Supreme Court of India: Father wins the custody of Daughter, Parental Alienation Symdrome (PAS) had been first cited in SC
Parental Alienation Symdrome (PAS) had been first cited in SC intrestingly
by the mother (a paediatrician doctor) against father (A lawyer) in GAWA
Disposing of the appeal with some modifications of the order of the Family Court, this Court
HELD: 1.1. The child, who is a little more than 12 years of age, is highly
intelligent, having consistently done extremely well in her studies in
school, and this Court is convinced that despite the tussle between her
parents, she would be in a position to make an intelligent choice with
regard to her custody. She has no animosity as such towards her mother, she would prefer to be with the father with whom she felt more comfortable. The minor child also informed the Court that she had established a very good relationship with her paternal aunt who was now staying in her father’s house and she was able to relate to her aunt in matters which would concern a growing girl during her period of adolescence. [355-c-e]
1.2. There is no reason to consider the respondent ineligible to look after
the minor. In fact, after having obtained custody of the minor child, the
respondent does not appear to have neglected the minor or to look after all her needs. The child appears to be happy in the respondent’s company and has also been doing consistently well in school. The respondent appears to be financially stable and is not also disqualified in any way from being the guardian of the minor child. No allegation, other than his purported apathy towards the minor, has been levelled against the respondent by the appellant. Such an allegation is not borne out from the materials and is not sufficient to make the respondent ineligible to act as the guardian of the minor. This Court, therefore, feels that the interest of the minor will be best served if she remains with the respondent but with sufficient access to the appellant to visit the minor at frequent intervals but so as not to disturb and disrupt her normal studies and other activities.[355-f-g;
Hoshie Shavaksha Dolikuka v. Thirty Hoshie Dolikuka, AIR (1984) SC 410;
Kumar v. Jahgirdar v. Chethana Ramatheertha,  2 SCC 688 and Rosy Jacob v. Jacob A.Chakramakkal, AIR (1973) SC 2090, referred to.
Kurian C. Jose v. Meena Jose, (1992) 1 KLT 818 and Saraswatibai Shripad Ved v. Shripad Vasanji Ved, AIR (1941) Bombay 103, referred to.
M.P. Vinod, Sajith and A. Raghunath for the Respondents.
Guardians and Wards Act, 1890; Sections 7 and 25-Hindu Minority and
Guardianship Act, 1956; Section 6-Claim of custody of child by father and mother after divorce-Child preferred to stay with her father-Family court holding in favour of father as per child’s wishes-High Court dismissing the appeal of the mother-Correctness of-Held, on facts, after having custody of the child, the father looked after all her needs and the child appears to be happy with her father-Hence, the interest of the child will be best served if she remains with her father but with sufficient access to the mother to visit her child at frequent intervals as directed by the Court.
Appellant-doctor and respondent-lawyer got married under the provisions of the Special Marriage Act, 1954 and a girl child was born to them. The appellant left her matrimonial home alongwith the child without informing the respondent. The respondent filed a Writ of Habeas Corpus in High Court which was disposed of upon an undertaking given by the appellant to bring the child back to her matrimonial home. Thereafter, the respondent filed two applications before Family Court under sections 7 and 25 of the Guardians and words Act, 1890 and under sections 6 of the Hindu Minority and
Guardianship Act, 1956. The respondent also filed an application before the Family Court for interim custody of the minor child. After interviewing the minor child to elucidate her views with regard to the respondent’s prayer for interim custody, the Family Court allowed the two applications of the respondent by giving certain directions and directed the appellant to give the custody of the child to the respondent.
The appellant filed an appeal in High Court wherein the order of the Family Court was stayed. The respondent filed an application before the High Court for review of the order of stay. The High Court directed the Family Court to interview the minor child. The Family Court interviewed the minor child and gave a report the High Court stating that the minor child preferred to stay
with the respondent. The High Court vacated the interim stay and granted
custody of the minor child to the respondent till the disposal of the appeal. The respondent, thereafter, filed an application for divorce before the Family Court. The appellant filed a special leave petition before the Supreme Court against the order of the High Court granting custody of the minor child to the respondent, which was dismissed. The High Court thereafter dismissed the appeal of the appellant. Immediately thereafter, the Family Court granted divorce to the parties.
In appeal to the Court, the appellant-mother contended that the minor child
was of tender age and would soon attain puberty when she would need the
guidance and instructions of a woman to enable her to deal with both
physical and emotional changes which take place during such period; that
she, being a doctor, would be in a better position to take care of the needs
of the minor child in comparison to the respondent who had little time to
look after the needs of the minor child; that the minor child was extremely
happy with her till the respondent-father began to claim custody of the
child and soon after obtaining the custody, the respondent influenced his
child to tell the Family Court that she preferred to stay with her father;
that the child has been exposed by the respondent to “Parental Alienation
Syndrome” and hence the minor child, inspite of her being with the appellant
for 7 years, had expressed a preference to be with the respondent after she
was placed in his custody; that section 6 of the Hindu Minority and Guardianship Act, 1956 recognised the mother also as the natural guardian of
the minor; that she paid school admission and tuition fees for the child’s
schooling in a good school and for extracurricular activities; that she made
various financial investments for the benefit of the minor child; that, although she was granted visitation rights by an interim order of this Court, she was unable to remain in contact with her because of distance and that the respondent never allowed her to meet the minor child and spend sufficient time with her.
The respondent-father, denying the various allegations of the appellant,
contended that the minor child was suddenly and surreptitiously removed from his custody by the appellant who left her matrimonial home without informing the appellant; that the minor child made her preference to be with her father before the Family Court even though the appellant forcibly removed the minor child from the respondent; that he made arrangements with his elder sister to look after his minor child’s needs which was duly considered by the Family Court and the High Court; and that he had sufficient finances to look after and provide for all the needs of the minor child. The
respondent submitted that the appellant was welcome to visit the minor child
either at the respondent’s house or in some neutral place and to even keep
the child with her on specified days if she was ready and willing to stay
with the appellant.
2006 AIR 1343, 2006(2 )SCR342 , 2006(3 )SCC62 , 2006(2 )SCALE388 ,
Appeal (civil) 6626 of 2004
Sheila B. Das
DATE OF JUDGMENT: 17/02/2006
B.P. Singh & Altamas Kabir
J U D G M E N T
The appellant, who is a paediatrician by profession, was married to the respondent, who is a lawyer by profession, on 29th March, 1989, at Thrissur in Kerala under the provisions of the Special Marriage Act. A girl child, Ritwika, was born of the said marriage on 20th June, 1993.
As will appear from the materials on record, the appellant, for whatever reason, left her matrimonial home at Thrissur on 26th February, 2000, alongwith the child and went to Calicut without informing the respondent.
Subsequently, on coming to learn that the appellant was staying at Calicut, the respondent moved an application in the High Court at Kerala for a writ in the nature of Habeas Corpus, which appears to have been disposed of on 24th March, 2000 upon an undertaking given by the appellant to bring the child to Thrissur. On 24th March, 2000, the respondent, alleging that the minor child had been wrongfully removed from his custody by the appellant, filed an application before the Family Court at Thrissur under Sections 7 and 25 of the
Guardians and Wards Act, 1890, and also Section 6 of the Hindu Minority and Guardianship Act, 1956, which came to be numbered as OP 193 of 2000 and OP 239 of 2000.
Before taking up the said two applications for disposal, the learned Judge of the Family Court at Thrissur took up the respondent’s application for interim
custody of the minor child and on 27th April, 2000 interviewed the minor child in order to elucidate her views with regard to the respondent’s prayer for interim custody. No order was made at that time on the respondent’s application for interim custody. On 20th March, 2001, the learned Judge of the Family Court at Thrissur took up the two applications filed by the respondent under Sections 7 and 25 of the Guardians and Wards Act and under Section 6 of the Hindu Minority and Guardianship Act for final disposal. While disposing of the matter the learned Judge had occasion
to interview the minor child once again before delivering judgment and ultimately by his order of even date the learned Judge of the Family Court at Thrissur allowed the applicati16ons filed by the respondent by passing
the following order:-
“1. The respondent is directed to give custody of the child to the petitioner the
father of the child, the natural guardian immediately after closing of the schools for summer vacation.
2. The father shall take steps to continue the study of the minor child in
CSM Central School Edaserry and steps to restore all the facilities to the minor child to enjoy her extra curricular activities and studies also.
3. The respondent mother is at liberty to visit the child either at the home of the petitioner or at school at any time.
4. If the mother respondent shifts her residence to a place within 10 kms.
radius of the school where the child is studying the child can reside with the
mother for not less than three days in a week. The petitioner father shall not,
object to taking of the child by the mother to her own house in such condition.
5. The father the petitioner shall meet all the expenses for the education, food
and cloths etc. of the minor child and the mother of her own accord contribute to the same anything for the child and the father should not prohibit the mother from giving the child anything for her comfort and pleasant living.
6. If the mother the respondent fails to stay within 10 kms. radius of the CSM
central School, Edasserry however she is entitled to get custody of the child for 2 days in any of the weekend in a month and 10 days during the Summer vacation and 2 days during the Onam hoilidays excluding the Thiruvonam day.
7. This arrangement for custody is made on the basis of the prime consideration for the welfare of the minor child and in case there is any change in the situation or circumstance affecting the welfare of the minor child, both of the parties are at liberty to approach this court for fresh directions on the basis of the changed circumstance.
OP 239/2000 is partly allowed prohibiting the respondent husband by a
permanent injunction from removing or taking forcefully the “B” schedule articles mentioned in the plant. The parties in both these cases are to suffer their costs.”
Being dissatisfied with the order of the Family Court, the appellant herein filed an appeal in the High Court of Kerala, being M.F.A.No.365/01, wherein by an order dated 21st May, 2001, the order of the Family Court was stayed. The respondent thereupon filed an application before the High Court for review of the said order and in the pending proceedings, a direction was
given by the High Court to the Family Court at Calicut to interview the minor child. The report of the Family Court was duly filed before the High Court on 5th July, 2001.
From the said report, a copy of which has been included in the paperbook, it is evident that the minor child preferred to stay with her father and ultimately by its order dated 25th July, 2001 the High Court vacated the stay granted by it on 21st May, 2001.
On the application of the appellant herein, one Dr. S.D. Singh, Psychiatrist, was also appointed by the High Court on 14th September, 2001, to interview the appellant and the respondent in order to make a psychological evaluation and to submit a report. On such report being filed, the High Court by its order dated 31st May, 2002, granted custody of the minor child to the respondent till the disposal of the appeal.
Soon thereafter, in June 2002, the respondent filed an application for divorce before the Family Court at Thrissur. While the same was pending, the appellant filed a Special Leave Petition being S.L.P.( C) C.C.No.6954/2002 against the order of the High Court granting custody of the minor child to the respondent till the disposal of the appeal. The said Special Leave Petition was dismissed on 9th September, 2002. The appeal filed by the appellant before the High Court against the order of the learned Judge of the Family Court allowing the respondent’s application under Sections 7 and 25 of the Guardians and Wards Act, being M.F.A. No.365/01, was also dismissed on 16th June, 2003. Immediately, thereafter, on 28th June, 2003, the Family Court granted divorce to the parties. Being aggrieved by the dismissal of her appeal, being M.F.A.No.365/01, the appellant herein filed the instant Special Leave Petition, being SLP ) No. 18961/2003, which after admission was re- numbered as Civil Appeal No.6626/2004. On 20th July, 2004, the appellant herein filed a petition in the pending Special Leave Petition for interim visitation rights in respect of her minor child for the months of August and September, 2004. After considering the submissions made by the appellant, who was appearing in person, and the learned counsel for the respondent, this Court passed the following order:-
“This petition has been filed by the mother of minor girl-Ritwika, aged about
12 years, challenging the impugned order of the High Court dated 16th June, 2003. By the impugned order the High Court confirmed the order of the Family Court holding that it is in the best interest of the child that she be in the custody of the father. The High Court, however, permitted the petitioner to visit the child at the house of the father once in a
month, that is, first Sunday of every month and spend the whole day with the
child there with a further stipulation that she will not be removed from the father’s house. The petitioner and the respondent have not been living together since February, 2000. The divorce between them took place by order dated 26th June, 2003.
On question of interim custody, in terms of the order dated 30th April, 2003,
the Family Court Trichur, was directed to make an order regarding the visitation rights of the petitioner for the months of May, June and July, 2004 so that the petitioner may meet her daughter at the place of some neutral person and, if necessary, in the presence of a family counsellor or such other person deemed just, fit and proper by the Family Court.
The Family Court was directed to fix any two days, in months of May, June and July of 2004, considering the convenience of the parties, when the petitioner may be in a position to spend entire day with her child.
Pursuant to the above said order the Family Court had fixed two days in the
months of May, June and July, 2004 so that the petitioner could meet her
daughter on those days. The Family Court directed that the said meeting shall
take place in the room of family counsellor in Court precincts. According
to the petitioner the said arrangement was not satisfactory, so much so that
ultimately she made a request to the Family Court that instead of meeting her
daughter in the room of the family counsellor, the earlier arrangement of
meeting her at father’s house was may be restored. The Family Court, however, did not modify the order having regard to the orders passed by this Court on 30th April, 2004. It is, however, not necessary at this stage to delve any further on this aspect.
Ritwika is studying in 7th class in a school in Trichur. Having heard
petitioner-in-person and learned counsel for the respondent and on perusal of
record, we are of the view that without prejudice to parties’ rights and contentions in Special Leave Petition, some interim order for visitation rights of the petitioner for the months of August and September, 2004 deserves to be passed. Accordingly, we direct as under:
(1) The petitioner can visit the house of the respondent at Trichur on every
Sunday commencing from 1st August, 2004 and be with Ritwika from 10.00
a.m. to 5.00 p.m. During the stay of the petitioner at the house of the respondent, only the widowed sister of the respondent can remain present. The respondent shall not remain present in the house during the said period. It would be open to the petitioner to take Ritwika for outing, subject to the condition that Ritwika readily agrees for it. We also hope that when at the house of the respondent, the petitioner would be properly looked after, insofar as, normal facilities and courtesies are concerned;
(2) We are informed that the school in which Ritwika is studying shall be closed for 7 days in the month of August, 2004 during Onam festival. It would be open to the petitioner to take the child for outing during those holidays for a period of three days. After the expiry of three days, it will be the responsibility of the petitioner to leave the child at the house of the respondent.
The arrangement about meeting on every Sunday would also continue in the
month of September, 2004.
List the matter on 5th October, 2004″
The question relating to the appellant’s visitation rights pending decision of the Special Leave Petition came up for consideration before this Court again on 5th October, 2004, when on a reference to its earlier order dated 20th July, 2004, this Court further directed that the appellant would be at liberty to move appropriate applications in M.F.A.No.365/01, which had been decided by the High Court on 16th June, 2003, and the High Court on hearing the parties or their counsel would pass such orders as it considered appropriate in respect of the interim custody of Ritwika during the Christmas Holidays. It was also clarified that till the matter was finally decided by this Court, it would be open to the appellant to make similar applications before the High
Court which would have to be considered on its own merits, since it was felt that the High Court would be in a better position to consider the local conditions and pass interim orders including conditions, if any, required to be
placed on the parties.
As mentioned hereinbefore, on leave being granted, the Special Leave Petition was renumbered as Civil Appeal No.6626/04, which has been taken up by us for final hearing and disposal.
The appellant, who appeared in person, urged that both the Family Court and the High Court had erred in law in removing the minor child from the custody of the mother to the father’s custody, having particular regard to the fact that the minor girl was still of tender age and had attained the age when a mother’s care and counseling was paramount for the health and well-being of the minor girl child. The appellant submitted that the minor child would soon attain puberty when she would need the guidance and instructions of a woman to
enable her to deal with both physical and emotional changes which take place during such period.
Apart from the above, the appellant, who, as stated hereinbefore, is a doctor by profession, claimed to be in a better position to take care of the needs of the minor in comparison to the respondent who, it was alleged, had little time at his disposal to look after the needs of the minor child.
From the evidence adduced on behalf of the parties, the appellant tried to point out that from morning till late at night, the respondent was busy in court with his own work and activities which left the minor child completely alone and uncared for. According to the appellant, the respondent who had a farm house some distance away from Thrissur, spent his week- ends and
even a major part of the week days in the said farm house. The appellant urged, that as a mother, she knew what was best for the child and being a professional person herself she was in a position to provide the minor not only with all such comforts as were necessary for her proper and complete upbringing, but also with a good education and to create in her an interest in extra- curricular activities such as music and dancing. The appellant strongly urged that the respondent had never had any concern for the minor child since her birth and till the time when the appellant left with her for Calicut.
The appellant contended that for 7 years after the birth of the minor child, the appellant had single-handedly brought up the minor since the respondent was too pre- occupied with other activities to even notice her.
According to the appellant, the minor child was extremely happy to be with her till the respondent began to claim custody of the minor and soon after obtaining such custody, he was able to influence the minor to such an extent that she even went to the extent of informing the learned Judge of the Family Court that she preferred to stay with her father.
On this aspect of the matter, the appellant urged that the minor had been exposed by the respondent to what she termed as “Parental Alienation Syndrome”. She urged that such a phenomenon was noticeable in parents who had been separated and who are bent upon poisoning the mind of their minor children against the other party. According to the appellant, there could otherwise be no other explanation as to why even after being with the appellant for 7 years, the minor child had expressed a preference to be with her father after she was placed in his custody. The appellant laid stress on
her submissions that not only till the age of 8 years, when custody of the minor child was given to him, but even thereafter the respondent had all along been an absentee father taking little or no interest in the affairs and upbringing of the minor child. According to the appellant, in view of the peculiar habits of the respondent, the minor child was left on her own much of
the time, which was neither desirable nor healthy for a growing adolescent girl child.
Urging that she had the best interest of the minor child at heart, the appellant submitted that although under the provisions of Hindu Law by which the parties were governed, the father is accepted as the natural guardian of a minor, there were several instances where the courts had accepted the mother as the natural guardian of a minor in preference to the father even when
he was available. Referring to Section 6 of the Hindu Minority and Guardianship Act, 1956, which provides that the natural guardian of a Hindu minor in the case of a boy or an unmarried girl is the father and after him
the mother; provided that the custody of a minor who has not completed the age of 5 years shall ordinarily be with the mother, the appellant submitted that the aforesaid provision had recognized the mother also as the natural
guardian of a minor. It was urged that in various cases the Courts had considered the said provision and had opined that there could be cases where in spite of the father being available, the mother should be treated to be the natural guardian of a minor having regard to the incapacity of the father to act as the natural guardian of such minor.
In support of her aforesaid submission, the appellant referred to and relied on the decision of this Court in Hoshie Shavaksha Dolikuka vs. Thirty Hoshie
Dolikuka, reported in AIR 1984 SC 410, wherein having found the father of the minor to be disinterested in the child’s welfare this Court held that the father was not entitled to the custody of the child.
The appellant also referred to and relied on a Division Bench decision of the Kerala High Court in the case of Kurian C. Jose vs. Meena Jose, reported in
1992 (1) KLT 818, wherein having regard to the fact that the father was living with a concubine who was none else than the youngest sister of the mother, it was held that the father was not entitled to act as the guardian of the minor. On a consideration of the provisions of Section 17 (3) of the Guardians and Wards Act, 1890, it was also held that a minor’s preference need not necessarily be decisive but is only one of the factors to be taken into consideration by the court while considering the question of custody.
Reference was also made to another decision of this Court in the case of Kumar V. Jahgirdar vs. Chethana Ramatheertha, (2004) 2 SCC 688, wherein in consideration of the interest of the minor child, the mother, who had re-married, was given custody of the female child who was on the advent of puberty, on the ground that at such an age a female child primarily requires a mother’s care and attention. The Court was of the view that the absence of female company in the house of the father was a relevant factor in deciding the grant of custody of the minor female child. The appellant urged that the courts in the aforesaid cases had considered the welfare of the minor to be of
paramount importance in deciding the question of grant of custody. The appellant urged that notwithstanding the fact that the minor child had expressed before the learned Judge of the Family Court that she preferred to
be with the father, keeping in mind the fact that the welfare of the minor was of paramount importance, the court should seriously consider whether the minor child should be deprived of her mother’s company during her period of adolescence when she requires her mother’s counselling and guidance. The appellant submitted that while the respondent had indulged Ritwika so as to win over her affection, the appellant had tried to instill in her mind a sense of discipline which had obviously caused a certain amount of resentment in Ritwika. The appellant submitted that the court should look behind the curtain to see what was best for the minor girl child at this very crucial period of her growing up. In support of her aforesaid submission, the appellant referred to and relied on a decision of the Bombay High Court in the case of Saraswatibai Shripad Ved vs. Shripad Vasanji Ved, AIR 1941 Bombay 103,
wherein in a similar application under the Guardians and Wards Act, it was held that since the minor’s interest is the paramount consideration, the mother was preferable to the father as a guardian. The appellant emphasized the observation made in the judgment that if the mother is a suitable person to take charge of the child, it is quite impossible to find an adequate substitute for her for the custody of a child of tender years notwithstanding the fact that the father remains as the natural guardian of the minor.
A similar view was expressed by this Court in the case of Rosy Jacob vs. Jacob A. Chakramakkal, AIR 1973 SC 2090, wherein in the facts and circumstance of
the case, the custody of the daughter (even though she was more than 13 years of age ) and that of the youngest minor son, was considered to be more beneficial with the wife rather than with the husband. The appellant submitted that during the child’s growing years, she had from out of her own professional income, provided her with amenities which a growing child needs, including admission and tuition fees for the child’s schooling in a good school and for extra- curricular activities. The appellant submitted that she
had made fixed deposits for the benefit of the minor and had even taken out life insurance policies where the minor child had been made the nominee. The appellant submitted that apart from the above, she had also made various financial investments for the benefit of the minor so that the minor child would not be wanting in anything if she was allowed to remain with the appellant.
The appellant submitted that although she had been granted visitation rights by the different interim orders, since she was residing in Calicut and the
respondent was residing in Thrissur, she was unable to remain in contact with her minor daughter on account of the distance between Calicut and Thrissur. In fact, the appellant complained of the fact that on several occasions when she had gone to meet her minor child at the residence of the respondent, she had not been allowed to meet the child or to spend sufficient time with her. The appellant submitted that the interest of the minor child would be best served if her custody was given to the appellant. The claim of custody of the minor child made by the appellant was very strongly resisted by the respondent who denied all the various allegations levelled against him regarding his alleged apathy towards the minor and her development. It was submitted on his behalf that till the age of 7 years, the child had been living with both the parents, and was well cared for and looked after during this period. The minor child was suddenly and surreptitiously removed from the respondent’s custody by the appellant who left her matrimonial home on 26th
February, 2000 without informing the appellant who had gone out of Thrissur on his professional work. It was submitted that only after coming to learn that the appellant had removed the child to Calicut that the respondent was compelled to file a Habeas Corpus Petition in the Kerala High Court which ended upon an undertaking given by the appellant to bring the minor child to Thrissur. It was only thereafter that the respondent was compelled to file the application under Sections 7 and 25 of the Guardians and Wards Act and
under Section 6 of the Hindu Minority and Guardianship Act,1956.
According to the respondent, even though the appellant had forcibly removed the minor to Calicut, thereby depriving the respondent of the minor child’s
company, the said minor during her interview by the learned Judge of the Family Court at Thrissur made her preference to be with the father known to the learned Judge.
On behalf of the respondent, it was also submitted that keeping in mind the fact that the girl child was attaining the age of puberty, the respondent had
arranged with his elder sister, who was a retired headmistress of a school, to come and stay with him and to attend to the minor’s needs during her growing years when she required the guidance and counselling of a woman. It was submitted that the said aspect of the matter was duly considered by the Family Court as well as by the High Court on the basis of an affidavit filed by
the respondent’s sister expressing her willingness to stay with the respondent to look after the minor child.
In addition to the above, it was submitted on behalf of the respondent that the Court had found on evidence that he had sufficient finances to look after and provide for all the needs of the minor child. In any event, what was of paramount importance was the welfare of the minor and the court had also taken into consideration the preference expressed by the minor in terms of
Section 17 (3) of the Guardians and Wards Act, 1890.
On behalf of the respondent it was submitted that the respondent was quite alive to the fact that the minor child should not be deprived of her mother’s company and that for the said purpose, the appellant was welcome to visit the minor child either at the respondent’s house or in some neutral place and to even keep the child with her on specified days if she was ready and willing to stay with the appellant. What was sought to be emphasized on behalf of the respondent was that in the interest of the child she should be allowed to remain with him since he was better equipped to look after the minor, besides being her natural guardian and also having regard to the wishes of the minor herself.
Having regard to the complexities of the situation in which we have been called upon to balance the emotional confrontation of the parents of the minor child and the welfare of the minor, we have given anxious thought to what would be in the best interest of the minor. We have ourselves spoken to the minor girl, without either of the parents being present, in order to ascertain her preference in the matter. The child who is a little more than 12 years of age is highly intelligent, having consistently done extremely well in her studies in school, and we were convinced that despite the tussle between her parents, she would be in a position to make an intelligent choice with regard to her custody. From our discussion with the minor, we have been able
to gather that though she has no animosity as such towards her mother, she would prefer to be with the father with whom she felt more comfortable. The minor child also informed us that she had established a very good relationship with her paternal aunt who was now staying in her father’s house and she was able to relate to her aunt in matters which would concern a growing girl during her period of adolescence.
We have also considered the various decisions cited by the appellant which were all rendered in the special facts of each case. In the said cases the father
on account of specific considerations was not considered to be suitable to act as the guardian of the minor. The said decisions were rendered by the Courts keeping in view the fact that the paramount consideration in such cases was the interest and well-being of the minor. In this case, we see no reason to consider the respondent ineligible to look after the minor. In fact, after having
obtained custody of the minor child, the respondent does not appear to have neglected the minor or to look after all her needs. The child appears to be happy in the respondent’s company and has also been doing consistently well in school. The respondent appears to be financially stable and is not also disqualified in any way from being the guardian of the minor child. No allegation, other than his purported apathy towards the minor, has been levelled against the respondent by the appellant. Such an allegation is not borne out from the materials before us and is not sufficient to make the respondent ineligible to act as the guardian of the minor.
We, therefore, feel that the interest of the minor will be best served if she remains with the respondent but with sufficient access to the appellant to visit the minor at frequent intervals but so as not to disturb and disrupt her normal studies and other activities. We, accordingly dispose of this appeal by retaining the order passed by the learned Judge of the Family Court at
Thrissur on 20.3.2001 while disposing of O.P.No.193/2000 filed by the respondent herein under Sections 7 and 25 of the Guardians and Wards Act,
1890 with the following modifications:-
1. The respondent shall make arrangements for Ritwika to continue her studies in her present school and to ensure that she is able to take part in
extra-curricular activities as well.
2. The respondent shall meet all the expenses of the minor towards her education, health, care, food and clothing and in the event the appellant also wishes to contribute towards the upbringing of the child, the respondent shall not create any obstruction to and/or prevent the appellant from also making
3. The appellant will be at liberty to visit the minor child either in the respondent’s house or in the premises of a mutual friend as may be agreed upon on every second Sunday of the month. To enable the appellant to meet the child, the respondent shall ensure the child’s presence either in his house
or in the house of the mutual friend agreed upon at 10.00 A.M. The appellant will be entitled to take the child out with her for the day, and to bring her
back to the respondent’s house or the premises of the mutual friend within 7.00 P.M. in the evening.
4. In the event the appellant shifts her residence to the same city where the minor child will be staying, the appellant will, in addition to the above, be
entitled to meet the minor on every second Saturday of the month, and, if the child is willing, the appellant will also be entitled to keep the child with her overnight on such Saturday and return her to the respondent’s custody by the following Sunday evening at 7.00 P.M.
5. The appellant, upon prior intimation to the respondent, will also be entitled to meet the minor at her school once a week after school hours for about an hour.
6. The appellant will also be entitled to the custody of the minor for 10 consecutive days during the summer vacation on dates to be mutually settled
between the parties.
7. The aforesaid arrangement will continue for the present, but the parties will be at liberty to approach the Family Court at Thrissur for fresh directions should the same become necessary on account of changed circumstances.
The parties will each bear their own costs.
# Husband / father has retained custody of children though some of them are female children and ALL of them are minor
# Husband has been carefully escalating the matter thru various courts and finally won custody at Bombay HC too !!
# children are either neutral or silent
# Husband has appeared PARTY IN person and NOT by advocate even at the High court
================== judgement =================
Bombay HC judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.353 OF 2008
Mrs.Mary Cedric Pinto .. Petitioner versus
Mr.Cedric Francis Pinto & Anr. .. Respondents
Mr.N.P.Deshpande for the petitioner.
None for the 1st respondent.
Ms.A.T.Jhaveri, A.P.P for the respondent No.2-State.
CORAM : A.S.OKA, J.
DATE ON WHICH JUDGMENT IS RESERVED : 2nd July 2009.
DATE ON WHICH JUDGMENT IS PRONOUNCED: 10th September 2009.
1. On 2nd July 2009 the submissions of the learned counsel appearing for the petitioner were heard. The judgment was not delivered on that day as the learned counsel appearing for the 1st respondent was not present. The judgment was reserved. The judgment could not be pronounced earlier as the file of the petition was misplaced.
2. The petitioner is the wife and the 1st respondent is the husband. An application was made by the petitioner under section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the said Act) before the learned Magistrate praying for various reliefs. The dispute relates to custody of three minor children. Interim relief was granted by the learned Magistrate by order dated 21st November 2007 in exercise of powers under section 23 of the said Act by directing that the 1st respondent shall hand over temporary custody of the three minor children to the petitioner. The directions were given to the 1st respondent to desist from causing domestic violance as mentioned in the report of the Protection Officer. Under the said order an arrangement was made enabling the three minor children to stay with the 1st respondent father from 8.00 a.m of every Saturday till 9.00 a.m on the immediately following Sunday. An appeal was preferred by the 1st respondent. By the impunged order dated 19th December 2007, the learned Additional Sessions Judge modified the order of the learned Magistrate and directed that the husband and wife will be entitled to retain the custody of the minor children every alternate month. The petitioner and 1st respondent were directed to take proper physical and mental care of the children whenever the children would remain in their custody.
3. When the writ petition came up before this Court for admission on 15th September 2008, the petition was ordered to be placed in chamber. On 19th September 2008 in chamber this Court interviewed the three minor children.
Thereafter, the matter appeared before the Court on 24th September 2008.
The paragraphs 2 to 4 of the order passed on that day read thus:
“2. It must be stated here that on Friday, 19th September 2008 at 5.30 p.m the children were called to my chamber alongwith the petitioner and the 1st respondent. I had no occasion to talk to the three children. To enable me to talk to the children, I requested the parties and the advocates to wait outside the chamber. While leaving the chamber, the learned advocate holding for the advocate for the petitioner requested the Court to ensure that a cellphone is not kept with the eldest child for recording the conversation in the chamber. The first respondent categorically stated that there is no basis for such apprehension.
3. The children were at pains to tell me that they desire that the parents should come together and they will be very happy if they are in position to stay with both the parties. Therefore, in chamber, a suggestion was given to the parents to explore the possibility of reconciliation, keeping in mind the desire expressed by the three children.
4. I gather from Shri Deshpande, learned advocate for the petitioner that as of today, there is no possibility of reconciliation between the petitioner and the 1st respondent. “
4. On 27th April 2009 when the petition was called out, none appeared for the 1st respondent. The advocate for the petitioner was present. He stated that no progress has been made in the matter of settlement. Therefore, the petition was ordered to be fixed for final disposal.
5. The petitioner and 1st respondent married on 18th October 1989 under the provisions of the Special Marriage Act. On 27th December 1991 they again got married in church. The couple was blessed with three children. The first two are the daughters and third one is the son. The present ages of the children appear to be 16 yrs, 14 yrs and 12 yrs respectively.
6. As stated earlier, temporary custody of the minor children was granted by the learned Magistrate in favour of the petitioner. The order of temporary custody was disturbed by the Sessions Court by passing a peculiar order. The petitioner-wife and the 1st respondent husband were permitted to retain custody every alternate month. It, however, appears that after the order of the Sessions Court, the custody of the children has remained with the 1st respondent father.
7. The learned counsel appearing for the petitioner submitted that there was no reason for the learned Additional Sessions Judge to disturb the order of temporary custody passed by the learned Magistrate. He submitted that the order of the learned Sessions Judge that custody of the children will be retained by the petitioner and 1st respondent every alternate month is perverse and is not in the interests of the minors. He submitted that out of the three minors two are daughters and the son is of tender age. He submitted that welfare of the minors require that their custody should be retained with the mother.
8. I have given careful consideration to the submissions. It is well settled law that while deciding an application for custody of minor children, the only paramount consideration is welfare of minor children and the legal rights of the parties or the parents are not relevant. The order of the learned Magistrate records that the minor children on their own sought audience of the learned Magistrate and in chamber when the learned Magistrate talked to the children, they expressed a desire to stay with the mother. Thereafter, the learned Magistrate passed an interim order directing that the custody of the minor children be handed over to the petitioner. However, he passed an order directing that at weekends the minor children will stay with the 1st respondent.
9. The learned Additional Sessions Judge has noted in the impugned order that he had taken interview of the minor children in his chamber and he had talked to the parties with a view to bring about settlement. He has recorded that the petitioner was not in a mood to even think of settlement.
10. In paragraph 4 of the impugned order, he has noted that both the mother and father were claiming custody. He noted that the children want both the parents to stay together and they need love and affection of both, the mother and the father. He noted that the children expressed their desire to celebrate Christmas and New Year in the company of their parents. The relevant part of the order passed by the learned Additional Sessions Judge reads thus: ” REASONS 6. The elder daughter Eleine is the studen of IX th standard. Cedrina and Edric are the students of Vth
standard. Their welfare is of paramount consideration.
The children do not have any allegation against the
parents. Both the parties want to exercise their
parental authority to have custody of the children.
The children want both the parents and stay with them
together. They want ot celebrate Christmas and the New
Year in their company, which appear impossible,
because the respondent No.1 is not ready. It is in
this circumstances the appeal needs to be partly
allowed as the order passed by the learned Magistrate
needs some modification in the interest of the
children. Hence, the following order: ORDER
The appeal is partly allowed as under:-
1. The appellant shall give the custody of the three
children to the respondent No.1 today in the Court.
2. The respondent No.1 shall keep the children in
their custody till 19th January 2008. She shall give
the custody back to the appellant on 20th January 2008
at about 9 a.m in the office of Mahila Vikas Kendra
Pulgate, Pune and the appellant shall collect the
3. Thereafter the appellant shall keep the children
in his custody till 19th February 2008 and he shall
deliver the custody of the children to the respondent
No.1 on 20th February 2008 at the same place and time
to enable the respondent No.1 to collect the children.
4. In this manner this cycle of one month shall go on
until further order.
5. The appellant and the respondent No.1 shall not
remove the children out of the municipal limits of the
Pune Cantonment and Pune Corporation without prior
permission of the learned Magistrate.”
11. It must be noted that even before this Court the three children were at pains to point out that they desire that their parents should stay together and they would be very happy if they get an opportunity to stay with both the parents. Therefore, on 19th September 2009 a suggestion was given by this Court to the parents to explore the possibility of reconciliation keeping in mind the desire expressed by the three children. The petition was adjourned thereafter from time to time. But the parties could not reconcile and come to a settlement. It is not possible at this stage to find out which of the two parties is not willing to settle the dispute. But it has to be observed that it would have been in the best interests of the minor children if the petitioner and the 1st respondent had patched up the differences and had agreed to reside under one roof only with a view to ensure that the minor children get company of both the parents. Both the parties should have given paramount importance to the wishes expressed by their children. Sadly, the petitioner and 1st respondent are not able to patch up the disputes. They could have even considered of residing under one roof atleast for few years till the children become major.
12. The three children are school going children. It must be stated here that the Sessions Court has passed a very peculiar order. The Sessions Court thought that it is in the interests of the minors that they remain in custody of their parents every alternate month. Such approach, to say the least, is shocking. The learned Sessions Judge has not at all considered the effect of this arrangement on the minors. The Act of disturbing custody of the minors after every one month will cause mental trauma to the minor children. The minor children have already suffered because of the attitude adopted by the parents of not settling the disputes atleast for the sake of children. In a case where there is a dispute between the parents over the custody of minor children, the custody has to be retained with one of the parents with visitation rights and/or right to have temporary custody for few days reserved in favour of the other parent. The arrangement which is made by the impugned order is certainly not in the interests of the minors and by such arrangement, the minors are bound to suffer. Therefore, the order impugned which is certainly not consistent with the welfare of the minors, will have to be quashed and set aside. Now the question which remains is what should be the interim arrangement during the pendency of the main application under section 12 of the said Act. For whatever reasons, for a substantially long time, the custody of the minors has remained with the 1st respondent father. Now it will not be in the interests of the minors to disturb the custody of the father till the main application is heard. The main application under section 12 of the said Act will have to be heard and disposed of expeditiously. However, the petitioner will have to be given right to meet her minor children and to remain in their company for sufficiently long time at periodical intervals. Even the minor children will need the company of their mother. However, interim arrangement will have to be worked out by the parties before the learned Magistrate as the 1st respondent has not chosen to appear before this Court at the time of final hearing.
13. Hence, I pass the following order:
: O R D E R :
(a) The impugned order dated 19th December 2007 is quashed and set aside.
(b) Considering the events which have transpired, till the disposal of the application under section 12 of the said Act, the custody of the minor children of the 1st respondent husband shall not be disturbed unless there are subsequent events warranting change in custody.
(c) The petitioner will be entitled to meet the minor children at regular intervals and to remain in their company for sufficiently long time. The learned Magistrate will pass a proper order in that behalf after hearing both the parties.
(d) The main application under section 12 of the said Act shall be decided as expeditiously as possible and preferably within a period of three months from today.
(e) All contentions of the parties in the main application are expressly kept open.
(f) The writ petition is disposed of in above terms.
Bombay High Court- Acquitted Husband & In-laws as the Witnesses of Prosecution were exaggerating and lied at least on some aspects of the matter.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 398 OF 2011
1. Bandu S/o Bhagchand Jadhav
Aged : 27 years, Occ : Labourer,
2. Subhandrabai W/o Bhagchand Jadhav Age : 72 years, Occ : Household,
3. Raju S/o Bhagchand Jadhav
Age : 32 years, Occ : Labourer,
4. Sangita W/o Raju Jadhav
Age : 30 years, Occ : Household,
All R/o Sarangpur, Tq. Gangapur,
State of Maharashtra
through Police Station
Gangapur, Dist. Aurangabad.
Mr. Sanchin Deshmukh, advocate for the appellants Mr. N.R. Shaikh, A.P.P. for respondent. …..
CORAM : A.M. THIPSAY, J.
DATED : 29th March, 2012
ORAL JUDGMENT :
1 Being aggrieved by the judgment and order delivered by the Additional Sessions Judge, Aurangabad, in Sessions Case No. 161 of 2009, convicting the appellants, who were the accused in the said case, of offences punishable under Section 306 of IPC r/w Section 34 of IPC, 304B of IPC r/w Section 34 of IPC and 498A of IPC r/w Section 34 of IPC, the appellants have approached this Court by filing the present Appeal. The learned Additional Sessions Judge sentenced the appellants as follows :-
1. For the offence : R.I. for five punishable under years and to pay a Section 306 of the fine of Rs. 500/- IPC r/w Section 34 each, in default, of the IPC to suffer further R.I. for one month.
2. For the offence : R.I. for seven punishable under years and to pay a Section 304B of the fine of Rs. 500/- IPC r/w Section 34 each, in default, of the IPC to suffer further R.I. for one
3. For the offence : R.I. for two years punishable under and to pay a fine Section 498A of the of Rs. 200/- each, IPC r/w Section 34 in default to of the IPC suffer further R.I. for 15 days.
2. The learned Additional Sessions Judge directed that the sentences shall run concurrently. The appellants were also charged of having committed offences punishable under Sections 323 of IPC, Section 504 of IPC and Section 506 of IPC r/w Section 34 of IPC, but the learned Additional Sessions Judge acquitted them of the said offences.
3. The prosecution case, in brief, was as follows :
Manisha, daughter of Appasaheb Khomne (PW-1), a resident of village Shekta, was married to the appellant no.1 Bandu. The appellant no.2 Subhadrabai is the mother of the appellant no.1 and the appellant no.3 Raju is his brother. The appellant no.4 Sangita is the wife of the appellant no.3.
After her marriage, Manisha started residing in the matrimonial home at village Sarangpur, where her husband was residing with the other appellants. Manisha was treated properly for about 8 to 9 months after the marriage, but thereafter the appellants started illtreating Manisha. The appellants stated demanding Rs.25,000/- from her for purchasing motorcycle. This was told by Manisha to her parents, when she had come to her parents house on the occasion of Padava Festival. That, Manisha was weeping at that time. She told that the appellants were beating and abusing her and not providing food to her and that, they were also threatening to kill her. Appasaheb told Manisha that, at that time, he was not having money to pay and that, he would pay the same later on. He had then dropped Manisha to the matrimonial house. That, about 20 days prior to the incident, Manisha informed the brother of Appasaheb on telephone that the appellants were illtreating her for the demand of Rs. 25,000/- and told the said brother to inform the said fact to Appasaheb. Appasaheb then went to the house of Manisha and brought her to his house. Manisha stayed with her parents for about 10 to 15 days and during this period, Manisha told Appasaheb that the appellants were illreating her for the demand of Rs. 25,000/- and that, they would kill her, if Rs. 25,000/- were not paid. That, on 05.07.2008, Appasaheb dropped Manisha to her matrimonial house and requested the appellants not to illtreat her. He told the appellants that he would pay the amount to them, when he would be in a position to pay the same. Thereafter, he came back to his house. On the next day, when he was in field, his brother received a telephone call from the brother- in-law of Manisha that Manisha had got herself burnt and that, she had been admitted in GHATI hospital, Aurangabad. Appasaheb’s brother immediately rushed to GHATI hospital and later on Appasaheb, his wife and some other relatives also went to GHATI hospital. Manisha was admitted in the ward. Appasaheb and others met Manisha and asked her why she got herself burnt. Manisha told that as Appasaheb had not paid money to the appellants, they illtreated her. That, they had beaten her in the night and that, therefore, in the early morning, she had poured kerosene on her person and got herself burnt.
On the next date, after the last rites on the dead body were performed in the afternoon, Appasaheb went to Gangapur Police Station and lodged a report (Exhibit-25), on the basis of which, a case in respect of the aforesaid offences was registered against the appellants, the matter was investigated into and the appellants came to be prosecuted and convicted as aforesaid.
4. The prosecution examined five witnesses during the trial. The first witness is Appasaheb himself. The second witness is Shivaji Khomane, uncle of Manisha and the third witness is Mandabai, the mother of Manisha. The fourth witness is one Meenabai Ganesh Gharge, a resident of village Shekta, who was a friend of Manisha. The fifth and last witness is Kashinath Aher – Sub Inspector of Police, – who is the Investigating Officer in the matter.
5. In addition to oral evidence of these witnesses, certain documents, including the report of the postmortem examination (Exhibit-34) were tendered in evidence, marked and exhibited.
6. It is contended by Mr. Sachin Deshmukh, the learned advocate for the appellants that the impugned judgment is not proper and legal. According to him, there was no satisfactory evidence to establish the charges against the appellants; and that, they should have been acquitted. He submitted that the testimony of the prosecution witnesses 1, 2, 3 and 4, who all were interested witnesses, was vague and unreliable. He also submitted that witnesses 1, 2 and 3 have falsely stated about Manisha having made a dying declaration to them, when the entire evidence on record was clearly indicating that she was unable to speak or make any statements.
7. As against this, Mr. N.R. Shaikh, the learned A.P.P. submitted that the evidence of Manisha’s father Appasaheb (PW-1), her uncle – Shivaji Khomne -(PW-2) and her mother – Mandabai Khomne – (PW-3) has been rightly believed by the learned Additional Sessions Judge, and when so believed, it was sufficient to hold the appellants guilty of the offences in question.
8. With the assistance of the learned counsel, I have gone through the entire evidence adduced during the trial and perused the record of the case.
9. There is no dispute that Manisha, indeed, died an unnatural death due to burn injuries. It is also not in dispute that she had sustained 100% burn injuries.
10. The prosecution evidence can be classified in two categories. The first is, the evidence of cruelty generally, as spoken to about by Appasaheb (PW-1), Shivaji (PW-2), Mandabai Khomne (PW-3) and Meenabai Barge (PW-4). The other is of the dying declaration made by Manisha to Appasaheb (PW-1), Shivaji (PW-2) and Mandabai Khomne (PW-3).
11. The evidence of Appsaheb and Mandabai shows that the marriage of Manisha had taken place on 14.05.2007 and her death occurred on 06.07.2008. During this span, Manisha was, admittedly, treated properly for about eight to nine months. During this span, Manisha had, admittedly, visited the house of her parents and had stayed there on a number of occasions. The evidence also shows that from 21.06.2008 to 05.07.2008, i.e. till one day before her death, Manisha was staying in the house of her parents. Now, though Shivaji (PW-2) in his evidence states that `as and when Manisha used to come to her father’s house, she used to disclose about the demand by the accused to bring money and that, for that purpose, they were illtreating her, that they used to abuse and beat Manisha for a demand of Rs. 25,000/-, it is quite obvious that this must be exaggerated version, in as much as, Manisha’s married life was of less than 14 months. If the period of nine months during which she was, admittedly, treated properly, is excluded, there would be only about four months period and it is not likely that in these four months Manisha made several visits to the house of her parents and complained them on several occasions, as is sought to be projected. Thus, going by the version of Appasaheb (PW-2) and Mandabai (PW-3), at the most it can be said that such a complaint was made by Manisha twice, once when she had come to their house for Padva and on the other occasion, when she had come to reside with them immediately before her death. According to Appasaheb, though Manisha stated that the appellants were illtreating her for a demand of Rs. 25,000/-, and that, they threatened to kill her if the amount of Rs. 25,000/- was not paid, Appasaheb still dropped Manisha at her matrimonial house on 05.07.2008. Manisha sustained burn injuries in the morning of 06.07.2008. There is no evidence that any such grave incident took place in the night between 05.07.2008 and 06.07.2008, which compelled Manisha to commit suicide. On the contrary the evidence indicates that, if Manisha was unwilling to return to her matrimonial house (and had, indeed, told her parents that the appellants were likely to kill her), and if she had committed suicide, as is the case of prosecution, then that is attributable more to unhappiness and sorrow in her mind due to the act of her parents in disregarding what she said and compelling her to stay with her husband, rather than the alleged cruel treatment given to her by the appellants earlier. From the evidence, if believed, it appears more probable that the cause of suicide was the insistence of her parents that she should go back to her matrimonial house and their dropping her there against her wish; and not the happening of any events after she had gone there. The reliability of the version of Appasaheb (PW-1) and Mandabai (PW-3) as also, of Shivaji (PW-2) with respect to the cruel treatment, allegedly, given to Manisha, therefore, needs to be carefully judged in the light of their entire evidence.
13. Appasaheb (PW-1), Shivaji (PW-2) and Mandabai (PW-3) have all stated about Manisha having made a dying declaration to them. Their version is that when they received a telephonic message that Manisha had got herself burnt and that, she was admitted in GHATI hospital, they all went to GHATI hospital and saw Manisha. According to them, Manisha made a certain declaration before them.
14. It may be recalled in this context, that it has been specifically contended by Mr. Sachin Deshmukh, the learned advocate for the appellants that the story of Manisha having made a dying declaration to these witnesses, can not be accepted as Manisha was not in a position to make any statement. Indeed, this aspect needs examination. The evidence of Kashinath Aher – the Investigating Officer – (PW-5) clearly shows that on getting information about the Medico Legal case relating to Manisha, he went to GHATI hospital and inquired in the matter. He has clearly stated that he was intending to record statement of Manisha, but she was not in a position to give statement, as she had sustained 100% burn injuries. This evidence of the Investigating Officer finds corroboration from the document which has been marked as Exhibit-47. This document is a communication made by the Sub- Inspector of Police, Gangapur Police Station to the Medical Officer, GHATI hospital, Aurangabad, in which it is stated that the dying declaration of Manisha was intended to be recorded and that, the remark as to whether she was in a position to make a statement might be given. Below this, there is an endorsement purporting to be of a Doctor, which is to the effect that ‘the patient was unconscious and not in a fit state of mind and in condition to make a valid statement’. In Marathi, there is an endorsement “tckc ns.ks fLFkrhr ukgh” (Jabab Dene Sthitit Nahi). This document, which is a record of the actions of public servants, has been admitted in evidence without any protest or objection. As a matter of fact, this document has been tendered in evidence by the prosecution itself and its receipt in evidence, was not objected on behalf of the appellants. This document also shows that this endorsement by the doctor on the said document was made at 3 p.m. on 06.07.2008.
15. Mr. Sachin Deshmukh pointed out that according to Appasaheb (PW-1), Shivaji (PW-2) and Mandabai (PW-3), the dying declaration was made to them by Manisha at about the same time. He has pointed out that the witnesses claimed to have reached GHATI hospital at about 3 to 3.30 p.m. There is substance in the contention of the learned Advocate that when Manisha was opined to be not fit to make a statement by the Medical Officer and when the Investigating Officer was unable to record her statement, how can it be easily believed that she spoke and made a statement before Appasaheb (PW-1), Shivaji (PW-2) and Mandabai (PW-3). This is particularly so because, Manisha had reportedly sustained 100% burn injuries as per the version of these witnesses and even the notes of postmortem examination (Exhibit-34) show that she had sustained 93% burn injuries. The head, neck and face of Manisha was, apparently, fully burnt.
16. It is difficult to believe that when Manisha could not make statement before the Investigating Officer and when Medical Officer opined that she was unfit to make any statement, she had made a statement before these witnesses at about the same time. This is particularly so, because the First Information Report was lodged by Appasaheb not immediately thereafter, but only on the next day. It might be said that the delay in reporting the matter to the Police, is not much but what is significant is that the funeral ceremony took place and the last rites of Manisha were performed at Sarangpur, which is the village of appellants. Appasaheb has admitted in his evidence that at the time of funeral, many villagers and relatives of Manisha and Appasaheb were present and the Police from Gangapur Police Station were also present. It is not possible to believe that if Manisha had, indeed, made a dying declaration to Appasaheb, Shivaji and Mandabai as claimed by them, Appasaheb would have been failed to mention the matter to the Police. This aspect may not be decisive or conclusive, but coupled with the other aspects viz.:- the inability of Manisha to make a statement, as certified by the Medical Officer and inability of the Investigating Officer to record her statement, casts a serious doubt on the version of these witnesses about Manisha having made a dying declaration to them.
17. Even otherwise, the version of these witnesses is not uniform with respect to what was actually stated by Manisha to them. It is clear that all these witnesses were together, when Manisha made the statement and thus, the oral dying declaration about which the witnesses are speaking, is one and the same. Inspite of this, there are variations in the account of dying declaration as given by these witnesses. Appasaheb has stated the version of Manisha as that ‘as he had not paid money to the appellants, they illtreated her, they all beat her in the night and so in the early morning, Manisha poured kerosene on her person and got burnt’. According to Shivaji (PW-2), Manisha said that ‘her husband said to her that she should not stay in the house and go back to her parents, as she had not brought money and that, therefore, due to the illtreatment of her husband, mother-in- law and sister-in-law, she had set herself on fire.’ Thus, Shivaji does not speak about any incident of beating and Appasaheb does not speak of Manisha being told not to stay in the house. Mandabai (PW-3) also stated that Manisha told them that ‘her husband (Manisha’s husband) had told her that not to reside with him.’ The variation may, when superficially looked at not seem to be of much significance, but when considered from the angle that this variation is about the reason for ending her life, as allegedly stated by Manisha, it assumes significance. Moreover, this to be viewed in the background of the fact that the Investigating Agency was not able to record any statement of Manisha and that, she was not in a position to speak, is specifically stated by the Investigating Officer, which evidence of Investigating Officer is supported by the endorsement of Medical Officer and by the extent of injuries sustained by Manisha.
18. Under these circumstances, it is not possible to believe the testimony of Appasaheb, Shivaji and Mandabai about the oral dying declaration made by Manisha. Infact, this indicates that they certainly can not be considered as wholly reliable witnesses, and therefore, their allegations of Manisha having been treated with cruelty by the appellants and that, Manisha herself having told them so before the incident, being vague and general, are open to a serious doubt. The circumstances indicate that within a short span of four months, Manisha was not likely to have an opportunity to make repeated visits to her parents and her telling them `repeatedly’ about the illtreatment. Further, the version that Manisha had told her parents that the appellants would kill her cannot be believed, firstly because in that case Appasaheb would not have dropped her at the matrimonial house, without at least talking to the appellant No. 1 not to do so. Secondly, assuming he did this seemingly unlikely thing, then, after learning about Manisha’s death, he would have immediately suspected the appellants of having killed her; and at any rate, would have lodged a report with the police immediately, without waiting for one day.
19. The concept of `Cruelty’ has been in existence in Matrimonial Law, but such a concept was introduced into Criminal Law for the first time by the Criminal Law (Second Amendment) Act, 1983 and by the Dowry Prohibition (Amendment) Act, 1986, by inserting certain sections in the Indian Penal Code and the Indian Evidence Act and by making consequential amendments to the Code. Section 498A of the Indian Penal Code and Section 113A of the Indian Evidence Act were inserted by the Criminal Law (Second Amendment) Act, 1983 and the relevant provisions came in force w.e.f. 25.12.1983. By Dowry Prohibition (Amendment) Act, 1986, section 304B was inserted in the Indian Penal Code and section 113B of the Indian Evidence Act. The relevant provisions were brought in force with effect from 19.11.1986. The reasons for introducing these provisions in the Criminal Law were to effectively check the social evils of the dowry system, the cruelty with which some married women were being treated by their husbands and in- laws and the culmination of such cruel treatment into suicides and dowry deaths of such women. It was felt that these social evils could not be effectively checked under the Criminal Law, as was existing before the insertion of the said provisions, and that is why the relevant provisions were introduced.
20. Though under the Matrimonial Statutes, the necessity of defining the term `Cruelty’ was not felt, when it was made an offence punishable under Section 498A of the Indian Penal Code, the term `Cruelty’ could not be left to be undefined for obvious reasons. The term `cruelty’ has been defined in the explanation appended to Section 498A of the Indian Penal Code, which reads as under :- Section 498A. —–
Explanation. – For the purpose of this section, “cruelty” means -
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
21. The terms `willful conduct’, `likely to’ and `injury’ as used in clause (a) and the terms `harassment’ and `unlawful demand’ as used in clause (b) emphasize the scope, import and the ambit of the said clauses. It is not every type of cruelty that is made punishable under Section 498A of the Indian Penal Code. The conduct, which is alleged to be cruel must be `willful’, and it must be of such a gravity as is `likely’ to drive the woman to commit suicide, or to cause grave injury to the life, limb or health. The word `likely’ has been interpreted to show `probability’ and stands on a higher footing than a mere `possibility’.
22. Gathering proof of cruelty, in cases of offence punishable under Section 498A of the Indian Penal Code, simplicitor, where the evidence of the wife would be available, would be considerably easier than gathering such proof in cases of offences punishable under Sections 306 and 304B of the Indian Penal Code, where the evidence of the wife would not be available.
23. That, Manisha indeed committed suicide has to be accepted, but the precise cause behind her deciding to take her own life, is not clear. Simply because she committed suicide, it can not be presumed that she must have been treated with cruelty, as contemplated under Section 498A of the Indian Penal Code. As a matter of fact, the evidence itself indicates that she was not willing to return to appellants and apparently, against her wish her father dropped her at her matrimonial house; and it is on the very next day, in the early morning, Manisha committed suicide. If the reluctance of Manisha to stay with the appellants has resulted in commission of suicide by Manisha, the appellants can not be guilty of `willful conduct’, which was `likely to’ drive Manisha to commit suicide.
24. Considering the entire evidence adduced by the prosecution, the story of Appasaheb (PW-1), Shivaji (PW-2) and Mandabai (PW-3) is not believable. In any case, the witnesses are, apparently, exaggerating and lying at least on some aspects of the matter. It was, therefore, not safe to accept their testimony and hold the case as proved against the appellants. The appreciation of evidence, as done by the learned Additional Sessions Judge and the conclusion arrived at him, is not proper and legal. The learned Judge was, apparently, carried away by a feelings of sympathy towards the victim and her parents and by the prejudice, which one instantly feels against the husband and in laws of newly married woman, when she commits suicide. This has prevented the learned Judge from analyzing the evidence objectively and by keeping in mind the cardinal principles of criminal jurisprudence.
25. In my opinion, this was a case, where the prosecution had failed to prove the charges against the appellants and the appellants were entitled to be acquitted.
26. The appeal is allowed.
27. The impugned Judgment of conviction and sentences imposed by the Additional Sessions Judge, Aurangabad are set aside.
28. The appellants are acquitted.
29. The appellant no.1 be set at liberty forthwith, unless required to be detained in connection with some other case. The bail bonds of other appellants are discharged.
30. Fine if paid, be refunded to the appellants respectively.
( A. M. THIPSAY, J.)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: July 27, 2010
Date of Order: 13th August, 2010
+ Crl. M.C. No.3878/2009
VIJAY VERMA ….. Petitioner Through: Mr. K.K. Manan, Mr. Tarun Goomber, Mr. Nipun Bhardwaj, Mr. Pankaj Mandiratta and Mr. Ashish George, Advocates.
STATE N.C.T. OF DELHI & ANR. ….. Respondents Through: Mr. Sunil Sharma, APP for the State.
Mr. Sunil Sethi, Mr. Sumit Sethi & Mr. B.C.
Mishra, Advocates for R-2.
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment? Yes.
2. To be referred to the reporter or not? Yes.
3. Whether judgment should be reported in Digest? Yes.
1. This petition has been filed under Section 482 Cr. P.C. assailing order of learned A.S.J. dated 7th September, 2009, upholding the order of learned M.M. dated 11th July, 2009.
2. Brief facts relevant for the purpose of deciding this petition are that the petitioner herein had filed an application under Section 12 of Protection of Women from Domestic Violence Act making her brother and his wife as respondents. She sought an interim order from the Court of M.M. for immediate residence rights and police protection so that she could stay at premises No. A-181, Defence Colony, Delhi, whenever she visited India. The petitioner is a permanent resident of USA and is living in USA since year 2000. She came to India on a visit on 15th July, 2008 and alleged that when she went to her parental house on 16th July, 2008, she was not allowed to enter her parental house and hence the application.
3. Learned MM in her order observed that in this case the petition was more in a nature of claiming right in the property. The whole dispute seemed to be property dispute between the parties and there was no ground to pass an interim order of residence. The learned ASJ upheld this contention in appeal.
4. It is not disputed that father of the petitioner is not alive. Property No. A-181, Defence Colony, New Delhi, was owned by the father of the petitioner and respondent No. 2. Petitioner claimed right in the property alleging that she had a right in her father’s property whereas respondent No. 2 relied upon a Will executed by father bequeathing his rights and share in the property in favour of his grandson. The respondent also relied upon an affidavit earlier executed by the petitioner showing that she had received her share in the property. It is also not disputed that a suit for partition titled as “Indra Warman Vs. Kishan Kumar Verma”, being CS(OS) No. 2137 of 2006, filed by the sister of petitioner was pending in the High Court wherein the petitioner was one of the defendants and the petitioner herself also filed a suit for partition in the High Court being CS(OS) No. 2028 of 2009, titled as ” Vijay Verma Vs. Kishan Kumar Verma & Ors.”
5. Filing of a petition under Protection of Women from Domestic Violence Act by the petitioner taking shelter of domestic relationship and domestic violence needs to be considered so that this Act is not misused to settle property disputes. Domestic relationship is defined under the Act in Section 2(f) as under:
“(f) ‘domestic relationship’ means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.”
6. A perusal of this provision makes it clear that domestic relationship arises in respect of an aggrieved person if the aggrieved person had lived together with the respondent in a shared household. This living together can be either soon before filing of petition or ‘at any point of time’. The problem arises with the meaning of phrase “at any point of time”. Does that mean that living together at any stage in the past would give right to a person to become aggrieved person to claim domestic relationship? I consider that “at any point of time” under the Act only means where an aggrieved person has been continuously living in the shared household as a matter of right but for some reason the aggrieved person has to leave the house temporarily and when she returns, she is not allowed to enjoy her right to live in the property. However, “at any point of time” cannot be defined as “at any point of time in the past” whether the right to live survives or not. For example if there is a joint family where father has several sons with daughters-in-law living in a house and ultimately sons, one by one or together, decide that they should live separate with their own families and they establish separate household and start living with their respective families separately at different places; can it be said that wife of each of the sons can claim a right to live in the house of father-in-law because at one point of time she along with her husband had lived in the shared household. If this meaning is given to the shared household then the whole purpose of Domestic Violence Act shall stand defeated. Where a family member leaves the shared household to establish his own household, and actually establishes his own household, he cannot claim to have a right to move an application under Section 12 of Protection of Women from Domestic Violence Act on the basis of domestic relationship. Domestic relationship comes to an end once the son along with his family moved out of the joint family and established his own household or when a daughter gets married and establishes her own household with her husband. Such son, daughter, daughter-in-law, son-in-law, if they have any right in the property say because of coparcenary or because of inheritance, such right can be claimed by an independent civil suit and an application under Protection of Women from Domestic Violence Act cannot be filed by a person who has established his separate household and ceased to have a domestic relationship. Domestic relationship continues so long as the parties live under the same roof and enjoy living together in a shared household. Only a compelled or temporarily going out by aggrieved person shall fall in phrase ‘at any point of time’, say, wife has gone to her parents house or to a relative or some other female member has gone to live with her some relative, and, all her articles and belongings remain within the same household and she has not left the household permanently, the domestic relationship continues. However, where the living together has been given up and a separate household is established and belongings are removed, domestic relationship comes to an end and a relationship of being relatives of each other survives. This is very normal in families that a person whether, a male or a female attains self sufficiency after education or otherwise and takes a job lives in some other city or country, enjoys life there, settles home there. He cannot be said to have domestic relationship with the persons whom he left behind. His relationship that of a brother and sister, father and son, father and daughter, father and daughter-in-law etc survives but the domestic relationship of living in a joint household would not survive & comes to an end.
7. This meaning of domestic relationship has sense when we come to definition of domestic violence and the purpose of the Act. The purpose of the Act is to give remedy to the aggrieved persons against domestic violence. The domestic violence can take place only when one is living in shared household with the respondents. The acts of abuses, emotional or economic, physical or sexual, verbal or nonverbal if committed when one is living in the same shared household constitute domestic violence. However, such acts of violence can be committed even otherwise also when one is living separate. When such acts of violence take place when one is living separate, these may be punishable under different provisions of IPC or other penal laws, but, they cannot be covered under Domestic Violence Act. One has to make distinction between violence committed on a person living separate in a separate household and the violence committed on a person living in the shared household. Only violence committed by a person while living in the shared household can constitute domestic violence. A person may be threatening another person 100 miles away on telephone or by messages etc. This may amount to an offence under IPC, but, this cannot amount to domestic violence. Similarly, emotional blackmail, economic abuse and physical abuse can take place even when persons are living miles away. Such abuses are not covered under Domestic Violence Act but they are liable to be punished under Penal laws. Domestic Violence is a violence which is committed when parties are in domestic relationship, sharing same household and sharing all the household goods with an opportunity to commit violence.
8. I therefore consider that the application filed by the petitioner under Section 12 of Domestic Violence Act was not at all maintainable. The petitioner had settled her separate house in America, her Passport was issued in America, she is doing job in America, she was adult and able to take care of herself, take her own decisions. She decided to live in America after leaving her parents here. If she has any right in her father’s property, she has already filed a suit for partition. An application under Section 12 of Domestic Violence Act was nothing but a gross misuse of the Act and I consider that she was rightly denied the interim relief of residence in the property left by her father. The petition is hereby dismissed.
August 13, 2010
SHIV NARAYAN DHINGRA, J. acm
Rajasthan HC- Violence committed by a person while living in the shared household can constitute domestic violence, if Separated then no DV
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
Seema Saddique & anr.
S.B.Cr. Revision Petition No. 364/2012
under Section 397 read with Section 401 Cr.P.C. against the order dated 30.3.2012 passed by learned Addl. Sessions Judge (Fast Track) No.3, Jodhpur Mahanagar in Criminal Appeal No. 8/2012 affirming the judgment and order dated 23.12.2011 passed by Addl. Chief Judl.
Magistrate No.4, Jodhpur Mahanagar in Cr.Misc. Czse. No. 104/2010(248/2007).
Date of Judgment: 21.09.2012
HON’BLE MRS. NISHA GUPTA, J.
Mr. L.D. Khatri, for the petitioner.
Mr. A.R. Nikub, Public Prosecutor for the State. Mr. Mehar M. Sadiq for the respondent no.1. BY THE COURT:
This revision petition has been preferred against the order dated 30.3.2012 passed by learned Addl. Sessions Judge (Fast Track) No.3, Jodhpur Mahanagar whereby application under Section 12 of the Protection of Women From Domestic Violence Act, 2005 (for short “the Act of 2005″) has been allowed and the order dated 23.12.2011 passed by the court below has been affirmed.
The short facts of the case are that marriage between the parties took place on 26.12.1997. Male child has been born out of the wedlock on 15.9.1999. There are allegations of harassment to respondent no. 1 in August, 1998 and October, 2
2002. A criminal FIR for the offences under Section 498A and 406 IPC has also been lodged in January, 2004. Thereafter in 2007, the present petition has been filed and the learned trial court ordered maintenance allowance in favour of respondent and the appeal preferred against the order of the trial court has been dismissed. Hence this revision petition. The only contention of the present petitioner is that, admittedly, the respondent has left the matrimonial home in the year 2002 and the Act of 2005 came into force in October,2006. It is not in dispute that the Act of 2005 has retrospective effect, but the complaint can be filed within a period of one year from the date of incident and when the parties are not living together, there is no occasion for any incident of domestic violence and on the basis of incidents occurred before 2002, this petition is not competent. There is no evidence that the present petitioner has committed any act of domestic violence after the year 2002. A false case is set up by the non-applicant stating therein that on 4th and 5th August, 2007 when the respondent arrived at Jodhpur for the proceeding in criminal court, the incident of domestic violence has taken place but considering the totality of the circumstances, this isolated act cannot be termed under the Act of 2005 and hence the orders are perverse and abuse of process.
Further more, it has also been submitted that decree of divorce has been passed on 5th March, 2010 and no domestic 3
relationship is subsisted between the parties. The contention of respondent no.1 is that on 4th and 5th August, 2007 the act of domestic violence has been done and no maintenance allowance has been allowed to her. It is a case of economical abuse and maintenance allowance has been rightly awarded.
Heard learned counsel for the parties and perused the impugned orders.
It is not in dispute that the parties are living separately since October, 2002, hence there is no occasion for committing any domestic violence. The only incident of August, 2007 has been alleged which is apparently seems to be designed for this petition. Taken to be true that the incident of August, 2007 has occurred between the parties, still it does not constitute the act of domestic violence. The matter has been proceeded under Section 107 and 116(3) Cr.P.C.. No act of domestic violence has been alleged against the present petitioner as defined under Section 3 of the Act of 2005. The learned court below has also considered the fact that the parties are residing separately since 26.10.2002. All the allegations regarding violence which have been set up in the complaint are prior to October, 2002. It has been stated that on 4th and 5th August, 2007 the present petitioner has misbehaved with father and mother of the respondent and has threatened to take away child forcibly and again he misbehaved on 5.8.2007 and also threatened for dire consequences. But as stated earlier, this isolated incident 4
cannot be termed as act of domestic violence and reliance has been placed on Vijay Verma v. State N.C.T. of Delhi & anr. (Cr.M.Case No. 3878/2009) decided on 13.8.2010 passed by the High Court of Delhi wherein it has been specifically held that only violence committed by a person while living in the shared household can constitute domestic violence. Threatening by a person may amount to an offence under the Indian Penal Code but this cannot amount to domestic violence. Domestic violence is a violence which is committed when parties are in domestic relationship, sharing same household with an opportunity to commit violence. Here in the present case, when the parties are residing separately since 2002, there was no occasion to commit domestic violence and the petition is clearly not maintainable.
Further contention of the respondent is that this is a case of economical abuse as the maintenance allowance has not been given to the respondent. But in the petition nothing has been alleged regarding economical abuse. Only the incident which has been set up to constitute domestic violence is the incident of 4th and 5th August, 2007 which is not in the nature of the domestic violence.
The other contention of the the present petitioner is that it has been stated that harassment has been caused to the respondent in 1998 and in 2002 but the complaint could be filed within a period of one year from the date of the incident. Reliance has been placed on Inderjit Singh Grewal v. State of 5
Punjab & anr. (2012 Cr.L.R.(SC) 16). Admittedly, the petition has been filed on 29.8.2007 and the incident has taken place in 1998 and 2002, which could not be made a ground of complaint in 2007.
Further reliance has been placed on Sunil Kumar Gupta v. Shalini Gupta (II (2012) DMC 705) where the marriage has been annulled by the decree of divorce and hence it was held that the respondent cannot be equated with that of aggrieved person as provided under Section 2(a) of the Act of 2005. Here in the present case, admittedly, the original petition was filed in 2007 whereas the decree of divorce has been filed in March, 2010 and hence this law does not give any relief to the present petitioner.
The contention of the respondent is that there is no infirmity in the impugned order but looking to the facts that no allegation of domestic violence are lodged in the petition, isolated incident of August, 2007 cannot be termed as domestic violence. Explanation Ii of Section 3 of the Act of 2005 reads as under:-
“Explanation II.- For the purpose of
determining whether any act, omission, commission or conduct of the respondent
constitutes “domestic violence” under this section, the overall facts and circumstances of the case shall be taken into consideration.” This clearly suggests that for constituting domestic 6
violence, overall facts and circumstances of the case shall be taken into consideration. Here in the present case, the incident of August, 2007 cannot be termed as domestic violence as the parties were living separately since 2002. Petition for divorce was also pending between them and subsequently the divorce has been granted. Reliance has been placed on V.D. Bhanot v. Savita Bhanot (AIR 2012 SC 965) where residence order has been passed in view of the facts of the case. Further more, reliance has been placed on Gajendra Singh v. Smt. Minakshi Yadav (2022(1) Cr.L.R.(Raj.) 839) where threat to respondent and his family was continued after the year 2006 and looking to the facts, maintenance has been allowed as the wife was facing domestic violence including threat and economic abuse but here nothing has been alleged by the respondent except the incident of 2007. Reliance has also been placed on Rajesh Kurre v. Safurabai & ors. (2009 Cri.L.K.(NOC) 446(Chh.) where the requirements of Section 125, Cr.P.C. and the provisions of Section 20 of the Act of 2005 have been explained. Hence looking at the above that no case is made out by the respondent regarding act of domestic violence. The parties are residing separately since 2002 and hence the petition under Section 12 of the Act of 2005 is not maintainable in view of the facts of the case and the impugned orders of the courts below are liable to be quashed.
In view of above, this revision petition is allowed and the impugned orders of the courts below are hereby quashed and set aside.
( NISHA GUPTA),J.
Delhi High Court:- DV is not maintainable once there is decree of Divorce. Also, parents of Husband cannot be made Respondents in DV if the Husband and Wife have not stayed with Parents under one roof.
-There can be no domestic relationship of the wife of son with the parents when the parents are not living along with the son and there can be no domestic relationship of a wife with the parents of her husband when son along with the wife is living abroad, maintaining a family there and children are born abroad.
-The definition of “wife” as available under Section 125 Cr.P.C could not be imported into Domestic Violence Act. The Legislature was well aware of Section 125 Cr.P.C. and if Legislature intended, it would have defined “wife” as in Section 125 Cr.P.C in Domestic Violence Act as well. The purpose and object of Domestic Violence and provision under Section 125 Cr.P.C. is different. While Domestic Violence Act has been enacted by the Parliament to prevent acts of domestic violence on women living in a shared household.
Delhi High Court
Nagesh Malik vs Payal Malik on 29 July, 2010
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: 6th July, 2010
Date of Order: 29th July, 2010
+ Crl. Rev. P. No. 253/2010
Harbans Lal Malik … Petitioner Through: Mr. Dharam Raj, Advocate
Payal Malik … Respondents Through: Mr. R.Jain, Mr. Deepak Aggarwal &
Mr. D.Jain, Advocates
+ Crl. Rev. P. No. 252/2010
% 29.07.2010 Varun Malik … Petitioner Through: Mr. Dharam Raj, Advocate
Payal Malik … Respondents Through: Mr. R.Jain, Mr. Deepak Aggarwal &
Mr. D.Jain, Advocates
+ Crl. Rev. P. No. 338/2010
% 29.07.2010 Nagesh Malik … Petitioner Through: Mr. Dharam Raj, Advocate
Payal Malik … Respondents Through: Mr. R.Jain, Mr. Deepak Aggarwal &
Mr. D.Jain, Advocates
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment? Yes.
2. To be referred to the reporter or not? Yes.
3. Whether judgment should be reported in Digest? Yes.
These petitions arise out of order passed by the learned Additional Sessions Judge on 7th May, 2010 while disposing of two appeals against the order dated 27th July, 2009 passed by the learned MM. Nagesh Malik vs Payal Malik on 29 July, 2010
2. The undisputed facts are that Ms. Payal Malik used to live with her parents before marriage at Hissar. Her marriage took place with Mr. Nagesh Malik whose parents used to live at Panipat. Marriage of the parties was solemnized at Panipat on 30th August, 2001. Nagesh Malik was already working in USA and after marriage both of them went to USA on 20th September, 2001 where they settled their matrimonial home and lived together. On 24th October, 2002 a female child was born to the couple at USA, who was named as Vanishka. The parties continued living together in USA till 2008. It seems deep differences arose between the parties and they could not pull on together. There are allegations and counter allegations made by wife and husband which are not relevant for the purpose of deciding this petition. However, husband alleged that on 6th August, 2008 due to these differences, parties executed a post-nuptial agreement and decided to obtain divorce from each other, sticking to the agreement. Wife refutes having signed the agreement voluntarily and alleges that she was turned out from USA by her husband on 22nd August, 2008. Whereas the husbandâ..s contention is that she of her own left USA without joining the husband for obtaining divorce through a Court in USA. The husband filed a divorce petition before Superior Court of New Jersey Chancery Division Family Court USA on 27th August, 2008. The notice of divorce suit was duly served on her. The Court of New Jersey allowed the divorce petition and a decree of divorce was granted on 4th December, 2008.
3. On 13th January, 2009 wife filed a complaint before CAW Cell Hissar against husband and in-laws. Ms. Sushila, Inspector of CAW Cell Hissar, vide her report dated 20th January, 2009, observed that the allegations in the complaint were not true and it was useless to keep the complaint pending further. Thereafter, wife filed a complaint in the Court of MM at Delhi making her husband (Nagesh Malik), father-in-law (Harbans Lal Malik), mother-in-law (Neelam Malik) and brother-in-law (Varun Malik) as parties under Section 12 of Protection of Women from Domestic Violence Act, 2005 [in short - Domestic Violence Act] with a prayer that Court should pass a protection order under Section 18, residence order under Section 19, monetary relief order under Section 20, compensation order under Section 22 and interim orders under Section 23 of the Act. She made allegations of mal-treatment at the hands of respondents from day one of the marriage till she left USA and came to India. She stated, after coming back from USA she went to her in-lawsâ.. house at Panipat but found the house locked as her parents-in-law had gone to USA. She also stated that her husband had sent a complaint to SP Panipat leveling certain scandalous allegations against her. She graduated from Delhi University in 1998 and had done interior designing course from South Delhi Polytechnic. She alleged that her in-laws had three houses and an industrial unit in Panipat. They had properties in Delhi as well and respondent no.1 (her husband) had share in properties of her in- laws. She submitted that her complaint at CAW Cell Hissar could not be pursued by her as her in-laws had tried to mislead Haryana police and also because of a tragedy in her family. She left her parents.. house and came to Delhi to pursue her career prospects. She was presently residing at Malviya Nagar, Delhi. Till the time she was not given back her matrimonial home (at Panipat), she would live in Delhi, so the Court of MM at Delhi had jurisdiction. She prayed that custody of child Vanshika should be given to her. She should be given shares in properties at Panipat and Delhi as well as a house in New Jersey, USA. She should be given Rs.20,000/- per month for her maintenance and education as she intended to pursue further study and Court should direct for return of her dowry articles. Along with main application under the Domestic Violence Act, applications for interim reliefs were made. She in the application under Section 23 of the Act prayed for a residence or in lieu thereof a sum of Rs.20,000/- per month and Rs.50,000/- as onetime payment to meet education expenses, a car or Rs.8,000/- per month in lieu of the car and Rs.20,000/- per month for her day-to-day expenses and Rs.50,000/- as onetime payment to repay her debts.
4. The learned MM, by her order dated 27th July, 2009 directed that an amount of Rs.50,000/- per month be paid to wife as interim maintenance jointly or severally by respondents no. 1,2 & 4. She dropped respondent no.3 from the array of respondents on the ground that petition against a female respondent was not maintainable.
5. It was pleaded before the learned MM by the petitioner that there was a decree of divorce granted by a Competent Court of New Jersey, Chancery Division after following due procedure as laid down in USA. After grant of divorce there was no domestic relationship of Ms. Payal Malik with any of the respondents. (It is noted in the order of MM that the decree of divorce passed by the Court of US was placed on record.) Reliance was also placed by the petitioner on post nuptial agreement as entered into between husband and wife. The learned trial Court did not think it proper to deal with the issue whether an application under Section 12 of Domestic Violence Act could be entertained at all in respect of a divorced wife and whether the decree of divorce granted by the foreign Court where the parties had lived together for more than seven years, had some value or not.
6. The trial Court after discussing the objects and aims of The Protection of Women Against Domestic Violence Act, 2005 and after reproducing a quote from novelist Joseph Conrad “being a woman is a terribly difficult task, since it consists principally in dealing with men” [as if men, though given birth by women, are ferocious animals and not human beings, but cannibals] passed an order for grant of maintenance.
7. In appeal before the learned Sessions Judge, an argument was pressed that the judgment given by New Jersey Court was conclusive evidence of status of the parties and in view of Section 14 of Code of Civil Procedure and Section 4 of The Indian Evidence Act, unless the judgment was set aside the trial Court Crl. Rev. P. No.252/2010, 253/2010 & 338/2010 Page 4 of 16 should not have entertained the petition under Section 12 of The Protection of Women Against Domestic Violence Act. It was pleaded that only an application under Section 125 Cr.P.C. (which is applicable to divorced wife) could have been entertained by a Court, if moved. It was argued by wife that decree of divorce was obtained by fraud and was hit by Section 13 CPC and therefore could not stand in the way of entertaining an application under Section 12 of Domestic Violence Act.
8. The learned Sessions Judge while deciding appeal observed that the provisions of Domestic Violence Act are to be interpreted taking help of Section 125 Cr.P.C. and the explanation given under Section 125 Cr.P.C. of “Wife” is to be read in Domestic Violence Act also. He further observed that the Court has to take pragmatic approach and unless the dissolution of marriage was proved by evidence, the Court has not to act on the decree. He therefore dismissed the appeal filed by husband and other respondents observing that there was no illegality in the order of learned trial Court in granting maintenance. He allowed an appeal filed by wife in respect of execution of the order of of MM and directed that Ministry of External Affairs be sent a request to execute the order dated 27th July, 2009 as per law.
9. The first issue arising in this case is whether an application under Section 12 of Domestic Violence Act made by the respondent could have been entertained against all the respondents (petitioners herein) as arrayed in her application and whether the Court without discussing the domestic and legal relationship of different respondents with the petitioner, could have passed an order against the petitioners making them jointly and severally liable to pay maintenance of Rs.50,000/-.
10. Under Section 12, an „aggrieved person‟ can file an application to Magistrate against the respondents. The respondent has been defined under Section 2 (q). The definition reads as under:
“respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.
11. It is apparent that in order to make a person as respondent in a petition under Section 12, there must exist a domestic relationship between the respondent and the aggrieved person. If there is no domestic relationship between the aggrieved person and the respondent, the Court of MM cannot pass an order against such a person under the Act. Domestic relationship is defined under Section 2 (f) of the Act and is as under:
“domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;
12. It is apparent that domestic relationship arises between the two persons, who have lived together in a shared household and when they are related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. The definition speaks of living together at any point of time however it does not speak of having relation at any point of time. Thus, if the domestic relationship continued and if the parties have lived together at any point of time in a shared household, the person can be a respondent but if the relationship does not continue and the relationship had been in the past and is not in the present, a person cannot be made respondent on the ground of a past relationship. The domestic relationship between the aggrieved person and the respondent must be present and alive at the time when complaint under Domestic Violence Act is filed and if this relationship is not alive on the date when complaint is filed, the domestic relationship cannot be said to be there. The first respondent made by the wife in her complaint before the learned MM in this case was husband with whom the wife had lived under the same roof in a shared household till 22nd August, 2008 in USA. She had not lived for last 7 ½ years with respondent no.1 in India. Respondent No.4 is Varun Malik who is brother of the husband. Under no circumstances it can be said that brother of husband, who was a major and independent, living separately from this husband and wife, had any kind of domestic relationship or moral or legal responsibility/obligations towards his brother‟s wife. He had not lived in domestic relationship with Payal Malik at any point of time. Merely because a person is brother of the husband he cannot be arrayed as a respondent, nor does an MM gets authority over each and every relative of the husband, without going into the fact whether a domestic relationship or shared household was there between the aggrieved person and the respondent.
13. The other respondent made in this case is Harbans Lal, father of Nagesh Malik. Nagesh Malik was living in USA he came to India to solemnize his marriage with an appropriate person. After marriage was solemnized he left India and went to USA. He lived all along with his wife in USA, birth of the child had taken place in USA. In all such cases where boy lives abroad and is settled abroad but comes to India for marriage, it is known to the girl as well as to the parents of the girl that they are choosing a groom who is not living with his parents but settled abroad. His links with the parents are only as with any other relative. He is not dependent on parents may be parents, if poor, take financial help from him.
14. The girl and the parents of the girl knew it very well that they had selected a person for marriage with whom the girl was going to live abroad and the matrimonial home and the shared household was going to be outside India. This act of marrying a person settled abroad is a voluntary act of the girl. If she had not intended to enjoy the fat salary which boys working abroad get and the material facilities available abroad, she could have refused to marry him and settled for a boy having moderate salary within India. After having chosen a person living abroad, putting the responsibility, after failure of marriage, on the shoulders on his parents and making them criminals in the eyes of law because matrimonial ties between the two could not last for long, does not sound either legally correct or morally correct. How can the parents of a boy who is working abroad, living abroad, an adult, free to take his own decisions, be arrayed as criminals or respondents if the marriage between him and his wife failed due to any reason whatsoever after few years of marriage. If the sin committed by such parents of boy is that they facilitated the marriage, then this sin is equally committed by parents of the girl. If such marriage fails then parents of both bride and groom would have to share equal responsibility. The responsibility of parents of the groom cannot be more. Shelter of Indian culture and joint family cannot be taken to book only relatives of boy. A woman‟s shared household in India in such cases is also her parents‟ house where she lived before marriage and not her in-laws‟ house where she did not live after marriage.
15. When the shared household of husband and wife had not been in India for the last 08 years at any point of time, it is strange that the learned MM did not even think it proper to discuss as to how the father or the brother of the boy could be made respondents in proceedings of domestic violence, after husband and wife had not been able to pull on together. In the present case, Mr. Harbans Lal Malik petitioner could not be said to have shared household with the respondent since the respondent had not lived in his house as a family member, in a joint family of which Harbans Lal Malik was the head.
16. It is important to consider as to what “family” is and what “joint family” is. As per Black‟s Law Dictionary (VI Edition) “family” means a collective body of persons who live in one house under one head or management. Dictionary states that the meaning of word “family” necessarily depends on field of law in which word is used, but this is the most common meaning. “Family” also means a group of blood relatives and all the relations who descend from a common ancestor or who spring Crl. Rev. P. No.252/2010, 253/2010 & 338/2010 Page 8 of 16 from a common root. However, for the purpose of domestic violence act where the object is to protect a woman from domestic violence, “family” has to be defined as a collective body of persons who live in one house under one head or management. In Chamber‟s Dictionary (1994-95) again the “family” is defined as all those who live in one house i.e. parents, children servants; parents and their children. In Shorter Oxford English Dictionary (1993 ed.) “family” is defined as a group of persons living in one household including parents and their children, boarders, servants and such a group is a organizational unit of society.
17. A Hindu Joint Family or Hindu Undivided Family (HUF) or a Joint Family is an extended family arrangement prevalent among Hindus of the Indian subcontinent, consisting of many generations living under the same roof. All the male members are blood relatives and all the women are either mothers, wives, unmarried daughters or widowed relatives, all bound by the common sapinda relationship. The joint family status being the result of birth, possession of joint cord that knits the members of the family together is not property but the relationship. The family is headed by a patriarch, usually the oldest male, who makes decisions on economic and social matters on behalf of the entire family. The patriarch‟s wife generally exerts control over the kitchen, child rearing and minor religious practices. All money goes to the common pool and all property is held jointly. The essential features of a joint family are:
Head of the family takes all decisions
All members live under one roof
Share the same kitchen
Three generations living together (though often two or more brothers live together or father and son live together or all the descendants of male live together)
Income and expenditure in a common pool – property held together.
A common place of worship
All decisions are made by the male head of the family – patrilineal, patriarchal.
18. Thus, in order to constitute a family and domestic relationship it is necessary that the persons who constitute domestic relationship must be living together in the same house under one head. If they are living separate then they are not a family but they are relatives related by blood or consanguinity to each other. Where parents live separate from their son like any other relative, the family of son cannot include his parents. The parents can be included in the family of son only when they are dependent upon the son and/or are living along with the son in the same house. But when they are not dependent upon the son and they are living separate, the parents shall constitute a separate family and son, his wife and children shall constitute a separate family. There can be no domestic relationship of the wife of son with the parents when the parents are not living along with the son and there can be no domestic relationship of a wife with the parents of her husband when son along with the wife is living abroad, maintaining a family there and children are born abroad. I, therefore consider that Harbans Lal Malik could not have been made as a respondent in a petition under Domestic Violence Act as he had no domestic relationship with aggrieved person even if this marriage between her and her husband was subsisting.
19. I, also consider that the definition of “wife” as available under Section 125 Cr.P.C could not be imported into Domestic Violence Act. The Legislature was well aware of Section 125 Cr.P.C. and if Legislature intended, it would have defined “wife” as in Section 125 Cr.P.C in Domestic Violence Act as well. The purpose and object of Domestic Violence and provision under Section 125 Cr.P.C. is different. While Domestic Violence Act has been enacted by the Parliament to prevent acts of domestic violence on women living in a shared household. Section 125 of Cr.P.C. is to prevent vagrancy where wife is left high and dry without maintenance. Law gives a right to claim maintenance under Civil Law as well as Section 125 Cr.P.C. even to a divorced wife, but an act of domestic violence cannot be committed on a divorced wife, who is not living with her husband or family and is free to live wherever she wants. She has a right to claim maintenance and enforce other rights as per law. She has a right to claim custody of children as per law but denial of these rights do not amount to domestic violence. Domestic Violence is not perceived in this manner. The definition of “Domestic Violence” as given in Section 3 of The Protection of Women from Domestic Violence Act, 2005 and is under:
3. Definition of domestic violence.- For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it -
(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or (b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.
Explanation I.-For the purposes of this section,-
(i) “physical abuse” means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;
(ii) “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;
(iii) “verbal and emotional abuse” includes- insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and
(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.
(iv) “economic abuse” includes-
(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;
(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the
aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and (c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.
20. This definition pre supposes that the woman is living with the person who committed violence and domestic relationship is not dead buried or severed. This does not speak of past violence which a woman suffered before grant of divorce.
21. The next question which arises is whether the learned Court of MM could have ignored the decree granted by the Court of New Jersey, USA. Section 14 of CPC reads as under:
14. Presumption as to foreign judgments. – The Court shall presume upon the production of any document purporting to be a certified copy of a foreign judgment that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction.
22. It is evident from the reading of this provision that the Court has to presume, if a certified copy of foreign judgment is produced that such judgment was pronounced by a Court of competent jurisdiction unless the contrary appears on record or is proved. Obtaining of divorce by husband from New Jersey Court is not denied in this case. Prima facie New Jersey, USA Court had jurisdiction is evident from the fact that husband and wife lived together in New Jersey for 7 ½ years. The laws of New Jersey provided that the jurisdiction in a matrimonial matter can be assumed by the Court if the parties have ordinarily lived there for one year. In the present case admittedly the parties lived there for 7 ½ years thus prima facie there was no issue whether the Court of New Jersey had jurisdiction or not.
23. Section 13 of CPC provides as under:
13. When foreign judgment not conclusive.
A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-
(a) where it has not been pronounced by a Court of competent jurisdiction;
(b) where it has not been given on the merits of the case; (c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of 1[India] in cases in which such law is applicable; (d) where the proceedings in which the judgment was obtained are opposed to natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any law in force in 1[India].
24. It is evident that a foreign judgment has to be on the face of it considered to be final. The explanations as mentioned in Section 13 are to be proved by a person who alleges that the foreign judgment was not to be relied on and should not be considered. A foreign judgment can be set aside by a competent Court, only when the person aggrieved from foreign judgment asks for a declaration that the judgment should not be acted upon. So long as the foreign judgment is not set aside and the issue regarding foreign judgment is not adjudicated by a competent Court, the judgment cannot be ignored and a Court cannot brush aside a foreign judgment as a non- consequential. Section 13 & 14 of CPC provide how a foreign judgment is to be dealt with. A Court in India has to presume that the judgment delivered by a foreign Court where the parties had lived for 7 ½ years and given birth to a girl, is a judgment given by a competent court and if anyone wants that this judgment be disregarded, he has to prove the same before the Court. So long as he does not prove it, the judgment is considered as a valid judgment and has to be given effect to.
25. It was argued by the respondent Counsel that the respondent did not participate in proceedings before the Court of New Jersey, USA. Participating or not participating before the Court is not a ground for setting aside its judgment. The grounds for setting aside a foreign judgment are given in Section 13 CPC and this is not one of the grounds.
26. The question of jurisdiction was considered by the Court of New Jersey, USA that awarded decree of divorce and it is not shown by the Counsel for respondent how Court of New Jersey had no jurisdiction when the two parties lived there for 7 ½ years and gave birth to a US citizen within the jurisdiction of that Court. Learned Counsel for the respondent relied upon Y. Narasimha Rao v. Venkata Lakshmi (1991) 3 SCC 451 to press the point that a decree of divorce granted by a foreign Court should not be relied upon since the parties were married in India and they were governed by Hindu Marriage Act. A bare perusal of the judgment of New Jersey Court would show that the divorce was granted on the ground of cruelty which is one of the grounds available under Hindu Marriage Act.
27. In Y. Narasimha Rao‟s case (supra), decree of divorce was obtained by husband from the Circuit Court of St. Louis Country Missouri, USA by creating a jurisdiction of that Court as the condition for invoking jurisdiction of that Court was 90 days residence. Supreme Court observed that the residence does not mean a “temporary residence” for the purpose of obtaining divorce but it must be “habitual residence “which is intended to be a permanent residence for future as well, since it was not the case, the decree was found to be null and void. It is not the position in this case. The parties had made New Jersey as their home for 7 ½ years thus the Court of New Jersey could not be said to have assumed jurisdiction only on the basis of temporary residence of husband. I also consider that issue of assuming jurisdiction on the basis of temporary residence may have no force today when statutory provisions in India allow assumption of jurisdiction on the basis of a temporary residence [Section 27(1)(a) of Protection of Women from Domestic Violence Act, 2005].
28. I am surprised that the Courts below did not give weight to the judgment of New Jersey where parties lived for 7 ½ years but assumed jurisdiction under Domestic Violence Act because of the pure temporary residence (as pleaded by her) of wife in Delhi who is otherwise resident of Hissar. The Court of ASJ wanted that the order of the Court of MM should be honoured by the US while the Court here would not honour a decree of Court of USA where the husband and wife lived for 7 ½ years.
29. I consider that the decree of divorce granted by the Court of New Jersey, USA where husband and wife lived together for 7 ½ years and gave birth to a child could not be ignored and it could not be said that domestic relationship of the wife continued with her husband in New Jersey or her in-laws living at Panipat.
30. The learned MM and learned ASJ committed jurisdictional error by assuming jurisdiction under Domestic Violence Act, in view of admitted fact that the wife had all along, before filing the petition under Domestic Violence Act, lived with her husband in USA. Her shared household had been in USA, her husband was still living in USA the child was born in USA. The courts below also committed grave error by making brother or father of the husband and father of the husband jointly responsible for payment of Rs.50,000/- to the wife. There was no justification for directing brother of the husband to pay this amount. Once a son grows and he starts earning, marries, makes his separate home, and sires children the burden of his wife cannot be put on the shoulders of his father or brother on an estrangement between husband and wife. This burden has to be borne by the husband alone and not by the parents or bothers or sister of the husband, unless and until the husband had been contributing to the joint family as a member of HUF and has a right of deriving benefits from the joint family. If the husband had not been contributing or deriving benefits from the joint family, had not been member of the joint family and the parents had been treated like any other relative, how can the parents be burdened with the responsibility of his wife.
31. In view of my above discussion, order dated 27th July, 2009 passed by learned MM and order dated 7th May, 2010 passed by learned ASJ, directing payment of Rs.50,000/- jointly and severally, ignoring the decree of divorce and without devolving upon the domestic relationship are illegal and not tenable. The orders are set aside. No order as to costs.
July 29, 2010
SHIV NARAYAN DHINGRA, J. vn
Delhi High Court:- CrPC 340 Perjury Application should be accepted even after the Final Judgment or Order.
Delhi High Court
Dated:- 11th Jan 2005
Cri. M. 928/2004
Mrs. Geeta Monga
Ram Chand S. Kimat Rai And Ors.
R.C. Jain, J.
1. This is an application under Section 5 of the Limitation Act, 1963 for condensation of delay in filing the appeal. The appellant has filed an appeal under Section 341 Cr.P.C. against an order dated 19.9.2003 passed by the learned Additional District Judge on an application under Section 340 Cr.P.C. moved by the plaintiff (appellant herein) in a civil suit bearing S.No.106/99; titled as Mrs. Geeta Monga v. Kimatrai and Co. and Ors.. The said suit was disposed of and decreed by the learned Additional Disrict Judge vide a judgment and decree dated 29.9.2000. After the disposal of the said suit, the plaintiff/appellant moved an application under Section 340 Cr.P.C. alleging commission of the offence of perjury by Ramchand S.Kimatrai by making false stateent in the Court. The said application was dismissed by the learned Additional District Judge vide the impugned order dated 19.9.2003.
2. Learned counsel for the appellant states that no specific time-frame has been prescribed for filing an appeal against an order passed by a Court on an application under Section 340 Cr.P.C. and in absence of such a prescription, 90 days limitation should be presumed for filing an appeal against such an order and in the case in hand after setting off this period and the time for obtaining certified copies, there is delay of only a few days. On the other hand, counsel for the respondent disputes this peposition and states that in absence of any prescription of limitation by the statute, the Court should presume 60 days period as the limitation for filing an appeal against such an order.
3. Having regard to the facts and circumstances of the case and more particularly the aspect that what is sought to be agitated by the appellant is an aspect touching the administration of justice, this Court considers it expedient in the interest of justice to condone the delay, if any, in filing the appeal. The application is, accordingly, allowed and the delay in filing the appeal is condoned.Crl.A.76/20041. This appeal is directed against the order of the learned Additional District Judge, Delhi dated 19.9.2003 whereby dismissing an application of the appellant under Section 340 Cr.P.C. praying for initiating proceedings against a certain Ramchand S.Kimatrai, who appeared as a witness in the Court and is stated to have made a false statement amounting to the commission of the offence of perjury. The said application was contested by the respondent/defendant. The learned Additional District Judge despiteecording an unequivocal/patent finding that respondent No. 2 had made a false statement during the course of the trial of the civil suit, has still declined to initiate the requisite proceedings under Section 340 Cr.P.C. and has dismissed the complaint. The following findings/observations as contained in para 4 and 5 of the said order are material and noted herein below:
“4. Respondent No. 2 while making the statement on oath has deposed that he is the partner of M/s J.Kimat Rai and Co. along with defendant nos. 4 and 5 (in the suit). But in the cross-examination he has stated that he is not the partner of M/s J.Kimat Rai andC. though the HUF Ram Chand Sobh Rai Kimat Rai is the partner in M/s J.Kimat Rai and Co. and that he was its karta up to 1996.
5. After comparing both the statements, this Court has finally decreed the suit giving its observations regarding the contradictions in the statement of respondent No. 2. Now the matter is pending in appeal before the Hon’ble High Court of Delhi. Whatever observations were made in the judgment are also before Hon’ble High court of Delhi. I do not find that the defendant/respondent No. 2 has committed any perjury or the fraud on the court. The gravity of the false statement is not such which attract the provisions of Section 340 Cr.P.C. The Court cannot notice every falsehood sworn in the Court. The Court has to weigh and give credence to the statement of the parties which has already been done by this Court while passing the final judgment. Therefore, iis not proper to proceed against the respondent Under Section 340 Cr.P.C. No case for referring the matter Under Section 340 Cr.P.C. is made out. The petition is dismissed with no order as to costs. File be consigned to R/R”.2. The above findings and observations of the learned Trial Court are not only mutually inconsistent but self-destructive because on one hand the learned trial court noted that the respondent has made a false/inconsistent statement and on the other hand,it has noted that the Court cannot take a notice of ”every falsehood sworn in the Court” and the gravity of the false statement is not such which attracts the provisions of Section 340 Cr.P.C.”
This Court is at a loss to appreciate such kind of approachf the learned trial court. The mere fact that the respondent/defendant/judgment debtor has filed an appeal against the judgment and decree passed by the learned Additional District Judge should not have dissuaded him from answering the application under section 340 Cr.P.C. on its merits. The whole approach of the learned Additional District Judge to such kind of issue cannot be approved. In the opinion of this Court, the impugned order cannot be legally sustained, as it has resulted into miscarriage ojustice.3.The result of the above discussion is that the appeal is allowed and the impugned order is hereby set aside and the matter is remanded back to the board of the learned Trial Court for deciding the application under Section 340 Cr.P.C. afresh in accordance with law. The parties are directed to appear before the learned Additional District Judge, Delhi on 7th February, 2005.
In one more glaring case of gross violation of Article 21 of the Constitution of India and that also at the hands of the Police machinery which is supposed to be protector of common man. The victims are the second and third Petitioners who are senior citizens. High Court at Bombay swung in action to punish the gross violators (Police). Pls go through the complete Judgement below:-
ash 1 wp-856.12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.856 OF 2012
1. Niraj Ramesh Jariwala, )
Age: 35 years, Occ: Service, )
2. Ramesh Vitthaldas Jariwala, )
Age: 66 years, Occ: Retired. )
3. Hansa Ramesh Jariwala, )
Age : 62 years, Occ: Household, )
All residing at Tirupati Supreme )
Enclave, K/29, Jalidar Nagar, )
Paithan Road, Aurangabad. )
4. Ravindra Dagadu Gaikwad, )
Age : 38 years, Occ: Chairman of )
Bharat Ratna Indira Gandhi )
Engineering College, Solapur, )
Residing at 65, Antroli Nagar1, )
5. Anamika Ravindra Gaikwad, )
Age : 32 years, Occ: Director of )
Bharat Ratna Indira Gandhi )
Engineering College, Solapur. )
Residing at 65, Antroli Nagar1, )
Solapur. ).. Petitioners
( Orig. Accused )
1. Mahadeo Pandurang Nikam, )
Police SubInspector, )
Navghar Police Station, Mumbai )
2. The Senior Inspector of Police, )
Navghar Police Station, Mumbai. )
3. Sheetal Niraj Jariwala, )
Age : Adult, Occ: Household, )
Residing at Plot No.1001, )
Manisha Tower, Tata Colony, )ash 2 wp-856.12
Navghar Road, Mulund (East), )
Mumbai – 400 081. )
4. The Commissioner of Police, )
For Greater Bombay, at Bombay. )
5. The State of Maharashtra, )
( Notice to be served upon A.P.P., )
High Court, A.S., Mumbai.) ).. Respondents
( Respondent No.3/
Shri Sachin Deokar i/by Shri V.V. Purwant for the Petitioners.
Shri D.B. Shukla i/by Shri Yogesh D. Dalvi for Respondent No.1.
Shri A.S. Gadkari, APP for the State.
CORAM : A.S. OKA & S.S. SHINDE, JJ
DATE ON WHICH SUBMISSIONS WERE HEARD : 3RD DECEMBER, 2012
DATE ON WHICH JUDGMENT IS PRONOUNCED: 21ST DECEMBER,2012
JUDGMENT ( PER A.S.OKA, J)
1. This is one more glaring case of gross violation of Article21 of the Constitution of India and that also at the hands of the Police machinery, which is supposed to be protector of common man. The victims are the second and third Petitioners who are senior citizens.
2. We may note here that by an order dated 31st October, 2012, we directed that the Writ Petition shall be heard and disposed of finally. This Court noted in the said order that what survives for consideration is the prayer Clauses (b) and (d) which concern illegal detention of the second and third Petitioners.
The first Petitioner and the third Respondents are husband and wife. The Second and third Petitioners are parents of the first Petitioner. On 29th
November, 2011,at the instance of the third Respondent, the first Information Report was registered with Navghar Police Station, Mumbai, complaining about the offences under Sections 498A, 406, 323, 504 read with Section 34 of the Indian
penal Code against the Petitioners. As far as the arrest of the Second and third Petitioners is concerned, following are the admitted facts which are borne out from the record.
(i) The Respondent No.1 who was at the relevant time SubInspector of Police attached to Navghar Police Station, Mumbai was deputed to Aurangabad under
the permission of the Assistant Commissioner of Police, Mulund Region. The station diary entry to that effect has been recorded at 10.40 on 2nd December, 2011.
(ii) The first Respondent took the second and third Petitioners into custody at 22.50 on 2nd December 2011 at Aurangabad, but were not shown as arrested.
The first Respondent brought them to Bombay.
(iii) The station diary entry dated 3rd December, 2011 records that at 20.20, the second and third Petitioners were produced before the Senior Inspector of Police Shri Bhorde of Navghar police station. It is recorded that the first Respondent was investigating into the offence. It is recorded that the Second and third Petitioners were placed in the custody of the two Police Constables bearing buckle Nos.97015 and 8040305.
(iv) The Station Diary entry of 4th December 2011 at 08.10 shows that the second and third Petitioners were shown as arrested and the information about their arrest was conveyed to one Manoj Baburao Nishandar, Solapur on his cell phone.
(v) On 4th December 2011, the second and third Petitioners were taken from the Police station at 10.45 for producing them before the Court of the learned
Metropolitan Magistrate. They were actually produced before the learned Metropolitan Magistrate at 15.05 on 4th December 2011 and they were enlarged on bail.
(vi) We must note that the aforesaid facts are admitted facts.
3. We may note here that the order dated 19th June 2012 of this Court records that the investigation of the case has been transferred to Vikhroli Police Station and, therefore, the notice was issued only as regards the prayer clauses (b) to (d). The prayer (b) is for issuing direction to take action against the first Respondent for noncompliance with the directions issued by the Apex Court in the case of D.K. Basu Vs.State of West Bengal [(1997) 1 SCC 416 ]. Prayer (c) is for grant of compensation on account of illegal arrest. Prayer (d) is for directing the fourth Respondent to initiate disciplinary proceedings against the first Respondent. The learned counsel appearing for the Petitioners pointed out that going by the record, the first Respondent took the second and third Petitioners into the custody at 20.50 on 2nd December 2011 at Aurangabad. The first Respondent brought them to Navghar Police Station at 20.20 on 3rd December 2011. However, till 8.10 on 4thDecember 2011, they were not shown as arrested though they were in custody continuously from 20.50 on 2nd December 2011. It is urged that this action is patently illegal and is in violation of Articles 21 and 22 of the Constitution of India as well as Section 57 Code of Criminal Procedure, 1973 ( hereinafter referred to as “the CRPC”). He pointed
out various allegations made in the Petition as regards inhuman treatment meted out to the second and third Petitioners in the onward journey from Aurangabad to Navghar Police Station at Mulund. He pointed out that both the second and third Petitioners were senior citizens on the relevant date. His submission is that apart from initiating action in accordance with law, in view of gross violation of the guidelines laid down by the Apex Court in the case of D.K. Basu (supra) and in view of violation of Articles 21 and 22 of the Constitution of India, the Petitioners are entitled to substantial amount by way of compensation.
4. The learned counsel appearing for the first Respondent, apart from the earlier affidavit dated 2nd April 2012, has tendered additional affidavit affirmed on 3rd December 2012. His submission is
that the first Respondent has acted as per the instructions of the Senior
Inspector of Police of Navghar Police Station and as per the instructions
of the said officer, he brought the second and third Petitioners to the
Navghar Police Station and has made an entry in the station diary in the
night of 3rd December 2011 showing that they were produced before the
Senior Inspector of Police who in turn handed over their custody to the
two Police Constables. He submitted that all further actions at the
police station are by the Senior Inspector of Police and the first
Respondent has merely followed his directions. He denied the
allegations made in the Petition. He pointed out that though the
second and third Petitioners were taken into custody at 20.50 on 2nd
December 2011, onward journey from Aurangabad to Mumbai took 20
hours and, therefore, if the period of 20 hours is excluded, the second
and third Petitioners were produced before the learned Magistrate
within 24 hours from the time of arrest. His submission is that neither
there is any violation of Articles 21 and 22 of the Constitution of India
nor Section 57 of the CRPC. He urged that all the guidelines laid down
in the case of D.K. Basu (supra) have been complied with. He,
therefore, submitted that there is no illegality committed by the first
5. The learned APP has produced the station diary and all the
relevant documents before this Court. He pointed out that all the
relevant station diary entries were made by the first Respondent and the
illegality has been committed by the first Respondent. As regards
compliance with the directions in the case of D.K. Basu (supra), he
urged that the station diary records that the reasons for arrest were
informed to the second and third Petitioners and their close relatives
However, he could not show us any Memorandum of Arrest drawn in
compliance with the directions in the case of D.K. Basu (surpa). He
urged that as the entire default is on the part of the first Respondent,
even if this Court is inclined to direct compensation to be paid, the
same will have to be made payable by the first Respondent. ash 8 wp-856.12
6. Before dealing with the factual aspects, it will be necessary
to make a reference to the directions issued by the Apex Court in the
case of D.K. Basu (supra). Paragraphs 35 to 38 thereof read thus :
35. We, therefore, consider it appropriate to
issue the following requirements to be
followed in all cases of arrest or detention
till legal provisions are made in that behalf
as preventive measures:
(1) The police personnel carrying out the
arrest and handling the interrogation of
the arrestee should bear accurate, visible
and clear identification and name tags
with their designations. The particulars
of all such police personnel who handle
interrogation of the arrestee must be
recorded in a register.
(2) That the police officer carrying out
the arrest of the arrestee shall
prepare a memo of arrest at the time
of arrest and such memo shall be
attested by at least one witness, who
may either be a member of the family
of the arrestee or a respectable
person of the locality from where the
arrest is made. It shall also be
countersigned by the arrestee and
shall contain the time and date f
(3) A person who has been arrested or
detained and is being held in custody
in a police station or interrogation
centre or other lockup, shall be
entitled to have one friend or relative
or other person known to him or
having interest in his welfare being
informed, as soon as practicable, thatash 9 wp-856.12
he has been arrested and is being
detained at the particular place,
unless the attesting witness of the memo
of arrest is himself such a friend or a
relative of the arrestee.
(4) The time, place of arrest and venue of
custody of an arrestee must be notifie
by the police where the next friend or
relative of the arrestee lives outside the
district or town through the Legal Aid
Organisation in the District and the
police station of the area concerned
telegraphically within a period of 8 to
12 hours after the arrest.
(5) The person arrested must be made
aware of this right to have someone
informed of his arrest or detention as
soon as he is put under arrest or is
(6) An entry must be made in the diary at
the place of detention regarding the
arrest of the person which shall also
disclose the name of the next friend of
the person who has been informed of
the arrest and the names and particulars
of the police officials in whose custody
the arrestee is.
(7) The arrestee should, where he so
requests, be also examined at the time
of his arrest and major and minor
injuries, if any present on his/her body,
must be recorded at that time. The
“Inspection Memo” must be signed both
by the arrestee and the police officer
effecting the arrest and its copy
provided to the arrestee.
(8) The arrestee should be subjected to
medical examination by a trained doctor
every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union
Territory concerned. Director, Health Services should prepare such a panel for
all tehsils and districts as well.
(9) Copies of all the documents including
the memo of arrest, referred to above,
should be sent to the Illaqa Magistrate
for his record.
(10) The arrestee may be permitted to meet
his lawyer during interrogation, though
not throughout the interrogation.
(11) A police control room should be
provided at all district and State
headquarters, where information
regarding the arrest and the place of
custody of the arrestee shall be
communicated by the officer causing the
arrest, within 12 hours of effecting the
arrest and at the police control room it
should be displayed on a conspicuous
36. Failure to comply with the requirements hereinabove mentioned shall apart from rendering the official concerned liable for departmental action, also render him liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter.
37. The requirements, referred to above flow from Articles 21 and 22(1) of the Constitution and need to be strictly followed. These would apply with equal force to the other governmental agencies also to which a reference has been made earlier.
38. These requirements are in addition to the constitutional and statutory safeguards and do not detract from various other directions given by the courts from time to time in connection with the safeguarding of the rights and dignity of the arrestee.
7. It is also necessary to make a reference to what is laid down in Paragraph 4 of the decision of the Apex Court in the case of Sheela Barse Vs. State of Maharashtra [(1983)2 SCC 96]. In Paragraph 4 of the said decision, it is held thus:
“4. We may now take up the question as to how
protection can be accorded to women prisoners in
police lockups. We put forward several suggestions to the learned Advocate appearing on behalf of the petitioner and the State of Maharashtra in the course of the hearing and there was a meaningful and constructive debate in court. The State of Maharashtra offered its full cooperation to the Court in laying down
the guidelines which should be followed so far as women prisoners in police lockups are concerned and most of the suggestions made by us were readily
accepted by the State of Maharashtra. We propose to give the following directions as a result of meaningful and constructive debate in court in regard to various aspects of the question argued before us:
(i) We would direct that four or five police lock ups should be selected in reasonably good localities where only female suspects should be kept and they should be guarded by female constables. Female suspects should not be kept in a police lockup in which male suspects are detained. The State of Maharashtra has intimated to us that there are already threeash 12 wp-856.12
cells where female suspects are kept and are guarded by female constables and has assured the Court that two more cells with similar arrangements will be provided exclusively for female suspects.
(ii) We would further direct that interrogation of
females should be carried out only in the
presence of female police officers/constables.
(iii) Whenever a person is arrested by the police
without warrant, he must be immediately
informed of the grounds of his arrest and in
case of every arrest it must immediately be
made known to the arrested person that he
is entitled to apply for bail. The Maharashtra
State Board of Legal Aid and Advice will
forthwith get a pamphlet prepared setting out
the legal rights of an arrested person and the
State of Maharashtra will bring out sufficient
number of printed copies of the pamphlet in
Marathi which is the language of the people in
the State of Maharashtra as also in Hindi and
English and printed copies of the pamphlet in
all the three languages shall be affixed in each
cell in every police lockup and shall be read
out to the arrested person in any of the three
languages which he understands as soon as he
is brought to the police station.
(v) We would direct that in the City of Bombay, a
City Sessions Judge, to be nominated by the
principal Judge of the City civil court,
preferably a lady Judge, if there is one, shall
make surprise visits to police lockups in the
city periodically with a view to providing the
arrested persons an opportunity to air their
grievances and ascertaining what are the
conditions in the police lockups and whether
the requisite facilities are being provided and
the provisions of law are being observed and
the directions given by us are being carried
out. If it is found as a result of inspection that
there are any lapses on the part of the police
authorities, the City Sessions Judge shall bringash 13 wp-856.12
them to the notice of the Commissioner of
Police and if necessary to the notice of the
Home Department and if even this approach
fails, the City Sessions Judge may draw the
attention of the Chief Justice of the High Court
of Maharashtra to such lapses. This direction in
regard to police lockups at the district
headquarters shall be carried out by the
Sessions Judge of the district concerned.
(vi) We would direct that as soon as a person is
arrested, the police must immediately
obtain from him the name of any relative or
friend whom he would like to be informed
about his arrest and the police should get in
touch with such relative or friend and
inform him about the arrest; and lastly….”
( emphasis supplied)
8. It will be also necessary to make a reference to the decision
of the Apex Court in the case of Siddharam Satlingappa Mhetre v. State
of Maharashtra, [(2011)1 SCC 694] and in particular paragraph 118
which reads thus :
“118. In case the arrest is imperative, according to
the facts of the case, in that event, the arresting
officer must clearly record the reasons for the
arrest of the accused before the arrest in the case
diary, but in exceptional cases where it becomes
imperative to arrest the accused immediately, the
reasons be recorded in the case diary immediately
after the arrest is made without loss of any time.”
It will be also necessary to make a reference to the decisions
of the Apex Court in the case of M.C. Abraham v. State of Maharashtraash 14 wp-856.12
[(2003)2 SCC 649]. In Paragraph 14 of the said decision, the Apex
Court held thus:
“14. Tested in the light of the principles aforesaid, the
impugned orders dated 1012002 and 1112002
must be held to be orders passed by overstepping the
parameters of judicial interference in such matters. In
the first place, arrest of an accused is a part of the
investigation and is within the discretion of the
investigating officer. Section 41 of the Code of
Criminal Procedure provides for arrest by a police
officer without an order from a Magistrate and
without a warrant. The section gives discretion to the
police officer who may, without an order from a
Magistrate and even without a warrant, arrest any
person in the situations enumerated in that section. It
is open to him, in the course of investigation, to arrest
any person who has been concerned with any
cognizable offence or against whom reasonable
complaint has been made or credible information has
been received, or a reasonable suspicion exists of his
having been so concerned. Obviously, he is not
expected to act in a mechanical manner and in all
cases to arrest the accused as soon as the report is
lodged. In appropriate cases, after some investigation,
the investigating officer may make up his mind as to
whether it is necessary to arrest the accused person. At
that stage the court has no role to play. Since the
power is discretionary, a police officer is not
always bound to arrest an accused even if the
allegation against him is of having committed a
cognizable offence. Since an arrest is in the nature
of an encroachment on the liberty of the subject
and does affect the reputation and status of the
citizen, the power has to be cautiously exercised. It
depends inter alia upon the nature of the offence
alleged and the type of persons who are accused of
having committed the cognizable offence. Obviously,
the power has to be exercised with caution and
ash 15 wp-856.12
9. In the light of the aforesaid law laid down by the Apex
Court, now the facts of the case will have to be appreciated. The
station diary entry made at 22.50 hours on 2
December 2012 by the
Usmanpura Police Station, Aurangabad records that the first
Respondent who was the Sub Inspector of Police of Navghar Police
Station, Mumbai, informed that he was taking the second and third
Petitioners from their residence at Aurangabad for the purposes of
investigation of the offence registered at the instance of the third
Respondent. It will be necessary to make a reference to the version of
the first Respondent in the first affidavit dated 2
April 2012. In
Paragraph 5 of the said affidavit, he has stated thus:
“5. I say that after the registration of the offence,
investigation commence and pursuant whereof, the
Petitioner No.2 & 3 were taken into in the
custody for purpose of the investigation and I
have visited the house of the Petitioner and take
them to local police station and accordingly the
concern police station was informed for taking
them to Mumbai for the purpose of investigation
and entry in police Station Usmanpura at
Aurangabad was made.”
10. Thus, the first Respondent himself has admitted that he
had taken the second and third Petitioners into custody for the purposes
of investigation. Thus, there is no doubt that in the night of 2
December 2011 at about 22.50, the first Respondent took the secondash 16 wp-856.12
and third Petitioners into custody at Aurangabad and the first
Respondent brought them to Navghar Police Station at Mulund,
Mumbai. The station diary entry at 20.20 of 3
December 2011 of
Navghar Police Station, Mumbai records that the first Respondent
produced the second and third Petitioners before the Senior Inspector of
Police Shri Bhorde. It also records that the Accused (Second and third
Petitioners ) were handed over in the custody of the two Police
Constables. As far as this aspect is concerned, the version of the first
Respondent in his first affidavit is very vague. The same reads thus:
“After reaching to the Mumbai to concern Police
Station i.e. Navghar Police Station they have
produced before Senior Police Officer. During
course of initial investigation reveal the
involvement of the Petitioner Nos. 2 and 3 and
therefore, they were come to be arrested.
Accordingly they have been produced before the
concern Court and Hon’ble Court was pleased
enlarge them on bail.”
The version of the first Respondent in the subsequent affidavit reads
“The Petitioner and Respondent reached to
Mumbai at about 8.20 pm. by that time Court
hours are over. The Respondent No.1 produced
the Petitioner Nos.1 & 2 before the Senior
Officer and accordingly diary made. The Senior
Officer directed the respondent No.1 to keep
them in rest room as the accused cannot be
produced before the court even if there would
take decision of their arrest save and except on
next day. Therefore, the senior P.I personally made
an enquiry with the Accused. The copy of Stationash 17 wp-856.12
House diary entry at Sr. No.46 dated 3.12.2011 is
annexed hereto and marked as Exhibit “D”.”
Undisputedly only on 4
December 2011 at 08.10, the second and third
Petitioners were shown as arrested and were produced before the
learned Metropolitan Magistrate, Bhoiwada at 15.05 on the same day.
11. Thus, the arrest of the second and third Petitioners made
by the first Respondent at Aurangabad is just before 20.50 on 2
December 2011. At that time no entry of arrest was made in the
station diary at Usmanpura Police Station, Aurangabad in terms of the
guidelines laid down by the Apex Court. There was no Arrest Memo
drawn at Aurangabad. In terms of the decision in the case of Sheela
Barse (supra), though the third Petitioner is a woman, she was not
informed about her right to apply for bail. Within 24 hours from 20.50
December 2011, they were not produced before the nearest
Magistrate. In fact, the first Respondent ought to have produced them
before the learned Magistrate at Aurangabad. Moreover, though they
were brought to Navghar Police Station at Mumbai at 20.20 on 3
December 2011, they were illegally detained in the police station
without showing them arrested and were ultimately shown as arrested
on the next day morning at 08.10. Shockingly after admitting in the
first affidavit that he had taken the second and third Petitioners into theash 18 wp-856.12
custody at Aurangabad for investigation, in the second affidavit in reply
in Paragraph 4, the first Respondent has come out with the following
“Hence, it is submitted that the accused/ petitioner
No.2 and 3 were produced within 24 Hours if
journey period is excluded as contemplated under
Section 57 of the Code of the Criminal Procedure.”
12. In so many words, the first Respondent has stated in the
first affidavit that the second and third Petitioners have been taken into
custody for the purposes of investigation. There is no other mode of
taking the Accused into the custody for investigation save and except by
arresting them. Thus, the said Petitioners were arrested just before
20.50 on 2
December 2011 at Aurangabad. But they were shown as
arrested in Mumbai at 08.10 on 4
December 2011. They were thus
illegally detained by the Police nearly for 35 hours and 40 minutes. The
decision in the case of Siddharam Satlingappa Mhetre (supra) was not
followed. There is no entry made in the station diary as to why they
were arrested. Memorandum of arrest was not drawn. Entry of arrest
was not made in the station diary of Usmanpura Police station at
Aurangabad. Therefore, this is a case of gross violation of the directions
issued by the Apex Court in the case of D.K. Basu (supra), Sheela Barse
(supra) and Siddharam Satlingappa Mhetre (supra). This is also a
case of gross violation of the Articles 21 and 22 of the Constitution ofash 19 wp-856.12
India as the directions in the case of D.K. Basu (supra) flow from the
Articles 21 and 22. It is shocking to note that 12 years after the
decision in the case of D.K. Basu (supra) under which directions were
issued which were already a part of the earlier decisions of the Apex
Court, the officers of the Maharashtra Police have shown a complete
disrespect and disregard to the binding directions. We may note here
that by introducing Section 41B in CRPC by Section 6 of Amendment
Act No.5 of 2009, the directions in the case of D.K. Basu (supra) have
been incorporated in the Statute .
13. Thus, there is a violation of fundamental rights of the
second and third Petitioners guaranteed under Article 21 of the
Constitution of India. There is also a violation of clauses (1) and (2) of
the Article 22 of the Constitution of India. This case of blatant violation
of human rights shocks the conscience of the Court.
14. Now the other issue is regarding grant of compensation. In
the case of Nilabati Behera v. State of Orissa [(1993)2 SCC 746], the
issue regarding grant of compensation in a public law remedy was
considered by the Apex Court. In Paragraphs 17 and 22, it was held
“17. It follows that ‘a claim in public law for
compensation’ for contravention of human
rights and fundamental freedoms, the
protection of which is guaranteed in theash 20 wp-856.12
Constitution, is an acknowledged remedy for
enforcement and protection of such rights, and
such a claim based on strict liability made by
resorting to a constitutional remedy provided
for the enforcement of a fundamental right is
‘distinct from, and in addition to, the remedy
in private law for damages for the tort’
resulting from the contravention of the
fundamental right. The defence of sovereign
immunity being inapplicable, and alien to the
concept of guarantee of fundamental rights,
there can be no question of such a defence
being available in the constitutional remedy. It
is this principle which justifies award of
monetary compensation for contravention of
fundamental rights guaranteed by the
Constitution, when that is the only practicable
mode of redress available for the contravention
made by the State or its servants in the
purported exercise of their powers, and
enforcement of the fundamental right is
claimed by resort to the remedy in public law
under the Constitution by recourse to Articles
32 and 226 of the Constitution. This is what
was indicated in Rudul Sah
and is the basis of
the subsequent decisions in which
compensation was awarded under Articles 32
and 226 of the Constitution, for contravention
of fundamental rights.”
“22. The above discussion indicates the principle on
which the court’s power under Articles 32 and
226 of the Constitution is exercised to award
monetary compensation for contravention of a
fundamental right. This was indicated in Rudul
and certain further observations therein
adverted to earlier, which may tend to
minimise the effect of the principle indicated
therein, do not really detract from that
principle. This is how the decisions of this
Court in Rudul Sah
and others in that line
have to be understood and Kasturilal
distinguished therefrom. We have considered
this question at some length in view of theash 21 wp-856.12
doubt raised, at times, about the propriety of
awarding compensation in such proceedings,
instead of directing the claimant to resort to
the ordinary process of recovery of damages by
recourse to an action in tort. In the present
case, on the finding reached, it is a clear case
for award of compensation to the petitioner for
the custodial death of her son.”
15. In the case of Suber Singh v. State of Haryana [(2006)3
SCC 178], in Paragraph 46, the Apex Court held thus:
“46. In cases where custodial death or custodial
torture or other violation of the rights guaranteed
under Article 21 is established, the courts may award
compensation in a proceeding under Article 32 or 226.
However, before awarding compensation, the Court
will have to pose to itself the following questions: (a)
whether the violation of Article 21 is patent and
incontrovertible, (b) whether the violation is gross and
of a magnitude to shock the conscience of the court,
(c) whether the custodial torture alleged has resulted
in death or whether custodial torture is supported by
medical report or visible marks or scars or disability.
Where there is no evidence of custodial torture of a
person except his own statement, and where such
allegation is not supported by any medical report or
other corroborative evidence, or where there are clear
indications that the allegations are false or
exaggerated fully or in part, the courts may not award
compensation as a public law remedy under Article 32
or 226, but relegate the aggrieved party to the
traditional remedies by way of appropriate
16. Lastly, on this aspect, it will be necessary to make a
reference to the decision of the Apex Court dated 9
September 2011 in
the case of Raghuvansh Dewanchand Bhasin v State of Maharashtra &
Another ( in Criminal Appeal No.1758 of 2011). In Paragraph 19 of theash 22 wp-856.12
said decision, the Apex Court held thus:
“The power and jurisdiction of this Court and the
High Courts to grant monetary compensation in
exercise of its jurisdiction respectively under
Articles 32 and 226 of the Constitution of India
to a victim whose fundamental rights under
Article 21 of the Constitution are violated are
thus, well established. However, the question now
is whether on facts in hand, the appellant is entitled
to monetary compensation in addition to what has
already been awarded to him by the High Court.
Having considered the case in the light of the fact
situation stated above, we are of the opinion that
the appellant does not deserve further monetary
18. Coming back to the facts of the present case, by taking the
affidavits of the first Respondent as it is and going by the record of the
Police Station in the form of station diary entries, this is a case where
virtually it is an admitted position that the directions contained in the
decision in the case of D.K. Basu (supra) were breached. Though the
Petitioners were in fact arrested at Aurangabad, they were illegally
detained for about 36 hours before they were actually shown as
arrested and few hours thereafter, they were produced before the
learned Metropolitan Magistrate. Thus, there is gross violation of
Articles 21 and clauses (1) and (2) 0f Article 22 of the Constitution of
India. As we have narrated earlier, there is no dispute on facts and the
aforesaid conclusions follow from the facts which are not disputed.
Therefore, this is a case where the second and third Petitioners can seekash 23 wp-856.12
compensation on the ground of violation of fundamental rights
guaranteed under Articles 21 of the Constitution of India in a public
law remedy. At this stage, it will be necessary to make a reference to
the decision of the Division Bench of this Court in the case of Veena
Sippy Vs. Narayan Dumbre (2012) ALL MR (Cri) 1263) to which one of
us ( Shri A.S. Oka, J ) is a party . This Court considered various
decisions of the Apex Court in which the compensation on account of
illegal detention was granted when the public law remedy was adopted.
This was a case where the Petitioner who was a woman was illegally
detained in contravention of the directions of the Apex Court in the case
of D.K. Basu (supra). The said judgment shows that the Petitioner
therein was illegally detained in police custody from the evening of 4
April 2008 till 12.30 noon of 5
April 2008. In the said decision, this
Court granted compensation of Rs.2,50,000/ with interest thereon at
the rate of 8% per annum from the date of illegal detention. This Court
also directed payment of costs of Rs.25,000/. The State Government
has complied with the directions given in the said decision by accepting
19. In the present case, the age of both the Petitioners (second
and third Petitioners) is above 60 years. They were arrested at 20.50
December 2011 at Aurangabad and were brought to Navghar
Police Station, Mulund, Mumbai from Aurangabad at 20.20 on 3
rdash 24 wp-856.12
December 2011. They were taken from Aurangabad at 22.50 and they
reached Navghar Police Station, Mulund, Mumbai, nearly after 22
hours. They were shown as arrested in the morning of 4
2011 and were released on bail in the afternoon. Though the said
Petitioners were arrested just before 20.50 0n 2
December 2011 at
Aurangabad, they were shown as arrested in Mumbai at 08.10 on 4
December 2011. They were thus illegally detained by the Police nearly
for 35 hours and 40 minutes. As they were not shown as arrested for
a period over 35 hours, they could not apply for bail. Apart from gross
violation of their fundamental rights, there is a gross breach of the
directions issued by the Apex Court from time to time. There is no
dispute about the facts. Therefore, in the present case, both the second
and third Petitioners are entitled to reasonable compensation of
Rs.2,50,000/ each. Interest payable on the said amount will be at the
rate of 8% per annum from the date of filing of the present Petition i.e.
20. The other issue is whether the compensation should be
made payable by the first Respondent. The first Respondent has
submitted that he has acted as per the instructions of the Senior
Inspector of Police. Here we may note that the station diary entry
made at 20.20 on 3
December 2011 of Navghar Police Station records
that the first Respondent produced the second and third Petitionersash 25 wp-856.12
before the Senior Inspector of Police Shri Bhorde. Thus, the Senior
Inspector of Police was aware at that time regarding illegal detention of
the second and third Petitioners. Notwithstanding this, on the next
date in the morning at 08.10 hours, the second and third Petitioners
were shown as arrested.
21. Whether the first Respondent acted as per the instructions
of the Senior Inspector of Police and whether the Senior Inspector of
police has played any role are the matters which cannot be decided in
writ jurisdiction. Suffice it to say that when the gross violation of
fundamental rights under Articles 21 of the Constitution of India at the
hands of the police officers of the State is established, the compensation
will have to be paid by the State Government and it will be open for the
State Government to recover the same from the officers found guilty of
dereliction of duty by following due process of law. It is also necessary
to direct the Commissioner of Police, Mumbai, to nominate either a
Joint Commissioner of Police or Additional Commissioner of Police to
hold an inquiry for ascertaining as to who is responsible for violation of
fundamental rights of the second and third Petitioners guaranteed
under Article 21 of the Constitution of India. On the basis of the report,
the State Government will have to initiate appropriate proceedings
against the concerned erring police officers in accordance with law. ash 26 wp-856.12
22. Before parting with the judgment, we may record here that
the learned APP has fairly assisted the Court by pointing out correct
factual position and by showing all the relevant entries in the station
23. Accordingly, we dispose of the Petition by passing the
(a) We hold that the detention of the second and third
Petitioners by the officers of Navghar Police Station,
Mulund, Mumbai, from 2
December 2011 till 4
December 2011 is illegal and there has been a gross
violation of the fundamental right of the second and
third Petitioners guaranteed under Article 21 of the
Constitution of India;
(b) We direct the Fifth Respondent – State of
Maharashtra to pay compensation of Rs.2,50,000/
each to the second and third Petitioners together
with interest thereon at the rate of 8% per annum
February 2012 till realisation or payment.
We grant time of eight weeks from today either toash 27 wp-856.12
pay the amount directly to the second and third
Petitioners or to deposit the same in the Court;
(c) We make it clear that it will be open for the State
Government to initiate appropriate proceedings for
recovery of the said amounts from the erring police
officials who are responsible for the illegalities;
(d) We direct the Commissioner of Police, Mumbai, to
appoint an appropriate higher officer not below the
rank of Joint Commissioner of Police or Additional
Commissioner of Police to hold an inquiry for fixing
the responsibility for the illegalities committed by
the police officers of Navghar Police Station,
Mulund, Mumbai. We keep open all the issues in
that behalf ;
(e) The inquiry shall be completed within a period of
three months from today. On the basis of the
inquiry report, the State Government shall initiate
necessary action against the erring Police Officials;ash 28 wp-856.12
(f) We direct the State Government to pay costs of this
Petition quantified at Rs.25,000/ to the second and
third Petitioners within eight weeks from today;
(g) Costs shall be paid directly to the second and third
Petitioners or deposited in this Court within a period
of eight weeks from today;
(h) In the event the amount of compensation as well as
the amount of costs is deposited in this Court, it will
be open for the second and third Petitioners to
withdraw the said amounts;
(i) Rule is made partly absolute on above terms;
(j) All concerned to act on authenticated copy of
( S.S. SHINDE, J ) ( A.S. OKA, J )
Delhi High Court:- Delaying tactics by Wife in Divorce case liable for FINE. Rs. 50,000/- imposed as fine.
Misplaced sympathy in favour of any of the parties results in injustice to the other party. The courts have the solemn duty to maintain a judicial balance. We must deprecate such irresponsible approach of Courts granting numerous and unnecessary adjournments in the strongest terms. The frequent grant of unnecessary adjournments has come in for very serious public criticism. It is not surprising that frequent adjournments are unnecessarily sought, but what is surprising is that Courts generously grant such adjournments, regardless of the fact that it results in delayed disposal of cases, involves loss of public time, increases the financial burden of the litigants, and tarnishes the image of the judiciary. It is high time Courts stop granting unnecessary adjournments. The High Courts must take serious note of adjournments freely granted, even if unnecessary, and as a follow up action call upon the judicial officers concerned, in appropriate cases, to justify the numerous and unnecessary adjournments granted.?
It is noteworthy that on her ground of illness while she sought adjournments, she did not move an application that she be examined on commission. Her plea that she was not in a position to come to the Court because she had urinary problem had been rightly disbelieved by Trial Court. The Trial Court also rightly struck off her defence on the ground that she was unwilling to appear in Court and unwilling to lead evidence.
19. I find that this petition is a frivolous petition and is liable to be dismissed with exemplary costs. The petition is dismissed with costs of Rs.50,000/-.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: September 08, 2008
Date of Order : October 16, 2008
Sujata Aggarwal …Petitioner Through: Mr. Manu Nayar with
Mr. Hameed S. Shaikh, Advs.
Ravi Shankar Agarwal …Respondent Through: Mr. Sunil Mittal and
Mr. V.S. Pandey, Adv.
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment? Yes.
2. To be referred to the reporter or not ? Yes.
3. Whether judgment should be reported in Digest ? Yes.
1. By this order, I shall dispose of this petition preferred by the wife against the orders dated 3rd March, 2007 and 23rd March, 2007 passed by learned ADJ.
2. The case was at the stage of wife’s evidence. Wife had to file an affidavit in her examination-in-chief, as per directions of the Court, within 3 days of 21st November, 2006. She did not file the affidavit. Thereafter, again directions were given on 3.3.07 to the wife to file her affidavit within one week. The affidavit was still not filed. On 23rd March, 2007 when the case was fixed for evidence, a proxy counsel appeared and moved an application for adjournment and Court noticed the conduct of petitioner in not filing affidavit and not appearing in the Court. When objection was raised by the husband’s counsel, proxy counsel for the wife told the Court that affidavit shall be filed within half an hour and after half an hour an affidavit was produced, but copy of the same was still not given to the husband’s side saying that the same was not ready. The wife was not there for her cross examination. Looking at the entire conduct of the wife that she was not appearing in the Court and even the previous cost imposed by the Court was not paid, the husband’s counsel opposed the application for adjournment. The adjournment was sought by the proxy counsel on the ground that regular counsel could not come as his father was ill. The Court observed that it was the respondent who was to appear in the Court for her cross examination and she had been repeatedly avoiding to appear in the Court. Since there were no grounds given for her non-appearance, her defence was struck off by the Court.
3. The order dated 3rd March, 2007 is in respect of disposal of the application moved on behalf of the wife under Order 16 Rule 1 CPC, Order 18 Rule 3(a) CPC and Order 17 Rule 2 CPC whereby she wanted to summon the records of other Courts and to summon the witnesses who had made statements in other Courts and she wanted that parents of the husband, the Chartered Accountant of the husband should also be summoned in the Court as defence witnesses.
4. The Trial Court found that the case was fixed for respondent’s evidence on 29th December, 2005. Thereafter, no respondent witness was ever present in the Court. Respondent did not examine even herself in her defence and only moved different applications. When the Court gave directions for wife to appear and examine her witnesses on 14th November, 2006, instead of examining herself she moved 4 applications. Those applications were dismissed with costs vide order dated 21st November, 2006. On next date when the matter was fixed for respondent’s evidence and directions were given to file affidavit within 3 days, instead of appearing, she got moved 2 more applications.
5. On next date of hearing, the costs was not paid and the respondent/wife also did not appear. Another application under Section 151 CPC was moved for her exemption from cross examination. The Court found that the respondent/wife was only indulging in dilatory tactics. It was also observed that only 3 adjournments can be granted to a party for evidence and respondent was not entitled to any further adjournment. But the Court still gave one more opportunity.
6. The respondent/wife in her application had taken a plea that she was suffering from tuberculosis of Urinal track and related gynecological problems due to which she was unable to bear any kind of stress and was unable to stand and move out of the house as her blood pressure shoots up and because of these health conditions she was not able to come to the Court. She should therefore be allowed to examine her other witnesses and she should be exempted from examining herself first. The husband denied that she was suffering from any disease as stated by her and stated that she had been seen moving around in shopping centres. The medical certificate filed by her only showed that she was under treatment since 25th May, 2006. The Trial Court found that although the respondent did not file her affidavit by way of evidence in the Court, but she filed several affidavits supporting various applications moved by her. That showed that she had been coming to the Court and executing other affidavits. Even her plea that she was not able to hold urine for more than 10 minutes, was not supported by her medical certificate. The medical certificate filed showed that she was undergoing treatment of Pyrexia of unknown origin.
7. The Trial Court also observed that her claim that she was not able to visit the Court stood belied from her repeated visits to the Court for filing affidavits supporting applications. The number of applications moved and number of affidavits filed by her showed that her plea of being not able to come to the Court was false. The Court also found that if she was not in a position to stand or move, as claimed by her, she would not have been able to come to Court even for moving various other applications. She made several applications on various dates running into numerous pages and with each application an affidavit was there. Thus, the Court dismissed the application of the wife under Order 18 Rule 3(a) with costs of Rs.2,500/- However, the Trial Court still gave the adjournment despite finding that the respondent was guilty of delaying the proceedings, imposing further costs of Rs.5,000/-. It was also made clear to the respondent that she would appear on next date of hearing and would also pay the entire costs including costs imposed on 3rd March failing which her defence would be struck off.
8. In order to consider the challenge to these orders, the Court will have to look at the conduct of the petitioner/wife and see whether her prayer had been sincere or she had been taking the Court for a ride because she had enough money power, on the basis of which she has been assailing every order of the lower Court before High Court.
9. The wife herein is facing a Divorce petition filed by the husband. The Divorce petition was filed in 1998 and appearance was put by her counsel on 15th January, 1999. A perusal of record of Trial Court shows that thereafter the effort of the wife had been to see to it that this case does not proceed further. One leg of the wife had been in the High Court and almost every order passed by the leaned ADJ was challenged before this Court.
10. This Court in an earlier petition no. CM(M) 1742/2004 filed by the wife made following observations:-
?In the meanwhile, it appears that the respondent/husband has been under cross examination for the last three years and as many as 25 days of hearing have taken place. There has to be a finality to the cross examination of the respondent and it cannot be go on interminably. Consequently, other than the cross examination relating to the documents mentioned in Item Nos. 1 to 9 on pages 21 and 22, the cross examination of the respondent must be concluded positively on the next date of hearing, that is, 23rd December, 2004?
11. Above order of this Court and the orders passed by Trial Court right from the start of case show the intentions of the respondent.
12. A perusal of the order sheets of the Trial Court would show that every kind of excuse available on the earth had been put forward for seeking adjournments and all tactics had been adopted to delay the proceedings. The issues in the case were framed on 1st June, 2000. The Court could record statement of the husband in examination-in-chief only on 30th January, 2001. Thereafter, the cross examination of husband was concluded on 22.11.2005 only, after this Court passed above stated order. In between respondent or her counsel did not appear in the Court on 27th August, 2001 even to receive the alimony paid by the husband. On 11th February, 2002, counsel for the respondent wanted the proceedings to be stayed on the ground that he had preferred a revision before the High Court, despite the fact that there was no stay granted. The Trial Court still adjourned the case for cross examination of the petitioner. On next date, on 20th March, 2002, none appeared for the respondent/wife neither his counsel appeared. The Court still did not proceed ex parte and re-listed the matter.
13. On 4th April, 2002, an adjournment was sought on the ground of her ailment. Several adjournments were sought on the ground that the matter may be settled. However, whenever the matter was fixed for cross examination of husband, instead of cross examining him the counsel for the wife had moved an application and sought adjournment on one or the other ground. Even when he cross examined, the cross examination was made in prolix manner to make it linger on. The counsel also sought adjournments on his personal grounds, sometime his brother-in-law was ailing, sometime he had to attend the school of his child, sometime on the ground that a relative had expired. The respondent had all along been not appearing in Court on one or the other ground.
14. The petitioner had filed number of petitions and appeals in this Court right from the beginning. Every petition filed in this Court was accompanied by the affidavits of the petitioner. Number of petitions along with affidavits filed by the petitioner as gathered from the record of this case are CM(M)1742/2004, CM(M)14/2007, CM(A)5724/07, CM(A)10747/07, RFA 230/07, CM(M)14428/07, CM(M)997/07 C.R.No.397/01 and CM(M)969/06.
15. It is evidently clear from the entire proceedings that the effort of the petitioner had been to see that divorce petition filed by husband does not proceed. The mandate of the legislature is that proceeding under Hindu Marriage Act should come to an end within six months.
16. The ground on which husband sought divorce is desertion. The petitioner/wife had an option to lead her evidence to show that she had not deserted and the fault lied on the side of the husband. Instead of leading evidence, appearing in the Court she had just seen to it that the case does not proceed.
17. The Supreme Court in M.R. Tyagi vs. Sri Devi Sahai Gautam Civil Appeal No. 3241/2006 decided on 2.8.2006 made following observations in respect of grant of repeated adjournments by Courts:
?………… at the same time we must impress upon the Courts that its approach, however liberal, must be in consonance with the interest of justice and fair to both the parties. Misplaced sympathy in favour of any of the parties results in injustice to the other party. The courts have the solemn duty to maintain a judicial balance. We must deprecate such irresponsible approach of Courts granting numerous and unnecessary adjournments in the strongest terms. The frequent grant of unnecessary adjournments has come in for very serious public criticism. It is not surprising that frequent adjournments are unnecessarily sought, but what is surprising is that Courts generously grant such adjournments, regardless of the fact that it results in delayed disposal of cases, involves loss of public time, increases the financial burden of the litigants, and tarnishes the image of the judiciary. It is high time Courts stop granting unnecessary adjournments. The High Courts must take serious note of adjournments freely granted, even if unnecessary, and as a follow up action call upon the judicial officers concerned, in appropriate cases, to justify the numerous and unnecessary adjournments granted.?
18. It is noteworthy that on her ground of illness while she sought adjournments, she did not move an application that she be examined on commission. Her plea that she was not in a position to come to the Court because she had urinary problem had been rightly disbelieved by Trial Court. The Trial Court also rightly struck off her defence on the ground that she was unwilling to appear in Court and unwilling to lead evidence.
19. I find that this petition is a frivolous petition and is liable to be dismissed with exemplary costs. The petition is dismissed with costs of Rs.50,000/-.
October 16, 2008
SHIV NARAYAN DHINGRA J.