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SC:- Employed Wife not entitle for Maintenance u/s 24 of HMA even if the Husbands Salary is 4 times higher.
Wife employed and earning a salary is NOT entitled to interim maint u/s 24 HMA, even though husband is earning four times MORE than the wife. Child – Daughter gets interim maintenance. Husband does NOT even attend the Supreme court hearing but still wife DENIED interim maintenance !
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.1789-1790 OF 2009
(Arising out of SLP(C) NOS. 24589-24590 of 2007)
Anu Kaul …….. Appellant
Versus
Rajeev Kaul ……..Respondent
ORDER
Leave granted.
2) In the appeal filed by the respondent-husband before the High Court of Punjab and Haryana, being aggrieved by the judgment and decree passed by Addl. District Judge (Ad-hoc), Fast Track Court No.3, Faridabad, dated 04.06.2005, the appellant herein had filed an application under Section 24 of Hindu Marriage Act, 1955, for the grant of interim maintenance of Rs. 10,000/- (Rupees Ten Thousand only) and the litigation expense of Rs. 22,000/- (Rupees Twenty Two Thousand only).
The application is partly allowed by the Court by its order dated 23.08.2006, by granting an amount of Rs.10,000/- towards litigation expense and a sum of Rs.2,000/- for the maintenance of the minor child living with her. The Review Petition is also dismissed by the Court vide its order dated 21.03.2007, leaving it open to the appellant/applicant to claim interim maintenance before an appropriate forum in the capacity as a Guardian of the child.
3) Challenging both the orders, the appellant-wife is before us in these appeals.
4) Though notice of special leave petition is served on the respondent- husband, for the reason best known to him, has not entered appearance either in person or through his counsel.
5) Marriage between the parties and birth of the female child Karmistha Kaul is not in dispute. The assertion of the appellant in the application filed under Section 24 of Hindu Marriage Act, 1955 that the respondent is working as a Senior Head of Mukund Steel Ltd., having its head office at Mumbai and drawing a salary of Rs.40,000/- per month and is entitled to claim perks for the education of his children was not denied by the respondent by filing his counter affidavit or reply statement.
6) In the application filed, the appellant admits that she is employed and drawing a salary of Rs.9,000/- per month. However, she asserts, she has to pay an amount of Rs.3,000/- by way of rent to the tenanted premises which she is presently occupying in view of the lis between the parties. She has also stated, that, Kumari Karmisatha Kaul is now grown up and she is studying in Senior School and due to insufficient funds, her education is being hampered.
7) A sermon on moral responsibility and ethics, in our opinion for disposing of this appeal may not be necessary, since the respondent has not disputed the assertion of the appellant.However, since the appellant is employed and is drawing a salary of Rs.9,000/- per month, we do not intend to enhance the interim maintenance awarded to her by the High Court during the pendency of the appeal filed by the husband. However, taking into consideration the child being the daughter of highly placed officer, the exorbitant fee structure in good Schools and the cost of living, we deem it proper to direct the respondent to pay a sum of Rs.5,000/- per month to the applicant commencing from 1st of April, 2009 for the maintenance of the minor child during the pendency of the appeals before the High Court. 8) The appeals are disposed of accordingly.
…………………………………J. [ TARUN CHATTERJEE ]
…………………………………J. [ H.L. DATTU ]
New Delhi,
March 23, 2009.
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Bombay HC:- Neither Spouse can withdraw the Consent given during filing the Mutual Consent Divorce.
Bombay High Court
Bombay High Court
Mr Rajesh S/O Pratap Sainani Hindu
vs
Mrs Bhavna W/O Rajesh Sainani … on 26 August, 2008
Bench: V.C. Daga
IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE
WRIT PETITION NO. 3556 OF 2008.
Mr Rajesh s/o Pratap Sainani Hindu,
Indian Inhabitant of Mumbai, Aged 33
years, Occu.business, At present residing at 762, Shantivan, Old Lokhandwala Complex, Andheri, Mumbai
400 053. ..Petitioner.
V/s.
Mrs Bhavna W/o Rajesh Sainani Hindu
Inhabitant of Mumbai Aged 31 years,
Occ.Housewife, At present residing at C/o Narain Das Advani, 4/12, Bhagwan
Singh Coloni, Tulsi Pipe Road, Mahim
Mumbai 400 016. .. Respondent.
Mr Rajendra M. Sorankar, Advocate for the Petitioner.
Mr Shailesh Shah i/b J. J. Saxena, Advocate for the Respondent.
CORAM: V.C.DAGA, J.
DATED: 26.08.2008.
JUDGMENT:
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1. Rule, returnable forthwith. Perused the petition. Heard finally by consent of parties.
2. This petition, under Article 227 of the Constitution of India, challenges the order passed by the 7th Family Court, Mumbai in Petition No. A-1301 of 2006 refusing to permit the Petitioner to withdraw his consent, which was given at the time of presenting petition for divorce by mutual consent, under Section 13-B of the Hindu Marriage Act, 1955 (“the Act” for short).
THE FACTUAL MATRIX:
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3. The petitioner-husband had filed petition under Section 9 of the Act, for decree of restitution of conjugal rights. During pendency of this petition, the respondent-wife made complaint under Section 498-A of the Indian Penal Code (I.P.C.) with the Oshiwara Police Station, Mumbai, against the petitioner. It was under investigation.
4. The troubled marriage had also given rise to reciprocating demand for return of ornaments given in the marriage.
5. Both parties, having realized that marriage is irretrievably broken and there was no possibility to save their marriage, filed application under Section 13B of the Act for decree of divorce by mutual consent, duly signed by them, on 28.10.2006. ( 3 )
6. The settlement of matrimonial dispute by mutual consent was agreed by both spouses resulting, inter alia, wife withdrawing her criminal complaint filed under Section 498-A of the I.P.C. and waiving all claims towards future maintenance for herself and her minor son and agreed to have custody of minor son Dhruva holding herself solely responsible for welfare of the minor son Dhruva. The petitioner-husband agreed not to claim the custody of the minor son Dhruva at any time in future but retained his right to have access.
7. Both parties exchanged jewelleries, gift articles received by them in marriage and declared that they shall have no claim against each other in that behalf. Parties to the dispute acted upon the terms of compromise. Both parties agreed, confirmed and clarified that subject to the compliance of the terms and conditions, the marriage shall stand dissolve by decree of divorce by mutual consent. Both parties declared absence of collusion between them and sought decree of divorce by mutual consent by moving application under Section 13-B of the Act to the Family Court, Mumbai.
8. The petitioner-husband on 23.5.2006, i.e. after lapse of seven months from the date of presentation of the petition, filed an application for cancellation/withdrawal of his consent for mutual divorce contending that he had agreed for consent terms and divorce by mutual consent under pressure, undue influence, and fear about welfare his son. He filed affidavit in support of his application on 16.11.2007 i.e. after lapse of six months from the date of application seeking to withdraw consent for mutual divorce.
9. The above application was strongly opposed by the respondent-wife on various factual and legal grounds pressing into service the doctrine of estoppel.
10. The pleadings of the parties filed before the learned Family Court give a clear indication that both parties agreed for decree of divorce by mutual consent and to compromise all their disputes and made a joint statement in the petition expressing their willingness for a divorce by mutual consent.
11. The learned 7th Family Court heard both parties and vide its reasoned order dated 17.1.2008 dismissed the application of the Petitioner seeking to withdraw his consent holding that it will cause a serious prejudice and/or injustice to the respondent-wife.
12. Being aggrieved by the aforesaid order dated 17.1.2008 refusing to permit the petitioner to withdraw his consent and thereby declining to dismiss the petition filed under Section 13-B (2) of the Act, he has invoked writ jurisdiction of this Court under Article 227 of the Constitution of India.
SUBMISSIONS:
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13. The learned counsel for the Petitioner, repeatedly, reiterated that the Petitioner was made to ( 6 ) sign consent terms under coercion and undue influence without disclosing material facts and particulars including the effects thereof.
14. The learned counsel for the petitioner urged that during the pendency of the petition for divorce by mutual consent, in law, it is open for the respondent to withdraw his consent at any time so long as the decree of divorce has not been passed. He submits that the consent must exist on the date when the petition for decree of divorce by mutual consent was filed and it must continue to exist till the orders are passed by the competent Court, dissolving marriage by consent. Reliance is placed on two Judgments of the Division Bench of this Court, one in Family Court Appeal No. 39 of 2008 decided on 29th April, 2008 between Mr Sanjay Pahariya v. Ms Smruti Pahariya (unreported), (unreported of which para 19 was heavily relied upon, which reads as under:
19. “We are not impressed by this submission. We have already quoted extensively from Sureshta Devi’s case (supra). A reading of this judgment leaves no room for doubt that there should be mutual consent when parties move the court under section 13-B(2). No decree under section 13-B(2) can be passed on initial consent and the court must be satisfied about existence of mutual consent at the time it passes the decree. It is true that ordinarily, a motion can be made by one party to a proceeding. But, section 13-B(2) begins with words ” on the motion of both the parties”. Therefore, motion contemplated therein has to be made by both parties. In fact, in Sureshta Devi’s case (supra), the Supreme Court has laid stress on these words and made the observations quoted above. It is not open for us to differently interpret section 13-B of the said Act.”(Emphasis supplied)
15. The another judgment, relied upon by the petitioner arose out of Civil Reference No. 2 of 2007 decided on June,2008 between Principal Judge, Family Court, Nyaya Mandir Premises, Civil Lines, Nagpur vs. Nil taking view similar to the view taken in Sanjay Pahariya’s case (cited supra).
16. Learned counsel for the petitioner, thus, prayed for setting aside the impugned order and dismissal of the petition or divorce by mutual consent filed under Section 13B of the Act.
17. The learned counsel for the respondent-wife supported the impugned order and pressed into service doctrine of estoppel to contend that the petitioner husband is estopped from withdrawing his consent since the respondent-wife acted to her prejudice accepting the representation made by the petitioner-husband that he is ready for divorce by mutual consent if his terms are accepted. That the move on the part of the petitioner is seriously criticised and branded it to be mala fide and dishonest move and prayer for dismissal of the petition in limini with heavy costs is made.
STATUTORY PROVISION:
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18. At this stage, it is necessary to reproduce the relevant statutory provisions of Section 13B (1) and (2) of the Hindu Marriage Act, which read as under: . Section 13B :
(1) Subject to the provisions of this Act, a petition for dissolution of marriage by a decree of divorce may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. (2) On the motion made by both the parties made not earlier than six months after the date of presentation of the petition referred to in sub-Section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the mean time, the Court shall, on being satisfied, after hearing the parties and making such enquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring a marriage to be dissolved with effect from the date of decree.
RELEVANT JUDGMENTS:-
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19. Before embarking upon the submissions of rival parties, let me turn to the relevant reported judgments so as to examine settled legal position:- (1) In the case of Nachhattar Singh v Harcharan Kaur, A.I.R. 1996 P and H, 201, it was held that : 201
“The petition can be dismissed as withdrawn only if both the parties who had filed the petition together agree to withdraw the same. Six months after the date of the presentation of the petition and not later than 18 months after the said date, if the petition is not withdrawn by both the parties, the Court has to satisfy itself, after hearing the parties and after making such Inquiries as it thinks fit, that the petition was in fact presented by both the parties to the marriage, that they have mutually agreed that the marriage should be dissolved. If both the parties had voluntarily consented to file the petition for dissolving the marriage by mutual consent and all other conditions mentioned in sub section (1) of Section 13B of the Act are fulfilled, it will not be open to a party to withdraw the consent. In the present case, without making any inquiry under sub Section (2) the Trial Court has to dismiss the petition as withdrawn which could not be done merely on the asking of one party.”
(Emphasis supplied)
(2) A Similar view was taken by the Delhi High Court in Smt Chander Kanta vs. Hanskumar and Anr (I) 1998 D.N.C. 509; 509 wherein it was held that:
19. “A petition presented under Section 13B (1) of the Act cannot be withdrawn by one party unilaterally. Of course, if the Court is satisfied that a consent was not a free consent and it was the result of force, fraud or undue influence then it is a different matter because in such a case the Court is empowered specifically to refuse to grant the decree. If one party is allowed to withdraw the consent, even when other grounds, namely that the parties continued to live separately and have not been able to live together, still subsists and reconciliation is not possible then it will frustrate the very purpose of the enactment. Under Section 23(1)(bb), the Court is empowered to grant the decree even in an undefended case if it is satisfied that the averment in the petition are true and the consent for mutual divorce has not been obtained by fraud, force or undue influence. If unilateral withdrawal of consent is permitted the Court will not be able to pass a decree in an undefended case”.
Thus, it is clear that it is settled law that unless it is shown by one party that his/her consent was as a result of force, fraud or undue influence, consent given for grant of divorce by mutual consent in the petition under Section 13-B (1) of the Act cannot be unilaterally withdrawn by the said party, which position of law has also been followed in volume 41 (1990 Delhi Law Times 266) in the case of Rajrani vs. Roop Kumar.
(Emphasis supplied)
20. In A.I.R. 1997 SC 1266 in Ashok Hura v. Rupa Bipin Zaver, the Hon’ble Supreme Court, while dealing with similar question of withdrawal of consent unilaterally by one party concluded that the marriage between the parties has been irretrievably broken and that there was no chance of their coming together or living together, and went on to observe, as under:- “We are of the view that the cumulative effect of the various aspects in the case indisputably point out that the marriage is dead, both emotionally and practically and there is no chance at all of the same being revived and continuation of such a relationship is only for namesake and that no love is lost between theparties, who have been fighting like “Kilkenny cats” and there is long lapse of years since the filing of the petition and existence of such a state of affairs warrant the exercise of the jurisdiction of this Court under Article 142 of the Constitution and grant a decree of divorce by mutual consent under Section 13-B of the Act and dissolve the marriage between the parties, in order to meet the ends of justice, in all the circumstances of the case subject to certain safeguards.
Irretrievable breakdown of marriage is now considered, in the laws of number of countries, good ground of dissolving the marriage by granting a decree of divorce. Proof of such breakdown would be that the husband and wife have separated and have been living apart for, say, a period of five or ten years and it has become impossible to resurrect the marriage or to reunite the parties. It is stated that once it is known that there are no prospects of the success of the marriage, to drag the legalities acts as a cruelty to the spouse and gives rise to crime and even abuse of religion to obtain annulment of marriage. The theoretical basis for introducing irretrievable breakdown as a ground of divorce is one with which, by now, lawyers and others have become familiar. Restricting the ground of divorce to a particular offence or matrimonial disability, it is urged, causes injustice in those cases where the situation is such that although none of the parties is at fault, or the fault is of such a nature that the parties to the marriage do not want to divulge it, yet there has arisen a situation in which the marriage cannot be worked. The marriage has all the external appearances of marriage, but none of the reality. As is often put pithily, the marriage is merely a shell out of which the substance is gone. In such circumstances, it is stated, there is hardly any utility in maintaining the marriage as a facade when the emotional and other bounds which are of the essence of marriage have disappeared. After the marriage has ceased to exist in substance and in reality, there is no reason for denying divorce. The parties alone can decide whether their mutual relationship provides the fulfilment which they seek. Divorce should be seen as a solution and not an escape route out of a difficult situation. Such divorce is unconcerned with the wrongs of the past, but is concerned with bringing the parties and the children to terms with the new situation and developments by working out the most satisfactory basis upon which may regulate their relationship in the changed circumstances…”
(Emphasis supplied)
21. In Rachna Jain vs. vs Niraj Jain II (2006) DMC 410 the Delhi High Court had an opportunity to deal with the case involving more or less similar facts wherein the Court refused to permit withdrawal of the consent holding such move on the part of the respondent-husband to be mala fide, baseless and unjust since the terms of settlement were acted upon by both parties.
22. In Ashok Hura’s case (supra) the Hon’ble Supreme Court dealt with its earlier judgment in Sureshta Devi’s case (supra) and observed as under: “It appears to us, the observations of this Court to the effect that mutual consent should continue till the divorce decree is passed, even if the petition is not withdrawn by one of the parties within the period of 18 months, appears to be too wide and does not logically accord with Section 13-B(2) of the Act, However, it is unnecessary to decide this vexed issue in this case, since we have reached the conclusion on the fact situation herein. The decision in Sureshta Devi’s case AIR 1992 SC 1904, (supra) may require reconsideration in an appropriate case. We leave it there.”
23. The impugned order can be justified on the solitary principle of law laid down by the Apex Court in Ashok Hura’s case (cited supra).
24. Now, turning to the another facet of the submission based on the touchstone of the doctrine of estoppel, it is necessary to examine the reasons recorded by the Family Court in support of its order dated 17.1.2008. The relevant extracts of which are reproduced herein below.
20. “It is important to note that besides bare words of the petitioner, he has not made out any ground of force or coercion used by the respondent on him. Much emphasis is given on the point that the respondent has filed criminal complaint against the petitioner and by taking undue advantage of filing the said complaint, she has pressurised the petitioner. Second, she has used her child against him for obtaining his consent.
21. If we go through the consent terms it clearly reveals that the respondent is withdrawing her right of alimony, secondly, she has agreed to give access of the child, thirdly, she has agreed to withdraw the complaint filed against the petitioner and that the only compliance was remained that too, of passing decree of dissolution of marriage.
22. If we go through the contents of the application exh.17, besides the words that the respondent had used force, influence for signing the consent terms, there is nothing on record to show that the respondent has gained any advantage from the petitioner by compelling him to sign the consent terms. Apart from that, if at all, the respondent would have pressurized the petitioner for signing the consent terms, he could have appeared before the Court even before six months or approach police authorities but he remained silent for about seven months. He has not appeared before the Court even immediately after completion of six months. It clearly reveals that when the respondent has presented the copy of application for withdrawal of her complaint submitted by her to the police, on the very day, when the matter was for appearance, he remained absent on that date and appeared on the next date when the matter was kept after one month. The conduct of the part of the petitioner is such that he has obtained disadvantage by way of agreement by which the respondent has withdrawn the complaint, she has started giving access of the child to the petitioner. In these circumstances, I am of the opinion that the petitioner has failed to establish his consent for converting the petition into the petition for divorce by mutual consent, has been obtained by respondent by playing fraud or coercion on him, as alleged in application Exh.17.
23. Moreover, as I have submitted earlier, the parties have acted upon the consent terms and therefore, it is not desirable at this stage when only the order of dissolution of marriage is remained to be passed. At such stage, if the petitioner is allowed to withdraw his consent, it will cause prejudice or injustice to the respondent. Therefore, the application, deserves to be rejected.” (Emphasis supplied)
25. The finding recorded by the Family Court is that the Respondent-wife acted upon the representation made by the respondent-husband to her prejudice and the petitioner-husband has availed all benefits and enjoyed fruits of the terms of settlement and compromise.
Let me examine as to whether or not the findings are correct.
26. The dissection of the impugned order and material available depict picture, as under:- (i) The respondent-wife, under the garb of said compromise, was made to withdraw her criminal complaint filed under Section 498-A of the I.P.C.
(ii) The respondent-wife was made to return the ornaments which were given to her in marriage by husband’s family.
(iii) The respondent-wife was made to waive her right of present and future maintenance including that of minor son.
(iv) The respondent-wife was saddled with the liability of son’s future education and welfare. In other words, petitioner got himself relieved of the obligations of father towards his minor son; and
(v) The respondent-wife was made to agree to a limited custody of minor son and access to the petitioner-husband for which wife was not agreeable.
27. It is, thus, clear that factually, the respondent-wife has acted upon the terms of compromise to her prejudice accepting the representation made by her husband-petitioner that he was ready for divorce by mutual consent.
28. Now, let me examine the legal effect of representation made by the husband and accepting terms thereof by the wife to her prejudice based on decided cases.
29. The Apex Court in the case of B.L. Sreedhar vs K.M. Munireddy A.I.R. 2003 S C 578 held as under: “The essential factors giving rise to estoppel are, I think –
(a) A representation or conduct amounting to representation intended to induce a course of conduct on the part of the person to whom the representation was made.
(b) An act or omission resulting from representation whether actual or by conduct, by the person to whom the representation was made.
(c) Detriment to such person as a consequence of the act or omission where silence cannot amount to a representation, but where there is a duty to disclose, deliberate silence may become significant and amount to a representation. The existence of a duty on the part of a customer of a bank to disclose to the bank his knowledge of such a forgery as the one in question was rightly admitted.”
30. In the case of Maddanappa (deceased) after him by his legal representatives vs. vs Chandramma and Anr A.I.R. 1965 S C 1812 the Supreme Court relying upon the judgment of Privy Council in the case of Saratchunder Dey vs. Gopal Chunder Laha 19 Ind App 203 (PC) explained the ingredients of the doctrine of estoppel and went on to hold that a person who sets up an estoppel against the other must show that his position was altered by reason of the representation or conduct of the latter and unless he does that, even the general principle of estoppel cannot be invoked by him.
31. The general principle of estoppel is stated thus by the Lord Chancellor in Cairncross vs. vs Lorimer (1860) 3 H.L.C. 829:
“The doctrine will apply, which is to be found, I believe, in the laws of all civilized nations that if a man either by words or conduct has intimated that he consents to an act which is to be done and that he will offer no opposition to it, although it could not have been lawfully done without his consent, and he thereby induces others to do that from which they otherwise might have abstained, he cannot question the legality of the act he has so sanctioned, to the prejudice of those who have so given faith to his words or to the fair inference to be drawn from his conduct…I am of the opinion that generally speaking, if a party having an interest to prevent an act to be done has full notice of its being done, and acquiesces in it, so as to induce a reasonable belief that he consents to it, and the position of others is altered by their giving credit to his sincerity, he has no more right to challenge the act to their prejudice than he would have had if it had been done by his previous licence.”
32. Having examined the aforesaid legal position, it is clear that the estoppel is a rule of equity flowing out of fairness striking on behaviour deficient in good faith. It operates as a check on spurious conduct by preventing the inducer from taking advantage and assailing forfeiture already accomplished. It is invoked and applied to aid the law in administration of justice.
33. With the above understanding of law, if one turns to the facts of the case in hand, at the cost of repetition, I must observe that the Petitioner, by making representation that he was agreeable for divorce by mutual consent provided – respondent-wife withdraws her criminal complaint, returns his ornaments given to her in the marriage and takes care and custody of the minor child with limited access to him. The said representation made by the husband was accepted and acted upon by the respondent- wife to her prejudice. She withdrew criminal complaint filed against the husband and his family members. She returned ornaments received by her in the marriage. She agreed to have a custody of the minor son and on the top of it waived present and future right to claim maintenance for herself as well as for minor son. Thus, it is clear like a day light that the respondent- wife acted to her prejudice by accepting terms of compromise favourable to the petitioner-husband. The husband is, thus, estopped from withdrawing his consent.
34. The Family Court cannot be helpless spectator and duplicity of the petitioner-husband to induce the hapless wife, the respondent to waive maintenance claim for not only herself and her son, also compelled her to withdraw the criminal complaint in the hope of starting her life afresh. The husband by his conduct has caused the wife huge disadvantage. No spouse can unilaterally, wilfully be allowed to withdraw consent even on the grounds; such as fraud, undue force, representation unless grounds are proved satisfactorily. In the present case, if the withdrawal of consent by the petitioner-husband is upheld, it will cause anamoulous situation and serious prejudice to the respondent-wife, who is law abiding person. She will be left high and dry without recourse to any remedy and saddled with dead marriage. The respondent-husband has resorted to fraud and misrepresentation which cannot be permitted by the Courts of Law and equity.
35. The Family Court has rightly taken into account the wrong sought to be done by the husband and his attempt to cheat his wife depriving her an opportunity to work out and regulate the life of herself and her son in a fresh air. A pedantic interpretation of law might result in a situation resulting in gross miscarriage of justice in denying a woman with her abandoned son an opportunity to start their life afresh as stated.
36. Having said so, I am also prevented by the parameters of interference by the High Court in the petition filed under Article 227 of the Constitution of India to interfere with the impugned order in view of the Law holding field in this behalf enumerated herein below.
37. The Apex Court in the case of T.G. Telang vs. R.S. Bhinde A.I.R. 1977 S C 1222 the Apex Court in para 3 held that:
” As would be apparent from the above narrated, the instant case does not involve any substantial question of law of general or public importance. Although counsel for the appellants has strenuously assailed the correctness of the finding of the Revenue Tribunal and of the High Court, we are unable to accede to his contention. We have not, despite careful consideration of the judgments and objections submitted to us, been able to discern any legal infirmity or error either in the decision of the Revenue Tribunal or of the High Court. It is well settled rule of practice of this Court not to interfere with the exercise of discretionary power under Articles 226 and 227 of the Constitution merely because two views are possible on the facts of a case. It is also well established that it is only when an order of a Tribunal is violative of fundamental basic principles of justice and fair play or where a patent or flagrant error in procedure or law has crept in or where the orders passed results in manifesting justice, that the Court can justifiably interfere under Article 227 of the Constitution.”
38. The Apex Court in the case of Waryam Singh v. Amarnath A.I.R. 1954 S C 215 considered the scope of Article 227. It was held that the High Court has not only administrative superintendence over the subordinate courts and tribunals but it has also the power of judicial superintendence. The Court approved the decision of the Calcutta High Court in Dalmia Jain Airways Ltd v. Sukumar Mukherjee A.I.R. 1951 Cal 193 (SB) where the High Court said that the power of superintendence conferred by Article 227 was to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting their mere errors. The Court said that it was, therefore, a case which called for an interference by the Court of the Judicial Commissioner and it acted quite properly in doing so.
39. In Bathutmal Raichand Oswal v. Laxmibai R. Tarta (1975) 1 SCC 858 the Apex Court again reaffirmed that the power of superintendence of the High Court under Article 227 being extraordinary was to be exercised most sparingly and only in appropriate cases. It said that the High Court could not while exercising jurisdiction under Article 227, interfere with the findings of fact recorded by the subordinate court or tribunal and that its function was limited to seeing that the subordinate court or tribunal functioned within the limits of its authority and that it could not correct mere errors of fact by examining the evidence or reappreciating it. The Court further said that the jurisdiction under Article 227 could not be exercised, “as the cloak of an appeal in disguise. It does not lie in order to bring up an order or decision for rehearing of the issues raised in the proceeding.”
40. In Nagendra Nath Bora v. Commr. of Hills Division and Appeals A.I.R. 1958 S C 398 the Supreme Court observed as under: “It is thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi judicial nature, are not greater than the powers under Article 226 the Constitution. Under Article 226, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority.”
41. In the above view of the matter, it is evident that withdrawal of the consent by the petitioner-husband is tainted with mala fide, baseless and unjust consideration. The judgments of the Division Benches of this Court referred in paras 14 and 15 supra are not applicable to the facts of this case. The view taken by the learned Family Court is a reasonable and possible view. No case is made out to interfere with the order under challenge.
42. In the result, Rule is discharged. The petition is dismissed with costs quantified in the sum of Rs. 25,000/- to be paid by the petitioner-husband to the respondent-wife.
(V.C.DAGA, J.)
Bombay HC : Wife or husband’s attorney cannot appear in family courts u/s 13 of Family Courts Act.
Bombay High Court
Neelam Dadasaheb Shewale vs Dadasaheb Bandu Shewale on 17 February, 2010
Bench: R. S. Dalvi
1
Amk
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8954 OF 2009
Neelam Dadasaheb Shewale .. Petitioner Vs.
Dadasaheb Bandu Shewale .. Respondent Mr. Milind N. Jadhav i/b Mr. Sagar G. Talekar for the Petitioner. Mr. R. T. Lalwani for the Respondent.
CORAM : MRS. R. S. DALVI, J.
DATE : 17TH FEBRUARY, 2010
JUDGMENT:
1. This writ petition challenges three interim orders passed in MJ Petition No.A1633/97 which was for enhancement of maintenance under 25 (2) of the Hindu Marriage Act.
2. It may be mentioned that an application under that provision can be filed only upon change in the circumstances of either party which would require modification of the order of permanent alimony passed.
3. Two orders are passed upon three applications of the parties.
4. One application was filed by the ex-husband (husband) seeking to restrain his ex-wife (wife) from using his surname (name) since divorce decree has been already passed and has became final. This application came to be filed as an interim application in the fresh petition filed by the wife after divorce.
5. The Advocate on behalf of the wife argued that the separate petition only should have been filed. Both these reliefs, permanent and interim, are between the same parties pursuant to the same marital relationship which has since ceased. Under Section 7 of the Family Courts Act the Family Court has jurisdiction to decide the petition-application as well as a suit or proceeding (permanent or interim), for injunction arising out of the marital relationship. The husband can, therefore, file a separate application/petition for injunction or take out an application in the wife’s application/petition already filed. In fact, the husband can file a counterclaim in any petition with regard to any relief arising out of the marital obligation. An application which may be in the nature of counterclaim, can therefore be allowed an interim application.
6. The substance of the application is required to be considered rather than its form. The substance of the application of the husband is that the wife should not use his name.
7. The Advocate on behalf of the wife fairly concedes that since the marriage has been dissolved by a decree for divorce which has become final, the wife cannot use the name of the husband. That is the only substance to be considered by the Family Court. Under the impugned order dated 23rd September, 2009 the Family Court has considered that aspect as an application arising out of a marital relationship. It is correctly considered. The order needs no interference.
8. In fact, the Advocate on behalf of wife mentioned that the bank account of the wife stands in both her names. That statement itself shows that the wife uses the name of the husband even after their marital relationship has been dissolved by an order of the Court. The description of the bank account is therefore improper. It is, therefore, clarified that the wife cannot use the husband’s name anywhere including in her bank account. The injunction granted by the Family Court in the application of the husband shall be effectuated for all purposes.
9. The writ petition also challenges another order of the same date between the same parties but in two different applications. One was the application filed by the wife for her to be represented by her constituted attorney on the ground that she is ill, does not know English, she has been mentally tortured at the hands of the husband and she would not be able to stand the court proceeding. The other application is filed by her constituted attorney asking for permission to represent the wife as she cannot financially afford a lawyer, lawyers are otherwise not permitted and that she would be entitled to assistance of the person she has faith in.
10.The legal right of a party in Family Court to be represented by her constituted attorney in place of her Advocate who is registered legal practitioner is required to be seen. Under Section 13 of the Family Courts Act no party is entitled as of right to be represented by a legal practitioner. However, the Court may appoint legal expert as amicus curie to assist her/him. A party has full right to appear before the Family Court. None can object to such appearance. The wife does not desire to have an Advocate. She has refused legal aid offered to her. She contends that she has faith only her constituted attorney. The extent of the right of a constituted attorney is laid down in Order III Rule 1 of the Civil Procedure Code as follows :
ORDER III :
1. Appearances, etc., maybe in person, by recognized agent or by pleader. – Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader [appearing, applying or acting, as the case may be,] on his behalf :
Provided that any such appearance shall, if the Court so directs, be made by the party in person.
(emphasis supplied)
11.What is appearance, application or act has been considered by Chief Justice Chagla, as he then was, in the case of Aswin Shambhuprasad Patel and others Vs. National Rayon Corporation Ltd. (AIR 1955 BOMBAY 262). The provision of the aforesaid order was considered taking into account the Bar Councils Act and the Bombay Pleaders Act. It has been held that the aforesaid rule would not apply where a law for the time being in force otherwise expressly provided. It is held that pleading is not included in the expression “appearance, application or act in or to any Court”. This is so because, the right of audience in Court, the right to address the Court, the right to examine and cross-examine the witnesses are dealt with in other parts of the Civil Procedure Code and not under Order 3. It was further held the right of audience in Court is a part of pleading in Court and not “acting” as provided under Order 3. It is further observed that a party in person would have a right of audience in Court and not his recognized agent who would be “appearing, applying or acting” on his behalf. 7
12.Further the right of pleaders to plead in a Court of law under authority of the client and to have a right of audience in Court as a member of Bar is not dealt with under Order 3. The members of the Bar have a right in clause 10 of the Letters Patent as they are qualified to plead in Court as required by specific legislation and rules. Under that clause no person except Advocates, Vakils or Attorneys would be allowed to act or plead for and on behalf of any suitor except the suitor himself. Considering Section 8 of the Bar Councils Act under which no person was entitled to practice as an Advocate unless his name was entered in the roll of Advocates, it was observed that the expression “practice” is wider than the expression “plead”. Similarly Section 9 of the Bombay Pleaders Act, which was similar to the above section, was considered. The proviso to that section allowed a party to appear, plead or act on his own behalf but a recognized agent of the party was allowed to only appear or act (and not plead). It was therefore observed that proviso made a distinction between appearing, pleading or acting and appearing or acting. Whereas the party could do all three of the above her/his constituted attorney 8
could do only the above two. Consequently it was held that in the District Courts a recognized agent had no right to plead by relying on provision 9 of the Bombay Pleaders Act. It was observed that the right of audience is a natural and necessary concomitant of the right to plead and as the recognized agent had no right to plead, it follows that he has no right of audience in Court.
13.The law that is laid down in the aforesaid judgment holds true and good till now and even within Section 13 of the Family Courts Act. The object of Section 13 of the Family Courts Act is to allow a party to represent her/his case and consequently right of the lawyer to plead, appear and have audience in Court is limited but the right given to the party to appear is not extended to that parties’ constituted attorney. Hence, the general law of procedure under Order 3 Rule 1 as also the special laws contained in the Bar Councils Act and the Bombay Pleaders Act would apply even in a Family Court. The object of that provision is that only qualified persons are entitled to appear in Courts and represent the case of their parties. The qualification is of the knowledge of the law and 9
the enrollment under the Act. If constituted attorneys of all the parties are allowed to appear, the Court would be overrun by any number of unqualified, unenrolled persons. Since Civil Procedure Code would generally apply to a Family Court under Section 10 of the Act, the restraint upon appearance under Order 3 of the Code must hold good.
14.In the case of Pavithra Vs. Rahul Raj (AIR 2003 MADRAS 138 it has been held that the recognized agent of the party in a Family Court proceedings cannot be allowed to prosecute it. Considering the various provisions of the Family Courts Act which follow the procedure different from the Civil Courts, it is observed that the parties themselves can be heard. Some times legal assistance can be provided. However, personal appearance of the parties is inevitable to comply with the mandatory provisions of the Family Courts Act. Though the authorized agent, who is not a legal practitioner can file a petition, he can only prosecute or defend it or represent the party only until the Family Court passes an order directing the party to appear in person depending upon the facts and stage of the case. In that case the constituted attorney sought 10
permission to defend the case on the ground that she was not able to come to India to contest the case. Such a permission, it was held, could not be granted.
15.In the case of Sudha Kaushik Vs. Umesh prasad Kaushik (AIR 2005 GUJARAT 244) upon considering the law under normal circumstances as aforesaid it was held since that case the petitioner’s life was in danger his father was allowed to represent his son in the interest of justice though it was held that in normal circumstances any citizen or party is not allowed to be represented by his power of attorney unless he is an Advocate of the Court.
16.Consequently both the orders of the Family Court, Bandra, Mumbai dated 23.09.2009 are correct and cannot be interfered with. Writ petition is dismissed.
(R. S. DALVI, J.)
Kerala HC- ‘Infidelity over phone ground for divorce’
KOCHI: Divorce can be granted on the ground of cruelty if a spouse maintains illicit relationship over phone, the Kerala high court has held.
The ruling by a division bench comprising Justices Antony Dominic and P D Rajan came while considering an appeal against Thalassery family court’s order denying divorce to a man on the ground of cruelty despite proving on the basis of his wife’s telephone records that she maintained an illicit relationship.
Phone records had shown that the wife used to call her childhood ‘friend’ for long hours during day and night while the husband was working abroad.
To decide the question whether maintaining such close relationship with another person over phone amounts to cruelty for granting divorce, the high court relied on a decision by the Supreme Court in 2004.
In A Jayachandra v Aneel Kaur case of 2004, the SC had held, “To constitute cruelty, the conduct complained of should be ‘grave and weighty’ so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than ‘ordinary wear and tear of married life’.”
Granting divorce to the husband, the high court held, “If the evidence in this case is appreciated in the light of the principles laid down by the apex court, we are satisfied that the evidence clearly indicated that the conduct of the wife rendered it impossible for the husband to live with her without mental agony, torture, or distress.”
The wife is an educated lady and she having maintained an illicit relationship cannot avoid the consequences nor can the husband be expected to suffer on the ground that he has two children, the court held.
To get entire Judgment pls Click Here
Bombay HC:- Once the Decree of Divorce is granted then the Application u/s 18 of HAMA becomes infructuous.
“7. It may be mentioned that in view of the merits of the case of the parties in the divorce petition, the wife would not have been granted alimony. Hence she did not prosecute any application for alimony in that petition and chose to maintain a separate application in another Court. ”
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 86 OF 2013
IN
CRIMINAL APPLICATION NO. 608 OF 2012
IN
CRIMINAL WRIT PETITION NO. 1280 OF 2011
Shri. Ganesh Madhukar Mestry .. ApplicantVs.
Smt. Surekha Ganesh Mestry & Ors. .. Respondents
Mr. Pramod Pawar for the Applicant.
Mr. P. N. Kulkarni for Respondent No.1.
Mr. A. B. Shinde for Respondent Nos.4, 5 & 6.
Mrs. A. A. Mane, APP for the RespondentState.
AND
CRIMINAL APPLICATION NO. 608 OF 2012
IN
CRIMINAL WRIT PETITION NO. 1280 OF 2011
AND
CRIMINAL WRIT PETITION NO. 1280 OF 2011
Smt. Surekha Ganesh Mestry & Ors. .. Applicant
Vs.
The Senior Inspector of Police & Ors. .. Respondents
Mr. P. N. Kulkarni for the Applicant/Petitioner.
Mr. A. B. Shinde for Respondent Nos.4, 5 & 6.
Mrs. A. A. Mane, APP for the RespondentState.
CORAM : MRS. ROSHAN DALVI, J.
DATE : 7
th MARCH, 2013.
P.C.
1. This writ petition is filed by the petitionerwife for production of
the respondenthusband through the Senior Inspector of Police on the ground
that the order of the Family Court dated 6th December, 2004 directing him to
pay maintenance and which was brought into execution has not been satisfied
or complied and the respondenthusband has not been found.
2. The order of maintenance of the Family Court dated 6th December,
2004 is an ex parte order. It was passed when the husband and wife both
were absent. The wife’s Advocate was present. Upon the averments in the
affidavit of evidence filed by the wife and without any crossexamination the
order of maintenance came to be passed granting her the maintenance prayed
for. That was sought to be carried in execution.
3. The application of the wife was under Section 18 of the Hindu
Adoption and Maintenance Act (HAMA). The petitionerwife was no longer
wife at the time of the passing of the order. She was already divorced on
21.04.2003 by Civil Judge Senior Division, Ratnagiri on the ground of mental
cruelty made out by the husband. The decree of divorce was not ex parte. It
was upon contest. It was contested by the wife and the wife was represented
by her Advocate. She had crossexamined the husband. The learned Judge
found from the evidence that there was mental cruelty and granted a decree of
dissolution of marriage on the ground of mental cruelty. The wife knew about
decree. Yet the wife did not inform the Family Court about the decree. It was
for the wife to apply for permanent maintenance under Section 25 of the
Hindu Marriage Act. She has not filed a counter claim. She did not apply for
such maintenance. She did not lead evidence. She did not crossexamine the
husband on the ground of alimony and permanent maintenance. Issue in that
behalf was not raised. It did not even have to be answered. The wife did not
contest or apply for that at all.
4. The wife’s petition separately filed in the Family Court under
Section 18 of the HAMA would become infructuous when the marriage is
dissolved by a decree of divorce by the competent Court. That decree of
divorce was not challenged. Hence the wife’s application becomes
infructuous. Yet the Advocate on behalf of the wife prosecuted that
application ex parte and the order came to be passed.
5. Thereafter the wife laboured over that order in execution.
6. The husband had remained at large. He neither appeared before
the Court nor did he inform that the wife’s application had become infructuous
nor complied with the order. The husband appears to have challenged the
order belatedly. He filed his appeal in this Court in 2007 before the Division
Bench. It was delayed. The delay was not condoned. Hence the appeal came
to be dismissed. On that premise the wife continued her application for
execution of the order of the Family Court obtained ex parte. That order could
not have been passed in view of her divorce on the ground of her own mental
cruelty held to have been perpetrated upon the husband. Hence the order is a
nullity. The entire effort in execution is in vain.
7. It may be mentioned that in view of the merits of the case of the
parties in the divorce petition, the wife would not have been granted alimony.
Hence she did not prosecute any application for alimony in that petition and
chose to maintain a separate application in another Court.
8. Consequently the main prayer in the writ petition itself cannot be
granted.
9. The husband has been procured by the relevant police officer
upon a warrant executed by the Court. The warrant is cancelled. Writ
petition is dismissed.
10. Criminal Application of the husband is accordingly granted.
11. Criminal Application of the wife is dismissed.
12. Execution Application in the Family Court itself does not survive
and cannot continue.
(ROSHAN DALVI, J.)
http://bombayhighcourt.nic.in/generatenew.php?path=./data/criminal/2013/&fname=WP128011070313.pdf&smflag=N
Punjab & Haryana HC- The petition for restitution of conjugal rights and for dissolution of marriage could not be decided in two different Courts.
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
TA No. XXX of 2011
Date of decision August 21, 2012
XXXXXXXXX ……. Petitioner
Versus
XXXXXXXXXX …….. Respondents
CORAM: HON’BLE MR. JUSTICE K. KANNAN
Present:- Mr. Vikram Singh, Advocate for the petitioner.
Mr. Pritam Saini, Advocate for the respondent.
****
1. Whether reporters of local papers may be allowed to see the judgment ?
2. To be referred to the reporters or not?
3. Whether the judgment should be reported in the digest?
K. Kannan, J (oral).
1. The petition is filed at the instance of the husband for transfer of matrimonial proceedings started by the wife in the Court at Kurukshetra under Section 13 of the Hindu Marriage Act. It appears that there is yet another petition for restitution of conjugal rights filed under Section 9 which is pending in the Court at Panipat. On an earlier plea by the wife for transferring the proceedings from the Court at Panipat to Kurukshetra this Court has rejected the claim of the wife attributing that her conduct did not deserve the prayer that she was asking for. The petition is filed on the ground that the petitioner is keeping the children and both of them are of tender in age and it would be inconvenient to transfer the case to be tried in\some other Court.
2. At the previous date of hearing this Court had directed the petitioner to bring the children to Court and also made observation that the wife was also at liberty to come to Court and claim their custody. Counsel appearing on behalf of the respondent states that she is not in a position to claim the children for custody at present. Even apart from the question of convenience when the petitioner is holding custody of the children, I would find that the petition for restitution of conjugal rights and for dissolution of marriage could not be decided in two different Courts. They are to be taken up by the very same Court to adjudicate the rights of the parties. Counsel for the respondent states that she is apprehensive about going to Panipat since the husband is giving threats to her that he will teach her a lesson. The wife and the husband have learnt enough lessons by their separation. I do not think there should be a fresh lesson to be taught. They will exercise restraint and not indulge in any act that will cause apprehension for the safety of one by the other. The respondent is at liberty to approach the Court and inform of any difficulty that she faces in orderly conduct of the trial. The application for transfer is allowed.
3. The case which is pending before the Court at Kurukshetra initiated by the wife is ordered to be withdrawn and transferred to the District Court at Panipat. The parties shall bring to the notice of the Court the pendency of application for conjugal rights and the Court will take up both the cases for joint disposal.
4. At every hearing when the wife turns up in Court the petitioner shall pay `500/- towards transportation charges. This shall be independent of any application for maintenance that the wife might have against the husband. The trial Court shall ensure strict compliance of the directions for transportation expenses as provided above.
5. The parties shall appear before the Court at Panipat on 12.9.2012.
(K. KANNAN)
JUDGE
August 21, 2012
archana
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
29.07.2010
Harbans Lal Malik … Petitioner Through: Mr. Dharam Raj, Advocate
Versus
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
Versus
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
Versus
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.
JUDGMENT
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:- 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
CM(M) 1146/2007
16.10.2008
Sujata Aggarwal …Petitioner Through: Mr. Manu Nayar with
Mr. Hameed S. Shaikh, Advs.
Versus
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.
JUDGMENT:
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.
ak
Mumbai High Court:- WIFE OR HER PARENTS Cannot claim Marriage expense. Also the right to claim permanent alimony is dependent on the conduct and the circumstances involved.
Mumbai High Court
Sudha Suhas Nandanvankar vs Suhas Ramrao Nandanvankar
on 15/9/2004
JUDGMENT S.B. Mhase, J.
1. This appeal is directed against the Judgment and Order passed in Misc. Application No. 60 of 2000 on 5-8-2000 by the Family Court, Bandra in an application preferred under Sections 27 and 25 of the Hindu Marriage Act, inter alia, making prayer that the stridhan of the applicant be returned and also permanent alimony be granted. The said application was partly allowed by the Family Court. However, in respect of part rejection of the application, this appeal has been preferred.
2. The applicant was married with the opponent on 21-5-1995 according to Hindu Laws. The said marriage has been annulled by a-decree of nullity dated 16-3-1996 on a ground that the applicant-wife was suffering from epilepsy at the time of marriage. Even though the said decree was ex-parte, the said decree was not challenged by the applicant-wife. However, after passing of the said decree, the notice was issued by the applicant for return of the articles which were presented to her at the time of marriage by her parents as per the list. It is further claimed that the expenses incurred for the said marriage of Rs. 31,876/- be returned. During the pendency of this application the applicant-wife further submitted the application (Exh.16) for return of the articles and jewellery which was presented to her by her in-laws at the time of marriage. She has further claimed permanent alimony. The Family Court has rejected the claim of Rs. 31,876/- which was incurred by the parents of the’ applicant-wife for the purposes of marriage expenses on the ground that there is no provision to return such amount. At the time of argument of this matter, the learned Counsel for the appellant-wife fairly conceded that there is no provision for return of such marriage expenses and therefore, unless there is a provision to that effect, the trial Court was justified in rejecting the claim for the marriage expenses to the extent of Rs. 31,876/-. The trial Court has also rejected the claim in respect of the golden articles and jewellery as listed in (Exh.16). This appeal is mainly directed against the said finding of the trial Court. We need not go to list of those articles but what we find that all these articles, as per the claim made by the applicant-wife, have been presented to her by the in-laws viz. mother-in-law, sister-in-law i.e. (sister of the husband), another sister-in-law i.e. the wife of the brother of the husband and so on. Naturally, as these Articles have been presented by the in-laws, the applicant has not produced any evidence to demonstrate that these articles were purchased by her in-laws at any point of time. However, she had entered into witness box and stated that these articles were presented to her. In order to support her testimony, she has produced the photographs which were taken at the time of marriage wherein these articles were reflected as having been put on her and thereby claiming that these articles were with her and they have not been returned by the husband. Since they found to be stridhan, she is entitled to return of the same. The husband has denied that such articles were ever presented to the applicant-wife. According to him these articles were not presented at any point of time and he further made a suggestion in the cross-examination that these articles were of the parents of the appellant-wife which were put on by her parents in order to have a show of the presentation of such articles and he calls it as a “mandap show”. Such suggestion has been denied by the applicant-wife. However, it is pertinent to note that if these articles were presented to her, she should have examined some witnesses who were present at the time of marriage in the presence of whom these articles were presented by her in-laws. However, she has not examined her father and mother. She has not examined any friend who may be accompanied her at the time of said marriage ceremony to demonstrate that such articles were presented during the marriage ceremony to her. As against this, what we have noticed that the respondent-husband has entered into witness box to depose that such articles were not presented. Apart from that respondent-husband has examined his parents. The parents have also stated that such articles were not presented to the appellant-wife and therefore, the respondent has brought on record the primary evidence to demonstrate that such articles were never presented. Learned Counsel for the applicant tried to submit that since these articles will have to be returned to the appellant-wife, the respondent and his parents are making statements that such articles were not presented. However, what we find that in that eventuality, these witnesses have been cross-examined and nothing have been brought in the cross-examination to demonstrate that these witnesses were supressing the truth. We have gone through the evidence of the parents and noticed that the evidence is convincing one and the trial Court has rightly appreciated the evidence. Therefore, we find that appellant has failed to establish that such articles were presented by her in-laws in the marriage ceremony.
3. Apart from this, we have taken into consideration that when the first notice was given the articles mentioned in the list Exh.16 were not demanded. Not only that when the application was filed, in the said application there was no demand for the articles. It is during the pendency of the application, the Exh.16 was submitted to the Family Court making claim towards specific articles. Those articles were golden and jewellery articles and such important stridhan will not be forgotten by the appellant-wife till the pendency of the application. In that context it is reflected that it is a after thought decision to claim the articles and we find that the observation and finding recorded by the Family Court are proper and justified one and we find that there is no merit in the submission of the learned Counsel that the Family Court should have allowed the list (Exh.i6).
4. So far as the articles which are directed to be returned to the appellant-wife, we find that the findings have been rightly recorded and no interference is called for. Apart from that there was a counter appeal filed by the first party challenging the said order. The said appeal is withdrawn by the respondent-husband as not pressed and therefore, we confirm that part of the Family Court’s order.
5. The last question which requires consideration is in respect of the alimony. It is an admitted fact that the decree for nullity has been passed under Section 5(ii)(c) since the appellant was suffering from epilepsy. Since the learned Advocate for the appellant submits that under Section 25 the alimony has to be paid at the time of passing of the final decree. He relied on the decision in the case of Shantaram Tukaram Patil and anr. vs. Dagubai Tukaram Patil and ors. reported in 1987 Mh.LJ. 179. He further pointed out that the said Judgment is relied upon by the single Judge in a subsequent Judgment in the case of Krishnakant vs. Reena reported in 1999 (1) Mh.LJ. 388 and submitted that even though the decree of nullity was passed the petitioner is entitled to claim alimony under Section 25.
The learned Counsel for the respondent submitted that both these Judgments have considered the aspect that the entitlement of the party for permanent alimony and more specifically right of the wife. However, he submitted that the said right is available on condition that taking into consideration the conduct and the circumstances of case the Court is satisfied that alimony shall be granted. According to him after marriage, immediately there was a “Satyanarayan Pooja” and for the first time husband and wife came together. The respondent-husband found that the appellant-wife is a patient of epilepsy and on the next day, he has called on to the parents of appellant-wife and the father of the appellant came along with the Doctor to discuss. Learned Counsel further stated that the father requested respondent to allow the appellant to stay with respondent and the medical expenses will be borne by the father of the appellant. He submitted that thus the fact that the appellant was suffering from epilepsy was not disclosed at the time of settlement of marriage and till the marriage is performed. He further submitted that even though on 1 or 2 occasions, prior to the marriage there was a meeting of respondent husband and appellant-wife, still the appellant wife has not disclosed that she is a patient of epilepsy. Thus he submitted that the conduct of the appellant and her parents in not disclosing that the appellant wife is suffering from epilepsy is itself a fraudulent and therefore, the party which takes the benefit of it, shall not be allowed to take such benefit and this circumstance may be taken into consideration. Relevant portion of Section 25 of the Hindu Marriage Act, 1955 is as follows :- Section 25.- Permanent alimony and maintenance – (1) Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having reward to the respondent’s own income and other property, if any, the income and other property of the applicant, (the conduct of the parties and other circumstances of the case), it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent. In the facts and circumstances of the present case what we find that since the decree for nullity of marriage is passed under Section 5(ii)(c) we have to consider as to whether order for amount of alimony is to be passed. In view of the above referred 2 Judgments which have been relied by the Counsel for the appellant, we do not find any difficulty to conclude that in such a decree the wife is entitled to have a permanent alimony. However, whether the conduct of the parties and other circumstances involved in this case will allow us to pass such order is the main question. It is an admitted fact that the marriage was celebrated on 21-5-1995 and within 4 days from the date of marriage, ‘Satyanarayan Pooja’ was performed in the matrimonial home and thereafter husband and wife were allowed to stay with each other. However, when it was found that the appellant-wife is suffering from epilepsy the marriage was not consumated and on 27-5-1995 the respondent-husband has contacted the appellant’s father. The applicant’s father and mother accompanied by the Doctor attached to the Poddar hospital came to the house of the respondent-husband and thereafter they discussed about the fact of suffering of the epilepsy. The appellant’s father showed willingness to incur the medical expenses for the treatment of the appellant. However, he requested the Respondent to allow the appellant to stay in the house of the respondent-husband. This was not accepted by the respondent and therefore, the father of the appellant has taken the appellant and thereafter, a petition for nullity of marriage was filed in which ex-parte decree was passed. The said decree is not challenged. Thereafter, the applicant has filed this application for the permanent alimony. It is pertinent to note that the parents and/or father of the appellant have not entered into a witness box either to depose that the fact of the epilepsy was disclosed to the respondent husband at the time of settlement of carriage nor the appellant has stated in her evidence that at any point of time prior to the marriage when they have seen each other said fact was disclosed to the respondent-husband. Therefore, the only inference is that till the marriage is performed the respondent was not aware of the fact that the appellant is a patient of epilepsy. The moment he got knowledge, he has not consummated the marriage and called the parents of the appellant and thereafter appellant was taken by the parents. This shows that had the fact been disclosed prior to the performance of the marriage, the respondent-husband would not have conducted such marriage with the appellant-wife. The non disclosure by the parents of the appellant and the appellant accepting the decree as it is without making any grudge that in respect of the ground that the appellant was suffering from the epilepsy prior to the marriage reflects upon the conduct of the appellant and if we take into consideration this aspect what we find is that the appellant is trying to take advantage of her wrong or fraud and is trying to harass the respondent by claiming the amount of alimony. But what we find is that after a decree of annulment the respondent has married and he is having a child. Now this appears to be an attempt on the part of the appellant and her parents to disturb the marital life of the respondent which he has tried to settle after annulment of the marriage. This is an attempt to shift the liability of maintenance by the appellant-wife on a husband who was not at fault and who has not consummated the marriage. Even though the law permits the right of the alimony in favour of the appellant, however, the conduct and the circumstances involved in the present case does not permit us to pass an order of permanent alimony in favour of the appellant. We find that the findings recorded by the Family Court are just and proper and no interference is called for.
6. In the result, we find that there is no substance in the appeal and hence, appeal is hereby dismissed with no order as to costs.
Bombay HC- Husbands condition to tender unconditional apology for filing criminal complaint and publish in the newspaper allowed by Court.
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nsc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO. 142 OF 2011
Rushabh Parekh …Appellant
Vs.
Meghna Parekh Nee Vora …Respondent
WITH
CRIMINAL APPLICATION NO. 419 OF 2012
IN
CRIMINAL APPLICATION NO. 4324 OF 2009
Rushabh Sudhir Parekh and Ors. …Applicants
Vs.
The State of Maharashtra and Anr. …Respondents
WITH
CRIMINAL APPLICATION NO. 830 OF 2012
Meghna Parekh Nee Vora. …Applicant
Vs.
The State of Maharashtra and Anr. …Respondents
WITH
CRIMINAL APPLICATION NO. 2131 OF 2008
Meghna Rushabh Parekh …Applicant
Vs.
The State of Maharashtra and Anr. …Respondents
WITH
CRIMINAL APPLICATION NO. 5232 OF 20102/7 fca.142-11.doc
Meghna Rushabh Parekh and Anr. …Applicants
Vs.
The State of Maharashtra and Anr. …Respondents
WITH
CRIMINAL REVISION APPLICATION NO. 274 OF 2007
IN
CRIMINAL APPLICATION NO. 156 OF 2010
Meghna Parekh Nee Vora …Applicant
Vs.
The State of Maharashtra and Ors. …Respondents
WITH
CRIMINAL WRIT PETITION NO. 2491 OF 2008
Meghna Parekh Nee Vora …Petitioner
Vs.
The State of Maharashtra and Anr. …Respondents
********
Mr. Avinash Avhad i/b Mrs. Racheeta R. Dhuru for the Appellant in FCA no. 142 of 2011, for the Applicant in Cr.Appln. no. 419 of 2012, for Respondent nos. 2 to 4 in Cr. Revision Application no. 274 of 2007, for Respondent no. 2
in Cr. Writ Petition no. 2491 of 2008.
Mr. Shyam Mehta, Senior Advocate with Mr. A.H. Ponda, Senior Counsel i/b. Kalpesh Joshi for Respondent in FCA no.
142 of 2011, for Respondent no. 2 in Cr.Appln. no. 419 of 2012, for the Applicant in Cr.Appln. no. 830 of 2012.
Mr. A.H.H. Ponda for the Applicant in Cr.Appln. no. 2131 of 2008 and Cr. Appln. no. 5232 of 2010.
Mrs. Racheeta R. Dhuru for Respondent no. 2 in Cr. Appln. no. 2131 of 2008.3/7 fca.142-11.doc
Mr. S.V. Kotwal, for Respondent no. 2 in Cr. Appln. no. 5232 of 2010.
Smt. V.R. Bhosale, APP for State.
Rushabh Parekh, Appellant present in-person.
Meghna Parekh Nee Vora, Respondent present in person.
********
CORAM: V.M. KANADE &
P.D. KODE, JJ.
DATE : 4th September, 2012.
P.C.
1. Both the parties have filed consent terms which were taken on record by this court by order dated 30th August, 2012. In clause (2) and (3) of the consent terms, the respondent had agreed to publish an apology in Time of India newspaper and Mumbai Samachar newspaper on Page 3 and in terms of clause (4) only after the said condition was complied, it was agreed that both the parties will proceed further to act upon the present consent terms
2. We have perused the consent terms. We are satisfied that the amicable settlement of the disputes between the husband and wife and in laws of the either side are in the best interest of the husband and wife and their families also. Matrimonial disputes between the parties not only disrupted the family life of the husband and wife but had also resulted into several criminal cases being filed by either side.
Allegations and counter allegations were levelled against each other by both the parties. After a suggestion was made by this court, both the parties have now resolved the dispute and differences which have arisen between them and that resulted in filing of the consent terms. The respondent-wife has filed a petition for divorce in the Family Court, which was allowed and against the said Judgment and decree passed by the trial court an appeal was preferred by the husband in this court. Decree is passed in
terms of consent terms. Decree be drawn up accordingly.
The appellant-husband has now agreed to withdraw the appeal, so that the Judgment and decree passed by the Family Court could get confirmed by virtue of the withdrawal of the appeal. In our view, it is in the interest of both the parties to start their life afresh on a clean slate instead of fighting against each other in various civil and criminal proceedings.
3. The Apex Court in number of cases viz., B.S. Joshi & Others v/s. State of Haryana and Another (AIR 2003 SC 1386), Abasaheb Yadav Honmane v/s. State of Maharashtra, 2008 (1) Bom. C.R.(Cri.) 584, Mansur A. Khan v/s. State of Maharashtra, 2004(Supp.2) Bom.C.R. 693 : 2004 All. M.R. (Cri.) 1911 and Jitendra S. Bhadoria v/s. State of Maharashtra, 2009(1) Bom.C.R.(Cri.) 688:2008 All.M.R.(Cri.) 898 has held that the High Court while exercising its inherent jurisdiction under Section 482 of the Code of Criminal Procedure and under Article 226 of the Constitution of India is empowered to quash criminal proceedings, if the court comes to the conclusion that the said settlement of dispute between the parties is genuine and it is in the best interest of both the parties and secondly, the court is to be satisfied that the dispute between the parties is personal one. In our view the ratio of the said Judgments clearly apply to the facts of the present case.
4. The Respondent no. 2 has now complied the said condition nos. 2 and 3 by publishing an apology in Times of India newspaper and Mumbai Samachar newspaper. Learned Counsel for the Appellant-husband submits that since the said condition has been complied with, the criminal proceedings pending against the appellant and the respondents may be quashed and set aside.
5. Following complaints accordingly are quashed and set aside :-
a) Criminal case no. 431/PW/2006 is filed by the State of Maharashtra against the appellant and his parents-respondent no. 2 and 3, under the provisions of Section 498A and 406 r/w Section 34 of the Indian Penal Code tried by the Metropolitan Magistrate, 5th Court, Dadar who was pleased to acquit the appellant and respondent nos. 2 and 3. Against the said Judgment and Order passed by the trial court the State had preferred an appeal against acquittal in this court. However, in view of the amendment to section 378, this court had directed the State to file an appeal in the Sessions Court. In our view, since both the parties have amicably settled the dispute and since the consent terms have been filed, it will be appropriate if the complaint itself is quashed, so that the question of State filing a further appeal against the acquittal in the Sessions Court will not arise. Hence the Criminal Application filed by the
Appellant-husband being Criminal Application no. 419 of 2012 is allowed in terms of prayer clause (a) and is disposed of.
b) The private complaint filed by respondent no. 2 in CMM, 5th Court, Dadar against the respondent no. 1, under the provisions of Sections 465, 467, 468, 471, 420 r/w Section 120B of the Indian Penal Code which was registered as MECR no. 4 of 2007
is also quashed and set aside. The charge-sheet also therefore does not survive. Hence Criminal Application no. 830 of 2012 is allowed.
c) Similarly, respondent no.2 also had filed a criminal complaint no. 286/M/2007 for the offence punishable under Section 500 of the Indian Penal Code. In view of the amicable settlement between the parties, the said complaint is quashed and criminal application no. 2131 of 2008 is allowed.
d) Criminal complaint filed by the appellant under Section 500 of the Indian Penal Code and pending before the CMM, 5th Court, Dadar against the respondent no. 1 and her sister Sonali Gandhi is also quashed and set aside and criminal application no. 5232 of 2010 is allowed.
e) Criminal Revision Application no. 274 of 2007 filed by the wife against the appellant-husband is dismissed as withdrawn.
6. Both the parties have withdrawn all allegations which have been made in the petition and in the criminal complaints.
7. All the petitions/applications accordingly are disposed of in the aforesaid terms.
(P.D.KODE. J.) (V.M. KANADE J.)
Gladiator 