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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 

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

December 5, 2011 Leave a comment

Apex court rules anew on cruelty by husband and relatives

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(Rakesh Shukla is a Supreme Court lawyer)

Categories: 498A Tags:

Top 10 most expensive divorces

November 28, 2011 Leave a comment

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

 

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

Categories: Divorce, News

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

November 7, 2011 3 comments

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

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

* IN THE HIGH COURT OF DELHI AT NEW DELHI

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

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

versus

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

Coram:

HON’BLE MS. JUSTICE MUKTA GUPTA

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

2. To be referred to Reporter or not? Yes

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

MUKTA GUPTA, J.

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

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

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

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

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

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

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

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

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

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

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

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

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

JUDGE

NOVEMBER 04, 2011

vkm

 

Categories: CrPC 125 Tags:

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

November 7, 2011 Leave a comment

IN THE COURT OF SH. GAUTAM MANAN

GUARDIAN JUDGE (CENTRAL) DELHI

G.P. NO. 137/2004

IN THE MATTER OF :­

SH. SUKHBIR SINGH

S/O SH. RAM SWAROOP

R/O VILL. BEGUM PUR,

DELHI­110041             …….PETITIONER

V E R S U S

1. SH. PRABHATI LAL

2. SMT. SHANTI DEVI

W/O SH. PRABHATI LAL

3. SH. JITENDER

S/O SH. PRABHATI LAL

4. SH. BAL RAJ

S/O SH. PRABHATI LAL

5. SH. OMI

S/O SH. PRABHATI LAL

ALL R/O, H.NO. 3772, GALI RAMNATH,

PATUA TAIL MANDI PAHAR GANJ,

NEW DELHI­110055.            …….RESPONDENTS

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

Date of Institution                :   09.07.2004

Judgment Reserved on        :   17.09.2011

Judgment Delivered on        :   24.10.2011

J U D G M E N T

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

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

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

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

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

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

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

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

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

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

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

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

Master ‘Mohit’ as prayed ? OPP

2.  Relief.

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

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

child denied that   he knows the petitioner.

10.  The petitioner  examined himself  as  PW1  and tendered

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

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

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

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

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

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

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

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

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

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

He has one daughter from the 2

nd

marriage and his second wife has got

two children from her previous marriage but denied that those children

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

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

rd

and the daughter from 2

nd

wife is not studying anywhere as she is of

two year old only.

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

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

PW2/A.

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

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

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

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

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

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

of FIR is Mark X.

14. During his cross examination RW1 deposed that he has

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

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

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

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

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

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

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

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

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

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

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

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

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

school.

15. The  respondent also  examined  Sh. Jitender  Kumar  his

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

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

person. He is a property dealer.

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

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

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

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

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

children. The guardianship  Court is  not a platform where litigation

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

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

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

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

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

parents.

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

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

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

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

following facts which dis­entitles the petitioner to have the custody of

the minor, such as :­

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

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

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

old and has adjusted well in company of the respondents.

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

and to take care of his welfare.

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

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

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

parents.

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

children of his second wife.

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

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

residing with his father since beginning and the Hon’ble

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

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

his grandmother and the child considers her to be his real

mother and expressed no inclination to leave the present

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

facts and circumstances of the case, when both the parties

are   residing   in   the   same   vicinity   at  Ajmer,   though

separately as their relations are not cordial, it would not

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

from   the   present   surroundings   and   to   hand   over   his

custody to the appellant­wife while she is  staying away

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

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

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

go with his mother. This he repeatedly expressed before

the Court during his statement in the trial Court and also

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

Therefore,   the   view  taken  by  the Court is erroneous to

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

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

record that the grand­father, who is appellant had kept the

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

his grand­father.  In his statement in the lower Court he

categorically stated that he is not willing to go with his

mother. He suspects that his father was murdered by his

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

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

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

be permitted to live under such apprehension which may

hamper his mental growth.”

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

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

Court held that ” admittedly minor has been brought up

with love and care by grand parent since after unnatural

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

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

in his upbringing and never visited him all these years.

Father is remarried and having two children from second

marriage and has been convicted in criminal charge in

connection   with   death   of   first   wife.  Grand   father   has

sufficient   means   to   properly   bring   up   said   minor.   In

circumstances placing minor in custody of natural parent,

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

emotional   and   psychological   break   down.   Considering

paramount   welfare   of   child,   appointment   of   his   grand

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

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

handover  custody of children to their father on grounds

that children were not ready to live with their father and

there were episodes  of ill treatment of their  mother  by

their father and he was also facing charge under section

498A IPC.

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

grandfather mere fact that maternal grandfather had filed

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

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

that grandfather has no sufficient means to maintain child.

In this case it was also taken into consideration that minor

child aged about 5 years when asked to identify her father

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

her maternal grandfather. The finding by trial Court that

grandfather   was   entitled   to   be   appointed   as   guardian

based on statement of minor girl was not interfered with.

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

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

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

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

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

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

family members stands acquitted in that case.

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

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

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

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

Indrapastha  Government Senior Secondary School, Begumpur, Delhi.

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

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

wife has maltreated the girl child.

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

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

respondents have not named any person who is responsibly taking care

of the education of the child.

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

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

residing   separately   from  him.   as   per   his   deposition   two   unmarried

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

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

years old.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

son as well.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

step daughter.

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

respondents   support  their   claim   as   facts   of   those   cases   were   quite

different to the case in hand.

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

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

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

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

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

welfare   of   the   minor.   As   observed   recently   in  Mousami   Moitra

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

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

development and favorable surroundings but over and above physical

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

equal if not more important than the others.

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

a) that the financial status of the respondents

is no better than that of the respondent, rather the

respondents 1 & 2 have to take care of their five

unmarried children.

b) that the minor although is living separately

from his  father  but he  is  likely  to  benefit from

having the company of the his real sister  if his

custody is given to the petitioner.

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

of the respondents is not shown to be getting good

education.

d) The   respondents   1   &   2   are   old   aged

persons and none of children of the respondents

have   come   forward   to   support   the   cause   of

upbringing the minor.

e)  The petitioner has brought up the sister of

the  minor  well and  being  natural father  of the

minor the petitioner is more likely to  imbibe the

moral and ethical values in the child.

f)  The petitioner has already been held not guilty

of   offenses   under   section   498A/34   IPC   of

maltreating mother of minors.

g) If the minor will live in company of real

elder   sister,   his   sister   can   not   only   provide   a

comfort zone to the minor and her company can

be quite fruitful in growing age of the minor as

sisterly love can provide the minor warmth of a

good relationship.

h) Second marriage of the petitioner  cannot

be held to be disability as there is  no evidence

that the step mother of the child has  maltreated

the  sister  of the  minor  who  is    living  with  the

petitioner and step mother rather it is in evidence

the sister of minor, Kirti @ Kanta is getting good

education in a good School.

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

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

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

respondents.

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

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

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

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

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

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

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

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

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

 RELIEF:  In   view   of   the   aforesaid   discussions,   the

petition seeking permanent custody of  child  Mohit    is allowed. The

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

the   petitioner.   The   respondents   are   granted   visitation   rights   as

aforesaid. Parties to bear their own costs.

File be consigned to Record Room.

ANNOUNCED IN THE OPEN COURT

ON :  24TH   OCTOBER 2011

(GAUTAM MANAN)

GUARDIAN JUDGE(CENTRAL)

DELHI

Categories: Child Custody Tags:

Father Gets Custody of his 2 children: Delhi Court

November 7, 2011 Leave a comment

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

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

V E R S U S

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

Categories: Child Custody Tags:

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

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

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

No alimony for women walking out of marriage

November 7, 2011 Leave a comment

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

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

 

 

 

 

 

2nd marriage no ground to deny child’s custody: Court

November 7, 2011 Leave a comment

http://timesofindia.indiatimes.com/india/2nd-marriage-no-ground-to-deny-childs-custody-Court/articleshow/10636548.cms

 

NEW DELHI: A man’s second marriage cannot be a ground for denying him custody of his child, a Delhi court has said while granting guardianship of a 10-year-old boy to his father who remarried after his wife’s death.

Agreeing with the father of the child’s arguments, the court said the grandparents themselves were old and had to support their five unmarried children

The boy had been living with his maternal grandparents since his mother’s death. Guardian judge Gautam Manan rejected the grandparents’ contention that it would not be in the child’s interest to live with his stepmother.

“The second marriage of the petitioner cannot be held to be a disability,” the court said, noting that the man’s elder daughter was living with him and being brought up well by her stepmother.

“There is no evidence that the stepmother of the child has maltreated the sister of the minor… (who) is getting a good education,” the judge said, allaying the grandparents’ fears.

‘Dad can impart moral values to child’

The court said the man, a resident of Begumpur in south Delhi, “being the natural father of the minor, is more likely to impart moral and ethical values in the child”. It added the company of the child’s elder sister will be “fruitful” in his growth.

The man, earning Rs 12,000 a month, had approached the court seeking permanent custody of his son, who had been living with his maternal grandparents since he was seven months old.

Agreeing with his arguments, the court said the grandparents themselves were old and had to support their five unmarried children, none of whom had come forward to take responsibility for bringing up the boy.

The court also said the aged couple had failed to demonstrate how they were ensuring the boy got a good education. It said there was a huge age difference between the aged couple and the child, due to which they could face difficulty in taking care of him.

The grandparents have been granted visitation rights to the child twice a month.

 

 

 

 

 

 

 

 

Categories: Child Custody, News Tags: ,
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