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Husband showed income as 2000/-PM. Family court ordered 3000/- PM !!

Mahendrasinh vs Jignasa on 11 August, 2011
Author: M.R. Shah,

Gujarat High Court Case Information System

 

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SCR.A/1689/2011 2/ 2 ORDER

 

IN

THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL

CRIMINAL APPLICATION No. 1689 of 2011

======================================

 

MAHENDRASINH

GANPATSINH PARMAR – Applicant

Versus

 

JIGNASA

MAHENDRASINH PARMAR D/O JASHVANTSINH K RAJPUT & 1 – Respondents

====================================== Appearance

:

MR

JV JAPEE for the Applicant. None for Respondent No.1. MR LB

DABHI, APP for Respondent No.2.

======================================

 

CORAM

:

 

HONOURABLE

MR.JUSTICE M.R. SHAH

 

Date

: 11/08/2011

 

ORAL

ORDER

 

 

 

1. The

present petition under Article 227 of the Constitution of India has been preferred by the petitioner – husband to quash and set aside the impugned order dated 30/10/2010 passed by learned Additional Judge, Family Court, Vadodara in Criminal Misc.Application No.1624 of 2010, by which, learned Family Court has awarded a sum of Rs.3,000/- per month to respondent No.1 – wife towards maintenance.

 

 

 

2. Ms.Japee,

learned advocate appearing on behalf of the petitioner has submitted that learned Family Court has materially erred in awarding a sum of Rs.3,000/- per month to respondent No.1-wife towards maintenance when income of the petitioner-husband is Rs.2,000/- per month. She has submitted that the petitioner is serving as temporary employee in Airtel Company and his salary is Rs.2,000/- per month and that respondent No.1-wife has failed to produce any documentary evidence with respect to the income of the petitioner- husband. It is further submitted that in absence of any documentary evidence on record with respect to income of the petitioner- husband, learned Family Court has materially erred in awarding Rs.3,000/- per month to respondent No.1 – wife towards maintenance.

 

 

 

3. Heard

Ms.Japee, learned advocate appearing on behalf of the petitioner and considered the impugned judgement and order passed by learned Family Court, Vadodara.

 

 

 

4. At

the outset, it is required to be noted that as observed by learned Trial Court, the petitioner has tried to suppress his income. It is also required to be noted that the petitioner has not produced his salary slip issued by the Company. It is not believable that the Company like Airtel would not issue salary slip to the petitioner. It is also not believable that income of the petitioner is Rs.2,000/- per month. In the facts and circumstances of the case more particularly considering price rise, inflation, etc, it cannot be said that learned Family Court has committed any error and/or illegality in awarding amount of maintenance to respondent No.1-wife, which calls for interference of this Court in exercise of power under Article 227 of the Constitution of India.

 

 

 

5. In

view of the above and for the reasons stated hereinabove, there is no substance in the present petition, which deserves to be dismissed and is accordingly dismissed.

 

 

 

[M.R.SHAH,J]

 

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http://indiankanoon.org/doc/1133652/

 

Categories:Judgement

HC: 4500/- PM maintenance on a montlhy salary of 12000/- PM which is nearly nearly 38%

Yunus vs State on 29 July, 2011
Author: M.R. Shah,

Gujarat High Court Case Information System BODY

CR.RA/644/2010 2/ 2 ORDER

 

IN

THE HIGH COURT OF GUJARAT AT AHMEDABAD

 

 

CRIMINAL

REVISION APPLICATION No. 644 of 2010

 

 

=========================================

 

YUNUS

FAKIR MOHAMMED BELIM – Applicant(s)

Versus

 

STATE

OF GUJARAT & 2 – Respondent(s)

========================================= Appearance :

MR

HARSHAD K PATEL for Applicant(s) : 1, MR LB DABHI, APP for Respondent(s) : 1, None

for Respondent(s) : 2 – 3. =========================================

 

CORAM

:

 

HONOURABLE

MR.JUSTICE M.R. SHAH

 

Date

: 29/07/2011

 

ORAL

ORDER

 

 

 

1. The

present Criminal Revision Application has been preferred by the applicant-husband to quash and set aside the impugned judgment and order dated 08/07/2010 passed by the learned Principal Judge, Family Court, Rajkot in Criminal Miscellaneous Application No. 1654/2008.

 

 

2. The

maintenance application was submitted by respondents nos. 2 and 3 for maintenance under Section 125 of the Code of Criminal Procedure, being Criminal Miscellaneous Application No. 97/2004 and the learned trial Court granted the maintenance at the rate of Rs. 1,500/- per month to respondent no. 2-wife and Rs. 1,000/- to respondent no. 3-minor child. Thereafter, after a period of four years, respondents nos. 2 and 3 submitted an application before the learned Family Court for enhancement of the amount of maintenance under Section 127 of the Code of Criminal Procedure and the learned Family Court considering the income of the applicant at Rs. 12,190/- partly allowed the said application, being Criminal Miscellaneous Application No. 1654/2008 and enhanced the amount of maintenance from Rs. 1,500/- to Rs. 2,500/- per month to respondent no. 2-wife and from Rs. 1,000/- to Rs. 2,000/- per month so far as respondent no. 3-minor child is concerned. Being aggrieved and dissatisfied with the impugned order passed by the learned Principal Judge, Family Court, Rajkot in directing the applicant to pay a total sum of Rs. 4,500/- per month to respondents nos. 2 and 3 by way of maintenance the applicant-husband has preferred the present Criminal Revision Application.

 

 

 

3. Having

heard Shri Yogesh Jani, learned advocate appearing for Shri Harshad Patel, learned advocate appearing on behalf of the applicant and considering the impugned order and considering the income of the applicant at Rs. 12,190/- and considering the fact that the applicant is serving in government school in the pay-scale of Rs. 5000-180-8000 and considering the price rice and the value of rupees etc., it cannot be said that the learned Family Court has committed an error and/or illegality and/or has awarded exorbitant amount of compensation, which calls for the interference of this Court in exercise of revisional jurisdiction. No case is made out to interference with the impugned order in exercise of revisional jurisdiction.

 

 

 

4. In

view of the above, the present Criminal Revision Application deserves to be dismissed and is accordingly dismissed.

 

 

(M.R.

SHAH, J.)

 

 

 

siji

 

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Categories:Judgement

HC: If recovery petition is pending in HC then similar application in HC is not maintainable

Bachubhai vs Ketan on 3 August, 2011
Author: M.R. Shah,

Gujarat High Court Case Information System

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SCR.A/1180/2011 1/ 1 ORDER

IN

THE HIGH COURT OF GUJARAT AT AHMEDABAD

 

 

SPECIAL

CRIMINAL APPLICATION No. 1180 of 2011

=========================================

BACHUBHAI

CHUNILAL KOTHARI – Applicant(s)

Versus

 

KETAN

BACHUBHAI KOTHARI & 1 – Respondent(s)

========================================= Appearance

:

MS.FALGUNI

D.TRIVEDI for Applicant(s) : 1, None for Respondent(s) : 1, MR LB DABHI, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 2,

=========================================

CORAM

:

 

HONOURABLE

MR.JUSTICE M.R. SHAH

 

Date

: 03/08/2011

 

ORAL

ORDER

 

1. Present

petition under Article 226 of the Constitution of India has been preferred by the petitioner for execution of the order passed by the learned Family Court, by which the order of maintenance has been passed in favour of the petitioner. It is not in dispute that petitioner has already initiated the proceedings before the Family Court for recovery of the amount as provided under the provisions of the Code of Criminal Procedure, 1973 by way of recovery application as well as the warrant has also been issued, hence, present petition is not entertained. Even otherwise, for execution of the order passed by the learned Family Court, petition under Article 227 of the Constitution of India is not maintainable and/or is not required to be entertained. As and when any proceedings are taken up before the learned Family Court for execution and/or for recovery of the amount, the same are ordered to be expedited.

 

 

 

2. With

this, present petition is dismissed.

 

(M.R.

Shah, J.)

 

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Categories:Judgement

HC: Though cruelt by wife against husband is proved but Judges are giving suggestion to wife to file CrPC 127 for more maintenance !!!

Sneh Lata vs Raja Bahadur Rayakwad on 21 July, 2011

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL FIRST APPEAL NO. 29/2011

Sneh Lata

W/o Sri Raj Bahadur Rayakwad,

D/o Late Sri Sompal Singh

R/o Quarter No. 219, Type-3, Sector I,

BHEL, Ranipur, Haridwar,

Tehsil & District Haridwar.

…..Appellant

Versus

Raja Bahadur Rayakwad

S/o Sri Bihari Lal,

R/o Quarter No. 219 Type-3, Sector-1,

BHEL, Ranipur, Haridwar,

Tehsil & District Haridwar.

…. Respondent

Mr. D.S. Mehta, Advocate, present for the appellant.

July 21, 2011

Coram :Hon’ble Prafulla C. Pant, J.

Hon’ble Servesh Kuar Gupta, J.

PRAFULLA C. PANT, J. (Oral)

This appeal, preferred under Section 19 of the Family Courts Act, 1984, is directed against the judgment and order dated 24.3.2011, passed by the Judge, Family Court, Haridwar in Suit No. 204 of 2005, whereby said Court has decreed the suit for divorce instituted by the respondent (husband) by moving petition under Section 13 of the Hindu Marriage Act, 1955.

2. Heard learned Counsel for the appellant and perused the lower court record. None turned up on behalf of respondent even after service of notice.

3. Brief facts of the case are that appellant Sneh Lata got married to respondent Raja Bahadur Rayakwad on 6.3.1972, following Hindu rites. Two daughters, namely, Gitanjali and Varsha, were born out of the wedlock in the 2

year 1974 and 1975 respectively. Out of the two daughters, Varsha is already married and she lives in Germany with her husband. Another daughter Gitanjali was doing MCA when the said petition was filed. In the divorce petition, filed by the respondent Raja Bahadur Rayakwad, who was aged 59 years at the time of filing the petition, pleaded that for more than 10 years, appellant (wife) was not discharging her matrimonial obligations and continuously treated him with cruelty. It is further pleaded by the husband that at the time of marriage, appellant was not well educated, and he got her educated thereafter. He also pleaded that he is looking after both the daughters. As to the cruelty, committed by his wife, it is pleaded by the husband in the petition for divorce that neither the wife cooks food for him nor allows him to enter in the kitchen so that he may cook food for himself. This has made the life of the husband miserable. He is left to go to hotels to have his every meal. It is also pleaded by the husband that a case under Section 125 of CrPC was filed by the wife, though she was living with her husband in his house, in which, vide order dated 21.9.2004, he was directed to pay maintenance @ ` 3,000/- per month, which he is paying to her. It is also alleged by the husband in the petition for divorce that his wife threatens him that if his ailing mother dared to enter in his house, she would sprinkle the kerosene oil and set herself on fire. The extreme allegation in the petition for divorce made by the husband is that his wife has gone to the extent of alleging that the respondent (husband) had illicit relations with her own sister. With these allegations, the decree of divorce was sought.

4. Appellant, who was respondent before the trial court, filed written statement in which she admitted that she was married to the present respondent and two daughters 3

were born out of the said wedlock. However, she denied the allegations of cruelty. She pleaded that her husband is a man of loose character. It is also alleged by her that after the retirement, the present respondent wants to withdraw his provident fund, etc. and deprive the appellant from the same. She has also pleaded that though she is living in the quarter of BHEL allotted to her husband, but she has no other house to go.

5. On the basis of the pleadings of the parties, the trial court framed following issues:

(i) Whether the opposite party treated the petitioner with cruelty, as alleged in the petition? If so, its effect?

(ii) Whether the petitioner has illicit relations with other women? If so, its effect?

(iii) To what relief, if any, the petitioner is entitled to?

6. The petitioners (present respondent in this appeal) got himself examined as PW1 Raja Bahadur Rayakwad, in support of his case. Wife also got her affidavit filed, but she did not produce herself for cross-examination even after being given several dates, and ultimately, her evidence was closed. In the circumstances, the trial court heard the learned Counsel for the parties and found that the husband has made out a case for divorce on the ground of cruelty committed by his wife.

7. Shri D.S. Mehta, learned Counsel for the appellant, argued before us that the appellant has no house to go, and at the old age, the respondent has neglected her. However, we are of the view that real issue before the trial 4

court was whether the wife treated her husband with cruelty or not. We find that it is proved by the husband, by adducing evidence, that the wife treated the husband with so much of cruelty that his life became miserable. Neither any food was given to him nor he was allowed to enter in the kitchen to cook for himself (He had to go to hotels for his every meal). Not only this, making allegation against the husband that he is in illicit relationship with his real sister, is a grave case of mental cruelty. It is also brought on record that appellant told her husband that if he dared to invite his ailing mother in the house, she would set herself on fire. All these instances, proved on the record, show nothing but cruelty on the part of the appellant against her husband. As such, we are in agreement with the trial court that the husband has proved that he was subjected to cruelty by his wife, and entitled to decree of divorce. In the circumstances, we do not find any scope of interference, in this appeal, with the findings recorded by the trial court and the decree of divorce passed by it.

8. As far as the maintenance is concerned, it is also proved on the record that under Section 125 of CrPC, the appellant is already getting ` 3,000/- per month as maintenance. In case, said amount is insufficient, as more than six years have gone by since the order was passed, the appellant (wife) may move an application under Section 127 CrPC for enhancement of the maintenance.

9. For the reasons as discussed above, this appeal has no force and the same is dismissed. No order as to costs.

(Servesh Kumar Gupta, J.) (Prafulla C. Pant, J.) 21.7.2011

PRABODH

Categories:Judgement

HC: Duration of marriage insignificant while considering the application for maintenance under Section 125 CrPC

Sikandar vs Shabanabanu on 12 July, 2011
Author: M.R. Shah,

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SCR.A/933/2011 2/ 2 ORDER

 

IN

THE HIGH COURT OF GUJARAT AT AHMEDABAD

 

 

SPECIAL

CRIMINAL APPLICATION No. 933 of 2011

======================================

 

SIKANDAR

MOTIBHAI QURESHI – Applicant

Versus

 

SHABANABANU

D/O MOHHAMMAD RAFIK SHAIKH & 1 – Respondents

====================================== Appearance :

MR

FEROZ H PATHAN for the Applicant. None for Respondent No.1. MR

KP RAWAL, APP for Respondent No.2.

======================================

 

CORAM

:

 

HONOURABLE

MR.JUSTICE M.R. SHAH

 

Date

: 12/07/2011

 

ORAL

ORDER

 

 

 

1. By

way of this petition under Article 226 of the Constitution of India, the petitioner – husband has prayed to quash and set aside the impugned order dated 11/03/2011 passed by learned Principal Judge, Family Court No.1, Ahmedabad passed below Exh.19 in Criminal Misc.Application No.1346/2007, by which, learned Judge has directed the petitioner to pay a sum of Rs.2,000/- per month to respondent No.1 – wife towards maintenance.

 

 

 

2. Mr.Pathak,

learned advocate appearing on behalf of the petitioner has vehemently submitted that there is a marriage span of four months only and the petitioner is required to look after his old aged parents and, therefore, learned Family Court has materially erred in awarding Rs.2,000/- per month to respondent No.1- wife towards maintenance.

 

 

3. Having

heard learned advocate appearing on behalf of the petitioner and considering the impugned order in awarding Rs.2,000/- per month to respondent No.1 – wife towards maintenance and in the facts and circumstances of the case, it cannot be said that the learned Family Court has committed any error and/or illegality in awarding the amount, which is too excessive and which is required to be interfered with by this Court in exercise of power under Article 226 of the Constitution of India.

 

 

 

4. Now

so far as contention on behalf of the petitioner that the marriage span is four months only is concerned, the same is insignificant while considering the application for maintenance under Section 125 of the Code of Criminal Procedure. In these hard days and price rise, etc. and considering the fact that the petitioner is rickshaw driver of the Transport Vehicle in Industrial area, it cannot be said that the learned Family Court has committed any error in awarding Rs.2,000/- per month towards maintenance to the respondent No.1- wife. No case is made out to interfere with the order passed by the learned Family Court, Ahmedabad.

 

 

 

5. In

view of the above, there is no substance in the present petition, which deserves to be dismissed and is accordingly dismissed.

 

 

 

[M.R.SHAH,J]

 

 

 

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Categories:Judgement

Gujrat HC: Husband released from Jail only after he pays 50% maintenance and expenditure for wife

Kishorbhai vs State on 19 July, 2011
Author: M.R. Shah,

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SCR.A/1683/2011 2/ 2 ORDER

 

IN

THE HIGH COURT OF GUJARAT AT AHMEDABAD

 

 

SPECIAL

CRIMINAL APPLICATION No. 1683 of 2011

=========================================================

 

KISHORBHAI

HAKABHAI DANIDHARIYA – Applicant(s)

Versus

 

STATE

OF GUJARAT & 3 – Respondent(s)

========================================================= Appearance

:

MRPRATIKYJASANI for

Applicant(s) : 1, PUBLIC PROSECUTOR for Respondent(s) : 1, None

for Respondent(s) : 2 –

4.

=========================================================

 

CORAM

:

 

HONOURABLE

MR.JUSTICE M.R. SHAH

 

 

 

Date

: 19/07/2011

 

ORAL

ORDER

 

 

 

Mr.P.Y.

Jasani, learned advocate appearing on behalf of the applicant has stated at the bar that applicant has already deposited Rs.35,000/- with learned Family Court, which would be 50% of the arrears of maintenance. He has requested to grant some more time to deposit the balance amount of maintenance by way of installments. However, he has requested to release the applicant on bail. He has also stated at the bar that so far as the regular amount of maintenance is concerned, the applicant shall continue to pay as ordered by the learned Family Court. Hence Notice returnable on 2nd August,2011 on condition that applicant shall deposit a further sum of Rs.4,000/- with Registry of this Court towards the probable cost/expenditure to be incurred by respondent nos.2 and 3 for appearing in the present matter, which shall be permitted to be withdrawn by respondent nos.2 and 3 irrespective of outcome of the present Special Criminal Application . It will also be open for the respondent nos.2 and 3 to withdraw the amount of Rs.35,000/-, which the applicant has deposited with the Family Court without any further order, which shall be paid to them by the concerned Family Court by account payee cheque and on proper identification and verification. In the meantime, applicant is ordered to be released on bail on his furnishing personal bond of Rs.5,000/-to the satisfaction of the Jail Authority. Direct service is permitted.

 

 

 

 

 

(M.R.SHAH,J.)

 

 

Vahid

 

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Categories:Judgement

Gujrat HC: 140 days jail to husband for 14 months of arrears of maintenance

CR.MA/1040/2011 3/3 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION No. 1040 of 2011

In

SPECIAL CRIMINAL APPLICATION No. 2065 of 2010

=========================================================

JAVIDBHAI AKBARBHAI AJMERI – Applicant(s)

Versus

STATE OF GUJARAT & 1 – Respondent(s)

========================================================= Appearance :

MS BENAZIR M HAKIM for Applicant(s) : 1,MR MA SAIYAD for Applicant(s) : 1,

MR DC SEJPAL, APP for Respondent(s) : 1, MRS NASRIN N SHAIKH for Respondent(s) : 2, =========================================================

CORAM :

HONOURABLE MR.JUSTICE AKIL KURESHI

Date : 28/01/2011

ORAL ORDER

1. Rule. Learned APP Mr. Sejpal waives service of rule for respondent State.

2. Petitioner is husband of respondent no.2. He has been taken in custody for nonpayment of maintenance. By an order dated 11.1.2011 passed by the Family Court, Rajkot, he is ordered to undergo imprisonment for 140 days for 14 months of arrears.

3. Counsel for the petitioner submitted that petitioner could not pay the amount because of acute financial difficulties. He however, intends to clear all arrears including arrears arising subsequent to the Family Court passed the order. She pointed out that as of now the petitioner is in arrears of approximately Rs.75,000/- of maintenance. She prayed for a reasonable time for clearing the arrears looking to the weak financial condition of the petitioner.

4. Learned advocates drew my attention to order dated 17.1.2011 passed by this Court in Special Criminal Application No.2065/2010 which was passed in husband’s petition for reduction in maintenance. While not interfering with order of maintenance passed by the Family Court, petitioner was granted time upto 31.3.2011 to clear all arrears. This order however, was passed unmindful of the fact that petitioner is already taken in custody pursuant to the order passed by the Family Court on 11.1.2011, since this development was not known to the learned advocates also.

5. Under the circumstances, the petition is disposed of with following directions :

i. The petitioner shall deposit with the Family Court a sum of Rs.10,000/- latest by 10.2.2011.

ii. The petitioner shall deposit further sum of Rs.25,500/- with the Family Court latest by 15.4.2011.

iii. Remaining amount of arrears of maintenance shall be deposited with the Family Court latest by 31.7.2011. iv. On condition that petitioner shall abide by the above time frame of payments, he is ordered to be released forthwith from custody, pursuant to order dated 11.1.2011 which order in effect shall be kept in abeyance.

v. In case the petitioner makes default in depositing the amounts, on an application filed by wife before the Family Court, it would be open for the the Family Court to issue directions for taking him back in jail.

vi. As and when amounts are deposited before the Family Court, same will be disbursed in favour of wife without waiting for no objection from the petitioner or his advocate. These directions shall be effective in supersession of time limit granted in order dated 17.1.2011 in Special Criminal Application No.2065/2010.

At this stage in view of above-formula provided, legality of order dated 11.1.2011 is not gone into.

It is expected that petitioner shall continue to pay prospective monthly maintenance regularly.

Rule made absolute accordingly.

(Akil Kureshi,J.)

Categories:Judgement

Gujrat HC: Husband in jail for non-compliance of the order of maintenance to wife

SCR.A/813/2011 1/1 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CRIMINAL APPLICATION No. 813 of 2011

=============================================

BILAL TAIYABBHAI – Applicant(s)

Versus

STATE OF GUJARAT & 2 – Respondent(s)

============================================= Appearance :

THROUGH JAIL for Applicant(s) : 1, MR AJ DESAI ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, None for Respondent(s) : 2 – 3. =============================================

CORAM :

HONOURABLE MR.JUSTICE ANANT S. DAVE

Date : 06/04/2011

ORAL ORDER

This petition is preferred by the petitioner-convict for grant of parole leave to prefer an appeal before this Court for non-compliance of the order of maintenance to be paid to his wife as ordered by the Family court, Panchmahal.

Considering overall facts and circumstances of the case, the petitioner can make suitable arrangement through office of the Central Jail, Vadodara and/or may also approach the Legal Services Authority to file an appeal.

No parole leave can be granted at this stage. This petition is rejected.

[ANANT S. DAVE, J.]

Categories:Judgement

HC: Applicant wife in tears in Judges chanber and gets favorable order in CrPC 125 and Contempt

Bench: S Ambwani

Shail D/O Late Sone Lal vs Manoj Kumar Yadav, D.I.G. And The Family Court on 30/11/2005

JUDGMENT

Sunil Ambwani, J.

1. This contempt petition was filed on 18.11.2002, impleading Shri Manoj Kumar Yadav, a Head Constable in civil police posted at Jalaun (now under suspension), D.I.G., Head Quarter, Allahabad and Family Court Kanpur Nagar with the allegations that the Family Court has not complied with the order dated 4.9.2002, to decide her application under Section 125 Cr.P.C. for maintenance against her husband Shri Manoj Kumar Yadav By the order dated 4.9.2002 in Criminal Misc. Application No. 7688/2002, the Court directed the Family Judge, Kanpur Nagar to decide case No. 535/2002 under Section 125 Cr.P.C, within four month from the date of presentation of the certified copy of the order. On 3.12.2003 following orders were passed:

This contempt petition tells a pathetic story of the functioning of Family Courts in the State of uttar Pardesh. The facts giving rise to this contempt-petition demonstrate the manner in which Family Judges are, dealing with the sensitive issues arising before them. The object and purpose of the establishment of the family Courts was to promote conciliation in, and secure speedy settlement of disputes, relating to marriage and family affairs and for matters connected therewith. The law commission in its 59^th report (1994) stressed that in dealing with disputes concerning the family, the Count ought to adopt an approach radically different from that adopted in ordinary civil proceedings and that it should make reasonable efforts of settlement before commencement of the trial. The 1976 amendment to civil procedure code providing for special procedure in such matters concerning the family, did not achieve the desired result. The Courts continued to deal with family disputes in the same manner as other civil matters and the same adverrsary approach prevailed.

The Family Court Act 1984 was, enacted to set up for speedy settlement of family disputes. The reliefs concerning properties, declaration as to legitimacy in person, guardianship of a person are custody of a manner and maintenance including proceedings under Chapter- IX of the code of criminal procedure are entrusted to these special Courts, It has been made obligatory under Section 9 on the Family Court to make efforts for settlement. Section 11 provides that proceedings may be held in camera fi the family Courts desires and shall be so held if either party so desires. The assistance of medical and family welfare experts can be taken under Section 12, or such persons (preferably a woman was available), including professional services for assisting the Family Court in discharging the functions imposed by the Act, The facts and circumstances in which this matter arose, giving rise to these contempt proceedings, and the manner the Family Court dealt with the matter completely frustrates, the object and purpose of the Act.

The Family Courts Act 1984 was enforced in Uttar Pradesh by notification No. 79/1/86-145 dated 4.9.1986 w.e.f. 2.10.1986. It is significant to note here that the High Court has not made the Family Courts Rules as provided under Section 21 of the Act so far, and that all the family Court in the State have devised procedures for its functioning, adapting almost the same old adversarial approach to the issues arising before these Courts.

The petitioner Shail appeared in person. In the entire proceedings, and even in this Court, she has not sought any professional help. The applicant belongs to a poor back ground, and is at present employed as. Class IV employee in a school. She is a weak, frail but persuasive and full of Courtesy to Court. She is not aware of technicalities of law but is quite confident pleading her matters. 1 did not find her absent on any dates fixed in the matter when the matter came up before me. A first information report under Section 328/376 IPC.-P.S. Naka Hindola, Lucknow, was lodged registering case crime No. 55/2002, by the applicant alleging that she was raped by Sri Manoj Kumar Yadav, Head Constable on 18. 1.2002 at Apsara Hotel, Police Station Naka Hindola Lucknow. The applicant alleges that accused Sri Manoj Kumar Yadav, thereafter to avoid his prosecution persuaded the applicant for solemnizing marriage with him. On. his persuasion and in order to save herself from social disgrace, and stigma on her character, she agreed to marry him. The marriage took place on 20.7.2002. After marriage, Sri Manoj Kumar Yadav deserted her. He was not prepared to fulfill the marital obligations and did not take care of the applicant. She was left is destitution without any help from him. She filed an application under Section 125 Cr.P.C. for maintenance from her husband Sri Manoj Kumar Yadav before the family Court Kanpur Nagar, The proceedings were pending. The applicant filed a Criminal Misc. Application No. 7688 of 2002, which was disposed of with the following order;

Supplementary affidavit is taken on record. Heard Smt. Shall, applicant appeared in person and learned AGA.

This application under Section 482 Cr.P.C. has been filed with a prayer to issue a direction to the judge family Court Kanpur Nagar to decide the case of the application No. 535 of 2002 of the applicant expeditiously. It is further prayed that the Judge, Family Court be directed to disposed of the application of the applicant for interim mandamus, It is stated by Smt. Shail that she is unable to maintain herself and her husband, opposite party No. 3 Sri Manoj Kumar Yadav is Head Constable in U.P. Police. As such, an interim mandamus be awarded to her.

After pursuing the entire material on record, this application is finally disposed of with a direction to the Judge, Family Court Kanpur Nagar to dispose of Case No. 535 of 2002 under Section 125 Cr.P.C. within a period of four months from the date of presentation of the certified copy of the order.

With the aforesaid direction this application is disposed of.

Dt. 4.9.2002

Sd/-

Hon. V.K. Chaturvedi, J.

She filed another criminal miscellaneous application No. 10073 of 2003 under Section 482 Cr.P.C. before this Court in which by an order dated 17.1.2003, this Court gave following direction;

This case was earlier listed on 16.1.2003 but the applicant appearing in person told that she has not the sufficient means to come on the next date from Kanpur. Request has therefore been made that here case be taken today and she be permitted to appear in person. She has also been provided assistance of Amicus Curie, On her request this application is taken up today.

This application under Section 482 of the Code of Criminal Procedure (which is hereinafter called as the I Code’) has been brought for issuing appropriate direction to this Court of IV Additional Chief Judicial Magistrate, Lucknow for expediting the disposal of the criminal case I crime No. 55 of 2002} under Sections 328, 376 I.P.C. police station Naka Hindola, Lucknow. It is said that the applicant was raped by Sri Manoj Kumar Yadav, Head Constable on 18.1.2002 at Apsara Hotel Police Station Naka, Lucknow. Report of this incident was lodged by the applicant at the police station which was registered at crime No. 55 of 2002 at that police station. Sri Manoj Kumar Yadav thereafter persuaded the applicant for solemnizing marriage so as to avoid his further prosecution. On his persuasion she agreed to m marry with the applicant on 20.7.2002. After marriage Sri. Manoj Kumar Yadav again deserted her. He was not prepared to fulfill his obligations as husband and was not, even taking care of the applicant. She was left as destitute without any money. Resultantly she has to bring the proceedings under Section 125 of the Code before the Family Court, Kanpur Nagar. Those, proceedings are still pending. She has not been paid any money by Sri Manoj Kumar Yadav. At this stage the prayer is confined that gher case which is pending before the Family Court, Kanpur Nagar, be expedited so that she may not suffer aqony any longer.

Looking to the facts and circumstances of the case, Principal Judge, Family Court, Kanpur Nagar is directed to expedite the disposal of the maintenance proceedings under station 125 of the Code, pending before him prefer4ably within a period of four months.

With these observations this application is finally disposed of.

Dt.17, January, 2003

Sd/-

Hon. S.S. Kulshrestha, J.

This contempt petition was filed by applicant under Section 12 of the Contempt Courts Act on 18.11.2002 against Manoj Kumar Yadav, D.I.G. Headquarters Allahabad, and Family Courts Kanpur Nagar alleging that she filed a certified copy of the order dated 4.9.2002 in Family Court, Kanpur Nagar, but the order was not complied with within time and that warrants be issued to the opposite parties. On 19.11.2002, this Court directed her to file a supplementary affidavit and that on 11:2.2003 following order was passed on the contempt petition;

Supplementa7 affidavit filed today is taken on record.

Non-compliance of the order dated 4.9.2002 passed in Crl. Misc. Application No. 7688 of 2002 is alleged in the contempt petition.

By the aforesaid order dated 4.9.2002 passed in Crl. Misc. Application No. 7688 of 2002 respondent No. 3 Judge Family Court Kanpur Nagar was directed to decide case No. 535 of 2002 under Section 125 Cr.P.C. within a period of four months from the date of representation of the certified copy of the order.

Respondent No. 3 Judicial Officer and is a part of the administration of justice. It is expected that every person will give due regard to the orders of the Court. If for some reason he was unable to decide the case within the time fixed by this Court he had to approach this Court and obtain further time. Every citizen of this country has a right to legal remedy for which he approaches Courts and if any direction is issued; by this Court the same must be complied with within time allowed by the Court. It does not depend on the sweet will of any person to ignore any part of the order. Non-compliance of the order is clear contempt. A division bench of this Court in case of P.N. Srivastava v. State reported in 199 (1) Local Bodies and Educational Service Reporter page 742 (Lucknow Bench) held that:

The direction issued by the High Court of Supreme Court in its decision carry equal importance as that of a statute or Rules and hence directions are required to be complied with and disobedience amounts to contempt as such the decision of Court partakes the position of statutory rule.

Relying on the case of All India Reporter Karamchari Sangh and Ors. v. All India Reporters Ltd. And Ors. AIR, 1988 Supplement SCC 472 the Court further held:

In view of the decision of this Court dated 27.8.1996 the opposite parties had no option but to complete the enquiry within four months (time allowed by the Court in that case). It further implies that in case opposite parties were unable to do so they could approach the Court and seek further extension of time. In M.L. Sacndev v. Union of India and Ors. the apex Court held that

Government under duty to comply with the other within time set by Court and in any case if it was not possible to comply with the order within the time for whatsoever reason then the only course open was to seek extension of time or further instructions (also see State of Bihar v. Subhash Singh 1997 (1) SC 430)

From the above decisions it in apparent that the directions of the Court are else as good as statutory rules. The parties to whom the direction is issued have no care to carry out the orders of the Court.

Whenever the Court uses the words “preferably’ as far as possible, expeditiously, at an early date” in its judgment and order, the direction is to he complied with within the time allowed by the Court, in the order s and judgment. Even Section 20 of the Contempt of Courts Act provides limitation for initiating contempt proceedings if the order is not obeyed by the contemnor, hence it is imperative that the order of the Court in which even no time is fixed are to be faithfully complied with in letter and spirit within a reasonable time, say four months from the date of the communication of the order. This would be in order to enable the parties to come before the Court within a reasonable time for initiation of contempt proceedings, if they choose to file the same. Sometimes plea of filing of appeals do not give any handle to the authorities/ officers for not complying with the orders of the Court in letter and spirit when no interim orders are granted by the appellate Court staying the order impugned.

The respondent (s) did not comply with the order within the time given by this Court nor applied far extension of time. The time has expired and the respondent has taken the order very lightly.

Issue notice to respondent No. 3 to show cause within one month why contempt proceedings may not be drawn against him for deliberate and willful disobedience of the orders of this Court dated 4.9.2002 passed in criminal Misc. Application No. 7688 of 2002.

However, in view of the guidelines given by the Hon’ble Supreme Court in case of Suresh Chandra Poddar 2007 (I) SC 766, I give one more opportunity to respondent No. 3 to comply with the order dated 4.9.2002 passed by this Court in Criminal Miscellaneous Application No. 7688 of 2002 within a period of one month. In case the said order is complied with he shall no he personally present. In case the said order is not complied with, he shall he personally present on the date fixed.

List after one month.

Dt 11.2.2003

Sd/-

Hon. Rakesh Tiwari, J.

That on 28.3.2003, the registry of ‘this Court received a letter from Sri Vishal Chandra Saxena, Principal Judge, Family Court Kanpur Nagar No. 40/03/ Family Court Kanpur Nagar dated 25.3.2003, The Family Court informed this Court that applicant filed a case under Section 125 Cr.P.C. on, 27.7.2002 alongwith a copy of the order dated 17.7.2002 in Civil Misc. Writ Petition No. 1O] 56 of 2002. By this order, the High Court found that it was not possible to give reliefs claimed in the writ Petition as the allegations made by her, required investigation from the competent authority, and in the absence of any evidence no conclusion can be drawn. The applicant was directed to make complaint to the appropriate authorities. The Munsarim raised objections on the application under Section 125 Cr.P.C. On 27. 7.2002 stating that she has not stated anywhere in the application and affidavit as to how (he marriage ‘was performed between her “and Manoj Kumar Yadav, and that the documents annexed with the application and the order dated 17.7.2003 does not establish that she is legally married, for which no proof was given alongwith her application. The case was not registered and since the Family Court was lying vacant the Civil Judge, Senior Division was looking after the work.. The matter was fixed on 12.8.2002 for hearing on 24.8.2003 and thereafter on 13.9.2002. On that date petitioner/applicant produced a Copy of the order of the High Court dated 4.9.2002 in which the case number in the Family Court was shown as case No. 535 of 2002, to be decided in four months. At that time both the Family Courts were lying vacant and thus the matter was fixed on 28.9.2002, The concerned clerk registered her application as Crl. Case No. is 108 of 2002 Thereafter the matter was fixed on 7.11.2002. From 28.9.2002 to 1.12.2002 the jurisdiction of Kanpurnagar was transferred to District Fatehpur. The Civil Judge, Senior Division Fatehpur/Incharge Officer found that the application under Section 125 has not been registered. On 7.’1.2002, he gave applicant an opportunity, to file objections and fixed the t matter on (0.12.2002. The applicant did not remove the defects; she filed two applications on’ 11.11.2003 and appeared in person before the District Judge Fatehpur. After hearing her, an order was passed by -District Judge, Fafehpur that until the defeats are removed, the hearing was not possible. Sri Vishal Chandra Saxena, further, reported to this Court that applicant resorted to incorrect facts before the High Court and gave a wrong case number. He took over charge as Principal Judge Family Court on 28.10.2002. On 10. 12.2002 when the matter was put up before him he found that case No. 535 of 2002 under Section 125 Cr.P.C. is between Smt. Akila Kanwar and Mohammad wasim Khan. The applicant did not appear on 10.12.2002, and did not file any objections to the office report. The case was thus fixed for 16.1.2003. On that date the applicant again did not appear and the matter was fixed on 26.4.2003. He informed this Court in his report that he has not committed any contempt and that in fact the applicant has not removed defects. She filed the application before the High Court, with wrong case number and that the contempt notice be discharged.

The applicant filed an application during summer vacations on which the matter was nominated by Hon’ble Senior location Judge on 2.6.2003 to be heard by me. I found that the simple matter of deciding application under Section 125 Cr.P.C. has been made complicated by Principal Judge Family Court Kanpur Nagar, The application was disposed of with following directions:

I further find that the Principal Judge, Family Court Kanpur Nagar instead of helping the petitioner and getting the defects in her petition cured has tried to put the blame upon her. A lady appearing to person and claiming maintenance for destitution under Section 125 of Cr.P.C. has to be given a helping hand, and a healing touch by the Court. Instead of providing necessary assistance, the Principal Judge, Family Court, Kanpur Nagar, acting against the object of establishment of family Courts ‘and has tried to put the blame upon her. He has also casted aspersions upon her for providing wrong case number to the Court It was apparently a, mistake and could have been easily ignored by the Family Court. This Court takes exception to the report of the Family Judge by which he has sent the matter back to the Court and is trying to unnecessary delay the proceeding and harasses the applicant.

In the aforesaid circumstances, 1 direct Special Judge. Family Court to provide all possible assistance to the applicant to cure the defects in her application, and to pass necessary orders as expeditiomly as possible and preferably within one month. He is reminded on the fact that he is impleaded as a contemnor, and has to purge the contempt instead of aggravating the contemptuous actions.

List on 22.7.2003

Dt. 3.6.2003

Sd/-

Hon. Sunil Ambwani, J.

On 12.9.2003, the matter again came up before me. The applicant informed the Court that in pursuance of the order dated 3,6.2003, the Family Court has issued summons, and assured her that in case her husband does not appear, the proceeding will be taken ex pane against him. She submitted that inspite affixing dates nothing has been does in the matter. On this mention, I directed the Family Court to conclude the matter as expeditiously as possible, within intimation to the Court and fixed the matter on 20.10.2003.

On 29.10.2003, the applicant filed an application complaining that inspite of aforesaid directions, the Principal Judge Family Court has not decided the matter so Jar. She filed a copy of the order dated 28.7.2003 passed by Family Judge in which it was staled that inspite of notices sent to Manoj Kumar Yadav and thereafter sending notices through the Director General of Police, he has not appeared and thus the matter was directed to proceed ex-parte against her husband. This Court took notice of the fact that inspite of repeated directions, the Family Judge is not deciding the matter. The applicant pleaded that she is on the verge of destitution, and that her husband who was earlier accused of rape has deserted her,” and is was not prepared to fulfill his obligations as husband and was not even taking care of the applicant. She was left as destitute without any money. She informed the Court that the Family Judge makes uncalled comments on her appearance, and takes pleasure on asking unnecessary questions. On these allegations Sri Vishal Chandra Saxena was required to appear before this Court on 1 7,11.2003. Following observations were made while summoning] him to this Court;

It is matter of serious concern that a Judicial Officer/ Subordinate to the Court, is taking the directions casually. This Court has repeatedly requested him and advised him to expedite the matter. Once the orders passed by this Court came to his knowledge, it was his duty to pass necessary orders expeditiously and in accordance with law.

On 17 11.2003 Sri Vishal Chandra Saxena, ‘ Principal Judge, Family Court Kanpur Nagar (now District Judge J.P. Nagar) appeared before this Court. Sri O.P. Singh, Principal Judge, Family Court, Kanpur Nagar was also present and had brought the records of case No. 708/2003, under Section 125 Cr.P.C. along with him. Sri Saxena informed the Court that the Application under Section 125 Cr.P.C. was finally decided by him on 5.8.2003. On the ‘request made by Sri S.K. Garg, learned standing Counsel, the matter was taken up in chamber at 1.30 PM.

I have heard applicant in person and the explanation given by Sri Vishal Chandra Saxena. The applicant was anguished, hurt and was in tears in explaining the conduct of the Family Judge. She stated that whenever dates were fixed, he called and heard only the clerks presenting the matter and went on fixing dates. She was taken by surprise and was not aware of order dated 5.8.2003 by which her application was dismissed. She questioned, the manner in which she has been dealt by the Family Court. Initially she was harassed for not giving correct details of her marriage and fixing dates after dates. She stated that in order to avoid compliance her application number wax changed without informing her The clerks in the office of Family Judge treated her shabbily, and told her that she will get nothing from the Court. She also questioned the authority of Family Court in disbelieving her marriage and rejecting tyer application for maintenance inspite of the fact that the matter was proceeding ex-parte against her husband. She submitted that if the Family Court was not satisfied with her affidavit, she should have been given a; chance to establish her marriage. She accused the Family Judge to have questioned her marriage and thereby putting her to disrepute in society. According to her no one disputed the marriage and in] the ex-parte proceedings, the Family Judge had no right and authority to disbelieve her marriage and to take away her rights against the person who had raped her and thereafter married her.

Sri Vishal Chandra Saxena explained that in proceedings under Section 125 Cr.P.C. the wife must” establish the marriage. Thee was no pleading of the date of marriage or the manner in which the marriage was performed. The applicant absented on 5.8.2003 and thus he had no option but to dismiss the application.

The order dated 5.8.2003 shows that the matter was proceeding ex-parte and that her husband had not appeared. The family Court proceeded, to examine’ the affidavit and found that whereas she had pleaded that on 18.1. 2003 after the incident she had accepted the opposite party as her husband and was discharging duties of wife and was given some amount towards maintenance, The Family Judge found that there was no pleading as to how her marriage was solemnized. Since she had not produced any documentary proof or evidence of her marriage, the Family Court found that she is not legally married wife of the opposite party. The Family Judge thereafter recorded the observations of this Court in Writ Petition which was decided on 17.7.2002, commented on her conduct of giving wrong Case number to the High Court and the fact that she made a mention to the Family Court on 10.7.2003 to adjourn the proceedings for one hour as she has to take leave from Juhari Devi College from where she is serving. The Family Court observed that the applicant is serving in Juhari Devi College and rejected the application.

This Court takes strong objection to the manner in which the Family Court decided the matter. The statement given by Sri Vishal Chandra Saxena that the applicant absented herself is doubtful. The applicant has been diligently pursuing the proceedings. She has appeared in High Court on several occasions and was always present in the Court. Her manners and demeanor in Court demonstrated her desperation and destitution. Almost all the orders passed by this Court were ignored by the Family Judge. He was aware of the direction of this Court to decide the matter within four months. Inspite of the fact that the applicant kept on appearing before him and sought compliance of the directions could not persuade the Family Judge to give her even a brief hearing. Inspite of the fact that the matter was proceeding ex parte, he chose to dismiss the application under Section 125 Cr.P.C. on the ground that she has no been able to establish her marriage. There was clear and specific averments in her application supported by her affidavit that Sri Manoj Kumar Yadav is her husband. The opposite party did not appear in the matter and that the matter proceeded, ex parte. Inspite of these glaring facts and the object and the purpose of maintenance under Section 125 Cr.P.C. as well as Family Court Act 1984, the District Judge chose to reject the application under Section 125 Cr.P.C. in her absence. This Court is deeply pained and anguished in the manner the applicant armed with four orders of this Court was dealt with by the Family Judge. Sri Vishal Chandra Saxena, the then Family Judge, Kanpur Nagar failed to discharge his duties as a Family Court Judge and appears to be prejudiced by the persistence of the applicant and the orders passed by this Court requesting him to expedite the matter. I find, that the explanation given by Sri Saxena for delay in deciding the matter, cannot be accepted and reprimanded him for his conduct.

After the order was reserved the applicant moved two applications dated 20.11.2003, to transfer the matter. Both the applications are rejected.

The order rejecting the application under Section 125 dated 5.8.2003, has concluded the proceedings. The Court, however, finds that Sri Vishal Chandra Saxena, District Judge, U.P. Nagar was negligent in discharge of his duties in deciding the matter within the time fixed by this Court, on 4.9.2002, which was filed on record by the applicant in Family Court on 13.9.2002. He took notice of the order on 10.12.2002 but did not care to decide the matter, within reasonable time. The two reminders given to him by this Court on 11.2.2003 and thereafter on 3.6.2003 were ignored by him. He fixed long dates (on 16.1.2003n he fixed the matter for 26.4.2003) and proceeded ex-parte by his order dated 10.7.2003 and thereafter decided the matter on 5.8.2003 in the absence of the applicant who was appearing in person, without giving her any opportunity to give any evidence of her marriage.

The Courts subordinate to the High Court must carry out the orders. It was the duty of the Family Judge, Family Court, Kanpur Nagar to decide the matter within the time fixed by this Court. If he found that there was some procedural delay or that the proceedings cannot be concluded for any reason, if he should have applied to this Court for extension of time or at. least sent his report. He was reminded time and again to conclude the proceedings. Repeated orders of this Court dated 4.9.2002, 17.1.2003, 11.2.2003 and thereafter a warning given to him by order dated 3.6.2003 were ignored. The Family Judge proceeded to decide the matter as a routine matter without caring for the repeated orders issued by this Court. In the meantime, the applicant suffered harassment and humiliation by the officials in his Court. He could not even find a few minutes of his precious time to hear the applicant.

Sri Vishal Chandra Saxena, Principal Judge, Family Court Kanpur Nagar, now posted as District Judge, J.P. Nagar has clearly disobeyed the orders of this Court. He was heard in person on 17.1.2003. He did not choose to file any explanation in writing nor sought any time to give a reply. His submission in defence is not satisfactory. He had full knowledge of the directions of this Court dated 4.9.2002 and 17.1.2003. He submitted a report to the Court on 25.3.2003, making allegations against the applicant but did not decide the matter. He did not submit any further report, nor sought extension of time to decide the matter. Having proceeded ex parte, he chose to decide the matter in petitioner’s absence. He ahs willfully and deliberately avoided the timely compliance of the orders. He has not only disobeyed the orders of this Court but has also acted in breach of the object and purpose of the Family Court’s Act 1984. The registry shall place this order before the Registrar General for information to the Court, to take appropriate action against Sri Vishal Chandra Saxena now District Judge, J.P. Nagar. The Contempt Petition is disposed off accordingly.

The petitioner filed SLP (Crl.) No. 585/2004 in the Supreme Court. The Supreme Court after hearing her in person passed an order on 29.3.2004, which is quoted as below:

The petitioner, appearing in-person, is heard on the question of grant of leave to appeal.

The facts of this case disclose an uncommon story. The petitioner was victim of an offence under Section 376 and 328 of Indian Penal Code at the hands of the respondent Manoj Kumar. To save himself from the peril of conviction, the respondent agreed to enter into a marriage with the petitioner and the petitioner too agreed to do so. The dream of happy married life soon turned out to be a nightmare as the petitioner was deserted by the respondent. On these averments the petitioner filed an application under Section 125 Cr.P.C. seeking maintenance before the Principal Judge, Family Court, Kanpur Nagar. The delay in disposal of the application persuaded the petitioner to knock the doors of the High Court. The High Court showed indulgence to the petitioner by directing the Family Court to expeditiously conclude the proceedings. As no substantial relief was forthcoming, the petitioner this time invoked the contempt jurisdiction of the High Court complaining of non-compliance with the orders of the High Court by the Presiding Judge, Family Court. By order dated 29.10.2003, the learned Judge of the High Court has expressed his anguish having found a prima facie case of non-compliance with the orders of the High Court having been made out. The High Court has directed summoning of the Presiding Judge of the Family Court to appear before the High Court in-person for the purpose of framing charges for willfully disobeying the orders of the High Court. The petitioner seeks leave to file appeal against the order of the High Court. Her grievance is that the initiation of the proceedings in contempt is alright but then she has been left still high and dry as no relief has been allowed to her. Appearing in-person, she submits that the High Court ought to have directed award of maintenance to her and ought to have seen to some relief being granted to her so as to save her from destitution.

In Surya Dev Raj v. Ram Chander Rai and Ors. , this Court has held that in exercise of power of superintendence conferred under Article 227 of the Constitution of India on the High Court, the High Court does have power to make such directions as the facts and circumstances of the case may warrant, may be, by way of guiding the inferior Court or Tribunal as to the manner in which it would proceed hence and the High Court has the jurisdiction also to pass itself such a decision or direction as the inferior Court or Tribunal should have made. The jurisdiction under Article 227 of the Constitution is to be exercised sparingly and with care and caution, but is certainly one vesting in the High Court and meant to be exercised in appropriate cases. Iv convinced of the genuineness of the averments made by the petitioner and if convinced that a deserted woman, repeatedly knocking at its doors, is on the verge of destitution the High Court itself has jurisdiction to direct suitable amount of maintenance being awarded and to secure compliance with its directions, if the same relief the subordinate Court has failed to grant or to enforce. May be that the High Court could have passed such order on the next date of hearing. But the petitioner has approached this Court probably impelled by impatience.

It is not necessary to grant leave to appeal against the order dated 29.10.2003 of the High Court. There is nothing in the impugned order by which the petitioner may feel aggrieved. Let the petitioner appear before the High Court on the next date of hearing and seek appropriate interim and urgent relief from the High Court which if deserving, we have no reason to assume why the High Court shall not grant to the petitioner.

The special leave petition be treated as disposed of.

Let a copy of this order be communicated to the High Court forthwith.

Sd/-

(R.C. Lahoti, J.)

Sd/-

(Ashok Bhan, J.)

Sd/-

(Arun Kumar, J.)

New Delhi;

March 29, 2004.

The applicant moved an application along with the order of the Supreme Court and requested that the matter be heard for grant of maintenance. On this application the following order was passed:

Having regard to the entire facts and circumstances of the case and the order of Hon’ble Supreme Court dated 29.3.2004 the order of this Court dated 3.12.2002 to the extent that the Contempt application was disposed off is recalled and for reasons given in my order dated 3.12.2003, the operation of order of the Family Judge, Kanpur Nagar dated 5.8.2003 deciding and dismissing Criminal Case No. 108/2003 under Section 125 Cr. P.C. is stayed. Issue notice to Sri Manoj Kumar Yadav, Head Constable posted in district Jalaun at Urai through Senior Superintendent of Police, District Jalaun. Notices shall also be issued to Deputy Inspector General of Police, Headquarters, Allahabad. Both the notices shall enclose a copy of this order.

During the pendency of this proceeding, Sri Manoj Kumar Yadav is directed to pay a sum of Rs. 3000/- per month as interim maintenance to the applicant Smt. Shail and Rs. 25,0007- towards interim cost of these proceedings which have been drawn upto the Supreme Court. This amount shall be deducted by S.S.P. Jalaun from the salary of Sri Manoj Kumar Yadav to the extent that the deductions are not made beyond half of the amount of salary including allowances drawn by him, per month and shall be paid and remitted by S.S.P., Jalaun every month to Smt. Shail C/0 PPN Girls Inter College Compound Pared, Kanpur Nagar (UP) by Bank Draft prepared in her favour. Copy of the order may be given to the petitioner appearing in person on payment of usual charges within 24 hours.

2. The SSP Jalaun complied with the order and started remitting the amount of maintenance deduced out of the salary of Shri Manoj Kumar Yadav, to the applicant. There were some defaults on which it was reported by the SSP Jalaun that Shri Manoj Kumar Yadav has been suspended for his unauthorised absence from duties and that the applicant was being paid from making deductions from his suspension allowance.

3. Shri Manoj Kumar Yadav did not put in appearance in these proceedings. He absented from duties and was suspended. Inspite of deductions made from his suspension allowance, and having full knowledge of these proceedings, for the reasons best known to him he avoided to appear in the matter. It was found that the entire proceedings were taken ex-parte against Manoj Kumar Yadav and that it was not possible to decide the matter in his absence. In the circumstances firstly bailable warrants were issued against him, which could not be served and thus non-bailable warrants were issued on 24.5.2005 to procure his attendance. Shri Amitabh Yash, Superintendent of Police, Jalaun at Orai filed his affidavit through the Chief Standing Counsel II on 12.7.2005 stating that in compliance of the Court’s order Manoj Kumar Yadav was arrested by the police and produced before the Chief Judicial Magistrate, Jalaun, Urai, who had issued direction for sending him Jail and keeping him in police custody. He was detained in the District Jail on 24.6.2005 and shall be produced before the Court on 12.7.2005.

4. Shri Manoj Kumar Yadav entered appearance and applied for bail. He was granted bail after giving undertaking that he will appear in the proceedings on all subsequent dates. On the request of Shri Prem Prakash Yadav, learned Counsel for Shri Manoj Kumar Yadav the original record of the maintenance matter was summoned from the Family Court, Kanpur Nagar. In the supplementary affidavit of Shri Ram Niwas Yadav, the maternal uncle of Manoj Kumar Yadav and the rejoinder affidavit of Shri Manoj Kumar Yadav filed on 12.7.2005 and 19.9.2005, he has denied the allegations of rape, sexual harassment and the fact that any marriage was solemnized between him and the applicant. In para 9 of his rejoinder affidavit he states that he is married to Smt. Pushpa Devi in 1996, who is his legally wedded wife and also has a daughter aged about eight years from the wedlock, and has relied upon a copy of the Parivar Register of House No. 213 of Village Shobhavpur, Tehsil Dalmau, District Rai Bareily. He further states that in the application dated 27.7.2002 filed by Shail in the Court of the Family Judge, Kanpur it was pleaded that the deponent should marry him otherwise the deponent should pay half his salary to her. He has also relied upon his Counter Affidavit filed in Civil Misc. Writ Petition No. 10156/2002 in which he has stated in paragraph 6 that Shri Sone Lal father of the applicant Shail was a Class IV employee in a college at Kanpur and had died in harness. Her mother is also a Class IV employee in P.P.N. Girls Enter College, Kanpur. The applicant Shail was appointed as Peon on compassionate ground in Zuhari Devi Girls Post Graduate College, Canal Road, Kanpur and used to live in the compound of P.P.N. Girls Enter College in Kanpur with her mother and brother. She used to behave in an abnormal manner on which the residents of the compound made a representation to the Superintendent of Police, Kanpur Nagar, Nagar.

5. The Principal of Zuhari Devi Girls Post Graduate College, Canal Road, Kanpur also wrote a letter on 11.11.97 to S.S.P. Kanpur Nagar about her abnormal behaviour. The college issued charge sheet against the petitioner with several allegations and terminated her services on 30.4.98, after which she was appointed as Home Guard in Zila Commandant, Kanpur Nagar. There too her conduct was not found proper and her appointment was cancelled by Zila Commandant, Home Guard, Kanpur Nagar vide order dated 18.1.2000. The District Commandant, Home Guard, on her application for re-enlisting sent his comments to the Regional Commandant, Home Guard, Region Kanpur on 18.8.2000 stating that the petitioner is undisciplined lady and is habitual of making false complaints.

6. With regard to the incident of sexual harassment of rape dated 18.1.2002 at Lucknow it is stated by him in his affidavit in writ petition No. 10156/02 and annexed to the Supplementary Affidavit of Shri Ram Niwas Yadav, the maternal uncle of Shri Manoj Kumar Yadav that he never misbehaved with the petitioner nor reside in Apsara Hotel with her on 18.1.2002. He has relied upon the affidavit of Shri Rakesh Kumar, the Manager of the hotel and Shri Ravi Sharma in which it was clearly stated that there was no lady accompanying him on 18.1.2002, when he stayed in the hotel. The FIR lodged by the applicant Shail was investigated and it was found that the allegations leveled against the accused were false and bogus. It was also reported that the applicant is habitual in making false complaints. The final report dated 2.3.2002 in FIR No. 11/2002 in Crime No. 86/2002 under Section 376/328 IPC P.S. Naka, Lucknow is annexed with the copy of the counter affidavit.

7. Shri P.P. Yadav, the learned Counsel for Shri Manoj Kumar Yadav alleges that the applicant Shail has a doubtful character. She made false complaints and accusations against the respondent Shri Manoj Kumar Yadav in which a Final Report was submitted and was accepted by the Magistrate. She is still employed in Zuhari Devi Girls Post Graduate College, Canal Road, Kanpur. The entire proceedings taken by her are the figment of her imagination. It is contended by him that she had earlier filed a writ petition No. 10156/2002 with the prayer to issue a writ, order or direction in the nature of mandamus directing the respondent No. 3 (Manoj Kumar Yadav) to marry her and to maintain her as his wife. The Division Bench on 17.7.2002 after taking into account the Counter Affidavit, filed by Shri Manoj Kumar Yadav found that the writ petition is not the appropriate remedy as the allegations require a thorough investigation by the competent authority, and for the absence of the evidence and inquiry no conclusion could be drawn. The writ petition was disposed of with liberty to the petitioner to avail such remedies as are available to her under law.

8. It is contended by Shri Yadav that thereafter, the applicant filed case No. 108/02 for maintenance under Section 125 Cr.P.C. alleging in paragraph 1 and 2, that after the incident dated 181.2002 the applicant has accepted the opposite party as her husband and has been performing her duties as his wife. In the short application she alleged that the opposite party has stopped paying her maintenance and has made her destitute along with her mother. He is a Police Hawaldar drawing Rs. 8000/-, and that she is entitled to half his salary as maintenance. The contempt proceedings were dragged for a long period on account of absence of Shri Manoj Kumar Yadav. If he had put in appearance after receiving summons, this mater could have been disposed of long ago. This Court spent almost one year to secure his attendance for which bailable and non-bailable warrants were issued and that he was ultimately apprehended, arrested and produced before the Court. Shri Manoj Kumar Yadav abandoned his job as a Policemen, to avoid these proceedings. The Court draws adverse inference from his conduct and find that there is much to hide, and that that Shri Manoj Kumar Yadav absented, both from service and from appearing in this Court, for some oblique purposes.

9. Shri P.P. Yadav has relied upon Savita Ben Somabhai Bhatiya v. State of Gujarat and Ors. 1 (2005) DMC 503 SC) in which it was held that the expression ‘wife’ as per Code of Criminal Procedure refers only the legally married wife. In Smt. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and Anr. it was held that expression ‘wife’ used in Section 125 of the Code should be interpreted to mean only a legally wedded wife. The word “wife’ is not defined in the Code except indicating in the Explanation to Section 125 its inclusive character so as to cover a divorcee. The expression must be given the meaning in which it is understood in law applicable to the parties. The marriage of a woman in accordance with the Hindu rites with a man having living spouse in a complete nullity in the eye of law and she is therefore not entitled to the benefit of Section 125 of the Code or the Hindu Marriage Act. The fact that the husband was treating the applicant as his wife is inconsequential and there is no scope for enlarging its scope by introducing any artificial definition to include woman not lawfully married in the expression “wife’.

10. I have already found in the order dated 3.12.2003 that the Family Court committed gross illegality in refusing maintenance in his order dated 5.8.2003. The husband had not put in appearance in the proceedings. The findings of the Family Judge that there was no pleading as to how the marriage was solemnized and there is no documentary proof of her marriage, were not called for in exparte proceedings and that the Family Judge, held without any material on record that she was employed and thus she was not entitled to maintenance. Further the Family Judge was fully aware of the direction of this Court dated 4.9.2002 and 17.1.2003, and still did not decide the matter for a long period of time. It was only when he received the summons in this contempt petition that he decided the matter exparte but recorded findings against the applicant. The powers under Article 227 of the Constitution of India, on the legal position explained by the Supreme Court in these very proceedings, are invoked to grant relief to the petitioner. The order of the Family Judge, as such, cannot be sustained and must be set aside.

11. I have examined the Final Report submitted by the Investigating Officer in Crime No. 86/2002 under Section 376/328 IPC P.S. Naka, Lucknow with regard to the allegation of rape by the complainant Shail against Manoj Kumar Yadav, a serving Policemen at Kanpur. She made a complaint, registered at Police Station Naka, Sadar, District Lucknow on 10.3.2002 that while she was going for some personal work to railway station at Kanpur, Shri Manoj Kumar Yadav met her and persuaded her to go to Lucknow where he made her stay at Apsara Hotel. He offered cold drink to her in which he had put some intoxicating material and raped her while she was unconscious. Instead of investigating the incident, it was reported by the Investigating Officer that the complainant is a woman of doubtful character. He stated in his final report that the complainant was removed from service of Zuhari Devi Girls Post Graduate College, Canal Road, Kanpur, and the Department of Home Guard. Her stay in Apsara Hotel is not proved and that she has lodged the FIR as she had treated the accused as her husband in her dreams.

12. The Final Report of the investigation carried out by SSI, shows that instead of investigating the incident he led more emphasis, on the character of the applicant and the fact that she was terminated from service and was also removed as a Home Guard. The Investigating Officer did not try to verify the incident in which a Police Officer was involved, and tried to close the matter by making insinuations against the applicant. The investigation as such was incomplete and was wholly illegal. In the allegation of rape, the character of woman is hardly material. It is unfortunate that the police in the State considers a woman of doubtful character, to be an object of ridicule and draws adverse inferences against her while investigating the complaint of rape. The entire approach, puts a question mark on the competence and mentality of the Police Officers. It is apparent that in order to save a fellow Policeman, the Sub-Inspector of Police, tried to close the matter by making allegations against the complainant. The Final Report and the order accepting the Final Report also as such deserve to be set aside by this Court.

13. In the facts and the circumstances the contempt petition is disposed of, confirming the observation made in the order dated 3.12.2003, setting aside the order of the Family Court, Kanpur Nagar dated 5.8.2003 in case No. 108/02, and the Final Report dated 2.3.2002 in Crime No. 86/02 under Section 376/328 IPC Thana Naka, Lucknow and the order accepting the Final Report.

14. The record of the Family Court shall be sent back without any delay. The Family Court shall issue fresh notice to both the parties and decide the matter in accordance with law. The Police is also directed to complete the investigation of the case against Shri Manoj Kumar Yadav, as expeditiously as possible. The investigation shall be carried out by the officer not below the rank of Superintendent of Police.

15. Shri Manoj Kumar Yadav is discharged from this contempt proceedings. His bail bonds are also discharged. It will, however, be open to the Police Department to keep him under suspension. The applicant Shall will continue to draw interim maintenance as directed earlier till the conclusion of the proceedings under Section 125 Cr.P.C.

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HC: Contempt cannot be initiated when recovery proceedings can be started in family court

CR.MA/5081/2011 1/1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 5081 of 2011 In

CRIMINAL MISC.APPLICATION No. 12747 of 2010 In SPECIAL CRIMINAL APPLICATION No. 2469 of 2009 ========================================================= HANSABEN MAHENDRA SHAH – Applicant(s) Versus

MAHENDRA SOMABHAI SHAH – Respondent(s) ========================================================= Appearance :

MR KL DAVE for Applicant(s) : 1, None for Respondent(s) : 1, ========================================================= CORAM :

HONOURABLE MR.JUSTICE JAYANT PATEL and

HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 03/05/2011

ORAL ORDER

(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) It is an admitted position that the petitioner has the remedy of taking out appropriate proceedings before the Family Court, for recovery of the amount. Under the circumstances, we are not inclined to initiate action under the Contempt of Court Act, hence, dismissed. (JAYANT PATEL, J.)

(J.C.UPADHYAYA, J.)

(binoy)

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PUNJAB AND HARYANA HC: Maintenance in one case to be set off against another case

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CR NO.4813 OF 2009 (O&M)

DECIDED ON : 25.08.2009

Raman Ahuja @ Banti …Petitioner versus

Vandana …Respondent CORAM : HON’BLE MR. JUSTICE AJAY TEWARI Present : Mr. Karan Vir Nanda, Advocate for the petitioner.

AJAY TEWARI, J. (ORAL)

This petition has been filed against the award of maintenance pendente lite of Rs.3,000/- per month. The only prayer made by the learned counsel for the petitioner is that the petitioner is already paying maintenance under Section 125 Cr.PC and Protection of Women from Domestic Violence Act, 2005 and that the petitioner should not have to pay maintenance on independent accounts. In fact what the learned counsel for the petitioner is praying for is really the law. Learned counsel further relied upon the judgment of Hon’ble Supreme Court titled as Sudeep Chaudhary versus Radha Chaudhary 1999 AIR (SC) 536.

Consequently, this petition is dismissed with the clarification that the amount awarded by the impugned order would be set off against the maintenance being paid by the petitioner to the respondent under other proceedings. August 25, 2009 (AJAY TEWARI) sonia JUDGE

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Kolkata High Court: 125 CrPC to be adjusted against HMA maintenance

03.04.09

C.O. No.3925 of 2008

Anutosh Datta

Versus

Manasi Datta @ Sona

Mr. Jiban Ratan Chatterjee

Mr. T. N. Halder

.For the petitioner

Mr. Sanat Chowdhury

For the O.P.

This application under Article 227 of the Constitution of India is filed by the petitioner/plaintiff challenging the order dated 18th December, 2006 and order dated 30th August, 2008 passed by the learned Additional District and Sessions Judge, Fast Track Court, fifth Court at Alipore, 24-Parganas (South), in Misc. Case No.19 of 2005 arising out of Mat. Suit No.83 of 2004.

It is necessary to mention relevant fact for disposing of the present application. The petitioner/plaintiff filed the above Matrimonial Suit before the learned District Judge at Alipore and subsequently the same was transferred to the learned Additional District and Sessions Judge, Fast Track Court, 5th Court at Alipore. 2

During the pendency of the above matrimonial suit the opposite party/defendant filed an application under Section 24 of the Hindu Marriage Act for alimony Pendentilite vide Misc. Case No.19 of 2005. Learned Additional District Judge passed the order on 18.12.2006 in Misc. Case NO.19 of 2005 as ex parte and directed to pay a sum of Rs.3,500/- per month to the petitioner and further Rs.2000/- per month for the minor daughter of the petitioner towards alimony pendentilite and it is further directed to the husband to pay sum of Rs.4,000/- in lump sum towards cost. The petitioner husband filed another application under Section 151 C.P.C. with a prayer for vacating the said ex parte order dated 18.12.2006. Learned Additional District Judge after hearing of both sides rejected the said application on 30.8.2008.

Being aggrieved and dissatisfied against the order dated 18.12.2006 and 30.8.2008 the petitioner/husband filed the present application for setting aside the orders.

Mr. Jiban Ratan Chatterjee learned advocate appearing on behalf of the petitioner 3

pointed out that the learned Court below was vacant since a long time i.e., from August, 2005 to 12.10.2006. On 23.11.2006 the learned Judge joined in the Court and the said Misc. Case No.19 of 2005 was taken up for hearing but the O.P./husband was absent and as such another date was fixed on 18.12.2006 and on that date the learned Judge after taking the evidence of the petitioner/wife disposed of the case as an ex parte as the O.P. was absent. The present petitioner has filed the application under Section 151 C.P.C. for vacating the said order and on 30.8.2008 the learned Judge rejected the prayer of the petitioner after hearing of both sides. Learned Advocate also pointed out that the opposite party/wife is receiving the amount of maintenance as per order of the learned Magistrate under Section 125 Cr. P. C. but the learned Judge without adjustment the said amount passed the order for maintenance pendentilite till the disposal of the Mat. Suit. That order is bad in law and relevant order dated 18.12.2006 is liable to be set aside. 4

In support of the contention Learned Advocate on behalf of the petitioner has cited a case law reported in AIR 1999 Supreme Court 536 (Sudeep Chaudhary v. Radha Chaudhary). Learned Advocate also pointed out that there was the sufficient ground for allowing the application under Section 151 C.P.C. but the Court did not show any liberal approach for allowing the same and as such learned Court refused the prayer on 30.8.2008. In support of the contention learned Advocate has cited a case law reported in AIR 1987 Supreme Court 1353 (Collector, Land Acquisition Anantnag and another v. Mst. Katiji and others).

Considering the above aspects the present application may be allowed for setting aside the above orders passed by the learned Additional District Judge, Fast Track Court. Learned Advocate on behalf of the O.P. has pointed out that when the order was passed by the learned Court as ex parte, the petitioner/husband might approach to the Court for setting aside the said ex parte order under 5

Order 9 Rule 13 of the C. P. C. and in the present matter the petitioner/husband did not approach before the learned Judge for setting aside the same. As such there is no scope to interfere in the orders dated 18.12.2006 and 30.8.2008. The present application is liable to be dismissed.

In support of the contention learned Advocate cited a case law reported in AIR 1964 Supreme Court 993 (Arjun Singh v. Mohindra Kumar and others.)

Heard both sides.

From the xerox copy of the relevant day to day order sheets of the learned Court below filed on behalf of the petitioner it is clear that the learned Judge, Fast Track, 5th Court at Alipore was vacant. In the relevant order No.39 dated 23.11.2006 it states that learned Judge took up the Misc. Case for hearing but the O.P. was absent on that day and as such the learned Court fixed the date on 18.12.2006 as ex parte and on 18.12.2006 the O.P. did not appear and as such the learned Judge disposed of the Misc. Case No.19 of 2005 as ex parte after taking the 6

evidence of the petitioner/wife and in the said order learned Judge directed to pay a sum of Rs.3,500/- per month to the petitioner and further Rs.2,000/- per month for the minor daughter of the petitioner towards alimony pendentilite. In the said order there is no observation regarding the adjustment of the amount awarded under Section 125 Cr. P. C. towards the amount awarded in the matrimonial proceeding under Section 24 of the Hindu Marriage Act. In the written objection filed on behalf of the opposite party/husband in Misc. Case No.19 of 2005, it is clear in paragraph 10 that the interim maintenance of Rs. 1,200/- per month was allowed. However, in the case Sudeep Chaudhury (supra) the Apex Court observed “the amount awarded under Section 125 of the Cr. P. C. for maintenance was adjustable against the amount awarded in the matrimonial proceeding and was not to be given over and above the same.”

There is gross irregularity in the order dated 18.12.2006 passed by the learned Judge, 7

Fast Track Court for not adjustment of the amount awarded under Section 125 Cr. P. C. It is true that the petitioner/husband filed an application under Section 151 C. P. C. and that was dismissed on contest. The said application was filed with reference to a proceeding not in the suit and as such there is no scope to interfere in the said application as per provision order 9 Rule 13 of the C. P. C. However, the said application was filed in a belated way. The Court should adopt liberal approach to consider the matter. But the learned Judge failed to do the same.

Considering all aspects the orders dated 18.12.2006 and 30.8.2008 passed by the learned Additional District Judge Fast Track 5th Court at Alipore in Misc. Case No.19 of 2005 have some irregularities. Orders dated 18.12.2006 and 30.8.2008 are set aside. Learned Additional District and Sessions Judge, Fast Track, 5th Court at Alipore is requested to dispose of the Misc. Case 19 of 2005 afresh after giving an opportunity for hearing of both sides within two months from the date of receipt of the order. 8

The application is disposed of accordingly.

There is no order as to costs.

C.O. No.3925 is disposed of accordingly. Urgent xerox certified copy of the order be supplied to the party, if applied for. (TAPAS KUMAR GIRI, J.)

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HC: CrPC 125 maintenance to be adjusted against HMA

Equivalent citations: I (2001) DMC 6
Bench: S Mishra

Sandhya Kumari vs State Of Bihar on 7/2/2000

JUDGMENT

S.N. Mishra, J.

1. In this criminal revision application the petitioner has prayed for setting aisde the order dated 9.8.1999 passed by the learned Magistrate whereby he has rejected the prayer for maintenance in terms of Section 125, Cr.P.C. It appears that petitioner Sandhya Kumari has filed an application for grant of maintenance under Section 125, Cr.P.C. before the learned Chief Judicial Magistrate, Samastipur, which was registered as Misc. Case No. 46 of 1999.

2. Shortly stated that case of the petitioner is that the petitioner was married the opposite party No. 2 Manish Kumar on 21.5.1986 according to Hindu customs and rituals at Samastipur. It is further alleged that father of the petitioner invested a lot of money on the marriage of the petitioner by giving clothes, jewellery, furniture, utensils, refrigerator, colour T.V., car etc. and cash according to his capacity. The opposite party-husband is an architect and is working in private sector. He made a demand of Rs. 4-5 lacs for starting business but the petitioner’s parents showed their inability to fulfil his demand, as a result the petitioner is being tortured and harassed for non-fulfilment of demand. Ultimately, it is alleged that the in-laws have finally turned out the petitioner of her matrimonial house. In spite of the several attempts made from the side of the petitioner’s family in order to restore the conjugal life of the petitioner and the opposite party all went in vain. It is further alleged that since the opposite party was interested for re-marriage he filed a matrimonial suit for divorce. It is alleged that the petitioner is unemployed and totally dependent on her parents since 1991 whereas the opposite party is quantified Engineer having substantial immovable property, out of which he is getting Rs. 25,000-30,000/- as per month income. The opposite party in order to get remarried, has filed a petition for divorce on 31.1.1994 which was registered as Matrimonial Case No. 2 of 1994 before the learned 2nd Additional District Judge, Sitamarhi. Ultimately, the learned Judge by his judgment and decree dated 23.8.1996 decreed the suit and directed to pay a sum of Rs. 2,500/- per month by way of monthly allowance to the petitioner. Against the said direction, the opposite party has filed an appeal before this Court being F.A. No. 478 of 1996. Similarly, the petitioner has also challenged the judgment and decree of the Court below and, accordingly, filed an appeal before this Court being F. A. No. 429 of 1996. Both these First Appeals are pending before this Court for disposal. During the pendency of the matrimonial suit, the learned Judge directed the opposite party to pay maintenance pendente lite and cost of litigation to the petitioner in terms of Section 24 of the Hindu Marriage Act retrospectively w.e.f. March 1994, by his order dated 97.1996. Against the order directing to pay the maintenance, the opposite party has challenged the order by filing Civil Revision No. 1292 of 1996 and by order dated 21.1.1996 the said order of ad interim maintenance was set aside. It is alleged that since the petitioner is not getting a single farthing from the opposite party in terms of the judgment and decree passed by the Court below, she has filed application for maintenance under Section 125, Cr.P.C for grant of maintenance as she has no source of income and totally depends upon her parents. The learned Magistrate has refused to grant maintenance mainly on two grounds; firstly, that because of the decree of divorce passed by the Civil Court she cannot be said to be the wife for grant of maintenance under Section 125, Cr.P.C. and, secondly, having regard to the fact that she has really been granted maintenance under the provisions of the Hindu Marriage Act, she cannot claim the maintenance under the provisions of the Code of Criminal Procedure.

3. The reasons assigned by the learned Magistrate cannot be accepted for the simple reason that the divorced wife is equally entitled to maintenance in terms of Section 125, Cr.P.C. The Explanation appended to Section 125, Cr.P.C. where from it appears that “wife” includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried. The said Explanation appended to Section 125, Cr.P.C. reads thus :

“(a) “minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875), is deemed not to have attained his majority;

(b) “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried……”

Admitted position is that the petitioner has not remarried as yet.

4. The second reason assigned by the teamed Magistrates also seems to be misconceived one in view of the fact that the scope of Section 125, Cr.P.C. as well as Section 24 of the Hindu Marriage Act stand on different footing. It is true that the maintenance granted under the Hindu Marriage Act can be adjusted out of the amount granted under Section 125, Cr.P.C. I am supported by a decision in the case of Sudeep Chaudhary v. Radha Chaudhary, reported in AIR 1999 SC 536, wherein it has been held that when the wife is granted interim alimony both under Section 24 of the Hindu Marriage Act and under Section 125, Cr.P.C., in that event, the maintenance amount granted under Section 125, Cr.P.C. is to be adjusted against the amount awarded in matrimonial proceeding. Admittedly, not a single farthing has been paid to the petitioner as yet in terms of the decree passed by the Civil Court. In that view of the matter, the petitioner, being a wife though divorced one, is still entitled to the maintenance in terms of Section 125, Cr.P.C. However, the amount of maintenance allowed under the provisions of Hindu Marriage Act is subject to adjustment of the amount granted in terms of Section 125, Cr.P.C.

5. After having heard the learned Counsel for the parties and going through the materials on record, the order dated 9.8.1999 passed by the learned Magistrate is hereby, set aside. This application is, accordingly allowed.

Categories:JudgementJudgement

SC: Amount awarded under 125 CrPC is adjustable against the amount awarded in the matrimonial proceedings

Equivalent citations: AIR 1999 SC 536, 1999 CriLJ 466, JT 1998 (9) SC 473
Bench: S Bharucha, F Uddin

Sudeep Chaudhary vs Radha Chaudhary on 31/1/1997

JUDGMENT

S.P. Bharucha, J.

1. Special leave granted.

2. The respondent-wife has been served by substituted service but does not appear.

3. The appellant-husband and the respondent-wife are estranged. The wife filed an application under Section 125 of the Criminal Procedure Code for maintenance which was awarded at the rate of Rs. 350/- p.m. with effect from 3rd July, 1990, and was subsequently enhanced to Rs. 500/- p.m.

4. In proceedings under the Hindu Marriage Act the wife sought alimony. It was granted at the rate of Rs. 600/- p.m. on 11th August, 1987, and the amount, thereof was subsequently enhanced to Rs. 800/- p.m.

5. Since the husband failed to pay the amount of maintenance as aforesaid, the wife started recovery proceedings. The husband contended that the maintenance amounts should be adjusted against the interim alimony and the Magistrate before whom the recovery proceedings were pending upheld the contention. The High Court, in the order which is under appeal, held that the Magistrate was in error in directing adjustment of the maintenance amount awarded under Section 125 of the Cr.P.C. against the amount awarded under Section 24 of the Hindu Marriage Act.

6.We are of the view that the High Court was in error. The amount awarded under Section 125 of the Cr.P.C. for maintenance was adjustable against the amount awarded in the matrimonial proceedings and was not to be given over and above the same. In the absence of the wife, we are, however not inclined to go into any detailed discussion of the law.

7. At the same time, we feel that the claims of the husband and the wife are to be balanced. We, therefore, direct that the husband shall pay to the wife towards maintenance (which now comprehends both the amount awarded under Section 125 of the Cr.P.C. and the amount awarded in the matrimonial proceedings) the sum of Rs. 1,000/- p.m. commencing from 3rd July, 1990. The arrears, if any, shall be paid within 8 weeks.

8. This order will be subject to such orders as may be passed at the stage of final disposal of the matrimonial proceedings.

9. The appeal is disposed of accordingly.

10. No order as to costs.

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HC: Wife refused to stay with Husband…CrPC 125 rejected

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HC: CrPC 125 & DV Act together are not Double Jepordy but DV quashed as husband already got divorce

THE HONOURABLE SRI JUSTICE K.G.SHANKAR

CRIMINAL PETITION No.7124 OF 2008

01-04-2011

A.Sreenivasa Rao and others

The State of A.P., rep. by its Public Prosecutor,High Court of A.P., Hyderabad and another

Counsel for the Petitioners: Sri D.Madhava Rao

Counsel for the Respondent No.1: Public Prosecutor

Counsel for the Respondent No.2: M/s. K.Ananda Rao

:ORDER:

1. There is no representation for the 2nd respondent-wife. The petitioners are Accused Nos.1 to 5 in D.V.A.No.18 of 2007 on the file of the III Additional Chief Metropolitan Magistrate, Hyderabad. The 1st accused is/was the husband of the 2nd respondent. Alleging that A-1 to A-5 committed matrimonial offences, the 2nd respondent/wife laid D.V.A.No.18 of 2007.

2. As there is prior litigation between the parties, the 2nd respondent laid M.C.No.175 of 2003 seeking for maintenance from the 1st petitioner herein. She was indeed successful in obtaining an order from the Court granting maintenance in her favour. It would appear that the order has become final.

3. While so, the 2nd respondent laid C.C.No.226 of 2003 on the file of the XIII Additional Chief Metropolitan Magistrate (Mahila Court), Hyderabad. She made allegations against the petitioner herein in C.C.No.226 of 2003 under Section 498-A and other matrimonial offences. The case had ended in acquittal. The judgment was pronounced on 30.4.2007.

4. In the interregnum, the 1st petitioner/husband laid O.P.No.366 of 2004 on the file of the Family Court, Hyderabad seeking the dissolution of his marriage with the 2nd respondent by divorce on the ground of cruelty on the part of the wife. The learned Judge, Family Court, Hyderabad granted divorce in favour of the petitioner through orders in O.P.No.366 of 2004 on 5.5.2006.

5. It may be noticed that D.V.A.No.18 of 2007 itself was filed after the 1st petitioner obtained divorce from the 2nd respondent. Sri Ashish Samanth, learned Counsel for the petitioners contended that laying of D.V.C.No.18 of 2007 is tantamount to double jeopardy as the petitioners were acquitted on identical allegations in C.C.No.226 of 2003 and that the petitioners cannot be proceeded against again in D.V.A.No.18 of 2007. I do not agree with this contention of the learned Counsel for the petitioner for the reason that the protection envisaged by the Article 20(2) of the Indian Constitution as well as by Section 300 Cr.P.C., which is a protection against the double jeopardy would apply if both the proceedings are criminal in nature, whereas the proceedings in D.V.A.No.18 of 2007 cannot be considered to be criminal proceedings. Like proceedings under Section 125 Cr.P.C., perhaps the proceedings under Domestic Violence Act are quasi-criminal proceedings. However, they are not criminal proceedings as such to fall within the mischief of Article 20(2) of the Indian Constitution or under Section 300 Cr.P.C.

6. At the same time, by the time the D.V.A.No.18 of 2007 was laid in 2007, the marriage between the 1st petitioner and the 2nd respondent already stood dissolved by the Family Court, Hyderabad through a decree in O.P.No.366 of 2004. When there was no jural relationship of man and his wife between the 1st petitioner and the 2nd respondent by the date of filing of D.V.A.No.18 of 2007, the case in D.V.A.No.18 of 2007 prima-facie is not maintainable. Added to it, the 2nd respondent is silent as to the dates when the alleged violations under the Domestic Violence Act have occurred. Viewed in this angle, the 2nd respondent is not entitled to proceed against the petitioner under the provisions of the Domestic Violence Act.

7. I wholly agree with the contention of the learned Counsel for the petitioners that the proceedings in D.V.A.No.18 of 2007 are not maintainable in view of the divorce between the 1st petitioner and the 2nd respondent having been granted by a competent Civil Court. Proceedings against the petitioners herein are quashed in D.V.A.No.18 of 2007 on the file of the III Additional Chief Metropolitan Magistrate, Hyderabad.

HC: maintenance of 1/5th of salary is reasonable

Categories:Judgement

IA under CrPC 125 rejected by Principal Judge, Family Court, Bangalore

Categories:Judgement

HC on confusion due to simultaneous proceeings in DV Act and CrPC 125

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No. 593 of 2009

Akhilesh Kumar Applicant. Versus

Smt. Sarita Respondent.

Mr. Prashant Khanna, Advocate holding brief of Mr. R.P. Nautiyal, Advocate for the applicant.

Mr. Pawan Mishra, Advocate for the applicant / respondent. Date of Order: 29.03.2011

BARIN GHOSH, CHIEF JUSTICE

Clarification Application No. 278 of 2011 The words, “If any amount is paid under Section 125 of Criminal Procedure Code by the petitioner to the respondent, the same shall be adjusted against the amount of Rs. 5,000/- per month directed to be paid by this Court” is causing the confusion. In fact, a proceeding was initiated under Section 125 of the Criminal Procedure Code. In that proceeding, there was a direction to pay maintenance. Such maintenance was paid for sometime. Subsequent thereto, that proceeding was compromised. When no order was passed for payment of maintenance, in as much as the husband and the wife represented to the Court that they will henceforth live together. Subsequent thereto, wife was compelled to initiate a proceeding under the provisions of the Protection of Women from Domestic Violence Act, 2005. In that, the Magistrate awarded maintenance of Rs. 7,000/-. The Sessions Judge, at the instance of the husband, refused to interfere. This Court, as an interim measure, reduced the quantum of such maintenance from Rs. 7,000/- to Rs. 5,000/-. While doing so, the above observation was made. The said observation was made only for the purpose of ensuring that wife does not get anything more than Rs. 5,000/- per month. The Court did not permit the husband to adjust amount paid on earlier occasions in a closed proceedings with the amount directed to be paid by the Court by its order dated 14th June, 2010.

2

2. With the above clarification, the application made therefor is disposed of.

(Barin Ghosh, C.J.)

29.03.2011

Amit

Children need to maintain their father : Gujrat HC

CR.RA/759/2009 4/4 JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL REVISION APPLICATION No. 759 of 2009

For Approval and Signature:

HONOURABLE MR.JUSTICE AKIL KURESHI

=================================================

1

Whether Reporters of Local Papers may be allowed to see the judgment ?

2

To be referred to the Reporter or not ?

3

Whether their Lordships wish to see the fair copy of the judgment ?

4

Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?

5

Whether it is to be circulated to the civil judge ?

=================================================

HASMUKHBHAI NARANBHAI VIRAMIYA & 1 – Applicant(s)

Versus

STATE OF GUJARAT & 1 – Respondent(s)

================================================= Appearance :

MR PRADEEP PATEL for Applicant(s) : 1 – 2. PUBLIC PROSECUTOR for Respondent(s) : 1,

RULE SERVED for Respondent(s) : 2,

MR JL HAJARE for Respondent(s) : 2,

=================================================

CORAM :

HONOURABLE MR.JUSTICE AKIL KURESHI

Date : 09/02/2011

ORAL JUDGMENT

1. Petitioners are sons of respondent No.2. Respondent No.2 father had filed Criminal Miscellaneous Application No.585 of 2008 before the Family Court, Rajkot seeking maintenance from his sons contending that in old age he has no independent source of income and he is unable to maintain himself.

2. Learned Judge of Family Court, Rajkot by impugned order dated 9.9.2010 allowed the application partly and directed both the sons to pay Rs.600/- each per month to the father. He thus received a total of Rs.1200/- by way of maintenance from two sons.

3. In the present case, the petitioners have opposed the order of maintenance on various grounds, namely, that the father had deserted the family many years back and has started leaving with another lady without any valid marriage. From such cohabitation he also has one son and one daughter against whom no claim is made. It is also the case of the petitioners that the petitioners are willing to look after the father if he resides with them. The case of the petitioners further is that they do not have sufficient means to pay maintenance to the father.

4. Counsel for the petitioners drew my attention to the evidence on record to point out that the cohabitation of the father with another lady and this lady giving birth to two children out of such cohabitation are admitted by him. Counsel for the petitioners submitted that the father had not supported the family yet sold away certain immovable properties from which he has received considerable amount. He also instituted several proceedings seeking eviction of the petitioners from the residential premises occupied by them.

5. Counsel for the respondent No.2 was absent on numerous occasions, I, therefore, had no benefit of his arguments.

6. So far as the contention that the father has sold certain immovable properties and raised considerable amount which could be source for his sustenance is concerned, admittedly there is no evidence on record in this regard. Such oral averments, raised for the first time in the High Court, cannot be accepted.

7. In so far liability of the petitioners to maintain their father, who has no independent source of income, flows clearly from sub-Section(1) of Section 125 of the Criminal Procedure Code. It reads as follows:-

“Section125. Order for maintenance of wives, children and parents(1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child ( not being married daughter) who has attained majority, where such child is, by reason of any physical or mental, abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself,

a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate, as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:

xxx xxx xxx

8. In absence of anything on record to suggest that the father had any source of income whatsoever, the Family Court rightly believed that he was unable to maintain himself, particularly, looking to his age of about 72 years.

9. It has also come on record that the father is not only aged but he is also infirm and suffers from sickness time and again.

10. Regarding ability of the petitioners to pay maintenance, learned Judge though discarded the averment of the father that the sons are earning Rs.12,000/- to 20,000/- per month, on the basis of evidence on record, learned Judge believed that the petitioner No.1 would be earning approximately Rs.3000/- per month and petitioner No.2 Rs.3,500/- per month. Considering their family liabilities, he asked them to pay Rs. 600/- each to the father. With this assessment or the ultimate direction, I find no infirmity whatsoever.

11. It is true that the father had admitted that he had entered into an agreement of friendship with one lady in the year 1990 and from such cohabitation two children were also born. However, the petitioners are currently stated to be aged 52 years and 48 years respectively. In the year 1990, therefore, they were fully grown up in the age group of 28 and 22 respectively. It, therefore, cannot be stated that the father abandoned them in their infancy. Further the fact that the father has not claimed any maintenance from other son, can hardly be a ground to absolve these petitioners from their responsibility to look after their father in his old age.

12. Under the circumstances, the petition is dismissed. It is, however, clarified that if the petitioners have any evidence to show that the father, by virtue of sale of properties, has received considerable amount, which could be his source of income, it would be open for them to file application under Section 127 of the Criminal Procedure Code before the Family Court.

13. With above observations, petition is dismissed. Interim relief stands vacated. Rule discharged.

(Akil Kureshi, J. )

sudhir

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Categories:Judgement

HC: DNA test of husband rejected in CrPC 125 case

HIGH COURT OF MADHYA PRADESH : JABALPUR M.Cr.C. No. 5273/2010

Lallu Lal Patel

-Vs-

Smt.Anar Kali @ Tannu Bai Yadav and another PRESENT : Hon. M.A.Siddiqui,J.

Shri Ashok Lalwani , Adv. for petitioner. Shri Paritosh Trivedi, Adv.for respondents. ORDER RESERVED ON 14/02/2011.

ORDER PASSED ON 21/02/2011. ORDER

This petition under Section 482 of Cr.P.C. has been filed by the petitioner to invoke the extra ordinary powers of this Court to order for DNA test of respondent no.2 Sanju Yadav @ Munna Lal Yadav in proceeding under Section 125 Cr.P.C.pending before JMFC, Mandla. (2) In brief, the petition is that respondent no.1 is not the wife of petitioner and respondent no.2 is not the legitimate/illegitimate son of petitioner. Proceeding for maintenance of respondent no.2 is pending before JMFC, Mandla where n application for DNA test of respondent no.2 has been filed. On 19.1.10 the application for DNA test has been rejected by JMFC, Mandla and on revision by Cri.Revision No.21/10, on 19.4.10, request for DNA test has been refused. It is alleged that it is necessary not -2-

only for deciding the case, but also to wash off the stigma of illegitimate child which respondent no.2 has to carry with him through out his life. Respondent has objected the test. Aggrieved by the orders, this petition has been filed by the petitioner.

(3) Learned counsel for petitioner submits that petitioner is not the husband of respondent no.1 and he got declaration through a civil suit and she wrongly filed a case under Section 125 Cr.P.C. not for herself but for her son Sanju. Petitioner has got acquittal from the criminal case of rape in ST No. 153/98 on 22nd April,1999. He got the decree from civil suit that he is not the husband of respondent no.1. Petitioner has rightly moved application for DNA test of the boy Sanju to ascertain the paternity, but same has been wrongly refused by the two Courts below. He prays that direction to do the DNA test of the boy Sanju may be given. (4) Respondents have opposed the request and supported both the orders of the Courts below on the ground that both are reasoned orders and it has been rightly discussed that it is the duty of the petitioner to prove his own case and he cannot make the Court as a tool to collect the evidence and DNA test is a test which cannot be ordered against the Will of the person. -3-

(5) Learned counsel for petitioner submitted the case law of Kerala High Court in Sajeera vs. P.K.Salim 2000 Cri.L.J.1208 which has also been relied on by the trial Court in which it has been held that under Section 112 of Evidence Act, for evidence of legitimacy and paternity of child, no one can be compelled to undergo blood test. Blood test should be conducted only with the consent of the person. Learned counsel for petitioner has placed reliance on H.M.Prakash alias Dali vs.State of Karnataka 2004 (3) KarLJ 584 which is based on section 53 of the Cr.P.C. and which is about direction to the police officer and it has no relevancy with the case in hand. In C.Rajaram vs. Jothi and another Crl.O.P.No. 35499 of 2007 order of DNA test was given as lady gave birth to a child before nine months of the marriage. So this authority is also of no relevance. (6) Learned counsel for petitioner has placed reliance on a decision of Apex Court in Buridi Vanajakshmi vs. Buridi Venkata Satya Varaha Prasad Gangadhar Rao & Anr. AIR 2010 AP 172 wherein it has been held that under Hindu Marriage Act for the dispute as to paternity of child, DNA test could be ordered by the High Court under its inherent powers, but against it is the authority of Apex Court Goutam Kundu vs. State of West Bengal -4-

AIR 1993 SC 2295 wherein it has been held that nobody can be compelled to give sample of blood for analysis. Almost similar view has been reiterated in Smt. Selvi & Ors. vs. State of Karnataka AIR 2010 SC 1974 wherein it has been held that for Narco analysis consent is a must.

(7) In Banarsi Dass vs. Teeku Dutta (Mrs.) And Another (2005) 4 SCC 449 it has been held that under Section 112 and 4 of Evidence Act, the conclusiveness of presumption under S.112 cannot be rebutted by DNA test. The proof of non-access between the parties to marriage during the relevant period is the only way to rebut that presumption and DNA test is not to be directed as a matter of routine, it is to be directed only in deserving cases.

(8) So, looking to the above circumstances of the case, I find no ground to invoke the extra ordinary jurisdiction of this Court under S.482 Cr.P.C. Petition being devoid of merits is hereby dismissed.

(M.A.Siddiqui)

JUDGE

/02/2011.

Jk.

Categories:Judgement

HC: Wife give birth within 5 month of marriage: Still maintenance allowed

IN THE HIGH COURT AT CALCUTTA

Criminal Revisional Jurisdiction

PRESENT:

THE HON’BLE MR. JUSTICE KALIDAS MUKHERJEE

C.R.R. NO. 1844 OF 2003

Bhopal Majee

Vs.

The State of West Bengal & Anr..

For the Petitioner: Madhusudan Mondal

For the O.P. No. 2: Mr. Arindam Sen

Mr. Josojeet Mukherjee

Heard On : 8.4.2010 & 22.6.2010.

Judgment on: 30.6.2010.

Kalidas Mukherjee, J. :

1. This is an application under Article 227 of the Constitution of India assailing the order dated 19.2.2003 passed by learned Additional District & Sessions Judge, Fast Track Court (4th), Raghunathpur, Purulia in Criminal Revision No. 15 of 2001 whereby and whereunder the order dated 21.1.2001 passed by learned Judicial Magistrate in Misc. Case No. 23 of 1993 was affirmed. The learned Magistrate directed the O.P./husband to make payment of maintenance allowance @ Rs.350/- per month to the wife and @ Rs.250/- per month for her son from the date of the order.

2

2. The case of the petitioner in the application under Section 125 Cr.P.C. is that the applicant is the legally married wife of the O.P. Bhopal Majee and the marriage was solemnized on 20th Ashar, 1393 B.S. After marriage petitioner used to live with the O.P. as husband and wife and gave birth to a son out of their lawful wedlock. The son is aged about six years at the time of filing of the petition under Section 125 Cr.P.C. In the matrimonial home the O.P. began to ill treat with the petitioner and he also assaulted her very often and ultimately drove her out from the matrimonial home. The petitioner/wife came with her minor son to her paternal house. The O.P. did not take any information of the applicant and her minor son. The O.P. has sufficient means to pay maintenance. The O.P. is an able bodied person having 40 bighas of landed property from which he earns 15,000/- per year. Besides the O.P. is a Railway employee working at Garbeta under Southern Railway as class IV staff.

3. The O.P./husband filed written objection before the learned Magistrate contending, inter alia, that there was marriage between the parties on 20th Ashar, 1393 B.S. but the petitioner gave birth to a male child within four months twenty days from the date of marriage. It has been contended by the O.P./husband that the petitioner as well as her father fraudulently concealed and suppressed the fact of pregnancy of the petitioner on the date of marriage. It is alleged by the O.P. that he had no access to and/or even acquaintance with her prior to the marriage 3

and the petitioner became pregnant by someone excepting to the O.P. After the delivery of the child the petitioner’s father came and took back his daughter along with the new born baby. The petitioner and her father promised and assured at that time that they would have no claim on the basis of the marriage between the parties. It has been alleged that because of suppression of material, the marriage was void and the O.P./husband filed a suit bearing T.S. No. 69 of 1993 against the petitioner for a declaration that there was no legal relationship of husband and wife between the parties and the petitioner was not the legally married wife of the O.P. The husband preferred a Misc. Appeal bearing No. 20 of 1993 before the learned District Judge, Purulia. The O.P./husband has contended that the petitioner/wife is not entitled to get any maintenance allowance.

4. The learned Magistrate allowed the petition under Section 125 Cr.P.C. holding that in T.S. No. 69 of 1993 it was held that the petitioner was made pregnant by the O.P./husband and the marriage between the parties was legal, valid and subsisting. The learned Magistrate further held that the finding of the Civil Court was binding upon the Criminal Court and there was no scope for fresh adjudication on that point. The learned Magistrate accordingly held that the marriage between the parties was legal, valid and subsisting and the son born to the womb of the petitioner was by the loins of the O.P. The learned Magistrate further held that the O.P. by challenging the legality and validity of the 4

marriage and in course of challenge raised doubt about the chastity of the petitioner and denied the paternity of the child which was, by itself, sufficient ground for separate living by the petitioner. The learned Magistrate held that the O.P. did not say about his monthly salary though it was within his special knowledge. It was held that the O.P. being an employee in the Railway must have sufficient means to pay maintenance. The learned Magistrate further held that the petitioner having no income to maintain herself and her child, was entitled to get maintenance.

5. The O.P./husband preferred a Criminal Revision bearing No. 15 of 2001 before the learned Additional District Judge who relying on the judgment in T.S. No. 69 of 1993 held that the marriage between the parties was legal, valid, subsisting and the petitioner was made pregnant by the O.P./husband. It is also found from the findings of the learned Judge that the judgment and decree passed in Title Suit was affirmed in Title Appeal No. 39 of 1996. The learned Judge further observed that without going for DNA test, the Court can take into account the accessibility of the parties at the material point of time when the child came to the womb of the wife. The learned Judge dismissed the Criminal Revision and affirmed the order passed by the learned Magistrate.

6. In this application the leaned Counsel for the petitioner/husband made submission in part on 8.4.2010, but, subsequently when the case was 5

taken up for further hearing the learned Counsel did not appear and the argument of the learned Counsel of the O.P./wife was heard.

7. The learned Counsel for the O.P. submits that the marriage between the parties is admitted and there is no ground to interfere with the findings of the learned Additional District Judge. The learned Counsel submits that the wife subsequently filed an application under Section 127 Cr.P.C. for enhancement of the maintenance allowance which was allowed on consent and the maintenance was raised to Rs.1,300/- per month for petitioner and her child. The learned Counsel for the O.P. herein has referred to the decision reported in (2003)6 SCC 1993 [Amina Vs. Hassn Koya] para 4. It has been held by the Apex Court in para 4 as follows:-

” It is very difficult to believe that a woman who is five months’ pregnant will be able to conceal the pregnancy from the husband. Such an advanced stage of pregnancy cannot be concealed as the pregnancy starts showing by that time. In any case the pregnancy cannot be concealed from the husband. A husband will at least know for sure that the wife is pregnant specially when the pregnancy is five months’ old. Therefore, we cannot accept that the respondent did not know at the time of marriage that the appellant was already pregnant. If this fact was known to the respondent, the marriage cannot be said to be illegal or void.”

8. It appears from the impugned order that there was a finding of the Civil Court holding that the marriage between the parties was legal, valid and subsisting and that the petitioner/wife became pregnant by the 6

O.P./husband. In the instant case, the marriage is admitted and the only objection of the O.P./husband is the paternity of the child. In the decision cited above it has been held that the plea of the husband that he was not aware of the pregnancy of the wife, was not accepted. Moreover, from the order dated 14.9.2009 passed in Misc. Case No. 21 of 2008 (Kalabati Majee Vs. Bhupal Majee) in the Court of Judicial Magistrate, 1st Class, Raghunathpur it appears that the maintenance allowance was enhanced under Section 127 Cr.P.C. to Rs.1,300/- per month on consent of the parties. It appears that learned Court below discussed all the points and the learned Judge rightly rejected the Revisional Application. There is no ground to interfere with the findings of the learned Judge.

9. In the result the application under Article 227 of the Constitution of India fails and the same is dismissed.

10. Let a copy of this order be sent down to the learned Court below immediately.

11. Urgent Photostat certified copy, if applied for, be handed over to the parties as early as possible.

(Kalidas Mukherjee, J. )

Categories:Judgement

Wife’s maintenance rejected by FC but HC awards 1 lakh as permanent alimony

MISC. APPEAL No.215 OF 2010

1-SANTOSH KUMAR SINHA S/O SRI SURESH LAL R/O VILL.- DAYAL CHHAPRA, P.S.- CHARPOKHARI, DISTT.- BHOJPUR —– Petitioner-Appellant

Versus

1-MADHUBALA SINHA D/O SHYAM KISHORE PRASAD R/O VILL.- RATANPUR, P.S.- ARRAH MUFFASIL, DISTT.- BHOJPUR —–Opposite Party-Respondent

———–

PRESENT

THE HON’BLE MR. JUSTICE NAVIN SINHA

THE HON’BLE MR. JUSTICE JYOTI SARAN

Navin Sinha & The appellant was married to the respondent on Jyoti Saran,

J.J. 12.6.1991. Matrimonial acrimony led to the institution of Charpokhari P.S. Case No. 68 of 1992, under Section 498A of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act, by the father of the respondent against the appellant and his family members. The accused were taken into custody. They were subsequently released on bail. The matter is then stated to have been compromised. Thereafter the respondent is alleged to have sent a legal notice making certain allegations and demanding Rs. 250/- per month which was denied by the appellant stating that the respondent was leading an adulterous life. The appellant then filed Matrimonial Case No. 02 of 1993, from which the present 2

appeal arises. The Family Court unsuccessfully attempted reconciliation on more than one occasion. The respondent expressed her willingness to go back to the matrimonial home. The appellant on account of custody, consequent to the criminal prosecution denied restoration of matrimonial harmony. The respondent in the matrimonial case filed a counter claim for restitution of conjugal rights. The respondent also filed Title Suit No. 103 of 1993 for getting monthly allowance and for the return of her matrimonial properties, ornaments, other articles etc. In the matrimonial suit the appellant alleged cruelty against the respondent social, mental and physical. The respondent denied the allegations alleging bad behaviour on part of the appellant sought to be justified by institution of Charpokhari P.S. Case No. 68 of 1992 by her. The Family Court noticed that during her evidence the respondent sought to suppress the filing of Title Suit No. 103 of 1993 by her. It appears from the judgment under appeal that the suit has also been dismissed. The Family Court came to the conclusion that there was an irretrievable break down of the marriage since the parties had not been residing together for nearly 17 years, opining that it may be cruelty to compel them to live together. While granting divorce it granted permanent alimony of Rs. 3,00000/- (three lakhs) 3

to the respondent.

Learned counsel for the appellant contended that the amount of permanent alimony awarded is fanciful and he does not have the capacity to pay the same. He is a licensed deed writer in the Civil Court at Ara in the District of Bhojpur and has no source of income. Strong reliance was sought to be placed on the judgment and decree in Title Suit No. 103 of 1993 at paragraph-25 of the same.

Learned counsel for the respondent reiterated the submission for willingness to revive matrimonial harmony. The judgment in Title Suit No. 103 of 1993 is acknowledged to have attained finality not having been questioned in appeal. We find no error in the judgment under appeal on merits in the peculiar facts and circumstances of the case to the extent that it grants divorce and rejects the counter claim for restitution of conjugal rights. Matrimonial relations are based on mutual trust and belief in each other. Once the trust and belief collapses and more than reasonable time elapses before efforts could be made to restore the faith and trust, an irretrievable situation is created. Perhaps the English adage that distance makes the heart grow fonder takes effect in the reverse direction. On the issue of the quantum of permanent alimony awarded, considering the submission of both sides as also the judgment in Title Suit No. 103 of 1993, we are 4

satisfied that the amount of permanent alimony awarded is excess. The respondent has not brought any materials before us to satisfy of the economic status or financial capacity of the appellant. On the contrary, the appellant has a judicial finding in his favour. At this stage, learned counsel for the respondent submitted that she would be satisfied, if at least a permanent alimony Rs. 1,50,000/- is awarded to her and the judgment under appeal may be modified to that extent. Prima facie we were inclined to accept the submission of the respondent as reasonable. The appellant however reiterated his inability to pay relying upon the judgment in Title Suit No. 103 of 1993.

In absence of any cogent material before us placed by the respondent to counter the findings given in the Title Suit filed by her, but at the same time keeping her interest in mind, the case of the appellant himself that he is a deed writer and that his father does possess joint family property also, we consider it proper to modify the amount of permanent alimony to make it reasonable which the appellant shall be able to pay. The fact that he may encounter difficulty in payment does not impress us at it is his bounden duty in law to provide for his separated wife unless the law exempts him from that responsibility. Being an able bodied male it is for him to find the resources to pay permanent alimony to his 5

wife. We therefore modify the amount of permanent alimony Rs. 3,00000/- to Rs. 1,00000/- payable in two equal installments. We further direct that the first installment of the alimony of Rs. 50,000/- shall be paid to the respondent within a period of one month. The balance amount of Rs. 50,000/- shall be paid after an interval of one month from the date of payment of first installment of Rs. 50,000/-. The appeal is disposed off with the aforesaid modification in the quantum of permanent alimony. ( Navin Sinha, J.)

(Jyoti Saran, J.)

Patna High Court,

Dated 14th July, 2010

Categories:Judgement

HC: Duty of the husband to maintain wife first, then only brother, sister and mother

CR.RA/587/2009 2/2 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL REVISION APPLICATION No. 587 of 2009

=========================================================

MOHD.IRFAN USMANGANI SHEIKH – Applicant(s)

Versus

STATE OF GUJARAT & 1 – Respondent(s)

========================================================= Appearance :

MR PRATIK B BAROT for Applicant(s) : 1, MS ML SHAH, APP for Respondent(s) : 1, MR MM TIRMIZI for Respondent(s) : 2, =========================================================

CORAM :

HONOURABLE MR.JUSTICE AKIL KURESHI

Date : 19/07/2010

ORAL ORDER

Petitioner is husband of respondent no.2. He has challenged an order dated 31.3.2009 passed by the Family Court, Ahmedabad directing to pay maintenance of Rs. 1500/-per month to wife.

Counsel for the petitioner submitted that amount of maintenance fixed is excessive. That the cohabitation out of the marriage lasted for less than five months. Petitioner is not able to earn enough to support wife and other family members which include his brother, sister and mother.

From the perusal of the judgement under consideration, however, I find that the petitioner is stated to be doing stitching work. He is residing in the city of Ahmedabad. He is stated to be about 23 years of age. As an able bodied person and being a skilled worker, it cannot be believed that petitioner does not earn anything at all. Brother of the petitioner is stated to be about 26 years of age. If the petitioner was keen to look after his brother, it was his first duty to maintain his wife.

Considering all these aspects of the matter, in my opinion, order passed by the Family Court does not suffer from any infirmity. Petition is therefore, dismissed.

However, if the petitioner pays arrears in six equal monthly installments, starting from 10.8.2010, there shall be no coercive recovery against him, provided he continues to deposit prospective monthly maintenance. However, in case of any violation of above conditions, it would be open for the Family Court to proceed further with the recovery proceedings.

(Akil Kureshi,J.)

Categories:Judgement

HC: 4200 PM maintenance on income of 15000 PM (assessed income by HC)

SCR.A/1627/2010 3/3 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CRIMINAL APPLICATION No. 1627 of 2010

=========================================================

PARESHBHAI ARVINDBHAI PATEL – Applicant(s)

Versus

REKHABEN BABUBHAI PATEL & 2 – Respondent(s)

========================================================= Appearance :

MR PRADIP D BHATE for Applicant(s) : 1, None for Respondent(s) : 1 – 2.

MS CHETNA SHAH ADDL PUBLIC PROSECUTOR for Respondent(s) : 3, =========================================================

CORAM :

HONOURABLE MR.JUSTICE AKIL KURESHI

Date : 17/09/2010

ORAL ORDER

Petitioner is husband of the respondent No.1 and father of the minor respondent No.2. He is required to pay monthly maintenance of Rs.2200/- to his wife and Rs.2000/- to his minor son by order dated 30^th November 2009 passed by the learned Magistrate, Dahod. His revision application against the said order came to be dismissed by the Sessions Court vide order dated 27^th July 2010. He has, therefore, filed the present petition.

Counsel for the petitioner submitted that the Courts below have wrongly assessed income of the petitioner going against the documents on record. He submitted that amount of maintenance is excessive and calls for interference.

From the orders under challenge and in particular one passed by the learned Magistrate, it clearly emerges that the petitioner is only son of his father. His mother is also passed away. Father has retired from Railways Department which is a pensionable service. Sister of the petitioner is married in USA and settled there. His father has been frequently visiting her in USA. He has also in past traveled to London for some social reasons.

It further emerges that the petitioner in his cross examination admitted that he is owner of one residential house which is in his exclusive name. Admittedly the father of the petitioner is also co-owner of piece of agricultural land.

Averments of the wife before the Courts below was that the husband is doing electrical work since he has done technical course in this field and has two shops from where he operates. Husband, however, has produced certificate of Mamlatdar suggesting that his yearly income is only Rs.20,000/-.

Two courts below have assessed income of the petitioner much higher on the basis of the evidence, some of which, I have recorded hereinabove.

These are purely factual findings. I have no reason to take different view though version of the wife is that he is earning Rs.50,000/- per month was discarded by the Courts. However, the Courts below believed that the petitioner is able bodied person and has been involved in the electrical work, would be earning about Rs.15,000/- per month. Other family circumstances and living style lead by the family convince me not to interfere with the impugned orders.

Petition is, therefore, not entertained and stands dismissed accordingly.

( AKIL KURESHI, J. )

kailash

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