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
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
Mere kicking or slapping or divorce threats do not come under the purview of Section 498A: Supreme Court
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)
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!
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
“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. “
* 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
RATI RAM CHAUHAN ….. Respondents Through: Mr. Shailender Dahiya, Advocate with Respondent in person.
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)
NOVEMBER 04, 2011
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,
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
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
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
and the daughter from 2
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.
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
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
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
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
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
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
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
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
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
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
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
IN THE COURT OF SH. GAUTAM MANAN:
GUARDIAN JUDGE (CENTRAL) DELHI.
G.P. NO. 37/2007
D/O SH. S.N. KAPOOR,
W/O GEORGE LAWRENCE
R/O, 34/492, TRILOK PURI,
V E R S U S
S/O, SH. RAMESH ROMEL
R/O, 126, IIIRD FLOOR,
MALVIYA NAGAR, NEW DELHI.
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
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).
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
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
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
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
October, 2011 (GAUTAM MANAN)
15 G.P. No.37/07 16 G.P. No.37/07
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
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.
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.
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.