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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. )

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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: , , ,

Family Courts cannot order the Striking of Defence of Respondent Husband for not paying the Interim Maintenance Order in CrPC 125.

November 30, 2012 Leave a comment

Good News for people fighting CrPC 125 Maintenance Case.

Everybody here would wonder the subject line but yes there’s a good news for you all……

 

If are you fighting the CrPC 125 petition and if the interim maintenance order is passed against you, and if you are not paying the Interim Maintenance so the Court cannot Strike Out your defense……yes its true…….Family Court does not have power to strike out your defense…….!!!!!!!!!!!

Today I had date in Family Court for Final Argument  and even my defense was struck which was later on set aside in respect of the Set-A-Side application filed by me and by making payment of Rs. 8000/- against the outstanding of Rs. 45000/-. But specific order was passed while setting aside the Defense Struck on 19th July 2012 which is as follows-

” The order of Striking off the defense is set aside. However, NA is specifically directed to deposit remaining amount on or before the date of Final Argument.”

 

Till date I dint comply the above order, but today when I along with opposite lawyer appeared in FAMILY COURT for argument, the opposite took strong stand regarding the Argument of NA as he didn’t complied the Order he is not allowed to argue. And the Court which is the enemy of Husband immediately followed and again strike out my defense forbidding me to carry out the Arguments.

But have anyone wondered that there is no legal provision under Section 125, Criminal Procedure Code and hence there is no power in the Family Court to strike out the defence for non payment of interim maintenance.

If any person fails without sufficient cause to comply with the order and only thing that can be under Section 125(3) is to issue warrant for levying the amount due in the manner provided for levying fines or for imprisonment as provided for in the said Sub-clause (3) of Section 125 of Criminal Procedure Code.

The Family Court is governed by the Family Courts Act. The procedure is to be followed by the Court under the said Act is as laid down under Section 10, which is as follows :

Procedure generally. –

(1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 and of any other law for the time being in force shall apply to the suits and proceedings (other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973) before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a civil court and shall have all the powers of such court.

(2) Subject to the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973 or the rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court.

(3) Nothing in Sub-section (1) or Sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject matter of the suit or proceedings or at the truth of the facts alleged by one Party and denied by the other.

Hence its absolute rule that Family Court does not have power to stike out your defense….also the same has been observed in the  Judgement of Bombay High Court, below.

I did the same and the court not only set aside the Defense Struck order but also allowed me to file my written arguments immediately.

So Siffians if your defense is struck off due to the non payment of Interim Maintenance then pls use the above rule and judgment to set aside the same.
Here’s the Judgement.

http://wp.me/p1HnJY-kN

 

Categories: Fighting Maintenance Tags:

Bombay HC: Kids cannot be deprived of either parent.

The judges said they were familiar with tactics used by couples to deprive either of access to child. “We know all the tricks that are used. You first comply with the order and give him access and then move this court,” Justice Kathawalla added.

Mumbai: Children cannot be deprived of the company of either parent, said Bombay High Court on Monday while hearing wife’s plea to stay a Family Court’s order allowing her husband to take their son for summer holidays.
A vacation division bench of Justice S J Kathawalla and Justice P D Kode were hearing an appeal filed by Priya Kulkarni challenging the family court’s May 9, 2012 order allowing her husband Suhas to take their son Rahul (6) for holidays between May 21- June 4, 2012. The judge also said noted that during interview Rahul expressed eagerness to spend time with his father. “The experience of the warring couples may be bad but it does not mean that the child should remain without the love and affection of the father,” the judge said.
The couple married in May 2005. Their son was born a year later. Priya left the house in 2009 and filed cases under Sections 498 A (dowry) and 326 (causing grievous hurt) of Indian Penal Code with the police alleging that he beat her badly. She then moved the Pune FC for maintenance. In April 2009, Suhas was directed to pay Rs 11,000 jointly to her and Rahul.
Pointing out that Suhas has not complied with the maintenance order, Priya’s advocate F A Pareira argued that Suhas is a criminal and had beaten her badly causing contusion on the frontal lobe of the head. He has criminal record and unless cleared of these cases he should not be allowed access to the child,” said Pareira. He also said the court has orally stayed its order till May 30, 2012.
“How do you call him a hardcore criminal on the basis of these cases?” asked Justice Kathawalla. The judges also noted that no notice was served to Suhas to enable him to appear before HC. “You’ll have to give access to the father. Children cannot be deprived of the company of either parent. As a father why should he not have access to the child?” asked Justice Kathawalla.
The judges said they were familiar with tactics used by couples to deprive either of access to child. “We know all the tricks that are used. You first comply with the order and give him access and then move this court,” Justice Kathawalla added.
The judges said they find nothing wrong with the FC’s order. They also warned that if there is no stay from the FC as claimed by Pareira, “we shall give access to the father for an entire one month.” They directed Priya to hand Rahul to Suhas at the FC on Tuesday. They posted the matter for hearing on Wednesday.
( N a m e s h ave b e e n
c h a n g e d t o p r o t e c t i d e n t i t y )

SC Judgement: Don’t deny visitation to husband default order

November 3, 2011 2 comments

SUPREME COURT OF INDIA

 

Citation: 2008 AIR 471  2007(11  )SCR854   2007(12  )SCALE758

 

 

 

 

Judgement

 

CASE NO.:
Appeal (civil)  5088-5097 of 2007

PETITIONER:
Mohan Kumar Rayana

RESPONDENT:
Komal Mohan Rayana

DATE OF JUDGMENT: 01/11/2007

BENCH:
C.K.THAKKER & ALTAMAS KABIR

JUDGMENT:
J U D G M E N T 

CIVIL APPEAL NOS.5088-5097 OF 2007
(Arising out of S.L.P.( C) Nos.15167-15176 of 2007)


   Altamas Kabir, J.


1.	  Leave granted.


2	 Since both the parties to the special leave petitions 
are before us, Notice of the Appeals is waived on behalf 
of the respondent, Komal Mohan Rayana.
3	  The appeals arise out of circumstances wherein owing 
to disputes and differences between a married couple, the 
child born of the wedlock has become the object of a 
tussle for custody between the two parents.
4. The subject matter of these appeals are four orders 
passed by the Bombay High Court on 12th July 2007, 19th 
July 2007, 27th July 2007 and 6th August 2007 in two 
appeals from a petition No.D-65/2005 before the Family 
Court.  In order to appreciate the circumstances in which 
these orders came to be passed, it will be necessary to 
state a few facts leading to the commencement of the 
proceedings before the Family Court. 

5.	Admittedly, the appellant herein, who is the husband 
of the respondent, married the respondent on 2nd March 
2002. A daughter was born to them and she was named 
Anisha. Initially there were no disputes as such between 
the parties but after the daughters birth, the atmosphere 
in the marital home began to change.  We shall not go into 
the causes as alleged by the respondent since such 
allegations are not relevant for our purpose, but we can 
only observe that one of the reasons given by the 
respondent for the changed circumstances was the change in 
behaviour of the appellant towards her, on account of 
addiction to alcohol in the company of his friends. 

6.	In any event, there appears to have been some marital 
discord, which resulted in the respondent leaving the 
matrimonial house in July 2004 with her minor daughter and 
seeking shelter with her parents at Bandra.  According to 
the respondent, during the said period she continued to 
send Anisha to the Kinder Campus School at Chembur, the 
area where the appellant was residing and permitted him on 
occasions to keep back Anisha at his residence. The 
respondent has alleged that in October 2005, taking 
advantage of such a situation, the appellant kept Anisha 
back with him and did not return her to the respondents 
custody. This compelled the respondent to meet her 
daughter in the school campus, but since this arrangement 
did not also work out, in the last week of November 2005, 
she approached the Chembur police and with their help got 
back the custody of her daughter.  A series of allegations 
were thereafter made that on 30th November, 2005 the 
appellant, with the help of some of his associates, 
forcibly removed Anisha from the respondents custody and 
made her completely inaccessible to the respondent. It is 
in such compelling circumstances that she moved the Family 
Court seeking custody of her minor daughter under Section 
6 of the Hindu Minority and Guardianship Act, 1956 read 
with Ss.7 and 25 of the Guardians & Wards Act, 1890.
7.	The appellant herein also filed a Custody Petition, 
being D-66 of 2005, and both the applications were taken 
up for hearing together by the learned Family Court. By 
its judgment dated 2nd February 2007 the Family Court 
dismissed the appellants application for custody and 
allowed the application filed by the respdondent by 
passing the following order :
ORDER
The Respondent/Mohankumar Rayana is directed 
to hand over custody of the minor daughter 
Anisha to the petitioner/mother Komal Rayana 
immediately after completion of her final 
terms of the current academic session 2006-
2007.

The Respondent/father shall take all the 
steps to provide all facilities to the minor 
daughter to enjoy her extra curricular 
activities and studies.

After the child Anisha goes to the custody 
of the mother as ordered above, the 
Respondent/father would be at liberty and 
privilege to avail her access every 
alternate weekends, meet her at school at 
any time and share 50% of her school 
vacations, as per mutual arrangement with 
the petitioner/mother.

The petitioner/mother should in consultation 
with the Respondent/father decide the 
question of her further academic education 
and she should not move the child out of the 
jurisdiction of the Court without its prior 
permission and of course after due 
intimation to the Respondent/father.

The father/respondent shall meet all the 
expenses for the education, food and clothes 
etc. of the minor daughter Anisha and the 
Petitioner/mother of her own accord may 
contribute to the same for the child and she 
should not be prohibited by the 
respondent/father from giving the child 
Anisha anything for her own comfort and 
pleasant living.  This arrangement for 
custody is made on the basis of the prior 
consideration for the welfare of the minor 
Anisha and in the event of change of 
circumstances  either  of the parents shall 
be at liberty and privilege to approach this 
Court for fresh direction on the basis of 
changed circumstances.

The custody petition D-65/05 moved by the 
Respondent/father Mohan Kumar Rayana stands 
dismissed  with visitation and access rights 
as ordered above.


8. Aggrieved by the said Judgment and order of the Family 
Court, the appellant filed Family Court Appeal No. 29/2007 
before the Bombay High Court on 23.2.2007 and the same was 
admitted on 7th March, 2007 and was said to have been per-
emptorily fixed for final hearing on 26th March, 2007. On 
26th March, 2007 the respondent also filed an appeal, 
being Family Court Appeal No.61/2007, challenging the 
operation of the judgment of the Family Court dated 
2.2.2007 granting access to the appellant  to meet Anisha. 
The said appeal was also admitted on 3rd May, 2007. On the 
same day, the directions contained in the order of the 
Family Court dated 2.2.07 regarding access to the 
appellant to meet Anisha, were modified by the High Court 
by directing that the minor child would be available to 
the appellant as and when he was physically present in 
Bombay at his house.  It was also stipulated that whenever 
the appellant was not available in Bombay the child should 
remain with the respondent.  It was specifically mentioned 
that the child should not be removed by the appellant out 
of Bombay for any reason whatsoever, except in the 
circumstances mentioned in the order.

9.	A Special Leave Petition was filed by the appellant 
against the order of the High Court dated 3.5.07 and the 
same was disposed of on 18.6.07 with a direction upon the 
High Court to hear the Family Court appeal expeditiously.

10.	Certain circumstances intervened which prompted the 
Division Bench of the Bombay High Court to modify its 
order dated 3.5.07 on 12.7.07 by reducing the access 
granted to the appellant and limited such access only to 
the day time on the ensuing Saturday and Sunday.  The said 
order passed in the two above-mentioned appeals is one of 
the orders forming the subject matter of the appeals 
before us.

11.	Subsequently, after interviewing the parties and the 
minor child, the High Court passed a further order on 
19.7.07 directing the appellant and the respondent to 
visit a psychiatrist with the child and to obtain a report 
from him.  The access granted to the appellant on 
Saturdays and Sundays from 9 A.M. to 9 P.M. was continued. 
The said order passed in application No.81/2007 filed by 
the respondent herein in Family Court Appeal No.61/2007, 
is one of the other orders which form the subject matter 
of the present appeals before us.

12.	A third order was passed by the Bombay High Court on 
27.7.07 directing the appellant and the respondent to seek 
appointment with a psychiatrist within a week, and he was 
also directed to submit his report within 2 weeks after 
the parties were examined.  The interim arrangement made 
earlier was directed to continue. The said order is the 
third order which is impugned in the present appeals. The 
fourth order impugned in these appeals was passed on 
6.8.07 in the pending Civil Application No.81/2007, 
whereby, in view of the intervening circumstances, the 
High Court passed the following order.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.61 OF 2007
ALONGWITH
CIVIL APPLICATION NO.81 OF 2007
ALONGWITH
FAMILY COURT APPEAL NO.29 OF 2007

Mr. R.T. Lalwani, Advocate for the 
applicant/wife
Mr. Kevic Settalwad Advocate i/b D.H. Law 
& Associates for Respondent/husband

CORAM :  J.N. PATEL AND A.S. SAYED, JJ
DATE  :	  AUGUST 6, 2007
P.C. (Per J.N. Patel,J):

	Heard.  We find from the conduct of 
the parties that the parties are 
repeatedly moving this Court in the matter 
on one pretext or the other. It is highly 
impossible for the Court to monitor each 
and everything.  This being matrimonial 
matter relating to access of the child, 
the Court has issued directions from time 
to time and it is expected that both the 
parties shall comply with the directions 
of this Court and facilitate each other 
and cooperate with each other in the 
matter. But it appears that the parties 
are trying to interpret the order in the 
manner they want, without being concerned 
about the welfare of the child, which is 
of paramount importance.  This Court has 
suggested to the parties to go for 
counselling and already a psychiatric of 
J.J. Hospital is appointed for the same.  
Recent development is represented by the 
counsel for the parties shows that on the 
last date of access there was some quarrel 
between the parties, which lead to 
hospitalisation of the wife, for injuries 
suffered by her and she is presently 
admitted in Lilawati Hospital and likely 
to be discharged today or tomorrow.

2.	In our considered opinion the 
respondent/wife deserves an opportunity to 
place her affidavit on record.

3.	In view of the recent development as 
brought to our notice, we are left with no 
option, but hold all our interim 
orders/relief to grant access to father, 
in abeyance till this Court  receives 
report of the psychiatrist. We make it 
clear that the parties, if fail to 
cooperate with the Court in resolving the 
issue, this Court would remove the matter 
from its board.  It is not expected from 
the parties to resolve their domestic 
quarrel in the court and ask the Court to 
adjudicate each and every issue, whether 
minor or major, relevant or irrelevant.  
We hope that the parties would maintain 
some discipline in observing the orders of 
the Court and cooperate.

4. Parties are at liberty to mention the 
matter only after they comply with the 
orders of this Court and report of the 
psychiatrist is received. Thereafter this 
Court proposes to pass the further orders. 
The matter stands adjourned for 4 weeks. 
We make it clear that on the mean time we 
would not entertain any application for 
interim relief, or for permitting the 
parties to meet the child, or to take 
matter on board, which has led this Court 
to hold all orders passed earlier in 
abeyance.

(A.A.SAYED,J)			(J.N. PATEL,J)
TRUE COPY


13. By the aforesaid order all access to the appellant was 
kept in abeyance till the Court received the report of the 
psychiatrist. The main grievance of the appellant is that 
by the order of 6.8.07 he was completely denied any access 
to the minor child. He was also aggrieved by the reduction 
of access time by the other orders as well. 

14.	 Since these appeals have been preferred against the 
interim orders passed by the Bombay High Court in the two 
pending Family Court Appeals, learned counsel for the 
appellant, submitted that in these appeals the only 
grievance of the appellant was with regard to denial of 
complete access to his child.  He prayed that the 
visitation rights which had been granted by the Family 
Court be restored during the pendency of the two appeals 
in the Bombay High Court.

15.	Since we are only called upon to decide the said 
issue, we are not required to go into any other question 
relating to the appeals pending before the Bombay High 
Court. We have met the appellant, the respondent and also 
the minor child, Anisha, separately, in chamber, to 
ascertain what each had to say regarding the making of 
interim arrangements to allow the appellant to have access 
to Anisha.

16.	After having looked through the materials on record 
and after considering the views of the parties and the 
minor girl, we are of the view that the appellant should 
not be denied complete access to his minor child, even if 
there has been a default in complying with the directions 
of the High Court and that pending the disposal of the 
appeals he should be allowed to have access to his minor 
child, at least to some extent.
17.	We, accordingly, dispose of these appeals with the 
following directions :-

i)	Since the welfare of a minor child is involved, 
the High Court is requested to try and dispose 
of the pending appeals as expeditiously as 
possible, but preferably within three months 
from the date of communication of this order;
ii)	The appellant/father of the minor, will be 
entitled to have access to Anisha on weekends on 
Saturdays and Sundays and will be entitled, if 
the child is willing, to keep her with him on 
Saturday night.  For the said purpose, the 
appellant shall receive the child from the 
respondent at 10.00 a.m. on Saturday from her 
residence at Bandra or from a mutually agreed 
upon venue and shall return the child to the 
respondent on Sunday by 2.00 p.m. In the event 
Anisha is unwilling to stay with the appellant 
overnight, the appellant will then make her over 
to the respondent on Saturday itself by 9.00 
p.m.; in that case, the appellant will be 
entitled to take Anisha out on Sunday also 
between 9.00 a.m. to 5.00 p.m.;
iii)	Both the appellant as well as the respondent 
must co-operate with each other in making the 
aforesaid arrangements work.  The respondent 
shall not prevent the appellant from having 
access to Anisha in the manner indicated above. 
Likewise, once Anisha is handed over to the 
appellant he too must honour the aforesaid 
arrangements and not keep Anisha with him beyond 
the time stipulated. In the event of either of 
the parties violating the aforesaid arrangement, 
the other party would be at liberty to pray for 
appropriate orders before the Bombay High Court 
in the pending appeals;
iv)	The aforesaid arrangement is being made so that 
the appellant can have access to his minor 
daughter and also to ensure that the childs 
education does not suffer in any way during the 
week.


18.	The appeals are, accordingly, disposed of with the 
aforesaid modifications of the interim orders passed by 
the High Court and save as aforesaid, all the other 
interim directions shall continue to remain operative.

19.	Since, in terms of our earlier directions, the 
expenses of the respondent and Anisha for coming from 
Bombay to Delhi and other litigation expenses is said to 
have been deposited by the appellant with the Registry of 
this Court, the respondent shall be entitled to withdraw 
the same. There shall be no further order as to costs in 
these appeals.


 

Categories: Child Custody Tags:

SC: Father gets the custody of minor daughter

November 3, 2011 Leave a comment


IN The SUPREME COURT OF INDIA

Citation: 2006 AIR 1343, 2006(2   )SCR342 , 2006(3   )SCC62  , 2006(2   )SCALE388 , 2006(2   )JT482 

Judgement

CASE NO.:
Appeal (civil) 6626 of 2004

PETITIONER:
Sheila B. Das

RESPONDENT:
P.R. Sugasree

DATE OF JUDGMENT: 17/02/2006

BENCH:
B.P. Singh & Altamas Kabir

JUDGMENT:
J U D G M E N T

ALTAMAS KABIR,J.

The appellant, who is a paediatrician by profession, was married to the respondent, who is a lawyer by profession, on 29th March, 1989, at Thrissur in Kerala under the provisions of the Special Marriage Act. A girl child, Ritwika, was born of the said marriage on 20th June, 1993.
As will appear from the materials on record, the appellant, for whatever reason, left her matrimonial home at Thrissur on 26th February, 2000, alongwith the child and went to Calicut without informing the respondent.
Subsequently, on coming to learn that the appellant was staying at Calicut, the respondent moved an application in the High Court at Kerala for a writ in the nature of Habeas Corpus, which appears to have been disposed of on 24th March, 2000 upon an undertaking given by the appellant to bring the child to Thrissur.
On 24th March, 2000, the respondent, alleging that the minor child had been wrongfully removed from his custody by the appellant, filed an application before the Family Court at Thrissur under Sections 7 and 25 of the Guardians and Wards Act, 1890, and also Section 6 of the Hindu Minority& Guardianship Act, 1956, which came to be numbered as OP 193 of 2000 and OP 239 of
2000.
Before taking up the said two applications for disposal, the learned Judge of the Family Court at Thrissur took up the respondent’s application for interim
custody of the minor child and on 27th April, 2000 interviewed the minor child in order to elucidate her views with regard to the respondent’s prayer for interim custody. No order was made at that time on the respondent’s application for interim custody. On 20th March, 2001, the learned Judge of the Family Court at Thrissur took up the two applications filed by the respondent under Sections 7 and 25 of the Guardians and Wards Act and under Section 6 of the Hindu Minority and Guardianship Act for final disposal. While disposing of the matter the learned Judge had occasion to interview the minor child once again before delivering judgment and ultimately by his order of even date the
learned Judge of the Family Court at Thrissur allowed the applicati16ons filed by the respondent by passing the following order:-

“1. The respondent is directed to give custody of the child to the petitioner the father of the child, the natural guardian immediately after closing of the schools
for summer vacation.

2. The father shall take steps to continue the study of the minor child in CSM Central School Edaserry and steps to restore all the facilities to the minor child to enjoy her extra curricular activities and studies also.

3. The respondent mother is at liberty to visit the child either at the home of the
petitioner or at school at any time.

4. If the mother respondent shifts her residence to a place within 10 kms. radius of the school where the child is studying the child can reside with the mother for not less than three days in a week. The petitioner father shall not, object to taking of the child by the mother to her own house in such condition.

5. The father the petitioner shall meet all the expenses for the education, food
and cloths etc. of the minor child and the mother of her own accord contribute to the same anything for the child and the father should not prohibit the mother
from giving the child anything for her comfort and pleasant living.

6. If the mother the respondent fails to stay within 10 kms. radius of the CSM
central School, Edasserry however she is entitled to get custody of the child for 2 days in any of the weekend in a month and 10 days during the Summer vacation and 2 days during the Onam holidays excluding the Thiruvonam day.

7. This arrangement for custody is made on the basis of the prime consideration for the welfare of the minor child and in case there is any change in the situation or circumstance affecting the welfare of the minor child, both of the parties are at liberty to approach this court for fresh directions on the basis of the changed circumstance.

OP 239/2000 is partly allowed prohibiting the respondent husband by a
permanent injunction from removing or taking forcefully the “B” schedule articles mentioned in the plant. The parties in both these cases are to suffer their costs.”

Being dissatisfied with the order of the Family Court, the appellant herein filed an appeal in the High Court of Kerala, being M.F.A.No.365/01, wherein by an
order dated 21st May, 2001, the order of the Family Court was stayed. The respondent thereupon filed an application before the High Court for review of the said order and in the pending proceedings, a direction was given by the High Court to the Family Court at Calicut to interview the minor child. The report of the Family Court was duly filed before the High Court on 5th July, 2001. From the said report, a copy of which has been included in the paperbook, it is evident that the minor child preferred to stay with her father and ultimately by its order dated 25th July, 2001 the High Court vacated the stay granted by it on 21st May, 2001.

On the application of the appellant herein, one Dr. S.D. Singh, Psychiatrist, was also appointed by the High Court on 14th September, 2001, to interview the
appellant and the respondent in order to make a psychological evaluation and to submit a report. On such report being filed, the High Court by its order dated
31st May, 2002, granted custody of the minor child to the respondent till the disposal of the appeal. Soon thereafter, in June 2002, the respondent filed
an application for divorce before the Family Court at Thrissur. While the same was pending, the appellant filed a Special Leave Petition being S.L.P.( C)  C.C.No. 6954/2002 against the order of the High Court granting custody of the minor child to the respondent till the disposal of the appeal. The said Special Leave
Petition was dismissed on 9th September, 2002. The appeal filed by the appellant before the High Court against the order of the learned Judge of the Family Court allowing the respondent’s application under Sections 7 and 25 of the Guardians and Wards Act, being M.F.A. No.365/01, was also dismissed on 16th June, 2003. Immediately, thereafter, on 28th June, 2003, the Family Court granted divorce to the parties. Being aggrieved by the dismissal of her appeal, being M.F.A.No.365/01, the appellant herein filed the instant Special Leave Petition, being SLP ) No. 18961/2003, which after admission was renumbered as Civil Appeal No.6626/2004. On 20th July, 2004, the appellant herein filed a petition in the pending Special Leave Petition for interim visitation rights in respect of her minor child for the months of August and September, 2004. After considering the submissions made by the appellant, who was appearing in person, and the learned counsel for the respondent, this Court
passed the following order:-
“This petition has been filed by the mother of minor girl-Ritwika, aged about
12 years, challenging the impugned order of the High Court dated 16th June, 2003. By the impugned order the High Court confirmed the order of the Family Court holding that it is in the best interest of the child that she be in the custody of the father. The High Court, however, permitted the petitioner to visit the child at the house of the father once in a month, that is, first Sunday of every
month and spend the whole day with the child there with a further stipulation that she will not be removed from the father’s house. The petitioner and the
respondent have not been living together since February, 2000. The divorce
between them took place by order dated 26th June, 2003.

On question of interim custody, in terms of the order dated 30th April, 2003,
the Family Court Trichur, was directed to make an order regarding the visitation rights of the petitioner for the months of May, June and July, 2004 so that the petitioner may meet her daughter at the place of some neutral person and, if necessary, in the presence of a family counselor or such other person deemed just, fit and proper by the Family Court. The Family Court was directed to fix any two days, in months of May, June and July of 2004, considering the convenience of the parties, when the petitioner may be in a position to spend entire day with her child.

Pursuant to the above said order the Family Court had fixed two days in the
months of May, June and July, 2004 so that the petitioner could meet her
daughter on those days. The Family Court directed that the said meeting shall
take place in the room of family counsellor in Court precincts. According
to the petitioner the said arrangement was not satisfactory, so much so that
ultimately she made a request to the Family Court that instead of meeting her
daughter in the room of the family counsellor, the earlier arrangement of
meeting her at father’s house was may be restored. The Family Court, however, did not modify the order having regard to the orders passed by this Court on 30th April, 2004. It is, however, not necessary at this stage to delve any further on this aspect.

Ritwika is studying in 7th class in a school in Trichur. Having heard
petitioner-in-person and learned counsel for the respondent and on perusal of
record, we are of the view that without prejudice to parties’ rights and  contentions in Special Leave Petition, some interim order for visitation rights of the petitioner for the months of August and September, 2004 deserves to be
passed. Accordingly, we direct as under:
(1) The petitioner can visit the house of the respondent at Trichur on every
Sunday commencing from 1st August, 2004 and be with Ritwika from 10.00
a.m. to 5.00 p.m. During the stay of the petitioner at the house of the respondent, only the widowed sister of the respondent can remain present. The respondent shall not remain present in the house during the said period. It would be open to the petitioner to take Ritwika for outing, subject to the condition that Ritwika readily agrees for it. We also hope that when at the house of the respondent, the petitioner would be properly looked after, insofar as, normal facilities and courtesies are concerned;
(2) We are informed that the school in which Ritwika is studying shall be closed
for 7 days in the month of August, 2004 during Onam festival. It would be open
to the petitioner to take the child for outing during those holidays for a period
of three days. After the expiry of three days, it will be the responsibility of the
petitioner to leave the child at the house of the respondent.

The arrangement about meeting on every Sunday would also continue in the
month of September, 2004.
List the matter on 5th October, 2004”

The question relating to the appellant’s visitation rights pending decision of the Special Leave Petition came up for consideration before this Court again on 5th
October, 2004, when on a reference to its earlier order dated 20th July, 2004, this Court further directed that the appellant would be at liberty to move appropriate applications in M.F.A.No.365/01, which had been decided by the High Court on 16th June, 2003, and the High Court on hearing the parties or their counsel would pass such orders as it considered appropriate in respect
of the interim custody of Ritwika during the Christmas Holidays. It was also clarified that till the matter was finally decided by this Court, it would be open to the appellant to make similar applications before the High Court which would have to be considered on its own merits, since it was felt that the High Court would be in a better position to consider the local conditions and pass
interim orders including conditions, if any, required to be placed on the parties.
As mentioned hereinbefore, on leave being granted, the Special Leave Petition was renumbered as Civil Appeal No.6626/04, which has been taken up by us for
final hearing and disposal.
The appellant, who appeared in person, urged that both the Family Court and the High Court had erred in law in removing the minor child from the custody of the mother to the father’s custody, having particular regard to the fact that the minor girl was still of tender age and had attained the age when a mother’s care and counseling was paramount for the health and well-being of the minor girl child. The appellant submitted that the minor child would soon attain puberty when she would need the guidance and instructions of a woman to enable her to deal with both physical and emotional changes which take place during such period. Apart from the above, the appellant, who, as stated herein before, is a doctor by profession, claimed to be in a better position to take care of the needs of the minor in comparison to the respondent who, it was alleged, had little time at his disposal to look after the needs of the minor child.

From the evidence adduced on behalf of the parties, the appellant tried to point out that from morning till late at night, the respondent was busy in court with his own work and activities which left the minor child completely alone and uncared for. According to the appellant, the respondent who had a farm house some distance away from Thrissur, spent his week- ends and even a major part of the week days in the said farm house. The appellant urged, that as a mother, she knew what was best for the child and being a professional person herself she was in a position to provide the minor not only with all such comforts as were necessary for her proper and complete upbringing, but also with a good
education and to create in her an interest in extra-curricular activities such as music and dancing. The appellant strongly urged that the respondent had never
had any concern for the minor child since her birth and till the time when the appellant left with her for Calicut. The appellant contended that for 7 years after the birth of the minor child, the appellant had single-handedly brought up the minor since the respondent was too pre-occupied with other activities to even notice her. According to the appellant, the minor child was extremely happy to be with her till the respondent began to claim custody of the minor and soon after obtaining such custody, he was able to influence the minor to such an
extent that she even went to the extent of informing the learned Judge of the Family Court that she preferred to stay with her father.On this aspect of the matter, the appellant urged that the minor had been exposed by the respondent to what she termed as “Parental Alienation Syndrome”. She urged that such a phenomenon was noticeable in parents who had been separated and who are bent upon poisoning the mind of their minor children against the other party. According to the appellant, there could otherwise be no other explanation as to why even after being with the appellant for 7 years, the minor child had  expressed a preference to be with her father after she was placed in his custody. The appellant laid stress on her submissions that not only till the age of 8 years,
when custody of the minor child was given to him, but even thereafter the respondent had all along been an absentee father taking little or no interest in the affairs and upbringing of the minor child. According to the appellant, in view of the peculiar habits of the respondent, the minor child was left on her own much of the time, which was neither desirable nor healthy for a growing adolescent girl child. Urging that she had the best interest of the minor
child at heart, the appellant submitted that although under the provisions of Hindu Law by which the parties were governed, the father is accepted as the natural guardian of a minor, there were several instances where the courts had accepted the mother as the natural guardian of a minor in preference to the father even when he was available. Referring to Section 6 of the Hindu
Minority and Guardianship Act, 1956, which provides that the natural guardian of a Hindu minor in the case of a boy or an unmarried girl is the father and after him the mother; provided that the custody of a minor who has not completed the age of 5 years shall ordinarily be with the mother, the appellant submitted that the aforesaid provision had recognized the mother also as the natural
guardian of a minor. It was urged that in various cases the Courts had considered the said provision and had opined that there could be cases where in spite of the father being available, the mother should be treated to be the natural guardian of a minor having regard to the incapacity of the father to act as the natural guardian of such minor.
In support of her aforesaid submission, the appellant referred to and relied on the decision of this Court in Hoshie Shavaksha Dolikuka vs. Thirty Hoshie
Dolikuka, reported in AIR 1984 SC 410, wherein having found the father of the minor to be disinterested in the child’s welfare this Court held that the father was not entitled to the custody of the child.

The appellant also referred to and relied on a Division Bench decision of the Kerala High Court in the case of Kurian C. Jose vs. Meena Jose, reported in
1992 (1) KLT 818, wherein having regard to the fact that the father was living with a concubine who was none else than the youngest sister of the mother, it was held that the father was not entitled to act as the guardian of the minor. On a consideration of the provisions of Section 17 (3) of the Guardians and Wards Act, 1890, it was also held that a minor’s preference need not necessarily be decisive but is only one of the factors to be taken into consideration by the court while considering the question of custody.
Reference was also made to another decision of this Court in the case of Kumar V. Jahgirdar vs. Chethana Ramatheertha, (2004) 2 SCC 688, wherein in consideration of the interest of the minor child, the mother, who had re-married, was given custody of the female child who was on the advent of puberty, on the ground that at such an age a female child primarily requires a mother’s care and attention. The Court was of the view that the absence of female company in the house of the father was a relevant factor in deciding the
grant of custody of the minor female child. The appellant urged that the courts in the aforesaid cases had considered the welfare of the minor to be of  paramount importance in deciding the question of grant of custody. The appellant urged that notwithstanding the fact that the minor child had expressed before the learned Judge of the Family Court that she preferred to
be with the father, keeping in mind the fact that the welfare of the minor was of paramount importance, the court should seriously consider whether the minor child should be deprived of her mother’s company during her period of adolescence when she requires her mother’s counselling and guidance. The appellant submitted that while the respondent had indulged Ritwika so as to win over her affection, the appellant had tried to instill in her mind a sense of discipline which had obviously caused a certain amount of resentment in Ritwika. The appellant submitted that the court should look behind the curtain to see what was best for the minor girl child at this very crucial period of her growing upIn support of her aforesaid submission, the appellant referred to and relied on a decision of the Bombay High Court in the case of Saraswatibai  Shripad Ved vs. Shripad Vasanji Ved, AIR 1941 Bombay 103, wherein in a similar application under the Guardians and Wards Act, it was held that since the minor’s interest is the paramount consideration, the mother was preferable to the father as a guardian. The appellant emphasized the observation made in the judgment that if the mother is a suitable person to take charge of the
child, it is quite impossible to find an adequate substitute for her for the custody of a child of tender years notwithstanding the fact that the father remains as
the natural guardian of the minor.
A similar view was expressed by this Court in the case of Rosy Jacob vs. Jacob A. Chakramakkal, AIR 1973 SC 2090, wherein in the facts and circumstance of
the case, the custody of the daughter (even though she was more than 13 years of age ) and that of the youngest minor son, was considered to be more beneficial with the wife rather than with the husband.
The appellant submitted that during the child’s growing years, she had from out of her own professional income, provided her with amenities which a growing
child needs, including admission and tuition fees for the child’s schooling in a good school and for extra-curricular activities. The appellant submitted that she had made fixed deposits for the benefit of the minor and had even taken out life insurance policies where the minor child had been made the nominee. The appellant submitted that apart from the above, she had also made various financial investments for the benefit of the minor so that the minor child would not be wanting in anything if she was allowed to remain with the appellant.
The appellant submitted that although she had been granted visitation rights by the different interim orders, since she was residing in Calicut and the  respondent was residing in Thrissur, she was unable to remain in contact with her minor daughter on account of the distance between Calicut and Thrissur. In fact, the appellant complained of the fact that on several occasions when she had gone to meet her minor child at the residence of the respondent, she had not been allowed to meet the child or to spend sufficient time with her. The appellant submitted that the interest of the minor child would be best served if her custody was given to the appellant.
The claim of custody of the minor child made by the appellant was very strongly resisted by the respondent who denied all the various allegations levelled against him regarding his alleged apathy towards the minor and her development. It was submitted on his behalf that till the age of 7 years, the child had been living with both the parents, and was well cared for and looked after during this period. The minor child was suddenly and surreptitiously removed from the respondent’s custody by the appellant who left her matrimonial home on 26th February, 2000 without informing the appellant who had gone out of Thrissur on his professional work. It was submitted that only after coming to learn that the appellant had removed the child to Calicut that the
respondent was compelled to file a Habeas Corpus Petition in the Kerala High Court which ended upon an undertaking given by the appellant to bring the minor child to Thrissur. It was only thereafter that the respondent was compelled to file the application under Sections 7 and 25 of the Guardians and Wards Act and under Section 6 of the Hindu Minority and Guardianship Act, 1956.
According to the respondent, even though the appellant had forcibly removed the minor to Calicut, thereby depriving the respondent of the minor child’s
company, the said minor during her interview by the learned Judge of the Family Court at Thrissur made her preference to be with the father known to the learned Judge.

On behalf of the respondent, it was also submitted that keeping in mind the fact that the girl child was attaining the age of puberty, the respondent had
arranged with his elder sister, who was a retired headmistress of a school, to come and stay with him and to attend to the minor’s needs during her growing years when she required the guidance and counselling of a woman. It was submitted that the said aspect of the matter was duly considered by the Family Court as well as by the High Court on the basis of an affidavit filed by
the respondent’s sister expressing her willingness to stay with the respondent to look after the minor child.In addition to the above, it was submitted on behalf
of the respondent that the Court had found on evidence that he had sufficient finances to look after and provide for all the needs of the minor child. In any event, what was of paramount importance was the welfare of the minor and the court had also taken into consideration the preference expressed by the minor in terms of Section 17 (3) of the Guardians and Wards Act, 1890.

On behalf of the respondent it was submitted that the respondent was quite alive to the fact that the minor
child should not be deprived of her mother’s company and that for the said purpose, the appellant was welcome to visit the minor child either at the respondent’s house or in some neutral place and to even keep the child with
her on specified days if she was ready and willing to stay with the appellant. What was sought to be emphasized on behalf of the respondent was that in the interest oF the child she should be allowed to remain with him since he was better equipped to look after the minor, besides being her natural guardian and also having regard to the wishes of the minor herself.
Having regard to the complexities of the situation in which we have been called upon to balance the emotional confrontation of the parents of the minor child
and the welfare of the minor, we have given anxious thought to what would be in the best interest of the minor. We have ourselves spoken to the minor girl,
without either of the parents being present, in order to ascertain her preference in the matter. The child who is a little more than 12 years of age is highly intelligent, having consistently done extremely well in her studies in
school, and we were convinced that despite the tussle between her parents, she would be in a position to make an intelligent choice with regard to her custody. From our discussion with the minor, we have been able to gather that though she has no animosity as such towards her mother, she would prefer to be with the father with whom she felt more comfortable. The minor child also informed us that she had established a very good relationship with her paternal aunt who was now staying in her father’s house and she was able to relate to her aunt in matters which would concern a growing girl during her period of adolescence.We have also considered the various decisions cited by the appellant which were all rendered in the special facts of each case. In the said cases the father
on account of specific considerations was not considered
to be suitable to act as the guardian of the minor. The
said decisions were rendered by the Courts keeping in
view the fact that the paramount consideration in such
cases was the interest and well-being of the minor. In this case, we see no reason to consider the respondent ineligible to look after the minor. In fact, after having obtained custody of the minor child, the respondent does not appear to have neglected the minor or to look after all her needs. The child appears to be happy in the respondent’s company and has also been doing consistently well in school. The respondent appears to be financially stable and is not also disqualified in any way from being the guardian of the minor child. No Allegation, other than his purported apathy towards the minor, has been levelled against the respondent by the appellant. Such an allegation is not borne out from the materials before us and is not sufficient to make the respondent ineligible to act as the guardian of the minor.

We, therefore, feel that the interest of the minor will be best served if she remains with the respondent but with sufficient access to the appellant to visit the minor at frequent intervals but so as not to disturb and disrupt her normal studies and other activities. We, accordingly dispose of this appeal by retaining the order passed by the learned Judge of the Family Court at Thrissur on 20.3.2001 while disposing of O.P.No.193/2000 filed by the respondent herein under Sections 7 and 25 of the Guardians and Wards Act, 1890 with the following modifications:-

1. The respondent shall make arrangements for Ritwika to continue her studies in her present school and to ensure that she is able to take part in extra-curricular activities as well.

2. The respondent shall meet all the expenses of the minor towards her education, health, care, food and clothing and in the event the appellant also wishes to contribute towards the upbringing of the child, the respondent shall not create any obstruction to and/or prevent the appellant from also making such contribution.

3. The appellant will be at liberty to visit the minor child either in the respondent’s house or in the premises of a mutual friend as may be agreed upon on every second Sunday of the month. To enable the appellant to meet the child, the respondent shall ensure the child’s presence either in his house
or in the house of the mutual friend agreed upon at 10.00 A.M. The appellant will be entitled to take the child out with her for the day, and to bring her back to the respondent’s house or the premises of the mutual friend within 7.00 P.M. in the evening.

4. In the event the appellant shifts her residence to the same city where the minor child will be staying, the appellant will, in addition to the above, be
entitled to meet the minor on every second Saturday of the month, and, if the child is willing, the appellant will also be entitled to keep the child with her overnight on such Saturday and return her to the respondent’s custody by the following Sunday evening at 7.00 P.M.

5. The appellant, upon prior intimation to the respondent, will also be entitled to meet the minor at her school once a week after school hours for about an hour.

6. The appellant will also be entitled to the custody of the minor for 10 consecutive days during the summer vacation on dates to be mutually settled
between the parties.
7. The aforesaid arrangement will continue for the present, but the parties will be at liberty to approach the Family Court at Thrissur for fresh directions should the same become necessary on account of changed circumstances.

The parties will each bear their own costs.

Categories: Child Custody Tags:

All About FIR

October 1, 2011 Leave a comment

It’s always scary interacting with the police. Knowing your rights helps. This article explains the situations in which the police is required to register an FIR.

 

 FIR is an acronym for ‘First Information Report’. An FIR is a report of a crime filed with the police to initiate the investigation process. However, an FIR cannot be registered for all crimes, and so it is important for one to know the crimes and circumstances in relation to which an FIR may be registered.

Offences for which you can file an FIR

Criminal offences are classified into two categories depending on the degree of seriousness: cognizable; and non cognizable.

Cognizable literally means to take note of. A crime is classified as cognizable if it is of a serious nature, e.g. murder, rape, robbery, kidnapping, etc. In cases of cognizable offences, the police can arrest an accused or suspect without a warrant (i.e. without an order from a court).

Non cognizable offences are minor offences, e.g. defamation, intimidation, theft etc. In case of non cognizable offences, the police can neither investigate nor arrest the suspect for a crime without an order/ warrant from the court.

An FIR is filed only in cases of cognizable offences, i.e. crimes of a serious nature.Non cognizable offences may also be reported to police but the police will not file an FIR for these offences. Instead, they will register the complaint in the Daily Diary Report (DDR).

Whether an offence is cognizable or not can be found out from the 1st Schedule of Code of Criminal Procedure. As per the schedule, theft is a cognizable offence without any qualification.

Filing an FIR

When a crime of a serious nature occurs, it is natural that one would want to inform the police so that the matter can be investigated. In order to do so, it is necessary to file an FIR. How does one do this?

Who can file an FIR?

It is not necessary that only a victim of a crime can file an FIR in relation to it. The following persons may file an FIR:

1.   the victim or any person on behalf of victim;

2.   any person who has witnessed the crime or has heard of the crime. In case the person has only heard of the crime and wants to file an FIR, then he must mention the source from where he/she has heard of the crime; and

3.   an officer in-charge of a police station.

So, if you are any of 1, 2 or 3 above, then go to the police station closest to the area where the crime has occurred and ask for the person-in-charge of the police station. When you have finished narrating the events surrounding the crime, if the person in- charge of the police station (not lower than the rank of head constable) is satisfied that the crime which took place is a cognizable offence and he is duty bound to register an FIR.

You may either give a written statement or make an oral statement to the officer in charge who will then write it down in FIR register. The officer in- charge is under an obligation to read over the statement written in the FIR register to you and then you must put your thumb impression or sign the FIR register.

Three carbon copies of an FIR are made, one copy each is sent to the Magistrate and the Superintendent of police and the third will be handed over to you. The original is retained, for record, in the police station.

Things one must consider while registering an FIR

There are a few things you should keep in mind if you are filing an FIR:

1. An FIR is recorded in first person, e.g. I was present on the scene of crime, I saw him taking out his gun.

2.The FIR should be registered immediately after the happening of crime. If there is any delay in registering an FIR, the reasons for the delay must be explained. Try to give a detailed description of the accused and other witnesses so that they can be easily identified.

3. Try to give as much information as possible about the scene of crime, e.g. the kind of weapon used, any physical damage caused to property, the date, time and place of the incident the question.

4. Ensure that you use simple language and not ambiguous, i.e., the meaning should be clear and obvious. Also make sure that you have not left out any relevant facts as FIR once registered cannot be modified again. Do not lie regarding any fact as it is a punishable offence under section 177 and 182 of Indian Penal Code.

In the FIR itself, make sure you mention:

1.      the date and time of reporting of the FIR by you.

2.      the date and time of the occurrence of the crime.

3.      that a signed and stamped copy of the FIR is given to you.

The police makes three copies of an FIR. The original is always kept as record in the police station and one carbon copy of original FIR is handed over to the informant. This carbon copy is also stamped and signed by the officer who has registered the FIR. The person filing the FIR must sign on the original and the 3 copies of the FIR.

What if the police refuse to file an FIR?

The person in- charge of a police station cannot refuse to register an FIR. It does not matter whether or not the information given is genuine. It is the statutory duty of a police officer to register an FIR whenever any information pertains to ant cognizable offence is reported to him/her.

In case the person in charge of a police station fails to register your FIR, you can approach superintendent of police who will either himself or through any other officer get the FIR registered.

You may inform the Superintendent of such non registration via a written complaint which may be sent to the Superintendent of Police through post. Note: This is an effective method of ensuring that your plea is heard – do mention in your letter the name of the police officer who refused to file an FIR.

Reporting of non-cognizable offence

As mentioned above, a non cognizable offence can also be reported to the police. This is registered in the DDR (daily diary register). After the crime has been so recorded, a signed and stamped copy of the DDR will be handed over to you.

However, the police will not take any action on the matter without the direction of a magistrate. In case you would like the police to investigate a matter, you must obtain an order from the magistrate directing the police to investigate in the matter. Generally you will have to go to the appropriate court in whose jurisdiction the matter falls and obtain the permission from the appropriate magistrate (who is competent to hear the matter) and ask him to pass an order for police to investigate the matter.

 

Courtesy:- RAJESH VAKHARIA NAGPUR

Categories: 498A Tags:
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