   are
equal   if   not   more   important   than   the
others.
13.   In present case, ‘Priya & Rohan’ minors aged  14
years  & 9  years  have   made  a  preference  that  they  would
prefer to be with their father with whom they are residing
happily. It has also come in evidence that;
(a)  The children are residing in company
of     their     father since their birth and have
adjusted well in his company.
(b) The financial position of the petitioner is
not stable. Her meager income of Rs2000/­ is
13 G.P. No.37/07insufficient to meet the day today expenses &
educational expenses of children.
(c) The children are getting good   education
and  the  atmosphere  in  the   residence   of  the
respondent is congenial for the welfare of the
child as in the absence of the respondent, the
grand mother of the children is taking good
care of children.
(d)  The minors in their interaction with the
Court have wished to reside in the company
of the respondent.
(e) There is nothing on record to suggest that
the petitioner is more capable of handling the
children than the respondent and the welfare
of the children is not with the respondent.
14. Thus, in the light of the aforesaid discussions, I
am of the considered opinion that the paramount welfare of
the child is with the respondent and the custody of the child
‘Priya   & Rohan’   shall   remain   with   him.   However,   the
petitioner   being   the   mother   of   children   should   have
14 G.P. No.37/07sufficient access to them. Accordingly, it is ordered that the
petitioner   shall   have   the   visitation   rights   to   meet   the
children on each Sunday from 10:00 AM till 01:00 PM. The
petitioner may visit the residence of the respondent for the
meeting or otherwise may inform the respondent any other
venue of meeting within two kilometres distance from the
house of the respondent.
15.  RELIEF: In   the   light   of   the   aforesaid
discussions,   the   petition   of   the   petitioner   filed   seeking
custody of children  ‘Priya & Rohan’  stands dismissed. The
petitioner  is granted the visitation rights in respect  of  the
minor children as detailed in the above mentioned para. No
orders as to costs.
File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT
ON : 29
th
October, 2011               (GAUTAM   MANAN)
ASCJ/JSCC/GJ(CENTRAL)
DELHI.
15 G.P. No.37/07          16 G.P. No.37/07

Categories: Child Custody Tags:

No alimony for women walking out of marriage-District Court Delhi

November 7, 2011 Leave a comment
                 IN  THE  COURT OF  SHRI  RAJEEV  BANSAL,
             ASJ-03 (SOUTH DISTRICT), SAKET COURTS, NEW DELHI.

                      Criminal Revision  No. 45/10
                       (Unique No.02403R0251242010)
1.   Kulwant Kaur
      W/o Sh. Maan Singh
2.   Master Simran Singh
      S/o Sh. Maan Singh
      Through Natural Guardian
      Kulwant Kaur.
      Both R/o F-11/4,  Malviya Nagar,
      New Delhi                                                   ...........Revisionist
Vs
Sh.  Maan Singh
S/o Sh. Jeet Singh,
R/o WZ/111-B, Gurunanak Nagar,
Tilak Nagar, New Delhi                                   ..........Respondent
Date of Initial Institution     :30.07.2010
Date of institution in the present court:19.10.2010
Date of Reserving Order     :03.10.2011
Date of Pronouncement Order     :31.10.2011
ORDER
The present revision petition has been filed against
C.R. 45/10                   Kulwant Kaur & Anr.  vs. Maan Singh                                                1/7the order dated 26.05.2010 by which the petition filed under
Section 125 Cr.P.C by the revisionist was dismissed by the Ld.
Trial Court.
2. It has been stated in the petition that the revisionist No.1
Kulwant Kaur married respondent on 26.06.1992 and out of this
marriage, petitioner No.2 was born on 10.11.1993.   It has been
alleged that the respondent committed cruelties upon the
revisionist No.1 which compelled her to register an FIR with
CAW Cell against him.  The revisionist is stated to be living
separately since 09.04.1995 and has no independent source of
income whereas the respondent is stated to be earning Rs.20,000/-
per month by working as Electrician and Palmist.   The petition
under Section 125 Cr.P.C was thus filed on 25.09.2003 by the
revisionist No.1 claiming a maintenance of Rs.11,000/- per month
for herself and Rs.5,000/- for revisionist No.2.  It was further
stated that earlier petition filed under Section 125 Cr.P.C by the
revisionist was dismissed in default on 01.09.1997.
3. After consideration of the rival contentions of the parties,
the Ld. Trial Court dismissed the petition under Section 125
C.R. 45/10                   Kulwant Kaur & Anr.  vs. Maan Singh                                                2/7Cr.P.C vide order dated 26.05.2010.
4. Grievance of the revisionist is that the respondent is a man
of means whereas the revisionist has no independent source of
income.  Further, it has been stated that the respondent had
voluntarily deserted both the revisionists and has not made any
arrangement for their maintenance.  Further, it has been stated
that dismissal of previous petition filed under Section 125 Cr.P.C
is not a bar for filing a fresh petition under Section 125 Cr.P.C.
Thus on these grounds, the impugned order has been assailed by
the revisionists.
5. On the other hand, respondent/husband has stated that the
revisionist No.1 herself deserted him and hence she is not entitled
to any maintenance.  Apart from it, it has also been stated that the
earlier application filed under Section 125 Cr.P.C was dismissed
in default vide order dated 01.09.1997 and the second application
for the same relief will not lie.
6. I have heard both the Ld. Counsels and have gone through
the Trial Court record.  The Ld. Trial Court in its impugned order
dated 26.05.2010 has observed that the revisionist No.1 failed to
C.R. 45/10                   Kulwant Kaur & Anr.  vs. Maan Singh                                                3/7discharge the initial burden of proving neglect by the husband.
The Trial Court also observed that the circumstances in which the
petitioner/wife left the matrimonial home was also not
specifically dealt with by her.  It is trite that in order to claim
maintenance under Section 125 Cr.P.C , it is obligatory upon the
claimant to establish that there was willful neglect on the part of
the husband to maintain the claimant.    Ld. Trial Court took into
consideration the demeanour of the revisionist during the course
of her deposition in the court. Court’s observation are recorded in
the deposition of the petitioner according to which the witness
had called her father inside the court by signaling.   The court also
observed that the witness was warned time and again, during her
examination, not to solicit help in her examination from her
counsel or anybody else, but she did not desist from it.   Ld. Trial
Court rightly took exception to this conduct of the revisionist.
Ld. Trial Court also observed that the revisionist failed to show
the circumstances under which she left the matrimonial home.
Another factor which was noted by the Ld. Trial Court was the
dismissal of earlier petition filed under Section 125 Cr.P.C on
01.09.1997.  However, the second petition under Section 125
C.R. 45/10                   Kulwant Kaur & Anr.  vs. Maan Singh                                                4/7Cr.P.C was decided on merits by the Ld. Trial Court and after
considering the merits of the case, the same was dismissed.  The
argument of the petitioner that the Ld. Trial Court dismissed the
second petition only on the ground that the first petition having
been dismissed, is a bar against filing of a second petition, is
factually incorrect.  The Ld. Trial Court has not dismissed the
second petition under Section 125 Cr.P.C only on the ground of
dismissal of the petition under Section 125 Cr.P.C.  Only an
observation was made by the Ld. Trial Court that the first petition
under Section 125 Cr.P.C was dismissed by the court on
01.09.1997 but nevertheless the second petition was decided on
merits.  In her cross-examination, petitioner stated that she does
not know as to whether the respondent was doing the work of
Electrician and had nominal income.  She admitted that at the
time of marriage, the respondent was working as an Electrician
but she could not tell as to whether the respondent had his own
shop or was working for somebody else.  She further stated that
the respondent was provided work by her brother when he could
not succeed in his own work.  She further admitted that the
respondent was taken to Hong Kong by her brother.  The
C.R. 45/10                   Kulwant Kaur & Anr.  vs. Maan Singh                                                5/7deposition of the petitioner, read as a whole, does not show that
the respondent had sufficient means but still he neglected or
showed his inability to maintain the petitioner.  It is vital that the
petitioner is painfully silent about the circumstances in which she
left the company of the respondent and started living separately
from the husband.  When the circumstances of living separately
do not surface, adverse inference is to be drawn against the wife
that she left the matrimonial home willfully and with her own
choice.   It is settled position of law that one cannot take benefit
of his own wrongs.   It is not that all living separate are sufficient
to entitle a wife to claim maintenance from the husband.  She
must prove without fail that the husband refused to maintain her
despite having sufficient means to do so.   Wife cannot walk out
of the house at her sweet will and also claim maintenance from
the husband.   The petitioner has failed to prove the circumstances
resulting in her living separate from the respondent/husband.   In
this view of the matter, I do not find any infirmity in the
impugned order and hence the present revision petition is
dismissed.
7. TCR be returned back to the concerned court alongwith a
C.R. 45/10                   Kulwant Kaur & Anr.  vs. Maan Singh                                                6/7copy of this order.
8. File be consigned to the Record Room.
Announced in the open court.                     ( Rajeev Bansal )
Dated:31.10.2011                  ASJ-3/South District
   Saket Courts, New Delhi
C.R. 45/10                   Kulwant Kaur & Anr.  vs. Maan Singh                                                7/7C.R. 45/10                   Kulwant Kaur & Anr.  vs. Maan Singh                                                8/7
Categories: CrPC 125 Tags:

No alimony for women walking out of marriage

November 7, 2011 Leave a comment

http://epaper.mailtoday.in/Details.aspx?boxid=232824968&id=60856&issuedate=5112011

WOMEN who choose to walk out on their marriages cannot claim alimony and must support themselves, a Delhi court has said.
Rejecting a plea for maintenance from a Malviya Nagarresident who had deserted her husband, the court said the woman must first prove that the man had actively denied support and caused separation.
” A wife cannot walk out of the house at her own will and also claim maintenance from the husband,” additional sessions judge Rajeev Bansal said.
” Living separately is not sufficient ground for a wife to claim maintenance from the husband. She must prove without fail that the husband had refused to maintain her, despite having sufficient means to do so.” The woman had filed an appeal against a magisterial court decision which had dismissed her plea for maintenance.
In her application to the sessions court, she alleged that her husband had acted cruelly, leading to their separation, three years after the marriage. Claiming that her estranged husband was making sufficient money as an electrician, she demanded an appropriate amount of alimony.
The court, after examining the evidence and testimony at hand, concluded that the woman had failed to prove the adverse circumstances that had led to the estrangement.

 

 

 

 

 

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