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Girl Child Custody to the Father- Kerala HC

December 30, 2011 1 comment

Kerala High Court

Merlin Thomas vs C.S. Thomas on 18 February, 2003

Bench: K A Gafoor, K Thankappan
JUDGMENT

Thankappan, J.

1. Both the appeals are filed against the order of the Family court, Kottayam at Ettumanoor in O.P. (G & W) No. 554/2000. The custody of a minor child, Arya Rose Mary, aged 6 years, is the subject matter of the Original Petition. The marriage between the petitioner and the respondent was solemnised on 11th February, 1995 at Cathedral Church, Changanacherry as per Christian rites. The child was born on 3-1-1996. The married life between the parties were happy for some time. The petitioner/husband is young and well educated and is working in the office of the Divisional Office, LIC of India, Kottayam. The respondent wife is also young and educated. Later, the marital relationship of the petitioner and the respondent became strained due to suspicious nature of the parties and even alleging mental disorder against each other. At last the respondent left the company of the petitioner and started living, with the child, in her parental house. Mediators including heads of religious institutions intervened and attempted to bring them together. All these attempts became futile. Later, the husband was forced to file O.P. No. 528/2000 before the Family court for a decree of restitution of conjugal rights and the Original Petition is pending. During the pendency of the said Original Petition, counselling was conducted and it was ordered that both of them may be subjected to psychiatric counselling and treatment. As the petitioner was not agreeable for this, he filed O.P. No. 13762/2000 before this court and got a direction to the Family Court to consider and pass appropriate orders in O.P. (G&W) No. 554/2000. Subsequently during the pendency of O.P. No. 528/2000 the Family Court considered O.P. (G&W) No. 554/2000 and allowed the original petition on the following directions :

For better education of the child custody is given to the petitioner on 5 days in a week i.e.. Monday to Friday and custody given to the respondent on Saturday and Sunday. During summer vacation 1st half of the period custody given to the Respondent and the 2nd half given to the petitioner. The petitioner shall send the child in the house of the respondent in the F. N. of Saturday and the respondent shall return the custody of the child to the petitioner in the afternoon of Sunday at 5 P. M., so that the education of the child, its welfare could be protected. Hence, the petitioner and respondent have come up in appeal.

2. It was alleged in the petition that the respondent/wife is adamant and her brothers and other family members are not looking after the affairs of the child. If the child is allowed to stay with the respondent, it will spoil her life as the child will not get better education or proper care. The respondent/wife left the company of the petitioner only because of the instigation of her brothers and the alleged mental disorder of the petitioner/husband is baseless. It is alleged that the wife being the last among the 11 children of her family and the paternal family of the wife is almost like a joint family, the child will not get proper care even if it is allowed to stay with her mother. The Family Court found that the petitioner/father is well educated and well placed so as to look after the child. It is also found that for the welfare and care of the child the custody of the child should have been given to the petitioner /father on certain conditions.

3. We have summoned couple as well as the child. We have ascertained the desire of the child and also we have attempted to minimise the animosity of the husband and the wife taking note of pendency of O. P. No. 528/2000, for a decree of restitution of conjugal right, before the Family Court. But we could not be successful. Hence, we consider only the custody of the child for the time being.

4. This is a matter to be considered by this Court very cautiously. The consideration in ordering the custody of a minor child shall be the welfare of the child. The emotions of either of the parents does not have much weight. Children are like lighted lamps and they have to live like lamps with least scratch in their life. The children are like petals in a flower, least scratch will make crack in their hearts. The company, affection, protection, affinity and emotional console are required to a child. These are only consideration, but the paramount consideration is the welfare. The welfare means educational, economical, religious, mental or moral well-being. For ordering the custody of a minor child the court shall be guided not only with the consistency of the law which governs the right of the guardian either natural or otherwise, father or mother but the education, character and capacity of the proposed guardian also be considered. Above all these aspects as it is held in Rosy Jacob v. Jacob A. Chakramakkal, AIR 1973 SC 2090, that the controlling consideration governing the custody of the children was the welfare of the children and not the right of their parents. In the case in hand the Family Court found that the petitioner husband, father, is well placed and is having a job in the L. I. C. of India and is capable to give better education to his child. It considered all these aspects and found ordering custody of the child to the petitioner/husband is better for the welfare of the child. It is also to be noted that the petitioner/father is the only son to his parents. Presence of the grand-daughter will also be a console to the old parents of the petitioner. At the same time considering the allegations now levelled against the petitioner as well as the mother in the proceedings pending before the Family Court, though it is a matter to be considered on evidence and whatever may be the outcome, now we are only concerned with the welfare of the child. We see that the order now made by the Family Court is in accordance with the principles enunciated by judicial pronouncements as well as the guiding principles contained in the provisions of the Guardians and Wards Act, 1890. But we cannot ignore certain facts, we have ascertained.

5. It is to be noted that the child is a girl child. The company of the mother is more affectionate and it will give certain protection to the child in developing her personality, intelligence and character. But at the same time it is a fact that the court below already found that the father is capable of protecting the interest of the child and the presence of the child in the paternal house will give some console to the old parents of the husband. We have assessed the wishes of the child in Chambers and we found that the child is very anxious to have the company of the father, the paternal grand parents as well as the mother. Hence, the order passed by the Family Court is modified to the extent that the custody of the child be continued with the respondent/mother provided the petitioner shall get the child every second Saturday and Sunday in every month and during a full vacation period, preferably X mas vacation.

6. With these modifications we dispose of both the appeals.

Categories: Child Custody Tags:

No maintenance in DV if maintenance already passed in Crpc 125

December 21, 2011 Leave a comment

Delhi High Court

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: August 25, 2010

Date of Order: 30th August, 2010

+ Crl.M.C.No. 130/2010 & Crl.M.A.No. 504/2010

% 30.8.2010 Rachna Kathuria … Petitioner Through: Mr. P.Narula, Advocate

Versus

Ramesh Kathuria … Respondent Through:Mr. S.S.Saluja, Advocate

JUSTICE SHIV NARAYAN DHINGRA

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

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

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

By this petition under Section 482 Cr.P.C. the petitioner has assailed an order dated 22nd October 2009 of learned Additional Sessions Judge passed in appeal whereby the appeal of the petitioner was dismissed.

2. The petitioner filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (in short the Act) and along with it she filed an application under Section 29 of the Act seeking maintenance. The learned Court of MM observed that petitioner was living separate from her husband since 3rd January, 1996. She had filed a Civil Suit under Hindu Adoption and Maintenance Act and an application under Section 125 Cr.P.C. and she was getting a total maintenance of ` 4000/- per month from the respondent. In case the petitioner felt that maintenance awarded to her was not sufficient, the proper course for her was to approach the concerned Court for modification of the order as already observed by the High Court in a petition filed by her earlier and the application was dismissed. Against this petitioner preferred an appeal. The learned Additional District Judge dismissed the appeal and the petitioner has preferred this petition.

3. It must be understood that the Protection of Women from Domestic Violence Act, 2005 does not create any additional right to claim maintenance on the part of the aggrieved person. It only puts the enforcement of existing right of maintenance available to an aggrieved person on fast track. If a woman living separate from her husband had already filed a suit claiming maintenance and after adjudication maintenance has been determined by a competent court either in Civil Suit or by Court of MM in an application under Section 125 Cr.P.C. she does not have a right to claim additional maintenance under the Act. The Court of MM under the Act has power to grant maintenance and monetary reliefs on an interim basis in a fast track manner only in those cases where woman has not exercised her right of claiming maintenance either under Civil Court or under Section 125 Cr.P.C. If the woman has already moved Court and her right of maintenance has been adjudicated by a competent Civil Court or by a competent Court of MM under Section 125 Cr.P.C., for any enhancement of maintenance already granted, she will have to move the same Court and she cannot approach MM under the Protection of Women from Domestic Violence Act by way of an application of interim or final nature to grant additional maintenance. This petition is not maintainable and is hereby dismissed.

August 30, 2010 SHIV NARAYAN DHINGRA, J. vn

SC: Wife to contiribute to maintenance of child

December 20, 2011 1 comment

Cites 13 docs – [View All]

Citedby 6 docs – [View All]

Supreme Court of India

Padmja Sharma vs Ratan Lal Sharma on 28 March, 2000
Equivalent citations: AIR 2000 SC 1398, I (2000) DMC 621, 2000 II OLR SC 85
Author: D Wadhwa
Bench: D Wadhwa, M Shah

JUDGMENT

D.P. Wadhwa, J.

1. Appellant, the wife, whose marriage with the respondent has since been dissolved by decree of divorce on the ground of cruelty on the petition filed by her, has filed this appeal not only seeking enhanced maintenance for two minor children of the marriage but also for claiming the same from the date of application filed under Section 26^1 of the Hindu Marriage Act, 1955 (for short the ‘Act’) in the Family Court, Jaipur Appellant is also aggrieved by the order of the Courts below not granting her full claim of streedhan, litigation expenses, etc.

2. Both the parties are Hindu. Their marriage was solemnized in accordance with Hindu rites on May 2, 1983. First child, a son, was born on January 27, 1984 and the second child, also a son, was born on June 28, 1985. Wife filed petition for dissolution of marriage on May 21, 1990. She also prayed therein for return of her ‘streedhan,’ custody and guardianship of the children and also for their maintenance. At the same time she also filed an application under Section 125 of CrPC (Code).

3. On August 2, 1991 wife filed a petition under Section 26 of the Act in the Family Court claiming maintenance @ Rs. 2575/- per month for both the children. In the affidavit supporting the application, however, maintenance was claimed @ Rs. 2.500/- per month for both the children. It was pointed out that husband was getting a salary of Rs. 6233.40 per month. Wife also claimed a sum of Rs. 1.585/- as admission fee in schools for the children and Rs. 5.000/- as litigation expenses.

4. Family Court by order dated April 7, 1992 granted maintenance under Section 125 of the Code @ Rs. 250/- per month for each child. On April 30, 1992 Family Court awarded a further sum of Rs. 250/- per month for each child as interim maintenance under Section 26 of the Act. Family Court also framed issues relating to the custody, guardianship and maintenance of the minor children and also regarding ‘streedhan.’

5. On October 27, 1995 wife filed another application under Section 26 of the Act wherein she drew the attention of the Court to her earlier application filed on August 2, 1991, Now she claimed Rs. 2000/- per month for each child. She said salary of the husband had since been increased to Rs. 12,225/ – in August, 1995. On August 26, 1996 yet another application was filed by wife under Section 26 of the Act. Now she wanted maintenance for the elder child @ Rs. 3,500/- per month and for the younger child @ Rs. 3,000/- per month. It was pointed out that the salary of the husband was Rs. 13,683/- per month and thereafter from August, 1997 it was going to be increased to Rs. 14,550/- per month.

6. Family Court by order dated September 13, 1997 consolidated both the proceedings – one under Section 13 of the Act for dissolution of the marriage and the other under Section 26 of the Act. On October 4, 1997 Family Court granted decree of divorce in favour of the wife dissolving the marriage between her and the respondent. Against claim of Rs. 1,80,000/- towards ‘streedhan’ Family Court granted a decree of Rs. l,00,000/- as cost of the Articles which prayer was granted in the alternative if the respondent did not return the article mentioned by wife in her petition. It was also ordered that both the children till they attain majority, should be’ in the custody of the mother, the appellant, and maintenance for each of the child was awarded @ Rs. 500/- per month from October 4, 1997. A sum of Rs. 1,000/- was awarded as cost of the litigation to the wife:

7. Wife took the matter to the High Court seeking enhanced amount of maintenance of the children and decree for the full amount of Rs. 1,80,000/-. High Court by its impugned judgment, enhanced maintenance of the children from Rs. 500/- per month to Rs. 1,000/- per month effective from the date of the order of the Family Court dated October 4, 1997 and awarded Rs. 500/- per month for each child from the date of the application. High Court observed, though in our view not correctly, that “it is an incumbent liability on the part of the father to bear the cost of education and the maintenance expenses for the two children….” High Court also observed that the respondent was “admittedly employed in a responsible position in the Reserve Bank of India where his gross pay packet amounts to Rs. 13.000/- per month.” During the course of hearing we have been told that the husband is employed as a clerk in the Reserve Bank of India while the appellant-wife is a lecturer in a Government college In Rajasthan. High Court rejected the prayer of the wife for enhancement of any amount from Rs. l,00,000/. High Court made certain directions for the husband to meet the children and with that we are not concerned. High Court disposed of the appeal without any order as to costs. Still the wife felt aggrieved and sought leave to appeal to this Court under Article 136 of the Constitution, which we granted. By an interim order passed on February 22, 1999 it was directed by this Court that by way of interim relief maintenance for each of the child be paid @ Rs. 1,500/- per month by the respondent husband.

8. This Court in an appeal under Article 136 of the Constitution is not going to re-appreciate the evidence led before the Family Court. There is a concurrent finding of award of Rs, 1,00,000/- to the wife though in the alternative being the cost of the articles presented at the time of the marriage which we are not going to disturb. As far as costs and special costs are concerned that again is within the discretion of the Court and unless some weighty reason is shown to us we again do not think that we should unsettle the payment of award of costs by the Family Court and nor payment of costs by the High Court. Appellant says she has been harassed persistently by the husband in delaying the trial before the Family Court. But then husband also has a grievance that in the Family Court he could riot get the services of a lawyer though the wife was represented by her father, who himself is a lawyer and while her father would argue in the Court she would remain mute.

9. Respondent before us has not appeared instead of notice to him. We have heard the arguments of the wife ex parte. On February 28, 2000 an application was filed by the appellant for placing on record additional documents which are all of the period after filing of this appeal. No notice has been given to the respondent of this application. The purpose of the application appears to be to further enhance the amount of maintenance taking into account the charged circumstances as the salary of the respondent-husband is stated to have increased by passage of time. Various documents like receipts for payment of school fees buying of books school bags etc. have been filed. We are not inclined to permit this application at this stage. If circumstances have changed for enhancement of maintenance appellant can approach the Family Court again as an order under Section 26 of the Act is never final and decree passed thereunder is always subject to modification.

10. Maintenance has not been defined in the Act or between the parents whose duty it is to maintain the children. Hindu Marriage Act, 1955, Hindu Minority and Guardanship Act, 1956, Hindu Adoptions and Maintenance Act, 1956 and Hindu Succession Act, 1956 constitute a law in a coded form for the Hindus. Unless there is anything repugnant to the context definition of a particular word could be lifted from any of the four Acts constituting the law to interpret a certain provision. All these Acts are to be read in conjunction with one another and interpreted accordingly. We can, therefore go to Hindu Adoptions and Maintenance Act, 1956 (for short the ‘Maintenance Act’) to understand the meaning of the ‘maintenance’. In Clause (b) of Section 3 of this Act “maintenance includes (i) in all cases, provisions for food, clothing residence, education and medical attendance and treatment; (ii) in the case of an unmarried daughter also the reasonable expenses of and incident to her marriage.” and under Clause (c) “minor means a person who has not completed his or her age of eighteen years,” Under Section 18 of Maintenance Act a Hindu wife shall be entitled to be maintained by her husband during her life time. This is of course subject to certain conditions with which we are not concerned. Section 20^2 provides for maintenance of children and aged parents. Under this Section a Hindu is bound, during his or her life time, to maintain his or her children. A minor child so long as he is minor can claim maintenance from his or her father or mother. Section 20 is, therefore, to be contrasted with Section 18. Under this Section it is as much the obligation of the father to maintain a minor child as that of the mother. It is not the law that how affluent mother may be it is the obligation only of the father to maintain the minor.

11. In the present case both the parents are employed. If we refer to the first application filed under Section 26 of the Act by the wife she mentioned that she is getting a salary of Rs. 3,100/- per month and husband is getting a salary of Rs. 5.850/- per month. She is therefore, also obliged to contribute in the maintenance of the children. Salaries of both the parents have since increased with the course of time. We believe that in the same proportion, may be perhaps in the case of an employee of Reserve Bank of India at somewhat higher rate. If we take approximate salary of husband is twice as much as that of the wife, they are bound to contribute for maintenance of their children in that proportion. Family Court has already fixed a sum of Rs. 250/- per month for each of the child under Section 125 of the Code. That amount we need not touch.

12. Considering the overall picture in the present case we are of the view that a sum of Rs. 3,000/- per month for each of the child would be sufficient to maintain him, which shall be borne by both the parent in the proportion of 2:1. We, therefore, direct that respondent shall pay a sum of Rs. 2,000/- per month for each of the two children aforementioned from October 4, 1997, the date of the order of the Family Court. For the earlier period respondent shall pay Rs. 500/- per month for each of the child from the date of the application, i.e., August 2, 1991 and @ Rs. 1,000/ per month from the date of the second application, which is October 27, 1995 and (c) Rs. 1.500/- per month from the date of the third application, which is August 26, 1997. These amounts shall be apart from the amount which the respondent has already been paying to the children @ Rs. 250/- per month under Section 125 of the Code. Respondent shall be entitled to make adjustment of the amounts which he has already paid under orders of the Family Court. High Court or the interim order of this Court.

13. The appeal is thus partly allowed. There shall be no order as to costs as respondent has chosen not to appear.

1. 26. Custody of children. – In any proceeding under this Act, the Court may, from time to time, pass such interim orders and, make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, alter the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as right have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending and the Court may, also from time to time revoke, suspend or vary any such order and provisions previously made.

2. 20. Maintenance of children and aged parents. – (1) Subject to the provisions of this section a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents.

(2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor.

(3) The obligation of a person to maintain his or her aged or infirm parents or daughter who is unmarried extends insofar as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property.

Explanation. – In this section “parent” includes a childless stepmother.

RIDICULOUS LANDMARK JUDGEMENT OF DELHI HC.

December 19, 2011 Leave a comment

 folks this is infact a good judgement… Maintenance cases are dealt like a piece of shit… I am concerned if the lower court judges will appreciate such docs… as far as i have seen, they hardly understand or talk logic …..

 We can use this judgement to reverse tact… ie check the wife’s background in a similar way before a number is decided :) atleast in High courts
 

* IN THE HIGH COURT OF DELHI AT NEW DELHI +

 CM(M) 79/2011 %

Date of decision: 12th September, 2011

PUNEET KAUR ….. Petitioner Through : Mr. Ashok Chhabra with Mr. Sunjayjyoti Singh Paul, Advs.                                                                                         versus INDERJIT SINGH SAWHNEY ….. Respondent Through : Respondent in person.

 CORAM :- THE HON’BLE MR. JUSTICE J.R. MIDHA

 1. Whether Reporters of Local papers may be allowed to see the Judgment?Y  2. To be referred to the Reporter or not? YES                                                                  3. Whether the judgment should be YES reported in the Digest?

JUDGMENT (ORAL) CM(M)No.79/2011 and CM No.1756/2011 1. The petitioner has challenged the order dated 26th November, 2010 whereby her application for maintenance under Section 24 of the Hindu Marriage Act was dismissed by the learned Trial Court.

2. The petitioner claimed maintenance and litigation expenses from her husband on the ground that she was unable to maintain herself and her two children aged 13 and 16 years.  The petitioner averred that she was not gainfully employed and was receiving interest income of about `8,000/- to `10,000/- per month from the investments whereas the monthly expenses of the children were to the tune of `25,000/- per month. The petitioner further averred that the respondent was running the business of transport in the name of Bakshi Transport Service and his income was more than `2,00,000/- to `3,00,000/- per month.

3. The respondent contested the above application before the learned Trial Court on the ground that the respondent was unemployed and had no income. The respondent averred that he was living like a pauper and had no money even for two proper meals a day. He also stated that he had no shelter. The respondent also alleged that the petitioner’s annual income was `3,00,000/- per month from three sources, namely `1,00,000/- to `2,00,000/- per month from business, `60,000/- per month from salary and `20,000/- per month from interest.

4. The learned Trial Court believed the respondent and held that there was no material record to show that the respondent had any income and, therefore, the petitioner’s application was dismissed.  5. In Bharat Hegde v. Saroj Hegde, 140 (2007) DLT 16, this Court laid down the following principles for fixing the maintenance under Section 24 of the Hindu Marriage Act:- “4. Right to maintenance is an incident of the status from an estate of matrimony. Interim maintenance has an element of alimony, which expression in its strict sense means allowance due to wife from husband on separation. It has its basis in social conditions in United Kingdoms under which a married woman was economically dependent and almost in a position of tutelage to the husband and was intended to secure justice to her.

 5. Section 24 of the Hindu Marriage Act goes a step further inasmuch as it permits maintenance to be claimed by the husband even against the wife.

6. While considering a claim for interim maintenance, the court has to keep in mind the status of the parties, reasonable wants of the applicant, the income and property of the applicant. Conversely, requirements of the non applicant, the income and property of the non applicant and additionally the other family members to be maintained by the non applicant have to be taken into all. Whilst it is important to insure that the maintenance awarded to the applicant is sufficient to enable the applicant to live in somewhat the same degree of comfort as in the matrimonial home, but it should not be so exorbitant that the non applicant is unable to pay.

7. Maintenance awarded cannot be punitive. It should aid the applicant to live in a similar life style she/he enjoyed in the matrimonial home. It should not expose the non applicant to unjust contempt or other coercive proceedings. On the other hand, maintenance should not be so low so as to make the order meaningless. 

 8. Unfortunately, in India, parties do not truthfully reveal their income. For self employed persons or persons employed in the unorganized sector, truthful income never surfaces. Tax avoidance is the norm. Tax compliance is the exception in this country. Therefore, in determining interim maintenance, there cannot be mathematical exactitude. The court has to take a general view. From the various judicial precedents, the under noted 11 factors can be culled out, which are to be taken into consideration while deciding an application under Section 24 of the Hindu Marriage Act.

The same are:

1. Status of the parties.                                                                                                               2. Reasonable wants of the claimant.                                                                                    3. The independent income and property of the claimant.                                        4. The number of persons, the non applicant has to maintain.                                 5. The amount should aid the applicant to live in a similar life style as he/she enjoyed in the matrimonial home.                                                                                        6. Non-applicant’s liabilities, if any.                                                                                      7. Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant.                                                                                              8. Payment capacity of the non applicant.                                                                        9. Some guess work is not ruled out while estimating the income of the non applicant when all the sources or correct sources are not disclosed.                 10. The non applicant to defray the cost of litigation.                                                11. The amount awarded under Section 125 Cr.PC is adjustable against the amount awarded under Section 24 of the Act.” (Emphasis Supplied) 6. In Jayant Bhargava v. Priya Bhargava, 181 (2011) DLT 602, this Court laid down the factors to be taken into consideration for ascertaining the income of the spouse. The relevant portion of the judgment is reproduced hereunder:- “12. It is settled position of law that a wife is entitled to live in a similar status as was enjoyed by her in her matrimonial home. It is the duty of the courts to ensure that it should not be a case that one spouse lives in a life of comfort and luxury while the other spouse lives a life of deprivation, poverty. During the pendency of divorce proceedings the parties should be able to maintain themselves and should be sufficiently entitled to be represented in judicial proceedings. If in case the party is unable to do so on account of insufficient income, the other spouse shall be liable to pay the same. (See Jasbir Kaur Sehgal (Smt.) v. District Judge, Dehradun and Ors., reported at V (1998) SLT 551, III (1997) CLT 398 (SC), II (1997) DMC 338 (SC) and (1997) 7 SCC 7). 13. A Single Judge of this Court in the case of Bharat Hegde v. Saroj Hegde, reported at 140 (2007) DLT 16 has culled out 11 factors, which can be taken into consideration for deciding the application under Section 24 of Hindu Marriage Act. 14. Further it has been noticed by the Courts that the tendency of the spouses in proceedings for maintenance is to not truthfully disclose their true income. However, in such cases some guess work on the part of Court is permissible. 15. The Supreme Court of India in the case of Jasbir Kaur (Smt.) (supra), has also recognized the fact that spouses in the proceedings for maintenance do not truthfully disclose their true income and therefore some guess work on the part of the Court is permissible. Further the Supreme Court has also observed that “considering the diverse claims made by the parties one inflating the income and the other suppressing an element of conjecture and guess work does enter for arriving at the income of the husband. It cannot be done by any mathematical precision”. 16. Although there cannot be an exhaustive list of factors, which are to be considered in guessing the income of the spouses, but the order based on guess work cannot be arbitrary, whimsical or fanciful.                                                                                                                                                                                              While guessing the income of the spouse, when the sources of income are either not disclosed or not correctly disclosed, the Court can take into consideration amongst others the following factors:

(i) Life style of the spouse;                                                                                                      (ii) The amount spent at the time of marriage and the manner in which marriage was performed;                                                                                                       (iii) Destination of honeymoon;                                                                                          (iv) Ownership of motor vehicles;                                                                                       (v) Household facilities;                                                                                                         (vi) Facility of driver, cook and other help;                                                                  (vii) Credit cards;                                                                                                                     (viii) Bank account details;                                                                                                    (ix) Club Membership;                                                                                                              (x) Amount of Insurance Premium paid;                                                                        (xi) Property or properties purchased;                                                                              (xii) Rental income;                                                                                                                 (xiii) Amount of rent paid;                                                                                                   (xiv) Amount spent on travel/ holiday;                                                                          (xv) Locality of residence;                                                                                                  (xvi) Number of mobile phones;                                                                                     (xvii) Qualification of spouse;                                                                                                  (xviii) School(s) where the child or children are studying when parties were residing together;                                                                                                                     (xix) Amount spent on fees and other expenses incurred;                                    (xx) Amount spend on extra-curricular activities of children when parties were residing together;                                                                                                         (xxi) Capacity to repay loan.

17. These are some of the factors, which may be considered by any court in guesstimating or having a rough idea or to guess the income of a spouse. It has repeatedly been held by the Courts that one cannot ignore the fact that an Indian woman has been given an equal status under Articles 14 and 16 of the Constitution of India and she has a right to live in dignity and according to the status of her husband. In this case, the stand taken by the Respondent with respect to his earning is unbelievable.” 7. In the facts and circumstances of this case, both the parties are directed to file their respective affidavits of assets, income and expenditure from the date of the marriage up to this date containing the following particulars:- 7.1 Personal Information (i) Educational qualifications. (ii) Professional qualifications. (iii) Present occupation. (iv) Particulars of past occupation. (v) Members of the family. (a) Dependent. (b) Independent. 7.2 Income (i) Salary, if in service. (ii) Income from business/profession, if self employed. (iii) Particulars of all earnings since marriage. (iv) Income from other sources:- (a) Rent. (b) Interest on bank deposits and FDRs. (c) Other interest i.e. on loan, deposits, NSC, IVP, KVP, Post Office schemes, PPF etc. (d) Dividends. (e) Income from machinery, plant or furniture let on hire.  (f) Gifts and Donations. (g) Profit on sale of movable/immovable assets. (h) Any other income not covered above . 7.3 Assets (i) Immovable properties:- (a) Building in the name of self and its Fair Market Value (FMV):-  Residential.  Commercial.  Mortgage.  Given on rent.  Others. (b) Plot/land. (c) Leasehold property. (d) Intangible property e.g. patents, trademark, design, goodwill. (e) Properties in the name of family members/HUF and their FMV. (ii) Movable properties:- (a) Furniture and fixtures. (b) Plant and Machinery. (c) Livestock. (d) Vehicles i.e. car, scooter along with their brand and registration number. (iii) Investments:- (a) Bank Accounts – Current or Savings. (b) Demat Accounts. (c) Cash. (d) FDRs, NSC, IVP, KVP, Post Office schemes, PPF etc. (e) Stocks, shares, debentures, bonds, units and mutual funds. (f) LIC policy. (g) Deposits with Government and Non-Government entities. (h) Loan given to friends, relatives and others. (i) Telephone, mobile phone and their numbers. (j) TV, Fridge, Air Conditioner, etc. (k) Other household appliances. (l) Computer, Laptop. (m) Other electronic gadgets including I-pad etc. (n) Gold, silver and diamond Jewellery. (o) Silver Utensils. (p) Capital in partnership firm, sole proprietorship firm.  (q) Shares in the Company in which Director. (r) Undivided share in HUF property. (s) Booking of any plot, flat, membership in Co-op. Group Housing Society. (t) Other investments not covered by above items. (iv) Any other assets not covered above. 7.4 Liabilities (i) OD, CC, Term Loan from bank and other institutions. (ii) Personal/business loan (a) Secured. (b) Unsecured. (iii) Home loan. (iv) Income Tax, Wealth Tax and Property Tax. 7.5 Expenditure (i) Rent and maintenance including electricity, water and gas. (ii) Lease rental, if any asset taken on hire. (iii) Installment of any house loan, car loan, personal loan, business loan, etc. (iv) Interest to bank or others. (v) Education of children including tuition fee. (vi) Conveyance including fuel, repair and maintenance of vehicle. Also give the average distance travelled every day. (vii) Premium of LIC, Medi-claim, house and vehicle policy. (viii) Premium of ULIP, Mutual Fund. (ix) Contribution to PPF, EPF, approved superannuation fund. (x) Mobile/landline phone bills. (xi) Club subscription and usage, subscription to news papers, periodicals, magazines, etc. (xii) Internet charges/cable charges. (xiii) Household expenses including kitchen, clothing, etc. (xiv) Salary of servants, gardener, watchmen, etc. (xv) Medical/hospitalization expenses. (xvi) Legal/litigation expenses. (xvii) Expenditure on dependent family members. (xviii)Expenditure on entertainment. (xix) Expenditure on travel including outstation/foreign travel, business as well as personal. (xx) Expenditure on construction/renovation and furnishing of residence/office. CM(M)  (xxi) Any other expenditure not covered above. 7.6 General Information regarding Standard of Living and Lifestyle (i) Status of family members. (ii) Credit/debit cards. (iii) Expenditure on marriage including marriage of family members. (iv) Expenditure on family functions including birthday of the children. (v) Expenditure on festivals. (vi) Expenditure on extra-curricular activities. (vii) Destination of honeymoon. (viii) Frequency of travel including outstation/foreign travel, business as well as personal. (ix) Mode of travel in city/outside city. (x) Mode of outstation/foreign travel including type of class. (xi) Category of hotels used for stay, official as well as personal, including type of rooms. (xii) Category of hospitals opted for medical treatment including type of rooms. (xiii) Name of school(s) where the child or children are studying. (xiv) Brand of vehicle, mobile and wrist watch. (xv) Value of jewellery worn. (xvi) Details of residential accommodation. (xvii) Value of gifts received. (xviii)Value of gifts given at family functions. (xix) Value of donations given. (xx) Particulars of credit card/debit card, its limit and usage. (xxi) Average monthly withdrawal from bank. (xxii)Type of restaurant visited for dining out. (xxiii)Membership of clubs, societies and other associations. (xxiv)Brand of alcohol, if consumed. (xxv)Particulars of all pending as well as decided cases including civil, criminal, labour, income tax, excise, property tax, MACT, etc. with parties name. 8. Both the parties are also directed to file, along with affidavit, copies of the documents relating to their assets, income and expenditure from the date of the marriage up to CM(M) No.79/2011  this date and more particularly the following:- (i) Relevant documents with respect to income including Salary certificate, Form 16A, Income Tax Returns, certificate from the employer regarding cost to the company, balance sheet, etc. (ii) Audited accounts, if deponent is running business and otherwise, non-audited accounts i.e. balance sheets, profit and loss account and capital account. (iii) Statement of all bank accounts. (iv) Statement of Demat accounts. (v) Passport. (vi) Credit cards. (vii) Club membership cards. (viii) Frequent Flyer cards. (ix) PAN card. (x) Applications seeking job, in case of unemployed person. 9. The affidavit and documents be filed within a period of four weeks with an advance copy to opposite parties who shall file their response within two weeks thereafter. 10. List for hearing on 9th November, 2011. 11. Both the parties are directed to remain present in Court on the next date of hearing along with all original documents relating to their assets, income and expenditure. 12. This Court appreciates the valuable assistance rendered by Ms. Prem Lata Bansal, Senior Advocate. 13. Copy of this order be sent to the Principal District Judge for being circulated to the concerned judges dealing with matrimonial cases.  14. Copy of this order be given dasti to learned counsels for both the parties under signature of Court Master. J.R. MIDHA, J SEPTEMBER 12, 2011 mk

Categories: HMA 24, Judgments

Father to get the Custody of Minor Girl- Bombay High Court, Goa Bench

December 15, 2011 Leave a comment

IN THE HIGH COURT OF BOMBAY

 (GOA BENCH)

 

CRIMINAL WRIT PETITION NO.34 OF 2005 
3-3-2006  
(R.M.S. KHANDEPARKAR, N.A. BRITTO, JJ.)  
Mrs. Mandy Jane Collins 
Vs. 
James Michael Collins & anr.  
Appearances : 
*Shri Anil Malhotra for the Petitioner.* 
*Sarvasri M.S. Usgaonkar, Sr. Advocate, with S.G. Bhobe for the Respondent
No.1.* *Shri S.N. Sardessai, Public Prosecutor, for the Respondent No.2.* * *
*Constitution of India, 1950 _ Article 226 _ Custody of child _ Minor child
_ Illegal detention or unlawful custody _ Habeas Corpus petition _
Maintainability of _ Alternate remedy.*
Petitioner-mother is a permanent resident of Ireland seeking custody of her minor daughter from respondent-husband _ Petition for writ of habeas corpus would lie only in cases of illegal or wrongful detention or custody _
Petition would also lie in the case of demand for custody of child provided
it is illegally and unlawfully denied to the parents or any one of them _ No
material to show that the child was residing with father due to some
forcible act on part of father or that it was without consent or knowledge
of her mother _ In interview the child appears healthy and seems to be happy to continue to reside with her father and the petitioner has been
occasionally visiting her _ Disturbance of status quo would not be in the
interest of child. (See para 17, 18, 19, 20, 21)  
Held : a) “All the decisions relied upon lay down the law that the petition
for writ of habeas corpus would lie only in cases of illegal or wrongful
detention or custody. Undoubtedly, it would also lie in the case of demand
for custody of child provided it is illegally and unlawfully denied to the
parents or any one of them.” (Para 17).  
b) “Apart from mere allegation that proper education will be available at
Ireland as compared to the one which is being imparted at Goa, no factual data in that regard is placed on record. The materials do not disclose any obstruction to the petitioner from visiting Ella or even taking her for few days or during holidays at the place of residence of the petitioner in Goa.
The question of permitting Ella to be taken to Ireland, without adjudicating upon the rival contentions sought to be raised in the matter which essentially would require analysis of the disputed questions of fact, would not be possible in exercise of writ jurisdiction.” (Para 18).  
c) “Besides, the educational year is also from June to April of the
succeeding year. We are already in the month of March. At this stage, any
change in the residential place of the child would also disturb the
educational process for the child. Taking into consideration the decision of the Apex Court in Dr. Mrs. Veena Kapoor’s case (supra) and further that the matter involves disputed questions of fact which are required to be
established by evidence, it would be in the interest of the child to relegate the parties to normal civil proceedings for the decision on the point of custody of the child, without disturbing the prevailing situation.”(Para 19).
d) “We had interviewed the child in the chamber, firstly in the presence of
her parents and their Advocates and thereafter in their absence. The child
appears healthy and she seems to be happy to continue to reside with her
father and she enjoys all the necessary amenities, care and protection from
her father and at the same time she has lot of respect and love for both the
parents. It is also revealed from the interview that the mother i.e., the
petitioner has been occasionally visiting the child at her residence at
Anjuna.” (Para 20).
e) “In the facts and circumstances of the case, there being no satisfactory
material placed before us to arrive at the conclusion of illegal detention
or unlawful custody of the child by the respondent in respect of Ella and
there being no sufficient material placed before us to justify disturbance
of the status quo, bearing in mind the best interest of the child, it would
be appropriate not to disturb the present situation in relation to the minor
child and, therefore, in our considered opinion, leaving the parties to
pursue civil remedy if they so desire, the petition deserves to be
dismissed.” (Para 21).
Result : Petition dismissed.
Case Law Referred :

 

1. Eugenia Archetti Abdullah v. State of Kerala 2005 (1) HLR 34 (Para11).

 

2. Paul Mohinder Gahun v. State of NCT of Delhi & Ors. 2005 (1) HLR
428 (Para 10).

 

3. Smt. Radha @ Parimala v. N. Rangappa 2004 (2) HLR 416 (Para 16).

 

4. Kumar V. Jahgirdar v. Chethana Ramatheertha 2004 (1) HLR 468 (Para15).

 

5. Miss Atya Shamim v. Deputy Commissioner/Collector, Delhi
(Prescribed Authority under Citizenship Act) and others AIR 1999 Jammu &
Kashmir 140 (Para 8).

 

6. Dhanwanti Joshi v. Madhav Unde 1998 (1) SCC 112 (Para 9).

 

7. Smt. Manju Tiwari v. Dr. Rajendra Tiwari and another AIR 1990 SC
1156 (Para 14).

 

8. Poonam Datta v. Krishanlal Datta and others AIR 1989 SC 401 (Para13).

 

9. Mrs. Kuldeep Sidhu v. Chanan Singh and others AIR 1989 Punjab and
Haryana 103 (Para 7).

 

10. Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw and another AIR 1987 SC
3 (Para 6).

 

11. Surinder Kaur v. Harbax Singh Sandhu and another 1984 HLR 780 (Para5).

 

12. Dr. Mrs. Veena Kapoor v. Varinder Kumar Kapoor AIR 1982 SC 792 (Para12).
JUDGMENT

 

R.M.S. Khandeparkar, J.
Heard. By the present petition, the petitioner is seeking issuance
of writ in the nature of habeas corpus for production, release and return of
her minor daughter by name Ella Karina Collins from the respondent No.1, in
order to enable the petitioner to take her to Ireland.
2. It is the case of the petitioner that the petitioner is a permanent
resident of Ireland and a British citizen holding a permanent passport of
the United Kingdom. She arrived in India on 18-9-2005 specifically to seek
the custody, care and control of her minor daughter Ella, who is aged about
8 years and who is presently at House No.1784, Mazalvaddo, Anjuna, Bardez,
Goa, with her father. The petitioner was married to the respondent No.1 on
6-6-1998 and Ella was born on 5-7-1997 in England and she is also a British
national. The respondent No.1 is from the United States of America. It is
her further case that Ella started her preliminary education at Coars
National School in Ireland. The petitioner is employed as an English teacher
and is a permanent resident of Ireland. The respondent No.1 owned a house in
Washington State where he used to reside and had his business in Seattle,
U.S.A. However, as of now he is not pursuing any business activity and
presently is living in Goa in the said house referred to above. It is her
further case that consequent to the marriage they stayed for different
period of times in the U.S.A. and the U.K., besides spending some time in
India and other countries for holidays. However, due to irreconcilable
differences, they parted company of each other in November, 2000, but have
not yet obtained any divorce decree to dissolve their marriage. After Ella
attended her school in Ireland in June, 2004, there were vacations in the
months of July and August and during those holidays, the respondent
No.1took Ella to
Switzerland and from there to India in September, 2004. Initially, the
respondent No.1 took Ella to a Dharmashala in Himachal Pradesh and then in
November, 2004 the respondent No.1 brought Ella to Goa.
Towards the end of November, 2004 he got Ella admitted to Mater
Dei Educational Institution at Saligao, Goa, in IInd standard and after the
break in April-June, 2005, Ella was detained in the same standard. It is her
grievance that inspite of persistent efforts on her part, the respondent
No.1 refused to return Ella to Ireland. The petitioner has been aiming and
working to see all along that Ella should continue her education in Ireland.
Presently, the child has lost considerable weight and does not enjoy some of
the medical facilities which would be available to her in Ireland. She does
not have the emotional and mental support of her mother which is necessary
for upbringing an eight year old child. Besides that, Ella is not in her
natural surrounding. All the efforts to negotiate with the respondent No.1,
even with the intervention of strangers and friends, have failed. It is her
case that the climate, environment, surrounding, family support, mother’s
love, affection, schooling and all the other necessary ingredients are
available only in Ireland and the respondent No.1 has U.S. Passport of Ella
on which he brought her to India and which is also in his custody. The
petitioner is the best person to look after and maintain the child of 8
years in Ireland and the welfare of the minor being of paramount
consideration, the child’s custody should be given to the petitioner. The
petitioner is also a well-qualified teacher and leads a stable life in
Ireland. The respondent No.1 is over 62 years of age and living alone and
cannot provide the necessary care for an 8 year old girl. In the interest of
justice, therefore, the custody of the minor girl should be ordered to be
given to the petitioner, along with her passport which is in the custody of
the respondent No.1.
3. On the other hand, while raising preliminary issue regarding the
non-maintainability of the writ petition in the nature of habeas corpus for
seeking the custody of the minor child on account of alternative and
efficacious remedy for such relief being available in the Civil Court in
Goa, it is the case of the respondent No.1 that the petitioner has
suppressed material facts while approaching the Court and on that count also
the petition deserves to be dismissed. It is his further case that the
petitioner and the respondent No.1 came for the first time in Goa after
their marriage in the month of December, 1996 and stayed at Anjuna till
March, 1997. The petitioner and the respondent were staying, after their
marriage, in the U.S.A. and the petitioner even became eligible for a
Green-card as a permanent American resident status, in or about November,
1999. The petitioner and the respondent together returned to India in
October, 2000 and toured various places in North India and thereafter along
with the child came to Goa in November, 2000, when the petitioner decided to
separate from the respondent and informed the said fact to the petitioner on
or about 11-11-2000 while they were in New Delhi. Consequently, the
petitioner and the respondent commenced residing separately at Anjuna from
November, 2000 onwards till March, 2001. At the same time, Ella also used to
stay occasionally with her mother. The petitioner was staying in a single
room while the respondent No.1 has hired a house for residence. Their child
Ella was staying on a week-to-week basis at both the places. Ella proceeded
along with the petitioner in March, 2001 to the U.K. while the respondent
proceeded to the U.S.A..
In or about June, 2001, the petitioner came to the United
Stateswith Ella and contacted the respondent with whom Ella was
residing till
September, 2001, when the petitioner took her back to the United Kingdom,
with the consent of the respondent, while the petitioner completed a degree
in the English language teaching at Seattle University. In terms of the
agreement between the parties, both came to Goa in November, 2001 since by
that time the respondent desired to make Goa as a permanent home. The
petitioner and the respondent shared the company of their minor child from
November, 2001 till May, 2002 and during the said period the child was
residing with the respondent and even undertook long holidays to Himachal
Pradesh and the other parts of North India. Some time in June, 2002, with
the consent of the respondent, the petitioner took Ella to the United
Kingdom and visited Ireland till August, 2002 on condition that Ella would
return to Goa in September, 2002. At that time, the petitioner was seen
residing in the company of one person by name Dave. In September, 2002 the
petitioner informed her inability to come to Goa and again in October, 2002
informed that she would come to Goa in November, 2002, when she actually
came to Goa. Ella then began to reside with the respondent No.1. The
petitioner used to visit Ella on and off while residing in a room at Anjuna.
During the said period, a common friend by name Barbara attempted to mediate
about the custody of Ella between the petitioner and the respondent and it
was agreed that the child should commence school in Goa from November, 2002
since she would have by then completed 6 years of age and accordingly Ella
commenced her education at Rainbow CLCC Co-operative Centre for Children at
Anjuna since November, 2002.
The petitioner, as agreed, took Ella to Ireland in March, 2003 and
the respondent No.1 collected his child Ella from the petitioner in July,
2003 and after visiting the child’s maternal grandparents, uncle, aunt and
cousins in the United Kingdom and after a stay of two months in the United
Kingdom, at the house of the respondent’s elder daughter, returned to India
in September, 2003. In or about November, 2003, the petitioner returned to
Goa and commenced staying at Palolem Beach, Canacona, Salcete-Goa, at a
distance of over 80 kms. from the respondent’s residence. She stayed there
upto March, 2004 and occasionally used to visit Ella as well as used to take
Ella out to Palolem Beach to spend some time with her. In March, 2004 the
parties agreed that the petitioner shall take Ella with her for holiday to
the United Kingdom and Ireland since Ella had holidays from school. Ella
stayed with the petitioner till August, 2004 when the respondent
No.1collected Ella from the United Kingdom and after visiting
relations in the
United Kingdom returned to Goa in October, 2004 along with Ella who was then
by 7 years of age. She was then admitted to Mater Dei Education Institution
at Saligao in November, 2004. This fact was informed in advance to the
petitioner. The said school is an ICSE school (Delhi Board) with very high
standard of education and founded since 1909. It is a reputed school in North
Goa.
Since October, 2004 the child Ella has been permanently residing
at the respondent’s residence in House No.1784, Mazalvaddo, Anjuna, Bardez,
Goa and had never been in the custody of the petitioner throughout this
period. The petitioner came back to India in late November, 2004 and stayed
in Palolem upto March, 2005. The petitioner left Goa for the United
Kingdomsome time in March, 2005 and again returned to
Goa on 18-9-2005 along with her friend Stuart. The petitioner had been
visiting the child at the respondent’s residence and even taking her out for
meals or to stay at her room at Anjuna. Even after filing of the petition,
she had been visiting the child in the residence of the respondent, without
difficulty. There had been exchanges of messages in October, 2005 which
would reveal the above facts. The child is growing in a most conducive
atmosphere. She attends her regular routine of going to school by school
bus, returns home at lunch hours and after completing her homework, she
regularly plays and spends time with the respondent as well as the friends
of her age in the locality of the respondent’s house. The reply filed by the
respondent refers to details of the arrangement made by the respondent for
the welfare of the child and for her upbringing.
4. Before we deal with the rival contentions which are sought to be
raised in the matter, it is necessary to consider the preliminary issue
which is sought to be raised in the matter regarding non-maintainability of
habeas corpus writ petition to claim the custody of the child in view of
availability of alternative efficacious remedy for that purpose. Various
decisions are sought to be relied upon in that regard by the learned
Advocates appearing for the parties.
5. In Surinder Kaur v. Harbax Singh Sandhu and another, reported in
1984 HLR 780, the Apex Court was dealing with a case wherein the wife, while
she was away on account of being employed and without her knowledge, the
husband took away the boy from England and brought him to India on 31-1-1983
and on the same day the wife obtained an order under Section 41 of the
Supreme Court Act, 1981 under which the boy became the Ward of the Court
with effect from that day. That order was confirmed on 22-7-1983 by Mrs.
Justice Booth of the High Court of Justice (Family Division) and by the said
order the husband was directed to handover the custody of the minor boy to
the wife or her agent forthwith. The wife came to India in April, 1983 and
in May she filed petition before the learned Judicial Magistrate, First
Class, Jagraon for the custody of her son contending that he was in the
illegal custody of the husband. The Apex Court has also observed that, from
the records it was disclosed that the father was a man without a character
who had planned to kill wife and even though the wife had obtained an order
of probation for him, he abused her magnanimity by running away with the boy
soon after the probation period was over. In fact, the husband was trapped
by the Police who got the scent that he was negotiating with a hitman to
have his wife run over by a car. The husband was convicted and sentenced to
term for three years for that offence. Ironically, it was the wife who
intervened and succeeded in obtaining a probation order for her husband who
had attempted to procure her murder. In those circumstances, the directions
were issued for delivery of custody of the child to the mother.
6. In Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw and another,
reported in AIR 1987 SC 3, it was a case wherein on 23-12-1980, the
petitioner along with her son took up separate residence in a women’s
shelter and filed a petition for divorce in January, 1981. By decree dated
23-4-1982, the marriage was declared dissolved and the petitioner was held
to be entitled for custody and control of the minor child until she reaches
the age of 18 years or until further order by the Court, while giving
visitation right to the father. Taking advantage of the visitation right,
the father picked up the child from the school on 10-1-1986 and
surreptitiously left the United States of America for India on 11-1-1986,
without intimating the Court about the taking away of the child out of its
jurisdiction and out of the country, nor giving slightest indication to the
petitioner about his intention to leave the United States permanently for
India. The mother filed writ petition for habeas corpus for production of
the child. In response to the notice of the Court, only explanation which
the father had was that, his father was seriously ill and he wanted his
father to see the child and further that the child himself had expressed
willingness to prefer to stay with him in Pune and that therefore he was
admitted to a school at Pune. After considering the materials on record, the
Apex Court held that the mother is full of genuine love and affection for
the child and she can be safely trusted to look after him, educate him and
attend in every possible way to his proper up-bringing and the child had not
taken root in this country and he was still accustomed and acclimatized to
the conditions and environments prevailing in the place of his origin in the
United States of America and the child’s presence in India was the result of
an illegal act of abduction by the father who cannot claim any advantage by
stating that he has already put the child in some school at Pune.
7. In Mrs. Kuldeep Sidhu v. Chanan Singh and others, reported in AIR
1989 Punjab and Haryana 103, the High Court of Punjab and Haryana was
dealing with a case wherein after the marriage between the parties in the
year 1975 they were living in Canada and they got two issues, namely,
Navreet and Preeti in 1978 and 1981 respectively. Navreet was brought by his
father in India in 1984 and was left with his grandfather in Punjab and the
father of Navreet left India for Canada. About a year-and-half thereafter,
he also brought his daughter to India and left her with his father. Towards
the end of 1986 he came to India and took away both the children to Canada.
Meanwhile, the relationship between the husband and the wife were strained
and they were living apart. On 21-11-1986 the mother obtained an order from
the Supreme Court of Ontario granting her interim custody of the children
and by that order the father was restrained from removing the children from
the Province of Ontario. On getting to know of the said order, the husband
left Canada on the very day with the children and brought them to his
father’s place in Punjab. Observing that there is an order of the competent
Court granting custody of the children to the mother and restraining the
father from taking them out of the jurisdiction of the Court, and yet the
children, in violation of the said order were brought in India and were not
allowed to be in the custody of their mother, therefore, in those
circumstances, the mother was held entitled for the custody of the children.
8. In Miss Atya Shamim v. Deputy Commissioner/Collector, Delhi
(Prescribed Authority under Citizenship Act) and others, reported in AIR
1999 Jammu & Kashmir 140, after taking into consideration various decisions
on the point of maintainability of habeas corpus petition for the custody of
a child, it was held that in any proceeding before any Court concerning the
custody or upbringing of an infant, the Court must have regard to the
welfare of the infant as the first and paramount consideration and must
treat any rights, priorities or preferences of the parents or of either of
them or of other person as subordinate thereto; that comfort, health and the
moral intellectual and spiritual welfare of the infant are the true matters
for consideration in such cases and not rights of the parties. It was held
that the true principle deducible from the authorities by which the Court
should be guided in such cases, was that the Court is to judge upon the
circumstances of each particular case and that the welfare of the infant,
irrespective of its age is the main factor to be regarded. On the point of
custody of the child, it was also observed that the personal law of the
parties permit the mother to keep the custody of the female child till the
age of 15 years and that there was no case made out for entrusting the
custody of the minor to the father.
9. In Dhanwanti Joshi v. Madhav Unde, reported in 1998 (1) SCC 112,
the respondent Unde had married the appellant Dhanwanti and after marriage
left for the United States of America where he obtained an ex parte divorce
against his first wife Bhagyawanti. The said Bhagyawanti filed a petition in
the District Court at Nagpur claiming that the decree obtained by Unde to
have been obtained on misrepresentation of the facts and claimed for divorce
and maintenance and succeeded in getting a favourable decree. Dhanwanti
meanwhile delivered a child in the United States of America on 15-3-1983 and
due to certain compelling circumstances, she left the respondent Unde along
with her child on 20-4-1983 and thereafter the husband had no occasion to
live with his wife and the child. It was followed by litigation, civil and
criminal, both in the United States of America and India for over a period
of 14 years. The respondent Unde continued to live in the United
Stateswhile the appellant Dhanwanti and her son had been living in
India while the boy was studying at Pune. The respondent filed a divorce
case in the United States of America against Dhanwanti and also asked for
custody of the child. Initially, the U.S. Courts gave custody of the child
to the mother Dhanwanti. Divorce was decreed on 23-9-1983. On
20-2-1984Dhanwanti along with the child came to
India. The husband obtained an ex parte order on 11-4-1984 for visitation
rights, which was further modified as temporary custody on 30-4-1984, which
was made a permanent custody by ex parte order dated 28-4-1986. Dhanwanti
filed petition in the Civil Court at Bombay for declaration that her
marriage with the respondent was null and void on account of prior
subsisting marriage with Bhagyawanti.
Meanwhile, the respondent-husband filed a habeas corpus petition
in this High Court which came to be dismissed on 15-4-1986. The litigation
in the Family Court continued and ultimately it passed order allowing the
father to take custody of the child while dismissing the petition filed by
Dhanwanti. The appeal carried to the High Court failed and that is how the
matter was brought before the Apex Court. Taking note of the fact that the
Family Court and the High Court had based their decisions solely on the
circumstances regarding the financial capacity of the father to give better
education to the boy in the United States of America and after interviewing
the boy, the Apex Court found that he was quite intelligent and was able to
understand the facts and circumstances in which he was placed and he
informed the Hon’ble Judges of the Apex Court who had interviewed him that
he was not inclined to go with his father to the United States and wanted to
complete his study in India till he completes 10+2 or he finishes his
graduation. The Apex Court held that the orders passed by the High Court and
the Family Court to be erroneous and the custody of the child was retained
with his mother.
10. In Paul Mohinder Gahun v. State of NCT of Delhi & Ors., reported in
2005 (1) HLR 428, while holding that a girl child of tender age is bound to
shape better in the care of her mother, especially when it is not the case
of the petitioner that the environment in which the respondent is living in
India is not conducive for the upbringing or that the child will not have
proper schooling necessary for any career that she may choose for herself
and even though the father is financially better off than the mother with
whom the child is presently living but then the superior financial position
of the husband is no ground for change of the custody. It was also observed
that the prospects of immediate Canadian education which the father may be
ready to provide also cannot be a sufficient ground for shifting the custody
of the child to the father ignoring the fact that the child had never stayed
away from her mother and is in her custody. The fact that the child is a
Canadian citizen by birth is also hardly of significance at this stage.
11. In Eugenia Archetti Abdullah v. State of Kerala, reported in 2005
(1) HLR 34, it was held that writ of habeas corpus will be issued only when
there is illegal detention or wrongful custody. It was a case of a child of
three years held to be in illegal custody of the father.
12. In Dr. Mrs. Veena Kapoor v. Varinder Kumar Kapoor, reported in AIR
1982 SC 792, it was held that in a habeas corpus petition it is difficult to
take evidence without which the question as to what is in the interest of
the child cannot satisfactorily be decided.
13. In Poonam Datta v. Krishanlal Datta and others, reported in AIR 1989
SC 401, the Court ordered for continuation of workable arrangement till
either of the parties go for appropriate guardianship proceedings and gets a
declaration. Therein, upon the orders of the Court, the husband had shifted
over to Modi Nagar and was prepared to stay at Modi Nagar in view of the
fact that the boy was admitted to the local school at Modi Nagar where the
mother was a teacher. In those circumstances, the Apex Court directed that
the boy should continue to study in the said school and neither party would
be permitted to withdraw him therefrom without permission of the Court.
14. In Smt. Manju Tiwari v. Dr. Rajendra Tiwari and another, reported in
AIR 1990 SC 1156, it was an order passed on satisfaction of the Apex Court
having arrived in the peculiar facts and circumstances of the case and
taking into consideration the past history, which is not narrated in the
order.
15. In Kumar V. Jahgirdar v. Chethana Ramatheertha, reported in 2004 (1)
HLR 468, the Apex Court held that, in the facts and circumstances revealed
therein, the judgment of the High Court giving exclusive custody of the
child to the mother with visitation rights to the natural father, could not
be found fault with except directing certain modifications for the reasons
which were enumerated in the said judgment. One of the reasons disclosed for
giving the custody of the child was that the father of the child was living
alone with his father and there was no female member living in the house and
the father was carrying on business which required him to attend to his
office and business engagements outside his residence.
16. In Smt. Radha @ Parimala v. N. Rangappa, reported in 2004 (2) HLR
416, it was held by the Karnataka High Court that the question as to where
the welfare of the minor lies should be answered after weighing and
balancing all factors germane to the decision-making, such as relationships,
claims and wishes of parents, risks, choices and all other relevant
circumstances and the answer lies in the balancing of these factors and
circumstances and determining what is best for the minor’s total well-being.
17. All the decisions relied upon lay down the law that the petition for
writ of habeas corpus would lie only in cases of illegal or wrongful
detention or custody. Undoubtedly, it would also lie in the case of demand
for custody of child provided it is illegally and unlawfully denied to the
parents or any one of them.
18. The pleadings and the materials placed on record prima facie
disclose that since November, 2002 Ella has been residing at Anjuna along
with the respondent without any sort of difficulty and with all the
facilities to the petitioner not only to visit Ella but even being allowed
to take the child for dinner or for shopping. It was only in the year 2004
the petitioner thought of taking Ella to Ireland for education. Apart from
mere allegation that proper education will be available at Ireland as
compared to the one which is being imparted at Goa, no factual data in that
regard is placed on record. The materials do not disclose any obstruction to
the petitioner from visiting Ella or even taking her for few days or during
holidays at the place of residence of the petitioner in Goa. The question of
permitting Ella to be taken to Ireland, without adjudicating upon the rival
contentions sought to be raised in the matter which essentially would
require analysis of the disputed questions of fact, would not be possible in
exercise of writ jurisdiction.
19. Perusal of the facts narrated in the petition coupled with the
statements of facts brought on record in-reply and revealed from the
documentary evidence on record, it is prima facie clear that there is
nothing to suggest that the child Ella is residing with her father on
account of some forcible act on the part of the respondent or that it was
even without the consent or knowledge of the petitioner. Even Ella’s joining
of school in Goa prima facie appears to be with the knowledge and tacit
consent of the petitioner. Prima facie it appears that certain circumstances
which created rift between the spouses have led for the controversy in the
matter and it being used not in the interest of the child but rather
ignoring her best interest. Taking into consideration various facts brought
on record and as they stand today, it would be difficult to accept the
contention of the petitioner that there is a case for disturbing the
residence of the child with the respondent. Besides, the educational year is
also from June to April of the succeeding year. We are already in the month
of March. At this stage, any change in the residential place of the child
would also disturb the educational process for the child. Taking into
consideration the decision of the Apex Court in Dr. Mrs. Veena Kapoor’s case
(supra) and further that the matter involves disputed questions of fact
which are required to be established by evidence, it would be in the
interest of the child to relegate the parties to normal civil proceedings
for the decision on the point of custody of the child, without disturbing
the prevailing situation.
20. We had interviewed the child in the chamber, firstly in the presence
of her parents and their Advocates and thereafter in their absence. The
child appears healthy and she seems to be happy to continue to reside with
her father and she enjoys all the necessary amenities, care and protection
from her father and at the same time she has lot of respect and love for
both the parents. It is also revealed from the interview that the mother i.e.,
the petitioner has been occasionally visiting the child at her residence at
Anjuna.
21. In the facts and circumstances of the case, there being no
satisfactory material placed before us to arrive at the conclusion of
illegal detention or unlawful custody of the child by the respondent in
respect of Ella and there being no sufficient material placed before us to
justify disturbance of the status quo, bearing in mind the best interest of
the child, it would be appropriate not to disturb the present situation in
relation to the minor child and, therefore, in our considered opinion,
leaving the parties to pursue civil remedy if they so desire, the petition
deserves to be dismissed and is accordingly dismissed, with no order as to
costs.
Categories: Child Custody Tags:

No alimony to Women who desert her husband-PUNJAB AND HARYANA HC

December 6, 2011 1 comment

IN THE HIGH COURT OF STATE OF PUNJAB AND HARYANA AT CHANDIGARH

Criminal Misc. No.M-24684 of 2008 (O&M)

POONAM …PETITIONER

VERSUS

MAHENDER KUMAR …RESPONDENT

Criminal Misc. No.M-24684 of 2008 (O&M)

Present: Mr.P.L. Goyal, Advocate, for the petitioner.

Mr. S.D. Bansal, Advocate, for the respondent.

Marriage of Poonam (petitioner) with Mohinder Kumar (respondent) took place on 23.1.1998. Two sons were born out of the wedlock, who are residing with the respondent. The petitioner is residing with her parents. A case under Sections 406/ 498-A/ 149/ 506 of the Indian Penal Code was registered at the instance of the petitioner against the respondent and others vide F.I.R. No.52 dated 17.2.2000 at Police Station City, Jind. The petitioner filed a petition under Section 125 of the Code of Criminal Procedure (hereinafter referred to as vthe Code’) claiming maintenance from the respondent alleging that he was running wholesale business of sale and purchase of utensils in the name and style of M/s. Laxmi Metal Store and was earning Rs. 10,000/- per month. This petition was contested by the respondent on the ground that the petitioner left her matrimonial house on her own accord and that she was earning about Rs.10,000/- per month as she was M.A.B.Ed. The Judicial Magistrate 1st Class, Jind, vide order dated 9.6.2007 dismissed the petition filed by the petitioner under Section 125 of the Code. The petitioner went in revision against the order passed by the trial Magistrate. The same was also dismissed vide judgment dated 5.8.2008 passed by the Sessions Judge, Jind, although holding that the husband has not been able to prove that the wife has sufficient means to maintain herself and, at the same time, affirming the finding recorded by the trial Magistrate that the petitioner-wife left the company of the respondent on her own accord. Hence this petition under Section 482 of the Code by the petitioner seeking reversal of the orders passed by both the Courts below.

I have heard Mr.P.L. Goyal, Advocate, appearing for the petitioner and Mr. S.D. Bansal, Advocate, appearing for the respondent and have gone through the records of the case.

The trial Magistrate, after framing issues, recording evidence, both oral and documentary, and hearing the learned counsel for the parties, came to the conclusion that the petitioner has not been able to prove on record that she was ill-treated by the respondent or he was cruel towards her in any manner. Except her statement, the petitioner failed to examine any other witness in support of her case to prove ill-treatment, dowry demand and other allegations made in the petition. Even the parents of the petitioner did not come forward to support her case. The petitioner failed to join her husband even after the petition filed by him for restitution of conjugal rights was accepted by the Court of competent jurisdiction. Petition filed under Section 13 of the Hindu Marriage Act, which was filed by the petitioner, was declined by the Court by holding that there was no desertion on the part of the respondent, rather the petitioner deserted her husband due to her own personal reasons. The petitioner did not take care of her sons, who are residing with the respondent. There is no allegation in the petition that she had ever asked the respondent for giving her the custody of the sons. The petitioner appears to be interested only in getting maintenance allowance and taking divorce from the respondent. The respondent is solely taking care of the children. To bring up two children single handedly is an onerous duty, which the respondent is performing and the petitioner is shirking. The petitioner, in her cross-examination, stated that after she left her matrimonial house, she never tried to contact the respondent or her kids. In the case of Smt.Rohtash Singh v. Ramendri (Smt.), 2000 (2) R.C.R (Criminal) 286, it was held by the Hon’ble Supreme Court that a wife is not entitled to maintenance who has deserted her husband, but a wife who has divorced on account of her desertion is entitled to maintenance from decree of divorce. Failure of the petitioner-wife to prove sufficient grounds justifying her staying away from the respondent-husband and two kids shows that she had left the society of the respondent on her own accord. In these circumstances, both the Courts below were justified in declining the petition filed by the petitioner under Section 125 of the Code.

In view of the above, the present petition is dismissed being without any merit.

March 19 , 2009.

( MOHINDER PAL )
ak JUDGE

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)

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