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Gujarat HC-CrPC 125 only allows Monthly, no lumpsum payments for Residence

July 13, 2016 2 comments

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL REVISION APPLICATION

(FOR MAINTENANCE)

NO. 350 of  2016

DILIPBHAI MOTIBHAI SONARA….Applicant(s)

 

Versus

 

KAJALBEN W/O DILIPBHAI SONARA D/O HIRABHAI VAGHJIBHAI CHHAIYA & 1….Respondent(s)

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

Appearance:

MR.DEVENDRA H PANDYA, ADVOCATE for the Applicant(s) No. 1

MR ASHISH M DAGLI, ADVOCATE for the Respondent(s) No. 1 – 2

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

CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 04/07/2016

ORAL ORDER
1. Rule. Learned advocate Mr. Ashish M. Dagli waives service of notice of rule on behalf of respondent Nos. 1 and 2.

  1. Heard learned advocate Mr. Devendra Pandya for the applicant and learned advocate Mr. Ashish Dagli for respondents. Perused the record.
  2. Petitioner herein is husband, whereas respondent No.1 is wife and respondent No.2 is their minor son. The petitioner has challenged the judgment and order dated 24.02.2016 in Criminal Misc. Application No.205 of 2013 by the Family Court, Rajkot. By such impugned judgment, the Family Court has awarded an amount of Rs.5000/- towards maintenance of wife and Rs.3000/- towards maintenance of minor son with cost of Rs.10,000/- The Family Court has awarded an amount of Rs.2,00,000/- as lumpsum amount for the purpose of provision for residence.
  3. The petitioner has challenged such order on several grounds. However, if we peruse the impugned judgment, it becomes clear that present petitioner has defended the claim of maintenance before the Family Court. The petitioner has adduced his own evidence, so also examined two witnesses and produced relevant documentary evidence either to prove his income so also income of the wife. However, the fact remains that so far as income of the wife is concerned, the land in question is not owned by her and, therefore, at the most, she may get some labour charges as agricultural laborer, if at all she is able to do agricultural work. Whereas it is the case of the petitioner husband that wife is working in Beauty Parlour and earning Rs.10,000/-. However, there is no supporting or corroborating evidence to that effect except pleadings and statement by the petitioner.
  4. As against that, petitioner is also owning 11 hectares of agriculture land though it is stated that some of the plots of land owned by his sister. It has also come on record, that his sister is unmarried and she is also serving as a teacher and earning Rs.15,000/- per month. Even evidence of the petitioner husband has confirmed such situation and, therefore, there is reason to believe that husband is having reasonable income and thereby he can certainly maintain his wife and son.
  5. Considering the rival submissions, when petitioner has not disclosed his correct income or relevant evidence for consideration of his income, the Family Court has relied upon the legal provisions regarding adverse inference and held that petitioner must be earning Rs.15,000/- for awarding compensation to his wife and minor child. Therefore, considering overall facts and circumstances so also requirement of wife to stay with dignity, the Court has awarded such amount as maintenance for two living persons and, therefore, I do not see any reason to reduce the same.
  6. However, so far as additional amount of Rs.2,00,000/- towards provision of residence is concerned, it is clear that the Family Court has misinterpreted the decision in the case of Lomalam Amma vs. Kumara Pillai Raghavan Pillai reported in AIR 2009 SC 636 because, though it is true that provision for maintenance must include provision for residence with provision for food and clothing etc. and thereby though basic need of roof over head is to be considered and, therefore, though the Honourable Supreme Court has stated that provision for residence may be made either by giving lump sum in money or properties in lieu thereof or by providing money for necessary expenditure or by giving life interest in property, it becomes clear that under the provisions of Section 125 of the Code of Criminal Procedure, the Court is empowered to make arrangement for maintenance of wife which may include consideration for provision for residence but in my considered view, the Court while passing an order under Section 125 of the Code of Criminal Procedure does not have jurisdiction to award lump sum amount towards residential accommodation though it can be awarded under the provisions of Domestic Violence Act. It cannot be ignored that in such cited decision, the Honourable Supreme Court was dealing with the relief of maintenance under Hindu Adoption and Maintenance Act and not under provisions of Section 125 of the Code of Criminal Procedure. It is quite clear and obvious that both under Hindu Adoption and Maintenance Act and the Protection of Women from Domestic Violence Act, wife can claim a separate residential accommodation or provision for it and competent Court can grant such relief, but there is no similar power vested in the Court while dealing with the application under Section 125 of the Code of Criminal Procedure wherein jurisdiction of the Court is limited for making immediate arrangement for livelihood of the wife and children, though such maintenance must be enough for the wife to live with dignity. However, at the same time, such living should not be luxurious, though she should not be left to live in discomfort.
  7. Therefore, though amount of monthly maintenance may not be disturbed, so far as lump sum amount for residential accommodation is concerned, the same needs to be quashed and set aside. Otherwise also it is quite clear and obvious that an amount of Rs.2,00,000/- would not be sufficient for residential accommodation in a city like Rajkot where wife is residing. In such circumstances, practically while considering quantum of maintenance to be paid to the wife, the Court can consider the proper amount of residential accommodation. In the present case, when Court has awarded total Rs.8,000/- towards maintenance of both applicants from the total income of Rs.15,000/-, it is made clear that this amount includes the provisions for rental accommodation and considering all such aspects, such amount is not reduced to any extent.
  8. For arriving at such conclusion, I am placing reliance on the following decisions: (1) Minati Binati Nayak vs. Govranga Charan Nayak reported in 1995 Cri.L.J. 3569. (2) Vardappa Naidu vs. Thayarammal reported in 1990 (3) Crimes (HC) 706.  (3) Chaturbhuj vs. Sita Bai reported in AIR 2008 SC 530
  9. In view of above facts and circumstances, revision is partly allowed. Thereby impugned order so far as lump sum amount of Rs.2,00,000/- for the purpose of residence is quashed and set aside. Rest of the order regarding maintenance would remain in force. Interim relief shall stand vacated. Rule is made absolute accordingly.

(S.G.SHAH, J.)

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Categories: CrPC 125, IPC, Judgments

Madras HC- Police to file perjury under CrPC 340 against wife for filing forged documents.

Madras High Court
Karthick vs The Commissioner Of Police on 8 July, 2013
       
In the High Court of Judicature at Madras
Dated   08.07.2013
Coram
The Honourable Mr.Justice R.SUBBIAH
Criminal Original Petition No.14889 of 2013


Karthick							..Petitioner

					..vs..

1. The Commissioner of Police,
    Chennai.

2. The Inspector of Police,
    E-4, Abiramapuram Police Station,
    Chennai-600 028.					..Respondents


	Criminal Original Petition filed under section 482  of Criminal Procedure Code, to direct the 2nd respondent to register an FIR on the petitioner's complaint dated 04.02.2013, investigate the same and file a final report in accordance with law.

	For Petitioner      :  Mr.J.Saravanavel

	For Respondents :  Mr.C.Emalias, A.P.P.,

ORDER

The present petition has been filed seeking for a direction to the 2nd respondent to register a case on the petitioner’s complaint dated 04.02.2013, investigate the same and file a final report in accordance with law.

2. Case of the petitioner, in brief, is as follows:

Petitioner is the husband of one Narayanee @ Krithika. A case in HMOP No.383 of 2007 is pending between the petitioner and his wife before the Family Court at Chennai. In the said petition, apart from other miscellaneous petitions, I.A.Nos.486, 1649 and 2429 of 2010 and 2035 of 2011are pending; of which, I.A.Nos.486 and 1649 of 2010 have been filed by the wife on behalf of the minor child Keerthana to enhance the maintenance and to pay the educational expenses respectively. I.A.No.2429 of 2010 has been filed by the wife to strike off the defence and I.A.No.2035 of 2011 has been filed by the petitioner to revise the order of maintenance. During the said enquiry in the said I.As., on 09.04.2004, 23 documents were filed by the wife Krithika through her power agent Viswanathan and the same were marked as Exs.P-1 to P-23. Among which, Ex.P-16 is a document, which is claimed by the said Krithika to be a document issued by the Regional Passport Officer, Delhi, Ministry of External Affairs, Government of India.

3. It is the further case of the petitioner that the said document is a non-existent and a forged document. The petitioner was informed by the Ministry of External Affairs by a letter dated 10.06.2012 that it seems to be a fabricated/forged document. The petitioner made a complaint dated 04.02.2013 to the 1st respondent seeking to initiate appropriate criminal proceedings for forgery and perjury against Krithika and her power of attorney Viswanathan for having fabricated a document and producing the same before the Family Court as evidence, and the same was forwarded to the 2nd respondent for taking action; but the 2nd respondent did not take any action. Hence, the present petition has been filed to register a case on his complaint.

4. Heard the learned counsel for the petitioner as well as the learned Additional Public Prosecutor.

5. It is the case of the petitioner that in a case pending between him and his wife in HMOPNo.383 of 2007 before the Family Court, Chennai, his wife marked a document purported to be issued by the Regional Passport Officer, Ministry of External Affairs, Government of India and the same was marked as Ex.P-16. It is the case of the petitioner that the said document is a forged one and, hence, the petitioner had sent an application on 16.04.2012 to the Ministry of External Affairs under RTI Act to verify, whether Ex.P-16 is a genuine document or or not? But the Regional Passport Officer sent a reply dated 10.06.2012 that the document seems to be a fabricated/forged document. That apart, the petitioner had received a reply dated 05.07.2012 from the Regional Passport Officer in response to the RTI Application dated 26.04.2012. The questions raised by the petitioner in his letter dated 26.04.2012 with regard to Ex.P-13 and the answers given by the Regional Passport Officer by his letter dated 10.06.2012 are as follows:

Sl.No.

Questions raised by the petitioner Reply given by the Department

1. Whether this document is issued by you ?

No.

2. If it is issued by you, on what basis you have issued (as my passport comes under regional passport office at Chennai) and also on what basis you have mentioned various contents of the document?

Not issued by this office.

3. Whether you have issued any other document(s) relating to me to Narayanee ?

No. No record is available

6. After getting these answers from the Regional Passport Officer, the petitioner has lodged a complaint with the 1st respondent police to initiate action against his wife and power agent for their involvement in producing a false document before the court, which is punishable under the provisions of Indian Penal Code. The said complaint which was given to the 1st respondent was forwarded to the 2nd respondent and the 2nd respondent, after recording the statement of power agent, has raised a doubt with regard to the jurisdiction of police investigating the offence. Therefore, they have not taken any further action in the matter. On 06.05.2013, the petitioner sent an application under the RTI Act to know about the status of the complaint. But the Inspector of Police, the 2nd respondent sent a reply dated 17.05.2013 to the queries raised by the petitioner. The questions raised by the petitioner and the answers given by the 2nd respondent are as follows:

Sl.No.

Questions raised by the petitioner Reply given by the 2nd respondent

1. Whether FIR has been filed on the said accused – if it is so, in what sections and the present stage of the proceedings on the FIR.

No case registered against the petition dated 04.02.2013 preferred by the petitoner Thiru S.Karthick.

2. If the FIR is not filed the specific reason for the same?

The forgery documents said in the complaint was filed by the counter petitioner in the family court is lies within the compound of the High Court the Court only decide necessary action on this if it is deem fit.

3. Copies of the petition filed by me dated 04.02.2013 ?

Enclosed.

4. Copy of the statement if received from the accused person ?

Enclosed.

By giving the above recorded answers, the 2nd respondent expressed doubts about the jurisdiction of the police to investigate the offence since already the document was marked in the Court. Aggrieved over the same, the present petition has been filed.

7. It is the main submission of the learned counsel for the petitioner that the 2nd respondent is having jurisdiction to entertain the complaint and investigate the same since the document was created outside the court and thereafter, filed and marked in the court proceedings.

8. Per contra, it is the submission of the learned Additional Public Prosecutor that under section 195(1)(b((ii) Cr.P.C. will operate as a bar for the police to entertain the complaint since the document was already marked in the court proceedings. The only option available to the petitioner is to invoke section 340 of Cr.P.C.before the concerned court.

9. In view of the arguments advanced by both sides, the core question that has to be considered is, whether the police authorities can register a case for creating a forged document, which was allegedly marked in the course of evidence before the Court ?

10. The judgment relied on by the learned counsel for the petitioner reported in (2005) 4 SCC 370 (Iqbal Singh Marwah and another .vs. Meenakshi Marwah and another) is giving a fitting answer for this issue. The factual aspects of the cited case would show that in a probate proceedings, the petition was contested by the respondents on the ground that the Will was forged. Hence, the respondents moved an application before the court concerned requesting the court to file a criminal complaint against the appellants. A reply to the said application was filed on 27.07.1994; but the said application was not disposed of. Hence, the respondents filed a criminal complaint before the court of Chief Metropolitan Magistrate, New Delhi for prosecution under sections 192,193, 463, 464, 465, 467, 469, 471, 499 and 500 IPC on the appellants and their mother on the ground that the Will produced by the appellants was a forged and fictitious document. The learned Metropolitan Magistrate held that the question whether the Will was a genuine document or a forged one, was an issue before the District Judge in the probate proceedings where the Will had been filed, Sections 195(1)(b)(i) and (ii) Cr.P.C. operate as a bar for taking cognizance of the offences under sections 192, 193, 463, 464, 471, 475 and476 IPC. The complaint was accordingly dismissed by order dated 02.05.1998. Subsequently, the respondents in that case filed a criminal revision against the order of learned Metropolitan Magistrate before the Sessions Court, who relying upon the case of Sachida Nand Singh .vs. State of Bihar reported in (1998) 2 SCC 493, held that the bar contained in section 195(1)(b)(ii) would not apply where forgery of a document was committed even before the production of the said document in the Court. The revision petition was accordingly allowed and the matter was remanded to the Court of Metropolitan Magistrate for proceeding in accordance with law. The appellants challenged the order passed by the learned Sessions Judge by filing a petition under section 482 Cr.P.C. before the Delhi High Court, but the same was dismissed. Aggrieved over the same, the appellants preferred S.L.P. before the Hon’ble Supreme Court, wherein it has been observed as under:

“25. An enlarged interpretation to Section 195(1)(b)(ii), whereby the bar created by the said provision would also operate where after commission of an act of forgery the document is subsequently produced in court, is capable of great misuse. As pointed out in Sachida Nand Singh after preparing a forged document or committing an act of forgery, a person may manage to get a proceeding instituted in any civil, criminal or revenue court, either by himself or through someone set up by him and simply file the document in the said proceeding. He would thus be protected from prosecution either at the instance of a private party or the police until the court, where the document has been filed, itself chooses to file a complaint. The litigation may be a prolonged one due to which the actual trial of such a person may be delayed indefinitely. Such an interpretation would be highly detrimental to the interest of the society at large.

26. Judicial notice can be taken of the fact that the courts are normally reluctant to direct filing of a criminal complaint and such a course is rarely adopted. It will not be fair and proper to give an interpretation which leads to a situation where a person alleged to have committed an offence of the type enumerated in clause (b)(ii) is either not placed for trial on account of non-filing of a complaint or if a complaint is filed, the same does not come to its logical end. Judging from such an angle will be in consonance with the principle that an unworkable or impracticable result should be avoided. In Statutory Interpretation by Francis Bennion (3rd Edn.), para 313, the principle has been stated in the following manner:

“The court seeks to avoid a construction of an enactment that produces an unworkable or impracticable result, since this is unlikely to haver been intended by Parliament. Sometimes, however, there are overriding reasons for applying such a construction, for example, where it appears that Parliament really intended it or the literal meaning is too strong”.

………..

33. In view of the discussion made above,we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. Section 195(1)(b)(ii) CrPC would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any court i.e. during the time when the document was in cutodia legis.”

11. Therefore, a reading of the said paragraphs would clearly show that section 195(1)(b)(ii)Cr.P.C.will not operate as a bar to entertain the complaint by the police where forgery of the document was committed even before the said document was produced in the Court. In the instant case, it is the specific allegation of the complainant that the document was fabricated outside the Court and marked during the course of proceedings. Therefore, in my considered opinion, the respondents are having jurisdiction to entertain the complaint.

In view of the above reasons, the second respondent is directed to consider the complaint and if the allegations contained in the complaint discloses the commission of any cognizable offence, the second respondent is directed to register the case, investigate the same and proceed further in accordance with law. Criminal Original petition is disposed of accordingly.

Index: Yes.							08.07.2013
Internet: Yes.
gl
To
1. The Commissioner of Police,
    Chennai.

2. The Inspector of Police,
    E-4, Abiramapuram Police Station,
    Chennai-600 028.

3. The Public Prosecutor,
    High Court, Madras.
Categories: Perjury, Perjury CrPC 340

हिंदू विवाह अदिनियम् -हिन्दू विरोदी व पक्ष पाती

November 29, 2014 Leave a comment

टोकाच्या स्वभावभिन्नतेमुळे अनेक विवाह मोडतात. घटस्फोटासाठी हे कारण नवीन कायद्यामुळे उपलब्ध होणार आहे. तसेच, घटस्फोटानंतर पत्नी व मुलांना पतीकडील मालमत्तेत हिस्सा व नुकसानभरपाईही मिळू शकेल. घटस्फोटविषयक प्रस्तावित कायद्याचा आलेख…हिंदू विवाह हा करार नसून संस्कार आहे. प्राचीन हिंदुधर्मशास्त्रास घटस्फोट ही संकल्पनाच मान्य नव्हती. भारतीय संसदेने “हिंदू विवाह कायदा-1955‘ हा क्रांतिकारक कायदा संमत केला. त्याने सर्व हिंदूंना लागू होणाऱ्या घटस्फोटास परवानगी देणाऱ्या तरतुदी केल्या. व्यभिचाराचे कृत्य, क्रूर वागणूक, दोन वर्षांपेक्षा अधिक काळ जोडीदाराने सोडून जाणे, धर्मांतर, दुर्धर मानसिक रोग, संसर्गजन्य गुप्तरोग, संन्यास घेणे, सात वर्षांपेक्षा अधिक काळ परांगदा होणे यांपैकी किमान एखादे तरी कारण न्यायालयात सिद्ध झाले, तर घटस्फोटाची मुभा या कायद्याने दिली.वैधानिक विभक्तता किंवा वैवाहिक हक्कांची पुनर्स्थापना, यासाठी न्यायालयाचा आदेश होऊनही त्याची पूर्तता एका वर्षात न झाल्यासही घटस्फोट मिळू शकतो. तसेच बलात्कार, समलिंगी किंवा अनैसर्गिक लैंगिक कृत्य, असा गुन्हा पतीकडून घडल्यास पत्नीस घटस्फोट मागण्याचा अधिकार आहे.घटस्फोटासाठी आवश्यक अटी जाचक असल्याची टीका झाल्याने 1976ची कायदा दुरुस्ती सरकारने केली व पती-पत्नी यांना मिळून घटस्फोटासाठी अर्ज करण्यास परवानगी देण्यात आली. परंतु, असा अर्ज करण्यापूर्वी किमान एक वर्षाच्या काळात त्यांना एकत्र राहणे शक्य झाले नव्हते, असे सिद्ध होणे गरजेचे आहे.घटस्फोटासाठीची वरील कारणे नसणारी;परंतु असह्य व टोकाच्या स्वभावभिन्नतेमुळे किंवा एकमेकांच्या खटकणाऱ्या जीवनशैलीमुळे, सवयीमुळे सहजीवन अशक्य असणारी असंख्य जोडपी असतात. घटस्फोटासाठी संमती अर्ज करण्यापुरतेही त्यांचे सहकार्य नसते. मी स्वत: मुक्त झालो किंवा झाले नाही तरी चालेल; पण त्याला/तिला मी मोकळे सोडणार नाही, समोरची व्यक्ती जन्मभर सडत राहिली पाहिजे, अशी द्वेषाची भावना असणारी जोडपी आहेत. त्यामागे आर्थिक, लैंगिक व इतर कारणे असतात. असे विवाह आतून मोडून पडलेले असतात. या प्रकारच्या पराभूत विवाहितांना जन्मभर त्याच स्थितीत राहावयास भागपाडणे, हे सुसंस्कृत समाजाचे लक्षण नव्हे, अशी टीका अनेक न्यायालयीन निकालपत्रांतून व माध्यमांद्वारे झाल्याने सरकारला त्याची दखल घ्यावी लागली.परिणामी, सरकारने 1955 च्या या कायद्यात दुरुस्ती सुचविणारे विधेयक 2010 मध्ये सादर केले. ते राज्यसभेने ऑगस्ट 2013 मध्ये मंजूर केले. लोकसभेच्या व राष्ट्रपतींच्या मंजुरीनंतर हा कायदा अमलात येईल. वर उल्लेखिल्याप्रमाणे पती, पत्नी आपल्या अपयशी संसाराची कारणे दर्शवून घटस्फोटाची मागणी करू शकते. प्रतिवादीची संमती त्यासाठी नसली तरी. परंतु, हा अर्ज करण्यापूर्वी किमान सतत तीन वर्षांच्या कालावधीमध्ये ती दोघे विभक्त राहत होती, एवढी एकच अट सिद्ध होणे अपरिहार्य आहे. परंतु, पतीची घटस्फोटासाठी मागणी व पत्नीची मागणी, याबाबतीत हा प्रस्तावित कायदा पत्नीच्या बाजूने भेदभाव करतो. घटस्फोटामुळे आपल्यावर आर्थिक संकट कोसळेल, मुलांचे पालन, मुलांची प्रगती, यात अडथळे निर्माण होतील, अशी कारणे दर्शवून घटस्फोटाच्या मागणीस विरोध करण्याचा पत्नीस अधिकार आहे. दोन्ही बाजूंचे वर्तन, त्यांची आर्थिक व इतर परिस्थिती, त्यांचे व त्यांच्या अपत्यांचे हितसंबंध इत्यादींचा विचार न्यायालयास करावा लागेल. घटस्फोटामुळे पत्नीचीआर्थिक कोंडी होईल किंवा अपत्यांच्या प्रगतीस बाधा येईल, असे न्यायालयाने ठरविल्यास घटस्फोट नामंजूर होईल किंवा वरील बाबीसाठी योग्य तरतूद होईपर्यंत घटस्फोटाचा दावा तहकूब ठेवण्यात येईल.घटस्फोट प्रकरणात पत्नीला व अपत्यांना भरपाई मागण्याचा हक्क राहील. पतीच्या स्वकष्टार्जित स्थावर-जंगम मिळकतीमध्ये पत्नी व मुलांना हिस्सा मिळेल. किती हिस्सा देणे योग्य होईल, हे न्यायालयाने ठरवावयाचे आहे, हेही योग्य वाटत नाही. ते ठरविताना पतीला वारसाहक्काने मिळालेल्या किंवा मिळू शकणार असलेल्या मिळकतीच्या किमतीचाही न्यायालयाने विचार करावयाचा आहे. या भरपाईच्या रकमेचा बोजा पतीच्या मालमत्तेवर राहील. भरपाईविषयक या तरतुदी क्लिष्ट व गोंधळ निर्माण करणाऱ्या आहेत. हा कायदा नसताना एरवीही पतीकडील वडिलोपार्जित मालमत्तेमध्ये मुलांना व पत्नीला कायद्याने समसमान हिस्सा असतो, याचा विचार नवीन कायद्यात झालेला नाही. घटस्फोटानंतर पत्नीस पतीच्या स्वसंपादित मालमत्तेत हिस्सा कायदा देतो. परंतु, पत्नीच्या मालमत्तेत मात्र पतीला काहीच हक्क सांगता येणार नाही, हे खटकते. तसेच, घटस्फोटानंतर वरील लाभ घेऊन एखाद्या स्त्रीने पुनर्विवाह केला व त्याचीही परिणती घटस्फोटात झाली, तर त्या वेळीही तिला हे सर्व लाभ पुन्हा मिळू शकतील. यासंबंधात हा प्रस्तावित कायदा काहीच बोलत नाही.पतीच्या घटस्फोटासंबंधीच्या अर्जास पत्नीस वरील कारणांवरून विरोध करता येतो. परंतु, पत्नीने घटस्फोटासाठी या नवीन कायद्याप्रमाणे अर्ज केल्यास पतीस विरोध करण्याचा अधिकार नाही व विरोध केला, तरी त्याचा काही उपयोग नाही, हा भेदभाव योग्य वाटत नाही. अपत्यांचे हित फक्त पत्नी बघू शकते व पतीला त्यात काही रस नसतो, असे गृहीत धरून कायद्याची रचना झालेली दिसते. प्रत्यक्ष व्यवहारात अपत्यांच्या संगोपनाबाबतीत आईपेक्षा वडील सक्षम आहेत, अशीही काही उदाहरणे दिसून येतात. हा कायदाअद्याप लोकसभेत मंजूर व्हावयाचा आहे. वरील त्रुटींचा विचार कायदा मंजुरीच्या वेळी होईल, अशी आशा करू या.

Categories: Divorce

CALCUTTA HC:- Coming with unclean hands – disqualifies litigant from obtaining any relief

September 24, 2014 Leave a comment

“….the contesting respondent has come to the High Court with unclean hands and withholds a vital document in order to gain advantage on the other side. In our opinion, he would be guilty of playing fraud on the Court as well as on the opposite party. A person whose case is based on falsehood can be summarily thrown out at any stage of the litigation. We have no hesitation to say that a person whose case is based on falsehood has no right to

approach the Court and he can be summarily thrown out at any stage of the litigation…………”

Pls refer the entire Judgment below

IN THE HIGH COURT AT CALCUTTA

Criminal Revisional Jurisdiction Appellate Side

PRESENT:THE HON’BLE MR JUSTICE KALIDAS MUKHERJEE

CRR NO. 999 OF 2006

Md. Ashiruddin & Anr.
Vs.
State of West Begal & Anr.

For the Petitioner :Mr. Milon Mukherjee, Sr. Adv. Mr. Lutful Haque,Ms. Ameena Kabir

For the State : Mrs. Krishna Ghosh

HEARD ON: 18.03.2008.

JUDGMENT ON:25.03.2008

KALIDAS MUKHERJEE, J.:

1. This is an application under Section 482 read with Section 300 Cr.P.C. praying for quashing of Hanskhali P.S. Case No. 281 dated 06.12.2005 under Section 498A/34 I.P.C. pending in the Court of learned Additional Chief Judicial Magistrate, Ranaghat, District – Nadia.

2. The petitioner No. 1 is a retired Sub-Inspector of Police and the petitioner No. 2 is a Constable. The first wife of petitioner No. 1 died and thereafter he again married O.P. No. 2 Rojina Bibi on 25.06.2004 according to Muslim Shariat Laws and both of them were leading conjugal life in village Murcha, P.S. Khargram, District – Murshidabad. O.P. No. 2 was a widow at the time of her marriage with petitioner No. 1 and had a son and two daughters out of her previous marriage. The petitioner No. 1 used to reside in Krishnanagar where he was posted and the O.P. No. 2 was residing in village Morcha. There was difference of opinion between the spouses. O.P. No. 2 filed a case against the petitioner No. 1 under Section 498A/325 I.P.C. being Kotwali P.S. Case No. 95/2005 dated 06.4.2005. Charge sheet was issued on 15.4.2005 being C.S. No. 80/2005 under Section 498A I.P.C. The O.P. No. 2 complained of mental and physical torture. On 11.4.2005 O.P. No. 2 made an affidavit before the learned Sub-Divisional Judicial Magistrate, Krishnanagar stating that she had no complaint against her husband whatsoever. In the affidavit she stated that when she went to Krishnanagar, a person took her signatures on some blank sheets and taking advantage of that filed a case against her husband. She also stated that her husband never committed torture upon her physically or mentally and that they had been leading a happy conjugal life. On 9th June, 2005 the petitioner No. 1 was discharged by the learned S.D.J.M., Krishnanagar on the basis of affidavit made on 11.4.2005. Thereafter the petitioner No. 1 divorced to the O.P. No. 2 on 04.8.2005 and communicated the same by registered post with A.D. dated 13.8.2005 and 18.8.2005, but, the registered letter dated 18.8.2005 came back to the petitioner as ‘refused’ by the O.P. No. 2. O.P. No. 2 filed a case in the Court of Chief Judicial Magistrate, Krishnanagar on 29.8.2005 under Section 498A/34 I.P.C. against the petitioners, but, no effective step was taken thereof. The O.P. No. 2 also filed a case in the Court of Additional Chief Judicial Magistrate, Krishnanagar against the petitioner No. 1 under Section 125 Cr.P.C. being case No. 481 of 2004. The O.P. No. 2 also filed another case under Section 498A/34 I.P.C. (G.R. No. 1343 of 2005) Hnaskhali P.S. Case No. 281 dated 06.12.2005, in the Court of Additional Chief Judicial Magistrate, Ranaghat. The allegations raised against the petitioners are false and concocted. The continuance of proceeding under Section 498A/34 I.P.C. in Hanskhali P.S. Case NO. 281 dated 06.12.2005 is unwarranted and will be the abuse of the process of the Court. In view of the discharge of the petitioner No. 1 from earlier case being Kotwali P.S. Case No. 95 of 2005, the instant case being Hanskhali P.S. Case No. 281 dated 06.12.2005 under Section 498A/34 I.P.C. cannot proceed and the same is not maintainable. Under the circumstances, the petitioner has filed the instant application praying for quashing of the proceeding under Section 482 Cr.P.C.

3. Mr. Mukherjee appearing on behalf of the petitioners submits that the earlier case ended in discharge on 09.6.2005 passed by learned S.D.J.M., Krishnanagar in G.R. Case No. 408 of 2005, Kotwali P.S. Case No. 95 of 2005. Mr. Mukherjee submits that the divorce was effected on 04.8.2005 when the factum of divorce was communicated to O.P. No. 2 herein. Mr. Mukherjee contends that same allegation as made in the earlier complaint was raised against the petitioner No. 1 herein in the subsequent petition of complaint which was sent to P.S. under Section 156(3) Cr.P.C. on 06.12.2005 bearing Hanskhali P.S. Case No. 281 dated 06.12.2005. Mr. Mukherjee contends that there is no allegation under Section 406 I.P.C. in the instant case and, moreover, there is suppression of material facts in the subsequent complaint being Hanskhali P.S. Case No. 281 date 06.12.2005. Mr. Mukherjee contends that when the petitioner No. 1 was discharged in the earlier case which ended in his discharge on 09.6.2005, the subsequent case on the same allegations bearing Hanskhali P.S. Case No. 281 dated 06.12.2005 is not maintainable. Regarding the suppression of material facts viz. discharge of the petitioner No. 1 in the earlier case, Mr. Mukherjee has referred to and relied on the decisions reported in 2005 SCC (Cri)1322 [MCD Vs. State of Delhi and another] para 21 and (2004)7 SCC 166 [S.J.S. Business Enterprises (P) Ltd. V. State of Bihar and others] para 13.

4. Mrs. Ghosh appearing on behalf of the State submits that the petitioner No. 1 herein was the Sub-Inspector of Police and regarding the alleged torture meted out to O.P. No. 2, there are medical reports and statements of the witnesses recorded under Section 161 Cr.P.C. It is contended that it is not clear whether there was divorce or not by way of Talaknama. As regards the allegation of torture under Section 498A I.P.C. on the same facts in the subsequent case, Mrs. Ghosh contends that the manner of alleged torture upon O.P. No. 2 in the second case was different and there is added period of alleged torture. Mrs. Ghosh contends that O.P. No. 2 was assaulted by the petitioner No. 1 as per allegation and in view of the medical reports and the statements of the witnesses recorded under Section 161 Cr.P.C., there is no ground to quash the proceedings pending in the learned Court below. Mrs. Ghosh contends that the petitioner No. 1 herein can raise such question in the Trial Court at the appropriate stage, but, not in the instant application under Section 482 Cr.P.C.

5. From the F.I.R. of Kotwali P.S. Case No. 95 of 2005 dated 06.4.2005 G.R. No. 408 of 2005 it appears that the occurrence of the alleged offence was after the marriage till the date of lodging the F.I.R. i.e. 06.4.2005. It further appears that the said case bearing No. 408 of 2005 ended in the discharge of the accused under Section 245 Cr.P.C. The learned Magistrate considered the affidavit filed by the defacto-complainant in the said case wherein it was stated that she was leading her conjugal life happily with her husband. On hearing the defacto-complaint and considering the contentions raised in the affidavit, the learned Magistrate recorded the order of discharge under Section 245 Cr.P.C. Subsequently, the instant case bearing Hanskhali P.S. Case No. 281 dated 06.12.2005 was started. The petition of complaint was sent to the P.S. under Section 156(3) Cr.P.C. and the F.I.R. was registered bearing No. 281 dated 06.12.2005. In the said petition of complaint the occurrence of the alleged offence was after marriage extending up to 24.8.2005. It is, therefore, clear that the period of alleged torture as per the subsequent complaint also includes the period of torture as raised in the earlier complaint which ended in discharge of the accused. By filing the affidavit stating that she was living happily with her husband which enabled the Court to record order of discharge, the defacto complainant put an end to the allegation of torture as raised in the earlier petition of complaint and, as such, the same allegation over the same period cannot be reopened.

6. Secondly, in the second petition of complaint there is no whisper about the contention raised in the earlier complaint and the order of discharge made therein. Mr. Mukherjee in this connection has referred to the decision reported in 2005 SCC (Cri) 1322 para 21 (Supra). The observation of the Hon’ble Apex Court made in para 21 of the aforesaid decision is quoted hereunder:-

“This apart, the respondent did not also disclose the fact in the criminal revision filed before the High Court that he has also been convicted in another Criminal Case No. 202 of 1997 by the Court of Metropolitan Magistrate, Patiala House, New Delhi. Thus, the contesting respondent has come to the High Court with unclean hands and withholds a vital document in order to gain advantage on the other side. In our opinion, he would be guilty of playing fraud on the Court as well as on the opposite party. A person whose case is based on falsehood can be summarily thrown out at any stage of the litigation. We have no hesitation to say that a person whose case is based on falsehood has no right to

approach the Court and he can be summarily thrown out at any stage of the litigation…………”

The observation of the Hon’ble Apex Court made in the decision reported in (2004)7 SCC 166 para 13 (Supra) is quoted hereunder:- “As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the Courts to deter a litigant from abusing the process of Court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case…………”

7. Since in the subsequent petition of complaint there is no whisper about the earlier petition of complaint followed by the order of discharge of the accused persons, such non-disclosure amounts to suppression of material facts, inasmuch as, had it not been suppressed, it would have an effect on the merits of the case. Following the ratio of the aforesaid decisions, I find that it is a fit case for quashing of the proceedings in the exercise of the jurisdiction under Section 482 Cr.P.C. The application under Section 482 read with Section 300 Cr.P.C. is allowed. Accordingly, the proceedings of Hanskhali P.S. Case No. 281 dated 06.12.2005 under Section 498A/34 I.P.C. pending in the Court of learned Additional Chief Judicial Magistrate, Ranaghat stand quashed.

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

9. Urgent Xerox certified copy of this order, if applied for, be handed over to the parties as early as possible.

( Kalidas Mukherjee, J. )

False Rape Statistics—Young love often reported as rape in our ‘cruel society’ – The Hindu

To,
Shrimati Maneka Gandhi,
Hon’ble Minister of Women and Child Development,
New Delhi, India.

Young love often reported as rape in our ‘cruel society’ – The Hindu

“I lay the blame for a lot of this at the door of Parliament,” lawyer and leading women’s rights activist Vrinda Grover said.
In January 2013, Seema (name changed), who had moved to Delhi from rural Bihar with her brother went to the Hanuman temple on Delhi’s Panchkuian Road with 19-year-old Sameer (name changed). He put vermilion on her forehead, the couple embraced and now married in their own eyes, they ran away to Sameer’s native village in Samastipur. By May, Seema, now pregnant, was in a court-mandated shelter home for young women visited only by Sameer when he got bail, accused of kidnapping and raping his young love.
The content of 600 court judgements analysed by The Hindu and interviews with complainants, judges and police officers illuminate for this first time the real stories behind the headlines on the national capitals rape statistics.
As Part 1 of the series showed, one-fifth of the trials ended because the complainant did not appear or turned hostile.
Of the cases fully tried, over 40% dealt with consensual sex, usually involving the elopement of a young couple and the girl’s parents subsequently charging the boy with rape. Another 25% dealt with “breach of promise to marry”. Of the 162 remaining cases, men preying on young children in slums was the most common type of offence.
These numbers too do not on their own illuminate the stories behind these numbers; for this, The Hindu interviewed judges, prosecutors, police officers, complainants, accused, lawyers and activists most of them under condition of anonymity because they were not free to publicly discuss confidential rape trials. What emerged were heart-rending stories and the role of the police and judiciary.
‘Teenage love drama’
Of the 460 cases dealing with sexual assault in Delhi’s district courts in 2013 that went to a full trial, 174 involved or seemed to involve runaway young couples like Seema and Sameer, The Hindu found. This was especially true for inter-caste and inter-religious couples.
Across the system, there was some amount of concern and sympathy for these consenting couples, especially among judges. Ruling on Seema and Sameer’s case in October 2013, Additional Sessions Judge Dharmesh Sharma said, “The instant case racks [sic] up a perennial problem being faced by all of us on the judicial side: what should be the judicial response to elopement cases like the instant one… This life drama is enacted, played and repeated everyday in the Police Stations and Courts…” Of the case before him, Judge Sharma noted, “This case is a teenage love drama where our dysfunctional cruel society and the justice system have separated the two love birds and have taught them a bitter lesson.”
“We get innumerable such cases in Lucknow too,” Seema Mishra, lawyer and women’s rights activists with Association for Advocacy and Legal Initiatives (AALI), said. AALI has been at the forefront of the pushing for women’s right to choose sexual relationships, which is at the heart of the 174 cases The Hindu looked at. In case after case, as well as in interviews with The Hindu, the behaviour of the girls’ parents was shocking: they arrive at the hotel the couple has eloped to and drag them home, they beat and even injure the couple (in one case breaking the girl’s spine), they threaten her even with acid, they force her to submit to invasive medical tests and in many cases, even to an abortion.
In Judge Sharma’s case, he was able to acquit Sameer since Seema was over the age of consent for sex at the time – 16 years. However now that the Criminal Law Amendment Act (2013) is in force, the age of consent now stands at 18. “I lay the blame for a lot of this at the door of Parliament,” lawyer and leading women’s rights activist Vrinda Grover said. “By raising the age of consent, they have ensured such cases of consensual sex being called ‘rape’ are just going to multiply.”
Promise of marriage
Judges, prosecutors and police officers tended to be far less sympathetic towards the other major area of concern – the 109 cases which deal with “breach of promise to marry”. The argument used by prosecutors in these cases is that if a woman had sexual relations with a man only under a false promise of marriage by him, her consent was not free as it was obtained through deceit. However in most such cases, showing that the accused never intended to marry the complainant becomes hard to prove, unless he is already married to someone else and hiding it.
“You might say it is wrong, but when the girl’s father comes to the police station and says she has been ruined, a policeman will tend to take the father’s side,” one senior Delhi police explained. More often than not, he said, the FIR was a way to force a man attempting to call off a marriage into going through with it; in a third of such cases The Hindu looked at, the woman deposed in court that they were now married and hence she no longer accused him of rape.
“Your family discovers you have been having relations with a man for five years and now he has called it off because of pressure from his family,” one complainant who lost her case explained. “Before you know what is happening, your father and uncle have gone to the police station and you are forced into this. Everyone tells you that if you do not go along with it, you will never get married,” she said.
“Frankly I think this shouldn’t be counted as rape. It comes from a patriarchal context, from the premium placed on a woman’s chastity. But if we want to talk of women’s agency, we cannot have it both ways,” Ms. Grover said, a sentiment shared by several other feminist lawyers.
Rape as we know it
The 161 remaining cases look a lot closer to what is conventionally referred to as rape. Nearly half of these involved an adult neighbour preying on a minor child of a neighbour or a vulnerable woman sleeping outdoors or alone at home, most took place in slums, and had a conviction rate of over 75%. “Mothers like me have to work all day and are not able to keep an eye on our children,” one mother who secured a conviction in the rape of her three-year-old by a neighbour, said in tears. The medical investigation and courtroom terrified her, the woman said, but her family supported her.
In such cases, the consistent testimony of the complainant played the most important role. Judges were usually willing to convict in the absence of medical evidence, and in one case, Additional Sessions Judge Renu Bhatnagar convicted a man of raping a mentally challenged minor girl even though she was unable to depose in court apart from nodding. However in at least two cases where the complainant admitted that she met the accused alone voluntarily but did not consent to sex, judges disbelieved the woman’s testimony.
The judgement in the December 16 gang-rape formed part of The Hindu’s study and was notable in its length, detail and unprecedented extent of medical evidence. It was one of only 12 rapes heard in 2013 that were alleged to have been perpetrated by strangers, and all of the others pre-dated it.
Conclusion
The stories behind Delhi’s sexual assault statistics indicate that the image created by police statistics alone might be a misleading one.
(This is part two of a three-part series. Part 3 appears tomorrow: The Journey from FIR to Judgement)
More than Society, we all must give a Big Thanks to radical Women activist like #RajKumari#ShibitaKrishan and all Mombatiwala, who advocated such Unfair, Biased LAW to promote the #Fake Cases, where any girls or Women can term any Men a Rapist only by her Verbal allegations, without any Medical Evidence with out any restrictions of time limit.

Men’s Rights Association and their associated NGO recommended Gender Natural ( replace men/women to person) , Evidence based Criminal law along with a strong Misuse Clause like Lokpal Act to the Government, but all gone in deaf ears till date.

If you make any criminal law Non-bailble , where the FIR can be registered only by Verbal allegations , such LAW will only promote the #Fakecases and#LegalTerrorism, as no one Born in Raja Harish Chandra Family , that they will never lie.

More disturbing our WCD minister without going to details of cases and find the way to protect our Child from wrongly termed rapist , propose to treat the Boys below 18 years old as adult .

Wonder if, our WCD and Government can’t reform a Child, how they will reform a country?

We once again send our proposal to WCD and request to amend the Rape law on Top Priority along with Caution, which we had bring to your notice earlier also.

Our Proposal:

If you really want the IPC376, #IPC354 should not be misused left, right and center, like the way in 498A/DV act the word “Relative” misused, amend the law as per our suggestion.
Or
Be ready the Rape statistics will be double in next two years and it will became another extortion, blackmailing and easy money earning business for all Advocate, Police and greedy people.

Summary of our Recommendations and Request to meet your MP/MLA/Ministers and demand:

1) Make Rape Law Gender Neutral as in other countries of the globe
2) Relationship cheating cases should not be allowed to be converted into rape cases which suck the scare resources from genuine rape cases.
3) False complaints of Rape cases should be punished severely, so that genuine cases like ‘Nirbhaya’, gets justice.
4) Introduce the much required police reforms and use Technology to increase conviction rates of rape cases and punish those file false cases.
· All references to “Man” or “Woman” must be replaced with the word “Person” or “Whosoever”
· All references to “His” or “Her” to be must be replaced with the word “His or Her”
· All references to “He” or “She” must be replaced with the word “He or She”
· All references to the word ‘Husband” or “Wife” must be replaced with the word “Spouse”

Your Faithfully,
MRA Amol Kurhe
Vice-President
Mens Rights Association
Pune

CALCUTTA HC- The future salary not being a tangible corporeal property the same cannot be attached for recovery of the arrear maintenance.

 

 

In the case of Md. Jahangir Khan Vs. Mst. Manoara Bibi, reported in 1992 Cri L.J. 83, a Division Bench of our High Court held that the future salary not being a tangible corporeal property the same cannot be attached for recovery of the arrear maintenance.

 

 

Form No. J (1)

IN THE HIGH COURT AT CALCUTTA

Criminal Revisional Jurisdiction

Appellate Side

Present:

The Hon’ble Justice Ashim Kumar Roy

C.R.R. NO. 399 of 2007

Amal Mukherjee

versus

Pranati Mukherjee & Anr.

For Petitioners : Mr. Jayanta Nath Saha For O.P. No. 1 : Mr. Subhasish Chakraborty Ms. Shreyashi Biswas

Mr. Soumya Chakraborty

Ms. Sasita Halder

Heard On : August 26th, 2008.

Judgment On : 12-11-2008.

In connection with a maintenance proceeding under Section 125 of the code of Criminal Procedure, the present petitioner was directed to pay a sum of Rs. 2,000/- per month to his wife, the opposite party herein as her monthly maintenance. Since the petitioner allegedly made no payment the wife/opposite party moved an application under Section 125 (3) of the Code of Criminal Procedure before the court concerned for enforcement of the said order and for realization and recovery of the amount due i.e. a sum of Rs. 22,000/- relating to the period from February 2005 to December 2005, which give rise to Misc. Case No. 50 of 2006 and the Learned Additional Presiding Judge, Family Court, Calcutta made an order directing that a sum of Rs. 1,000/- per month be deducted from the pension account of the petitioner and be credited to the savings account of the wife/opposite party on and from January, 2007 during the coming 22 months towards the recovery of arrear maintenance in addition to Rs. 2,000/- per month which has already been directed to be deducted from the pension account of the petitioner towards the payment of future maintenance. The petitioner challenged the said order on the ground in default of payment of maintenance allowance and for recovery of the same the future pension cannot beattached.

2. Heard the learned advocates appearing on behalf of the parties. Perused the impugned order as well as other materials on record. Considered their respective submissions.

3. In the case of Md. Jahangir Khan Vs. Mst. Manoara Bibi, reported in 1992 Cri L.J. 83, a Division Bench of our High Court held that the future salary not being a tangible corporeal property the same cannot be attached for recovery of the arrear maintenance.

4. It may be noted that the Learned Judge also in her order observed that no future income can be attached as she was of the view since same was not salary but was pension to which the petitioner is entitled during her lifetime the same can be attached. In this regard the observations made by the Division Bench of our High Court in the aforesaid case of Md. Jahangir Khan Vs. Mst. Manoara Bibi (supra) would be very relevant and is quoted below; Para 13. “A single Judge of Orissa High Court relying on a Karnataka decision in Rudraiah V. Muddagangamma, 1985 Cri LJ 707 sought to make a synthesis in Surekha V. Ramahari, 1990 Cri LJ 639. His Lordship while agreeing that only tangible corporeal property could be attached held that salary when becomes due was liable to attachment. According to the learned Judge, writ of attachment should remain dormant and would revive at the end of the month. With deep respect to the learned Judge, wecannot accept his view for the foregoing reasons. On similar reasons, we are unable to agree with the finding of the referring Judge.”

5. Thus, the future pension of the petitioner not being tangible and still not been earned by him same cannot be attached.

6. The impugned order is thus set aside and accordingly the criminal revision is allowed.

The Learned Judge is directed to proceed with the matter against the petitioner who is in alleged default of making payment of maintenance allowance and to enforce the order of maintenance in accordance with the provisions of Section 125 (3) of the Code of Criminal Procedure. Both the parties are directed to appear before the court concerned within fortnight from this date and the Learned Magistrate is directed to take necessary steps immediately thereafter. In view of the disposal of the main criminal revision C.R.R. No. 399 of 2007, the application for modification and/or variation of the order dated February 2007 passed by the Hon’ble Mr. Justice P.N. Sinha being CRAN No. 1800 of 2007 stands disposed of.

Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible.

 

( Ashim Kumar Roy, J. )

SC: SC: dowry law the most misused, abused law in India. Police shld follow 9 point checklist as per 41 crpc

July 3, 2014 2 comments

The Supreme Court on Wednesday said women were increasingly using the anti-dowry law to harass in-laws and restrained police from mechanically arresting the husband and his relatives on mere lodging of a complaint under Section 498A of the Indian Penal Code.

Citing very low conviction rate in such cases, it directed the state governments to instruct police “not to automatically arrest when a case under Section 498A of IPC is registered but to satisfy themselves about the necessity for arrest under the parameters (check list) provided under Section 41 of Criminal Procedure Code“.

Section 41 lays down a nine-point check list police to weigh the need to arrest after examining the conduct of the accused, in cluding possibility of his absconding.

If police arrested the accused, “the magistrate, while authorizing detention of the accused shall peruse the report furnished by the police officer in terms of Section 41 and only after recording its satisfaction…will authorize detention,“ the bench bench of Justices C K Prasad and P C Ghose said. It also said that this checklist for arrest and detention would apply to all offences, which are punished with a prison term less than 7 years. Punishment under Section 498A is a maximum of three years but it had been made a cognizable and nonbailable offence, which made grant of bail to the accused a rarity in courts.

But the court singled out the dowry harassment cases as the most abused and misused provision, though the legislature had enacted it with the laudable object to prevent harassment of women in matrimonial homes.

Writing the judgment for the bench, Justice Prasad said there had been a phenomenal increase in dowry harass

ment cases in India in the last few years. “The fact that Section 498A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives,” he said.

“The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grandmothers of the husbands, their sisters living abroad for decades are arrested,” he said.

or long now, concerns have been expressed about stringent anti-dowry laws being misused by some women to harass or blackmail their in-laws. These apprehensions have not only been expressed by courts, women’s activists too have acknowledged that such misuse is not unknown. It was, therefore, necessary for the law to take this reality into account.

The apex court’s order does just that. Automatic arrest was one of the provisions that lent itself most to abuse and making it mandatory for a magistrate to sanction arrest should help curb this abuse of law. Beyond that, there’s a lesson for all of us – social ills can’t be eliminated just by enacting laws, as India tends to do. Society as a whole needs to join the movement against them.

Pls find the judgment below:-

 

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1277 OF 2014
(@SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013)
ARNESH KUMAR ….. APPELLANT

VERSUS

STATE OF BIHAR & ANR. …. RESPONDENTS
J U D G M E N T
Chandramauli Kr. Prasad

The petitioner apprehends his arrest in a case under Section 498-A of the Indian Penal Code, 1860 (hereinafter called as IPC) and Section 4 of the Dowry Prohibition Act, 1961. The maximum sentence provided under Section 498-A IPC is imprisonment for a term which may extend to three years and fine whereas the maximum sentence provided under Section 4 of the Dowry Prohibition Act is two years and with fine.

Petitioner happens to be the husband of respondent no.2 Sweta Kiran. The marriage between them was solemnized on 1st July, 2007. His attempt to secure anticipatory bail has failed and hence he has knocked the door of this Court by way of this Special Leave Petition.

 

Leave granted.

 

In sum and substance, allegation levelled by the wife against the appellant is that demand of Rupees eight lacs, a maruti car, an
air-conditioner, television set etc. was made by her mother-in-law and father-in-law and when this fact was brought to the appellant’s notice, he supported his mother and threatened to marry another woman. It has been alleged that she was driven out of the matrimonial home due to non- fulfilment of the demand of dowry.

 

Denying these allegations, the appellant preferred an application for anticipatory bail which was earlier rejected by the learned Sessions Judge and thereafter by the High Court.

There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested. “Crime in India 2012 Statistics” published by National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for offence under Section 498-A of the IPC, 9.4% more than the year 2011. Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net. Its share is 6% out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5% of total crimes committed under different sections of penal code, more than any other crimes excepting theft and hurt. The rate of charge-sheeting in cases under Section 498A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal.

Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so also the police. There is a battle between the law makers and the police and it seems that police has not learnt its lesson; the lesson implicit and embodied in the Cr.PC. It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of
arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive.

Law Commissions, Police Commissions and this Court in a large number of judgments emphasized the need to maintain a balance between individual liberty and societal order while exercising the power of arrest. Police officers make arrest as they believe that they possess the power to do so.
As the arrest curtails freedom, brings humiliation and casts scars forever, we feel differently. We believe that no arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so. The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from power to arrest, the police officers must be able to justify the reasons thereof. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation. Despite this legal position, the Legislature did not find any improvement. Numbers of arrest have not decreased. Ultimately, the Parliament had to intervene and on the recommendation of the 177th Report of the Law Commission submitted in the year 2001, Section
41 of the Code of Criminal Procedure (for short ‘Cr.PC), in the present form came to be enacted. It is interesting to note that such a recommendation was made by the Law Commission in its 152nd and 154th Report submitted as back in the year 1994. The value of the proportionality permeates the amendment relating to arrest. As the offence with which we
are concerned in the present appeal, provides for a maximum punishment of imprisonment which may extend to seven years and fine, Section 41(1)(b), Cr.PC which is relevant for the purpose reads as follows:

“41. When police may arrest without warrant.-(1) Any police officer may
without an order from a Magistrate and without a warrant, arrest any person

(a)x x x x x x

(b)against whom a reasonable complaint has been made, or credible
information has been received, or a reasonable suspicion exists that he has
committed a cognizable offence punishable with imprisonment for a term
which may be less than seven years or which may extend to seven years
whether with or without fine, if the following conditions are satisfied,
namely :-

(i) x x x x x

(ii) the police officer is satisfied that such arrest is necessary –

to prevent such person from committing any further offence; or

for proper investigation of the offence; or

to prevent such person from causing the evidence of the offence to
disappear or tampering with such evidence in any manner; or

to prevent such person from making any inducement, threat or promise to any
person acquainted with the facts of the case so as to dissuade him from
disclosing such facts to the Court or to the police officer; or

as unless such person is arrested, his presence in the Court whenever
required cannot be ensured,

 

and the police officer shall record while making such arrest, his reasons
in writing:

Provided that a police officer shall, in all cases where the arrest of a
person is not required under the provisions of this sub-section, record the
reasons in writing for not making the arrest.

 

X x x x x x

 

From a plain reading of the aforesaid provision, it is evident that a
person accused of offence punishable with imprisonment for a term which may
be less than seven years or which may extend to seven years with or without
fine, cannot be arrested by the police officer only on its satisfaction
that such person had committed the offence punishable as aforesaid. Police
officer before arrest, in such cases has to be further satisfied that such
arrest is necessary to prevent such person from committing any further
offence; or for proper investigation of the case; or to prevent the accused
from causing the evidence of the offence to disappear; or tampering with
such evidence in any manner; or to prevent such person from making any
inducement, threat or promise to a witness so as to dissuade him from
disclosing such facts to the Court or the police officer; or unless such
accused person is arrested, his presence in the court whenever required
cannot be ensured. These are the conclusions, which one may reach based on
facts. Law mandates the police officer to state the facts and record the
reasons in writing which led him to come to a conclusion covered by any of
the provisions aforesaid, while making such arrest. Law further requires
the police officers to record the reasons in writing for not making the
arrest. In pith and core, the police office before arrest must put a
question to himself, why arrest? Is it really required? What purpose it
will serve? What object it will achieve? It is only after these questions
are addressed and one or the other conditions as enumerated above is
satisfied, the power of arrest needs to be exercised. In fine, before
arrest first the police officers should have reason to believe on the basis
of information and material that the accused has committed the offence.
Apart from this, the police officer has to be satisfied further that the
arrest is necessary for one or the more purposes envisaged by sub-clauses
(a) to (e) of clause (1) of Section 41 of Cr.PC.

 

An accused arrested without warrant by the police has the
constitutional right under Article 22(2) of the Constitution of India and
Section 57, Cr.PC to be produced before the Magistrate without unnecessary
delay and in no circumstances beyond 24 hours excluding the time necessary
for the journey. During the course of investigation of a case, an accused
can be kept in detention beyond a period of 24 hours only when it is
authorised by the Magistrate in exercise of power under Section 167 Cr.PC.
The power to authorise detention is a very solemn function. It affects the
liberty and freedom of citizens and needs to be exercised with great care
and caution. Our experience tells us that it is not exercised with the
seriousness it deserves. In many of the cases, detention is authorised in a
routine, casual and cavalier manner. Before a Magistrate authorises
detention under Section 167, Cr.PC, he has to be first satisfied that the
arrest made is legal and in accordance with law and all the constitutional
rights of the person arrested is satisfied. If the arrest effected by the
police officer does not satisfy the requirements of Section 41 of the Code,
Magistrate is duty bound not to authorise his further detention and release
the accused. In other words, when an accused is produced before the
Magistrate, the police officer effecting the arrest is required to furnish
to the Magistrate, the facts, reasons and its conclusions for arrest and
the Magistrate in turn is to be satisfied that condition precedent for
arrest under Section 41 Cr.PC has been satisfied and it is only thereafter
that he will authorise the detention of an accused. The Magistrate before
authorising detention will record its own satisfaction, may be in brief but
the said satisfaction must reflect from its order. It shall never be
based upon the ipse dixit of the police officer, for example, in case the
police officer considers the arrest necessary to prevent such person from
committing any further offence or for proper investigation of the case or
for preventing an accused from tampering with evidence or making inducement
etc., the police officer shall furnish to the Magistrate the facts, the
reasons and materials on the basis of which the police officer had reached
its conclusion. Those shall be perused by the Magistrate while authorising
the detention and only after recording its satisfaction in writing that the
Magistrate will authorise the detention of the accused. In fine, when a
suspect is arrested and produced before a Magistrate for authorising
detention, the Magistrate has to address the question whether specific
reasons have been recorded for arrest and if so, prima facie those reasons
are relevant and secondly a reasonable conclusion could at all be reached
by the police officer that one or the other conditions stated above are
attracted. To this limited extent the Magistrate will make judicial
scrutiny.

 

Another provision i.e. Section 41A Cr.PC aimed to avoid
unnecessary arrest or threat of arrest looming large on accused requires to
be vitalised. Section 41A as inserted by Section 6 of the Code of
Criminal Procedure (Amendment) Act, 2008(Act 5 of 2009), which is relevant
in the context reads as follows:

“41A. Notice of appearance before police officer.-(1) The police officer
shall, in all cases where the arrest of a person is not required under the
provisions of sub-section (1) of Section 41, issue a notice directing the
person against whom a reasonable complaint has been made, or credible
information has been received, or a reasonable suspicion exists that he has
committed a cognizable offence, to appear before him or at such other place
as may be specified in the notice.

 

(2) Where such a notice is issued to any person, it shall be the duty of
that person to comply with the terms of the notice.

(3) Where such person complies and continues to comply with the notice, he
shall not be arrested in respect of the offence referred to in the notice
unless, for reasons to be recorded, the police officer is of the opinion
that he ought to be arrested.

 

(4) Where such person, at any time, fails to comply with the terms of the
notice or is unwilling to identify himself, the police officer may, subject
to such orders as may have been passed by a competent Court in this behalf,
arrest him for the offence mentioned in the notice.”

 

Aforesaid provision makes it clear that in all cases where the
arrest of a person is not required under Section 41(1), Cr.PC, the police
officer is required to issue notice directing the accused to appear before
him at a specified place and time. Law obliges such an accused to appear
before the police officer and it further mandates that if such an accused
complies with the terms of notice he shall not be arrested, unless for
reasons to be recorded, the police office is of the opinion that the arrest
is necessary. At this stage also, the condition precedent for arrest as
envisaged under Section 41 Cr.PC has to be complied and shall be subject to
the same scrutiny by the Magistrate as aforesaid.

We are of the opinion that if the provisions of Section 41,
Cr.PC which authorises the police officer to arrest an accused without an
order from a Magistrate and without a warrant are scrupulously enforced,
the wrong committed by the police officers intentionally or unwittingly
would be reversed and the number of cases which come to the Court for grant
of anticipatory bail will substantially reduce. We would like to emphasise
that the practice of mechanically reproducing in the case diary all or most
of the reasons contained in Section 41 Cr.PC for effecting arrest be
discouraged and discontinued.

Our endeavour in this judgment is to ensure that police officers do not
arrest accused unnecessarily and Magistrate do not authorise detention
casually and mechanically. In order to ensure what we have observed above,
we give the following direction:

All the State Governments to instruct its police officers not to
automatically arrest when a case under Section 498-A of the IPC is
registered but to satisfy themselves about the necessity for arrest under
the parameters laid down above flowing from Section 41, Cr.PC;

All police officers be provided with a check list containing specified sub-
clauses under Section 41(1)(b)(ii);

The police officer shall forward the check list duly filed and furnish the
reasons and materials which necessitated the arrest, while
forwarding/producing the accused before the Magistrate for further
detention;

The Magistrate while authorising detention of the accused shall peruse the
report furnished by the police officer in terms aforesaid and only after
recording its satisfaction, the Magistrate will authorise detention;

The decision not to arrest an accused, be forwarded to the Magistrate
within two weeks from the date of the institution of the case with a copy
to the Magistrate which may be extended by the Superintendent of police of
the district for the reasons to be recorded in writing;

Notice of appearance in terms of Section 41A of Cr.PC be served on the
accused within two weeks from the date of institution of the case, which
may be extended by the Superintendent of Police of the District for the
reasons to be recorded in writing;

Failure to comply with the directions aforesaid shall apart from rendering
the police officers concerned liable for departmental action, they shall
also be liable to be punished for contempt of court to be instituted before
High Court having territorial jurisdiction.

Authorising detention without recording reasons as aforesaid by the
judicial Magistrate concerned shall be liable for departmental action by
the appropriate High Court.

 

We hasten to add that the directions aforesaid shall not only apply to the
cases under Section 498-A of the I.P.C. or Section 4 of the Dowry
Prohibition Act, the case in hand, but also such cases where offence is
punishable with imprisonment for a term which may be less than seven years
or which may extend to seven years; whether with or without fine.

 

We direct that a copy of this judgment be forwarded to the Chief
Secretaries as also the Director Generals of Police of all the State
Governments and the Union Territories and the Registrar General of all the
High Courts for onward transmission and ensuring its compliance.

 

By order dated 31st of October, 2013, this Court had granted
provisional bail to the appellant on certain conditions. We make this order
absolute.

 

In the result, we allow this appeal, making our aforesaid order dated 31st
October, 2013 absolute; with the directions aforesaid.

 

………………………………………………………………J

(CHANDRAMAULI KR. PRASAD)

 

………………………………………………………………J

(PINAKI CHANDRA GHOSE)

 

NEW DELHI,
July 2, 2014.

 
———————–
21

 

 

 

 

Categories: 498A, 498A, Anticipatory Bail, NCRB Tags: , , ,
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Raising Awareness About Gender Biased Laws and its misuse In India

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