IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION
NO. 350 of 2016
DILIPBHAI MOTIBHAI SONARA….Applicant(s)
KAJALBEN W/O DILIPBHAI SONARA D/O HIRABHAI VAGHJIBHAI CHHAIYA & 1….Respondent(s)
MR.DEVENDRA H PANDYA, ADVOCATE for the Applicant(s) No. 1
MR ASHISH M DAGLI, ADVOCATE for the Respondent(s) No. 1 – 2
CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 04/07/2016
1. Rule. Learned advocate Mr. Ashish M. Dagli waives service of notice of rule on behalf of respondent Nos. 1 and 2.
- Heard learned advocate Mr. Devendra Pandya for the applicant and learned advocate Mr. Ashish Dagli for respondents. Perused the record.
- Petitioner herein is husband, whereas respondent No.1 is wife and respondent No.2 is their minor son. The petitioner has challenged the judgment and order dated 24.02.2016 in Criminal Misc. Application No.205 of 2013 by the Family Court, Rajkot. By such impugned judgment, the Family Court has awarded an amount of Rs.5000/- towards maintenance of wife and Rs.3000/- towards maintenance of minor son with cost of Rs.10,000/- The Family Court has awarded an amount of Rs.2,00,000/- as lumpsum amount for the purpose of provision for residence.
- The petitioner has challenged such order on several grounds. However, if we peruse the impugned judgment, it becomes clear that present petitioner has defended the claim of maintenance before the Family Court. The petitioner has adduced his own evidence, so also examined two witnesses and produced relevant documentary evidence either to prove his income so also income of the wife. However, the fact remains that so far as income of the wife is concerned, the land in question is not owned by her and, therefore, at the most, she may get some labour charges as agricultural laborer, if at all she is able to do agricultural work. Whereas it is the case of the petitioner husband that wife is working in Beauty Parlour and earning Rs.10,000/-. However, there is no supporting or corroborating evidence to that effect except pleadings and statement by the petitioner.
- As against that, petitioner is also owning 11 hectares of agriculture land though it is stated that some of the plots of land owned by his sister. It has also come on record, that his sister is unmarried and she is also serving as a teacher and earning Rs.15,000/- per month. Even evidence of the petitioner husband has confirmed such situation and, therefore, there is reason to believe that husband is having reasonable income and thereby he can certainly maintain his wife and son.
- Considering the rival submissions, when petitioner has not disclosed his correct income or relevant evidence for consideration of his income, the Family Court has relied upon the legal provisions regarding adverse inference and held that petitioner must be earning Rs.15,000/- for awarding compensation to his wife and minor child. Therefore, considering overall facts and circumstances so also requirement of wife to stay with dignity, the Court has awarded such amount as maintenance for two living persons and, therefore, I do not see any reason to reduce the same.
- However, so far as additional amount of Rs.2,00,000/- towards provision of residence is concerned, it is clear that the Family Court has misinterpreted the decision in the case of Lomalam Amma vs. Kumara Pillai Raghavan Pillai reported in AIR 2009 SC 636 because, though it is true that provision for maintenance must include provision for residence with provision for food and clothing etc. and thereby though basic need of roof over head is to be considered and, therefore, though the Honourable Supreme Court has stated that provision for residence may be made either by giving lump sum in money or properties in lieu thereof or by providing money for necessary expenditure or by giving life interest in property, it becomes clear that under the provisions of Section 125 of the Code of Criminal Procedure, the Court is empowered to make arrangement for maintenance of wife which may include consideration for provision for residence but in my considered view, the Court while passing an order under Section 125 of the Code of Criminal Procedure does not have jurisdiction to award lump sum amount towards residential accommodation though it can be awarded under the provisions of Domestic Violence Act. It cannot be ignored that in such cited decision, the Honourable Supreme Court was dealing with the relief of maintenance under Hindu Adoption and Maintenance Act and not under provisions of Section 125 of the Code of Criminal Procedure. It is quite clear and obvious that both under Hindu Adoption and Maintenance Act and the Protection of Women from Domestic Violence Act, wife can claim a separate residential accommodation or provision for it and competent Court can grant such relief, but there is no similar power vested in the Court while dealing with the application under Section 125 of the Code of Criminal Procedure wherein jurisdiction of the Court is limited for making immediate arrangement for livelihood of the wife and children, though such maintenance must be enough for the wife to live with dignity. However, at the same time, such living should not be luxurious, though she should not be left to live in discomfort.
- Therefore, though amount of monthly maintenance may not be disturbed, so far as lump sum amount for residential accommodation is concerned, the same needs to be quashed and set aside. Otherwise also it is quite clear and obvious that an amount of Rs.2,00,000/- would not be sufficient for residential accommodation in a city like Rajkot where wife is residing. In such circumstances, practically while considering quantum of maintenance to be paid to the wife, the Court can consider the proper amount of residential accommodation. In the present case, when Court has awarded total Rs.8,000/- towards maintenance of both applicants from the total income of Rs.15,000/-, it is made clear that this amount includes the provisions for rental accommodation and considering all such aspects, such amount is not reduced to any extent.
- For arriving at such conclusion, I am placing reliance on the following decisions: (1) Minati Binati Nayak vs. Govranga Charan Nayak reported in 1995 Cri.L.J. 3569. (2) Vardappa Naidu vs. Thayarammal reported in 1990 (3) Crimes (HC) 706. (3) Chaturbhuj vs. Sita Bai reported in AIR 2008 SC 530
- In view of above facts and circumstances, revision is partly allowed. Thereby impugned order so far as lump sum amount of Rs.2,00,000/- for the purpose of residence is quashed and set aside. Rest of the order regarding maintenance would remain in force. Interim relief shall stand vacated. Rule is made absolute accordingly.
In the High Court of Judicature at Madras Dated 08.07.2013 Coram The Honourable Mr.Justice R.SUBBIAH Criminal Original Petition section 482 of Criminal Procedure Code, to direct the 2nd respondent to register an FIR on the petitioner's complaint dated 04.02.2013, investigate the same and file a final report in accordance with law. For Petitioner : Mr.J.Saravanavel For Respondents : Mr.C.Emalias, A.P.P., ORDERof 2013 Karthick ..Petitioner ..vs.. 1. The Commissioner of Police, Chennai. 2. The Inspector of Police, E-4, Abiramapuram Police Station, Chennai-600 028. ..Respondents Criminal Original Petition filed under
The present petition has been filed seeking for a direction to the 2nd respondent to register a case on the petitioner’s complaint dated 04.02.2013, investigate the same and file a final report in accordance with law.
2. Case of the petitioner, in brief, is as follows:
Petitioner is the husband of one Narayanee @ Krithika. A case in HMOPof 2007 is pending between the petitioner and his wife before the Family Court at Chennai. In the said petition, apart from other miscellaneous petitions, , 1649 and 2429 of 2010 and 2035 of 2011are pending; of which, and 1649 of 2010 have been filed by the wife on behalf of the minor child Keerthana to enhance the maintenance and to pay the educational expenses respectively. of 2010 has been filed by the wife to strike off the defence and of 2011 has been filed by the petitioner to revise the order of maintenance. During the said enquiry in the said I.As., on 09.04.2004, 23 documents were filed by the wife Krithika through her power agent Viswanathan and the same were marked as to P-23. Among which, is a document, which is claimed by the said Krithika to be a document issued by the Regional Passport Officer, Delhi, Ministry of External Affairs, Government of India.
3. It is the further case of the petitioner that the said document is a non-existent and a forged document. The petitioner was informed by the Ministry of External Affairs by a letter dated 10.06.2012 that it seems to be a fabricated/forged document. The petitioner made a complaint dated 04.02.2013 to the 1st respondent seeking to initiate appropriate criminal proceedings for forgery and perjury against Krithika and her power of attorney Viswanathan for having fabricated a document and producing the same before the Family Court as evidence, and the same was forwarded to the 2nd respondent for taking action; but the 2nd respondent did not take any action. Hence, the present petition has been filed to register a case on his complaint.
4. Heard the learned counsel for the petitioner as well as the learned Additional Public Prosecutor.
5. It is the case of the petitioner that in a case pending between him and his wife in HMOPRTI Act to verify, whether is a genuine document or or not? But the Regional Passport Officer sent a reply dated 10.06.2012 that the document seems to be a fabricated/forged document. That apart, the petitioner had received a reply dated 05.07.2012 from the Regional Passport Officer in response to the RTI Application dated 26.04.2012. The questions raised by the petitioner in his letter dated 26.04.2012 with regard to and the answers given by the Regional Passport Officer by his letter dated 10.06.2012 are as follows:of 2007 before the Family Court, Chennai, his wife marked a document purported to be issued by the Regional Passport Officer, Ministry of External Affairs, Government of India and the same was marked as . It is the case of the petitioner that the said document is a forged one and, hence, the petitioner had sent an application on 16.04.2012 to the Ministry of External Affairs under
Questions raised by the petitioner Reply given by the Department
1. Whether this document is issued by you ?
2. If it is issued by you, on what basis you have issued (as my passport comes under regional passport office at Chennai) and also on what basis you have mentioned various contents of the document?
Not issued by this office.
3. Whether you have issued any other document(s) relating to me to Narayanee ?
No. No record is available
6. After getting these answers from the Regional Passport Officer, the petitioner has lodged a complaint with the 1st respondent police to initiate action against his wife and power agent for their involvement in producing a false document before the court, which is punishable under the provisions of Indian Penal Code. The said complaint which was given to the 1st respondent was forwarded to the 2nd respondent and the 2nd respondent, after recording the statement of power agent, has raised a doubt with regard to the jurisdiction of police investigating the offence. Therefore, they have not taken any further action in the matter. On 06.05.2013, the petitioner sent an application under the RTI Act to know about the status of the complaint. But the Inspector of Police, the 2nd respondent sent a reply dated 17.05.2013 to the queries raised by the petitioner. The questions raised by the petitioner and the answers given by the 2nd respondent are as follows:
Questions raised by the petitioner Reply given by the 2nd respondent
1. Whether FIR has been filed on the said accused – if it is so, in what sections and the present stage of the proceedings on the FIR.
No case registered against the petition dated 04.02.2013 preferred by the petitoner Thiru S.Karthick.
2. If the FIR is not filed the specific reason for the same?
The forgery documents said in the complaint was filed by the counter petitioner in the family court is lies within the compound of the High Court the Court only decide necessary action on this if it is deem fit.
3. Copies of the petition filed by me dated 04.02.2013 ?
4. Copy of the statement if received from the accused person ?
By giving the above recorded answers, the 2nd respondent expressed doubts about the jurisdiction of the police to investigate the offence since already the document was marked in the Court. Aggrieved over the same, the present petition has been filed.
7. It is the main submission of the learned counsel for the petitioner that the 2nd respondent is having jurisdiction to entertain the complaint and investigate the same since the document was created outside the court and thereafter, filed and marked in the court proceedings.
8. Per contra, it is the submission of the learned Additional Public Prosecutor that under section 195(1)(b((ii) Cr.P.C. will operate as a bar for the police to entertain the complaint since the document was already marked in the court proceedings. The only option available to the petitioner is to invoke section 340 of Cr.P.C.before the concerned court.
9. In view of the arguments advanced by both sides, the core question that has to be considered is, whether the police authorities can register a case for creating a forged document, which was allegedly marked in the course of evidence before the Court ?
10. The judgment relied on by the learned counsel for the petitioner reported in (2005) 4 SCC 370 (Iqbal Singh Marwah and another .vs. Meenakshi Marwah and another) is giving a fitting answer for this issue. The factual aspects of the cited case would show that in a probate proceedings, the petition was contested by the respondents on the ground that the Will was forged. Hence, the respondents moved an application before the court concerned requesting the court to file a criminal complaint against the appellants. A reply to the said application was filed on 27.07.1994; but the said application was not disposed of. Hence, the respondents filed a criminal complaint before the court of Chief Metropolitan Magistrate, New Delhi for prosecution under sections 192,193, 463, 464, 465, 467, 469, 471, 499 and 500 IPC on the appellants and their mother on the ground that the Will produced by the appellants was a forged and fictitious document. The learned Metropolitan Magistrate held that the question whether the Will was a genuine document or a forged one, was an issue before the District Judge in the probate proceedings where the Will had been filed, Sections 195(1)(b)(i) and (ii) Cr.P.C. operate as a bar for taking cognizance of the offences under sections 192, 193, 463, 464, 471, 475 and476 IPC. The complaint was accordingly dismissed by order dated 02.05.1998. Subsequently, the respondents in that case filed a criminal revision against the order of learned Metropolitan Magistrate before the Sessions Court, who relying upon the case of Sachida Nand Singh .vs. State of Bihar reported in (1998) 2 SCC 493, held that the bar contained in section 195(1)(b)(ii) would not apply where forgery of a document was committed even before the production of the said document in the Court. The revision petition was accordingly allowed and the matter was remanded to the Court of Metropolitan Magistrate for proceeding in accordance with law. The appellants challenged the order passed by the learned Sessions Judge by filing a petition under section 482 Cr.P.C. before the Delhi High Court, but the same was dismissed. Aggrieved over the same, the appellants preferred S.L.P. before the Hon’ble Supreme Court, wherein it has been observed as under:
“25. An enlarged interpretation to Section 195(1)(b)(ii), whereby the bar created by the said provision would also operate where after commission of an act of forgery the document is subsequently produced in court, is capable of great misuse. As pointed out in Sachida Nand Singh after preparing a forged document or committing an act of forgery, a person may manage to get a proceeding instituted in any civil, criminal or revenue court, either by himself or through someone set up by him and simply file the document in the said proceeding. He would thus be protected from prosecution either at the instance of a private party or the police until the court, where the document has been filed, itself chooses to file a complaint. The litigation may be a prolonged one due to which the actual trial of such a person may be delayed indefinitely. Such an interpretation would be highly detrimental to the interest of the society at large.
26. Judicial notice can be taken of the fact that the courts are normally reluctant to direct filing of a criminal complaint and such a course is rarely adopted. It will not be fair and proper to give an interpretation which leads to a situation where a person alleged to have committed an offence of the type enumerated in clause (b)(ii) is either not placed for trial on account of non-filing of a complaint or if a complaint is filed, the same does not come to its logical end. Judging from such an angle will be in consonance with the principle that an unworkable or impracticable result should be avoided. In Statutory Interpretation by Francis Bennion (3rd Edn.), para 313, the principle has been stated in the following manner:
“The court seeks to avoid a construction of an enactment that produces an unworkable or impracticable result, since this is unlikely to haver been intended by Parliament. Sometimes, however, there are overriding reasons for applying such a construction, for example, where it appears that Parliament really intended it or the literal meaning is too strong”.
33. In view of the discussion made above,we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. Section 195(1)(b)(ii) CrPC would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any court i.e. during the time when the document was in cutodia legis.”
11. Therefore, a reading of the said paragraphs would clearly show that section 195(1)(b)(ii)Cr.P.C.will not operate as a bar to entertain the complaint by the police where forgery of the document was committed even before the said document was produced in the Court. In the instant case, it is the specific allegation of the complainant that the document was fabricated outside the Court and marked during the course of proceedings. Therefore, in my considered opinion, the respondents are having jurisdiction to entertain the complaint.
In view of the above reasons, the second respondent is directed to consider the complaint and if the allegations contained in the complaint discloses the commission of any cognizable offence, the second respondent is directed to register the case, investigate the same and proceed further in accordance with law. Criminal Original petition is disposed of accordingly.
Index: Yes. 08.07.2013 Internet: Yes. gl To 1. The Commissioner of Police, Chennai. 2. The Inspector of Police, E-4, Abiramapuram Police Station, Chennai-600 028. 3. The Public Prosecutor, High Court, Madras.
Gist: Wife files multiple police complaints against the husband. She has also filed maintenance cases. Husband approaches police for copy of wife’s complaint to defend his maintenance case. Police refuses the same. Husband files RTI which is initially rejected under the provisions of Sec 8(1)(g) of the RTI Act as disclosure of the same may endanger the life or physical safety of the appellant’s wife !!. CIC refuses to accept the police version and orders the police to give husband a copy of wife’s complaint.
CENTRAL INFORMATION COMMISSION
ROOM NO. 329, SECOND FLOOR, C-WING
August Kranti Bhawan, Bhikaji Cama Place,
Tel. No. 91-11-26717356
Date of Hearing : 06.08.2014
Date of Decision : 06.08.2014
Appellant : Shri V. Ayyappan,
Respondent : Shri T.Bairavaswamy,
SP/PIO UT of Pondicherry,
Information Commissioner : Shri Yashovardhan Azad
Relevant fact emerging from appeal:
RTI Application filed on : 25.09.2012
PIO replied on : 24.10.2012
First Appeal filed on : 02.11.2012
First Appellate Authority (FAA) order on : 13.12.2012
Second Appeal received on : 13.02.2013
Appellant sought a copy of the complaint, filed against him by his wife in the Police station at Puducherry with the copy of enquiry report and copies of the statements given by the appellant and Smt. S.P. Nivedha.
Relevant facts emerging during hearing:
Both the parties are present. Appellant filed an RTI application on 25.09.2012 seeking copy of the complaint, filed against him by his wife in the Police station at Puducherry with the copy of enquiry report and copies of the statements given by the appellant and Smt. S.P. Nivedha. PIO on 24.10.2012 refused to give information stating therein that the information could not be provided under the provisions of Sec 8(1)(g) of the RTI Act as disclosure of the same may endanger the life or physical safety of the appellant’s wife who resides in Puducherry. The First Appellate Authority vide his order dated 13.12.2012 directed the PIO to furnish a copy of the statement given by the appellant, if recorded, unless the statement was required for any criminal case. Appellant stated that he wanted copies of statement by his wife and the enquiry report in connection with the maintenance case going on in a civil court. He also stated that his wife had filed another complaint against him in Dindigul (Tamil Nadu), copy of which was made available to him through his RTI application.
Respondent stated that on 11.07.2012 a complaint was lodged by the appellant’s wife against the appellant and his parents regarding dowry harassment, safety and security.The appellant was called for inquiry during which both the parties agreed on 28.07.2012 through signed statements, to settle the issue by approaching the family court. Subsequently, the appellant asked for copy of wife’s complaint and the inquiry report which was denied to him by invoking exemption under section 8 (1) (g) of the RTI Act.
It is clear from perusal of records and the statements by the appellant and the respondent during the hearing that the appellant and his wife are engaged in a bitter marital dispute and maintenance case in this regard is ongoing in a civil court. Appellant’s wife filed complaints against the appellant in not one but two police stations. The Puducherry police has refused to give the copy of a complaint by the appellants wife and inquiry report, on grounds of physical safety, by invoking exemption under section 8(1) (g) of the RTI Act. The respondent was not able to clarify as to how the physical danger to the wife’s safety is enhanced by the appellant knowing the contents of her complaint, since the substance of her charges is already known through the contents of the complaint filed in another police station made available to him through another RTI Application. Since the inquiry by Puducherry Police is over and the Complainant is signatory to the letter by the both parties for approaching the family court, due to which inquiry was closed- clearly strengthens his claim to get a copy of the documents. The inquiry is also not required in other cases.
The appellant has stated that he needs the documents for his defence/strengthening his case in the maintenance suit filed in the civil court. Besides, the appellant has not asked for any personal details of his wife but only the contents of documents relating to the charges against him.
In view of above, the Commission does not accept the grounds taken by the respondents for denial of information under Section 8(1) (g) of the RTI Act. The Commission directs the respondents to provide the information sought in the RTI application to appellant, within two weeks of the receipt of this order, under intimation to the Commission.
The appeal is disposed of accordingly.
Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges prescribed under the Act to the CPIO of this Commission.
Joint Secretary & Additional Registrar
टोकाच्या स्वभावभिन्नतेमुळे अनेक विवाह मोडतात. घटस्फोटासाठी हे कारण नवीन कायद्यामुळे उपलब्ध होणार आहे. तसेच, घटस्फोटानंतर पत्नी व मुलांना पतीकडील मालमत्तेत हिस्सा व नुकसानभरपाईही मिळू शकेल. घटस्फोटविषयक प्रस्तावित कायद्याचा आलेख…हिंदू विवाह हा करार नसून संस्कार आहे. प्राचीन हिंदुधर्मशास्त्रास घटस्फोट ही संकल्पनाच मान्य नव्हती. भारतीय संसदेने “हिंदू विवाह कायदा-1955‘ हा क्रांतिकारक कायदा संमत केला. त्याने सर्व हिंदूंना लागू होणाऱ्या घटस्फोटास परवानगी देणाऱ्या तरतुदी केल्या. व्यभिचाराचे कृत्य, क्रूर वागणूक, दोन वर्षांपेक्षा अधिक काळ जोडीदाराने सोडून जाणे, धर्मांतर, दुर्धर मानसिक रोग, संसर्गजन्य गुप्तरोग, संन्यास घेणे, सात वर्षांपेक्षा अधिक काळ परांगदा होणे यांपैकी किमान एखादे तरी कारण न्यायालयात सिद्ध झाले, तर घटस्फोटाची मुभा या कायद्याने दिली.वैधानिक विभक्तता किंवा वैवाहिक हक्कांची पुनर्स्थापना, यासाठी न्यायालयाचा आदेश होऊनही त्याची पूर्तता एका वर्षात न झाल्यासही घटस्फोट मिळू शकतो. तसेच बलात्कार, समलिंगी किंवा अनैसर्गिक लैंगिक कृत्य, असा गुन्हा पतीकडून घडल्यास पत्नीस घटस्फोट मागण्याचा अधिकार आहे.घटस्फोटासाठी आवश्यक अटी जाचक असल्याची टीका झाल्याने 1976ची कायदा दुरुस्ती सरकारने केली व पती-पत्नी यांना मिळून घटस्फोटासाठी अर्ज करण्यास परवानगी देण्यात आली. परंतु, असा अर्ज करण्यापूर्वी किमान एक वर्षाच्या काळात त्यांना एकत्र राहणे शक्य झाले नव्हते, असे सिद्ध होणे गरजेचे आहे.घटस्फोटासाठीची वरील कारणे नसणारी;परंतु असह्य व टोकाच्या स्वभावभिन्नतेमुळे किंवा एकमेकांच्या खटकणाऱ्या जीवनशैलीमुळे, सवयीमुळे सहजीवन अशक्य असणारी असंख्य जोडपी असतात. घटस्फोटासाठी संमती अर्ज करण्यापुरतेही त्यांचे सहकार्य नसते. मी स्वत: मुक्त झालो किंवा झाले नाही तरी चालेल; पण त्याला/तिला मी मोकळे सोडणार नाही, समोरची व्यक्ती जन्मभर सडत राहिली पाहिजे, अशी द्वेषाची भावना असणारी जोडपी आहेत. त्यामागे आर्थिक, लैंगिक व इतर कारणे असतात. असे विवाह आतून मोडून पडलेले असतात. या प्रकारच्या पराभूत विवाहितांना जन्मभर त्याच स्थितीत राहावयास भागपाडणे, हे सुसंस्कृत समाजाचे लक्षण नव्हे, अशी टीका अनेक न्यायालयीन निकालपत्रांतून व माध्यमांद्वारे झाल्याने सरकारला त्याची दखल घ्यावी लागली.परिणामी, सरकारने 1955 च्या या कायद्यात दुरुस्ती सुचविणारे विधेयक 2010 मध्ये सादर केले. ते राज्यसभेने ऑगस्ट 2013 मध्ये मंजूर केले. लोकसभेच्या व राष्ट्रपतींच्या मंजुरीनंतर हा कायदा अमलात येईल. वर उल्लेखिल्याप्रमाणे पती, पत्नी आपल्या अपयशी संसाराची कारणे दर्शवून घटस्फोटाची मागणी करू शकते. प्रतिवादीची संमती त्यासाठी नसली तरी. परंतु, हा अर्ज करण्यापूर्वी किमान सतत तीन वर्षांच्या कालावधीमध्ये ती दोघे विभक्त राहत होती, एवढी एकच अट सिद्ध होणे अपरिहार्य आहे. परंतु, पतीची घटस्फोटासाठी मागणी व पत्नीची मागणी, याबाबतीत हा प्रस्तावित कायदा पत्नीच्या बाजूने भेदभाव करतो. घटस्फोटामुळे आपल्यावर आर्थिक संकट कोसळेल, मुलांचे पालन, मुलांची प्रगती, यात अडथळे निर्माण होतील, अशी कारणे दर्शवून घटस्फोटाच्या मागणीस विरोध करण्याचा पत्नीस अधिकार आहे. दोन्ही बाजूंचे वर्तन, त्यांची आर्थिक व इतर परिस्थिती, त्यांचे व त्यांच्या अपत्यांचे हितसंबंध इत्यादींचा विचार न्यायालयास करावा लागेल. घटस्फोटामुळे पत्नीचीआर्थिक कोंडी होईल किंवा अपत्यांच्या प्रगतीस बाधा येईल, असे न्यायालयाने ठरविल्यास घटस्फोट नामंजूर होईल किंवा वरील बाबीसाठी योग्य तरतूद होईपर्यंत घटस्फोटाचा दावा तहकूब ठेवण्यात येईल.घटस्फोट प्रकरणात पत्नीला व अपत्यांना भरपाई मागण्याचा हक्क राहील. पतीच्या स्वकष्टार्जित स्थावर-जंगम मिळकतीमध्ये पत्नी व मुलांना हिस्सा मिळेल. किती हिस्सा देणे योग्य होईल, हे न्यायालयाने ठरवावयाचे आहे, हेही योग्य वाटत नाही. ते ठरविताना पतीला वारसाहक्काने मिळालेल्या किंवा मिळू शकणार असलेल्या मिळकतीच्या किमतीचाही न्यायालयाने विचार करावयाचा आहे. या भरपाईच्या रकमेचा बोजा पतीच्या मालमत्तेवर राहील. भरपाईविषयक या तरतुदी क्लिष्ट व गोंधळ निर्माण करणाऱ्या आहेत. हा कायदा नसताना एरवीही पतीकडील वडिलोपार्जित मालमत्तेमध्ये मुलांना व पत्नीला कायद्याने समसमान हिस्सा असतो, याचा विचार नवीन कायद्यात झालेला नाही. घटस्फोटानंतर पत्नीस पतीच्या स्वसंपादित मालमत्तेत हिस्सा कायदा देतो. परंतु, पत्नीच्या मालमत्तेत मात्र पतीला काहीच हक्क सांगता येणार नाही, हे खटकते. तसेच, घटस्फोटानंतर वरील लाभ घेऊन एखाद्या स्त्रीने पुनर्विवाह केला व त्याचीही परिणती घटस्फोटात झाली, तर त्या वेळीही तिला हे सर्व लाभ पुन्हा मिळू शकतील. यासंबंधात हा प्रस्तावित कायदा काहीच बोलत नाही.पतीच्या घटस्फोटासंबंधीच्या अर्जास पत्नीस वरील कारणांवरून विरोध करता येतो. परंतु, पत्नीने घटस्फोटासाठी या नवीन कायद्याप्रमाणे अर्ज केल्यास पतीस विरोध करण्याचा अधिकार नाही व विरोध केला, तरी त्याचा काही उपयोग नाही, हा भेदभाव योग्य वाटत नाही. अपत्यांचे हित फक्त पत्नी बघू शकते व पतीला त्यात काही रस नसतो, असे गृहीत धरून कायद्याची रचना झालेली दिसते. प्रत्यक्ष व्यवहारात अपत्यांच्या संगोपनाबाबतीत आईपेक्षा वडील सक्षम आहेत, अशीही काही उदाहरणे दिसून येतात. हा कायदाअद्याप लोकसभेत मंजूर व्हावयाचा आहे. वरील त्रुटींचा विचार कायदा मंजुरीच्या वेळी होईल, अशी आशा करू या.
“….the contesting respondent has come to the High Court with unclean hands and withholds a vital document in order to gain advantage on the other side. In our opinion, he would be guilty of playing fraud on the Court as well as on the opposite party. A person whose case is based on falsehood can be summarily thrown out at any stage of the litigation. We have no hesitation to say that a person whose case is based on falsehood has no right to
approach the Court and he can be summarily thrown out at any stage of the litigation…………”
Pls refer the entire Judgment below
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction Appellate Side
PRESENT:THE HON’BLE MR JUSTICE KALIDAS MUKHERJEE
CRR NO. 999 OF 2006
Md. Ashiruddin & Anr.
State of West Begal & Anr.
For the Petitioner :Mr. Milon Mukherjee, Sr. Adv. Mr. Lutful Haque,Ms. Ameena Kabir
For the State : Mrs. Krishna Ghosh
HEARD ON: 18.03.2008.
KALIDAS MUKHERJEE, J.:
1. This is an application under Section 482 read with Section 300 Cr.P.C. praying for quashing of Hanskhali P.S. Case No. 281 dated 06.12.2005 under Section 498A/34 I.P.C. pending in the Court of learned Additional Chief Judicial Magistrate, Ranaghat, District – Nadia.
2. The petitioner No. 1 is a retired Sub-Inspector of Police and the petitioner No. 2 is a Constable. The first wife of petitioner No. 1 died and thereafter he again married O.P. No. 2 Rojina Bibi on 25.06.2004 according to Muslim Shariat Laws and both of them were leading conjugal life in village Murcha, P.S. Khargram, District – Murshidabad. O.P. No. 2 was a widow at the time of her marriage with petitioner No. 1 and had a son and two daughters out of her previous marriage. The petitioner No. 1 used to reside in Krishnanagar where he was posted and the O.P. No. 2 was residing in village Morcha. There was difference of opinion between the spouses. O.P. No. 2 filed a case against the petitioner No. 1 under Section 498A/325 I.P.C. being Kotwali P.S. Case No. 95/2005 dated 06.4.2005. Charge sheet was issued on 15.4.2005 being C.S. No. 80/2005 under Section 498A I.P.C. The O.P. No. 2 complained of mental and physical torture. On 11.4.2005 O.P. No. 2 made an affidavit before the learned Sub-Divisional Judicial Magistrate, Krishnanagar stating that she had no complaint against her husband whatsoever. In the affidavit she stated that when she went to Krishnanagar, a person took her signatures on some blank sheets and taking advantage of that filed a case against her husband. She also stated that her husband never committed torture upon her physically or mentally and that they had been leading a happy conjugal life. On 9th June, 2005 the petitioner No. 1 was discharged by the learned S.D.J.M., Krishnanagar on the basis of affidavit made on 11.4.2005. Thereafter the petitioner No. 1 divorced to the O.P. No. 2 on 04.8.2005 and communicated the same by registered post with A.D. dated 13.8.2005 and 18.8.2005, but, the registered letter dated 18.8.2005 came back to the petitioner as ‘refused’ by the O.P. No. 2. O.P. No. 2 filed a case in the Court of Chief Judicial Magistrate, Krishnanagar on 29.8.2005 under Section 498A/34 I.P.C. against the petitioners, but, no effective step was taken thereof. The O.P. No. 2 also filed a case in the Court of Additional Chief Judicial Magistrate, Krishnanagar against the petitioner No. 1 under Section 125 Cr.P.C. being case No. 481 of 2004. The O.P. No. 2 also filed another case under Section 498A/34 I.P.C. (G.R. No. 1343 of 2005) Hnaskhali P.S. Case No. 281 dated 06.12.2005, in the Court of Additional Chief Judicial Magistrate, Ranaghat. The allegations raised against the petitioners are false and concocted. The continuance of proceeding under Section 498A/34 I.P.C. in Hanskhali P.S. Case NO. 281 dated 06.12.2005 is unwarranted and will be the abuse of the process of the Court. In view of the discharge of the petitioner No. 1 from earlier case being Kotwali P.S. Case No. 95 of 2005, the instant case being Hanskhali P.S. Case No. 281 dated 06.12.2005 under Section 498A/34 I.P.C. cannot proceed and the same is not maintainable. Under the circumstances, the petitioner has filed the instant application praying for quashing of the proceeding under Section 482 Cr.P.C.
3. Mr. Mukherjee appearing on behalf of the petitioners submits that the earlier case ended in discharge on 09.6.2005 passed by learned S.D.J.M., Krishnanagar in G.R. Case No. 408 of 2005, Kotwali P.S. Case No. 95 of 2005. Mr. Mukherjee submits that the divorce was effected on 04.8.2005 when the factum of divorce was communicated to O.P. No. 2 herein. Mr. Mukherjee contends that same allegation as made in the earlier complaint was raised against the petitioner No. 1 herein in the subsequent petition of complaint which was sent to P.S. under Section 156(3) Cr.P.C. on 06.12.2005 bearing Hanskhali P.S. Case No. 281 dated 06.12.2005. Mr. Mukherjee contends that there is no allegation under Section 406 I.P.C. in the instant case and, moreover, there is suppression of material facts in the subsequent complaint being Hanskhali P.S. Case No. 281 date 06.12.2005. Mr. Mukherjee contends that when the petitioner No. 1 was discharged in the earlier case which ended in his discharge on 09.6.2005, the subsequent case on the same allegations bearing Hanskhali P.S. Case No. 281 dated 06.12.2005 is not maintainable. Regarding the suppression of material facts viz. discharge of the petitioner No. 1 in the earlier case, Mr. Mukherjee has referred to and relied on the decisions reported in 2005 SCC (Cri)1322 [MCD Vs. State of Delhi and another] para 21 and (2004)7 SCC 166 [S.J.S. Business Enterprises (P) Ltd. V. State of Bihar and others] para 13.
4. Mrs. Ghosh appearing on behalf of the State submits that the petitioner No. 1 herein was the Sub-Inspector of Police and regarding the alleged torture meted out to O.P. No. 2, there are medical reports and statements of the witnesses recorded under Section 161 Cr.P.C. It is contended that it is not clear whether there was divorce or not by way of Talaknama. As regards the allegation of torture under Section 498A I.P.C. on the same facts in the subsequent case, Mrs. Ghosh contends that the manner of alleged torture upon O.P. No. 2 in the second case was different and there is added period of alleged torture. Mrs. Ghosh contends that O.P. No. 2 was assaulted by the petitioner No. 1 as per allegation and in view of the medical reports and the statements of the witnesses recorded under Section 161 Cr.P.C., there is no ground to quash the proceedings pending in the learned Court below. Mrs. Ghosh contends that the petitioner No. 1 herein can raise such question in the Trial Court at the appropriate stage, but, not in the instant application under Section 482 Cr.P.C.
5. From the F.I.R. of Kotwali P.S. Case No. 95 of 2005 dated 06.4.2005 G.R. No. 408 of 2005 it appears that the occurrence of the alleged offence was after the marriage till the date of lodging the F.I.R. i.e. 06.4.2005. It further appears that the said case bearing No. 408 of 2005 ended in the discharge of the accused under Section 245 Cr.P.C. The learned Magistrate considered the affidavit filed by the defacto-complainant in the said case wherein it was stated that she was leading her conjugal life happily with her husband. On hearing the defacto-complaint and considering the contentions raised in the affidavit, the learned Magistrate recorded the order of discharge under Section 245 Cr.P.C. Subsequently, the instant case bearing Hanskhali P.S. Case No. 281 dated 06.12.2005 was started. The petition of complaint was sent to the P.S. under Section 156(3) Cr.P.C. and the F.I.R. was registered bearing No. 281 dated 06.12.2005. In the said petition of complaint the occurrence of the alleged offence was after marriage extending up to 24.8.2005. It is, therefore, clear that the period of alleged torture as per the subsequent complaint also includes the period of torture as raised in the earlier complaint which ended in discharge of the accused. By filing the affidavit stating that she was living happily with her husband which enabled the Court to record order of discharge, the defacto complainant put an end to the allegation of torture as raised in the earlier petition of complaint and, as such, the same allegation over the same period cannot be reopened.
6. Secondly, in the second petition of complaint there is no whisper about the contention raised in the earlier complaint and the order of discharge made therein. Mr. Mukherjee in this connection has referred to the decision reported in 2005 SCC (Cri) 1322 para 21 (Supra). The observation of the Hon’ble Apex Court made in para 21 of the aforesaid decision is quoted hereunder:-
“This apart, the respondent did not also disclose the fact in the criminal revision filed before the High Court that he has also been convicted in another Criminal Case No. 202 of 1997 by the Court of Metropolitan Magistrate, Patiala House, New Delhi. Thus, the contesting respondent has come to the High Court with unclean hands and withholds a vital document in order to gain advantage on the other side. In our opinion, he would be guilty of playing fraud on the Court as well as on the opposite party. A person whose case is based on falsehood can be summarily thrown out at any stage of the litigation. We have no hesitation to say that a person whose case is based on falsehood has no right to
approach the Court and he can be summarily thrown out at any stage of the litigation…………”
The observation of the Hon’ble Apex Court made in the decision reported in (2004)7 SCC 166 para 13 (Supra) is quoted hereunder:- “As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the Courts to deter a litigant from abusing the process of Court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case…………”
7. Since in the subsequent petition of complaint there is no whisper about the earlier petition of complaint followed by the order of discharge of the accused persons, such non-disclosure amounts to suppression of material facts, inasmuch as, had it not been suppressed, it would have an effect on the merits of the case. Following the ratio of the aforesaid decisions, I find that it is a fit case for quashing of the proceedings in the exercise of the jurisdiction under Section 482 Cr.P.C. The application under Section 482 read with Section 300 Cr.P.C. is allowed. Accordingly, the proceedings of Hanskhali P.S. Case No. 281 dated 06.12.2005 under Section 498A/34 I.P.C. pending in the Court of learned Additional Chief Judicial Magistrate, Ranaghat stand quashed.
8. Let a copy of this order be sent to the learned Court below immediately.
9. Urgent Xerox certified copy of this order, if applied for, be handed over to the parties as early as possible.
( Kalidas Mukherjee, J. )
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What does it mean to be (gender) Equality Agnostic?
Gender Equality Agnosticism is a form of Egalitarianism, specifically limited to gender equality. In brief, it is the belief that equality is not a men’s issue, or a women’s issue—it is a human rights issue and therefore needs to be pursued from a standpoint that takes on the position of both sexes.
Equality is defined as: The state or quality of being equal; correspondence in quantity, degree, value, rank, or ability.
Agnostic is defined as: A person who holds neither of two opposing positions on a topic. Socrates was an agnostic on the subject of immortality.
Good Women vs Bad Men—An insight into media gender stereotyping
Any reference to patriarchy in any of our articles is based on the dictionary definition of patriarchy–essentially a societal norm of awarding authority roles to men. EqualityAgnostic.com does not support the second-wave or RadFem definition of patriarchy as a cruel, oppressive male societal construct.
Take a look at the following headline and make your own assumptions. Which gender do you think the teacher is?
‘Sixth-Grade Teacher Charged with Rape of 13 year old boy…’ (actual article here)
At the start of the female revolution, feminists famously led a controversial argument, ‘Maybe god is a woman’. It caused a lot of people to look long and hard at a patriarchal bias to promote power-roles as male, to recognise male achievement and to promote awareness of the male contribution to society. Unfortunately, feminism did not follow that argument through to the next logical conclusion: ‘If god is a woman, then in all likelihood, so is the devil.’
When it comes to societal perception of gender, we are still living with the hangover of this unfortunate norm, a focus on female light and male shadow (—Warren Farrell).
Modern western culture promotes a strong push for the positive recognition of women and a decline in the positive recognition of men. The reasoning behind this is the belief that women need to be empowered to be equal to men and that further positive reinforcement of men as a group only broadens what feminism has defined as a gender power gap. If you’re unsure if this is accurate, type “empowering women” and “empowering men” (use the quote marks for an exact search) into google and see the vast difference in the number of results and the tone of those pages.
Feminism’s push to create choice as to whether women adhere to female gender role (mother/nurterer) combined with a societal norm of continuing to propagate the enforcement of, and obligations attached to, male gender role (protector/provider)—a role that teaches men it is their duty to protect women—creates four powerful media norms in western culture:
- The female good news story.
- The no-gender good news story.
- The male bad news story.
- The no-gender bad news story.
There is an argument that this norm is the failing of the male-gender centricity inherent in all language. There is some merit to this, but take a look at that list again and note the times that gender is deliberately added or omitted. That isn’t just male centric language. This is made worse by the fact that societally we preference bad news over good news, leading to more frequent publicising of bad news stories.
These things combined mean that the headline you are most likely to read when you pick up a paper or search a news site is (see exact search matches at end of article):
‘Gunman slays ten’ 1 rather than ‘Fireman saves ten’.2
On the occasion a good news story appears, you are most likely to see female achievement stories such as ‘First woman arrives at space station.’3
When the story champion is female, we declare sex. When the story perpetrator is male, we declare sex. When the story champion is male, we have a preference of declaring gender neutrality:
‘Firefighter saves ten…’4
When the story perpetrator is female we declare gender neutrality:
‘Teacher rapes student…’5
|Please note that the only reason the female news story is the focus of this image, is that this is the article I clicked on after a google search, a search which displayed title only.|
On the rare occasion that gender neutrality does not occur for the male good news story, we declare an individual, not the male gender:
‘Robert Johnson, the voice for change.’ 6
The outcome of this is a public perception message that ‘a good man’ is the exception and that ‘bad men’ are the norm. Take a look at the statistics at the end of this article and you will get some small insight into why this norm is completely backwards.
This norm influences societal perception of men at the macro and the micro level, and that perception heavily impacts all levels of gender debate and all traction for men’s equality (eg family law) and gender issues. How? Consider some of the following:
- Do you feel the statement “You’re just a girl,” is damaging to women?
- Do you feel the statement, “Be a man,” is damaging to men?
- Do you feel a lack of equal representation in high power jobs is damaging to women?
- Do you feel a lack of equal representation in low power jobs is damaging to men?
- Do you feel female circumcision is damaging to women?
- Do you feel male circumcision is damaging to men?
- Do you feel that 4/5 of rape victims being female, is damaging to women?
- Do you feel that 4/5 of murder victims being male, is damaging to men?
- Do you feel hate crimes like “acid attacks” on women in extremist countries, is damaging to women?
- Do you feel that in those same countries, the fact that sons and fathers are selling their internal organs to fulfil their male gender role of provider, is damaging to men?
Your ability to strongly say ‘yes’ to all of those questions will normally depend on three things: which gender you are, how ingrained you are in gender role and how deeply societal gender perception affects you.
The most common reaction is to have no idea at all of the male counterpart as an issue, and if you do, to assignseverity to those issues and to downplay them, rather than merely accept that the only thing the above list signifies is that both genders experience issues which must be addressed. If you think that last statement might represent you, I’d ask you to take just one of those items—a position that is often deemed to be completely acceptable:
Do you feel male circumcision is damaging to men?
I challenge you to put together any group of uncircumcised men at all, and ask them which of them is in favor of having the end of their penis cut off. See if you can get any takers.
As for severity? I personally don’t debate severity. A debate in severity ends in the emotional validation of one person, and no advancement of anyone’s equality or gender issues.
A fight for female equal rights and the removal of female gender role was only the first step towards gender equality. Until concerted effort is made to end the enforcement of both gender roles, to create equal rights for both genders, to remove both male and female privilege, and to end the negative societal perceptions attached to gender—gender equality will remain an unachievable reality.
Food for thought:
- As of 2007, there were 1,148,500 firefighters in the United States (not including firefighters who work for the state or federal governments or in private fire departments). Of these, 28% are career and 72% are volunteer. This is a career group made up almost 100% by men, with female employee’s primarily filling ‘safe’ support roles.In 2013 America had six mass shootings by six individuals, each spoken of in media as a ‘gunman’.
Compare the number of stories on each, see below:
1 Google search on ‘gunman’ news articles: 47,000 results
2 Google search for ‘fireman saves’ news articles: 331 results
3 Google search on ‘woman achieve’ news articles: 41,800 results
4 Google search for ‘firefighter saves’ = 5,610 results
5 ‘Teacher rapes’ articles: there are over 4000 results for this, but whether they are about a female teacher raping someone you can only tell by going through each article, one at a time. Regardless, the heading gives no indication of gender, the outcome is when a man rapes we name men and ‘men’ are seen as perpetrators, when we neutralise female gender bad news stories the assumption is men are responsible for those acts too because women don’t commit rape. Take a look at the picture of the included article that has the aforementioned ‘teacher rapes story,’ notice the column on the right?…
6 Individual good male articles: Basically impossible to show numbers on as it requires searching one individual male at a time and even then the credit goes to ‘a man’ not to ‘men’.
Courtesy:- Daniel Kroker