NMRA

Unemployed man can’t be forced to pay Maintenance - IN THE HIGH COURT OF DELHI AT NEW DELHI

noreply@blogger.com (Unknown) — Mon, 26 Sep 2016 08:18:00 -0700

Crl.M.C.No. 491/2009 Sanjay Bhardwaj & Ors. v. The State & Anr.

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: 9th August, 2010

Date of Order: 27th August, 2010

+Crl.M.C.No. 491/2009

27.08.2010

Sanjay Bhardwaj & Ors. ... Petitioner

Through: Dr. Naipal Singh, Advocate

Versus

The State & Anr. ... Respondents

Through: Mr. O.P.Saxena, APP for the State

With Mr. Gajraj Singh, SI

Mr. K.C.Jain, Adv. for the Complainant/Wife

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment? Yes.

2. To be referred to the reporter or not? Yes.

3. Whether judgment should be reported in Digest? Yes.

JUDGMENT

The present petition under Section 482 Cr.P.C. assails an order of interim maintenance under The Protection of Women from Domestic Violence Act, 2005 (in short Domestic Violence Act) passed by the learned MM on 16th January, 2008 and confirmed by the learned Additional Sessions Judge in appeal by order dated 29th February, 2008.

2. The petitioner was a Non-Resident Indian, working in Luanda, Angola in Africa as a Manager. He came to India taking leave from his job for marriage. Marriage between the petitioner and respondent no.2/wife was settled through matrimonial advertisement. The respondent wife was MA (English) and MBA. As per her bio-data sent before marriage, she was doing job with a Multinational Company. The marriage between the parties was solemnized on 14th May, 2007 at a Farmhouse in Vasant Kunj and was got registered on 25th May, 2007. The parties lived together for a limited period of 10 days i.e. from 15th May, 2007 to 19th May, 2007 and from 2nd June to 6th June, 2007. While the allegations of husband are that marriage failed within 3 weeks since the wife was suffering from a chronic disease about which no information was given to him before marriage and a fraud was played. The allegations made by wife were as usual of dowry demand and harassment. Since the marriage did not succeed, the husband/petitioner filed a petition under Section 12 of Hindu Marriage Act for declaring the marriage as null and void and the wife first filed an FIR against the husband under Section 498A/406 IPC and then filed an application under Section 12 of Domestic Violence Act.

3. It is not relevant for the purpose of this petition to go into the details of allegations and counter allegations made by each other. Suffice it to say that the learned MM passed an order dated 16th January, 2008 directing husband to pay an interim maintenance of ` 5000/- pm to the wife. He fixed this maintenance without considering the contentions raised by the husband (as is stated in the order) that the husband lost his job in Angola (Africa) where he was working before marriage because his passport was seized by police and he could not join his duties back. After marriage he remained in India, he was not employed. In the appeal, learned Additional Session Judge noted the contentions raised by the husband that he had become jobless because of the circumstances as stated by him and he had no source of income, he was not even able to maintain himself and had incurred loan, but observed that since the petitioner had earlier worked abroad as Sales Manager and in view of the provisions of Domestic Violence Act, he had the responsibility to maintain the wife and monetary relief was necessarily to be provided to the aggrieved person i.e. wife. He observed that the wife was not able to maintain herself therefore husband, who earned handsomely in past while working abroad, was liable to pay 5000/- pm to the wife as fixed by the learned MM.

4. A perusal of Domestic Violence Act shows that Domestic Violence Act does not create any additional right in favour of wife regarding maintenance. It only enables the Magistrate to pass a maintenance order as per the rights available under existing laws. While, the Act specifies the duties and functions of protection officer, police officer, service providers, magistrate, medical facility providers and duties of Government, the Act is silent about the duties of husband or the duties of wife. Thus, maintenance can be fixed by the Court under Domestic Violence Act only as per prevalent law regarding providing of maintenance by husband to the wife. Under prevalent laws i.e. Hindu Adoption & Maintenance Act, Hindu Marriage Act, Section 125 Cr.P.C - a husband is supposed to maintain his un-earning spouse out of the income which he earns. No law provides that a husband has to maintain a wife, living separately from him, irrespective of the fact whether he earns or not. Court cannot tell the husband that he should beg, borrow or steal but give maintenance to the wife, more so when the husband and wife are almost equally qualified and almost equally capable of earning and both of them claimed to be gainfully employed before marriage. If the husband was BSc. and Masters in Marketing Management from Pondicherry University, the wife was MA (English) & MBA. If the husband was working as a Manager abroad, the wife with MBA degree was also working in an MNC in India. Under these circumstances, fixing of maintenance by the Court without there being even a prima facie proof of the husband being employed in India and with clear proof of the fact that the passport of the husband was seized, he was not permitted to leave country, (the bail was given with a condition that he shall keep visiting Investigating Officer as and when called) is contrary to law and not warranted under provisions of Domestic Violence Act.

5. We are living in an era of equality of s*xes. The Constitution provides equal treatment to be given irrespective of s*x, caste and creed. An unemployed husband, who is holding an MBA degree, cannot be treated differently to an unemployed wife, who is also holding an MBA degree. Since both are on equal footing one cannot be asked to maintain other unless one is employed and other is not employed. As far as dependency on parents is
concerned, I consider that once a person is grown up, educated he cannot be asked to beg and borrow from the parents and maintain wife. The parents had done their duty of educating them and now they cannot be burdened to maintain husband and wife as both are grown up and must take care of themselves.

6. It must be remembered that there is no legal presumption that behind every failed marriage there is either dowry demand or domestic violence. Marriages do fail for various other reasons. The difficulty is that real causes of failure of marriage are rarely admitted in Courts. Truth and honesty is becoming a rare commodity, in marriages and in averments made before the Courts.

7. I therefore find that the order dated 16th January, 2008 passed by the learned MM and order dated 29th February, 2008 passed by the learned Additional Sessions Judge fixing maintenance without there being any prima facie proof of the husband being employed are not tenable under Domestic

Violence Act. The petition is allowed. The orders passed by Metropolitan Magistrate and learned Additional Sessions Judge are hereby set aside.

Threat Management for 498A and other dowry cases

noreply@blogger.com (Unknown) — Mon, 26 Sep 2016 08:17:00 -0700

Ponder a while and donot take rash decisions especially if you have kids. Think many times over and donot be afraid. It is not worth living a life of fear cos fear itself is a disease that will eat you alive. If you fear/know that a false 498a complaint is going to be put on you or if they threaten you in anyway it is better to be safe than sorry:-
1. Immediately file RCR, if your wife is separated from you(Restitution of Conjugal rights is like saying"I want my wife back(who deserted me), but with the following conditions"- but since the wife's intention itself is wrong, she won't be able to agree to those conditions(you can even make the conditions more difficult and impossible, to make sure that she will not come back) , it is similar to divorce petition only in the prayer you will be asking court for your saftety, prevent harrasement , and blackmail/extortion .

2. File a police complaint mentioning Blackmail/extortion threat , threat for false dowry case , or any other thing you have the evidence for. Do not forget to mention that she had left the house after taking all jewellery and cash in your absence, as the case may be.

3. Recording all the conversation if any(telephone recording devices, or miniature recording devices when in person discussions happen).

4. File a criminal case in court under 156(3) under read cr. procudure 200 , with reference to police complaint .(these are sections in the Code of Criminal procedure(Cr.P.C in short), 1973, reproduced alongside:
Cr.P.C Sections156. Police officer's power to investigate cognizable case
(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned.
200. Examination of complainant
A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-
(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192:
Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.

5. Take the certified copy from court and keep it with you . Make a couple of copies. Send it to nearest police station. Nearest police station of your in-laws. File for Anticipatory bail in the High Court.

If the police insist you come to police station or come to your place for arrest after they have been bribed sufficiently by your wife or in-laws, just submit the court petition. They are the criminals , not you. Also google and read the 498a survival kit in the meantime.

*******************

Another mode of fighting this injustice and sham complaints for extortion also see the Dowry circulars link and get a hard copy - preparation and knowledge is the only way to counter threats:

Wife has submitted a list of stridhan which is not as per rule 2 of Dowry Prohibition Act and her application may be rejected in view of Circular no. 07/2007 and other she may be asked to furnish valid bills as well as cash flow details in view of para 7 of Circular no. 459-66/P.Sec/ Addl.CP/CAWC dated 29/03/2009.

Further updates are as follows :-

The application of Swamy was accepted by the CAW Cell on the same day with the help of 100 no. police officials and he was given stamped receiving of the his application as he called Police Control Room by dialing 100 no. and they helped him while the other victims of dowry harrassment witnessed and appreciated his courage outside CAW Cell, Nanak Pura, Delhi.

Now on the very next working day Swamy received a notice from CAW Cell, that he is requested to appear in CAW Cell for couselling. Earlier they said that you don't need to come here as we will registere FIR agains you to teach you lesson for consulting with lawyers.

Swamy has now also filed one RTI in CAW Cell requesting information within 48 hrs asking for details of complaint number, name of accused, FIR no. (if any) with certified copy. Reply is avaited.

Swamy has also filed one RTI to Police Control Room to provide certified copy of transcript, audio Recording and forms filled, dd entry of police official reached on spot from P.S. during his call made to Police Control Room , to be provided within 48 hrs.

Swamy has also been advised to file an application requesting action against wife for , forgery, extortion, conspiracy as she has claimed for 18 " TV and 220 Ltr. Fridge when Swamy having bills of 14 " TV and 190 Ltr. Fridge, bills were of date 3 days before marriage are are on the name of his wife.

False Dv and Women Failed to Prove it

noreply@blogger.com (Unknown) — Mon, 26 Sep 2016 08:16:00 -0700

IN THE COURT OF DR. SHAHABUDDIN : MM : ROHINI :DELHI

Application No.1192/1

PS Sultan Puri

U/s 12 of Domestic Violence Act, 2005

ORDER

Sonia versus Vinod etc.

15.09.2007 ( At 3.00 p.m. )

1. Applicant Sonia is present in person at this time.

All the respondents are present in person with Ld. Counsel Shri Anujai Tiwari. Ld. Protection Officer Ms. Kiran also present.

2. By this order, I have to decide an application of applicant Sonia w/o Shri Vinod and

D/o Shri Brahm Parkash ( in short called as applicant hereinafter) filed u/s 12 of the Protection of Women From Domestic Violence Act, 2005 ( in short called as Act hereinafter).

3. This application was filed by the applicant on 20.08.2007. The main facts of this application are that the applicant was married to respondent No.1 on 19.11.2006;that respondent No.1 and his other family members were not satisfied with the dowry articles and they started harassing the applicant on one ground or the other; that severe beatings were also given to the applicant by respondent No.1 and his other family members on several occasions; that respondent No.1 was habitual of drinking and misbehaving with the applicant from time to time without any justified reasons; that matter was also reported to the local police but no action was taken against any of the respondents and hence this application was filed claiming relief as prayed for at the end of the application.

4. Notice of this application was given to Ld. Protection Officer Ms. Kiran (in short called as Protection Officer hereinafter) and she filed Domestic Incident report before this court pertaining to this matter. Notice of this application was also issued to all the respondents through Protection Officer and they had put their appearance before this court through their Ld. Counsel on 01.09.2007. They were also supplied copies of the application and all the relevant papers attached in support of it and they sought time to file reply to this application. However, they did not opt to file any written reply to it and their Ld. Counsel orally opposed this application on behalf of respondents without filing any written reply.

5. I have heard applicant and her counsel Mr. Danvir Singh and Mr. Manjeet as well as all the respondents and their Ld. Counsel Shri Baldev Sharan on 14.09.2007 pertaining to this matter. Views of Protection officer were also taken into consideration as she was also present on 14.09.2007. The main submissions of applicant and her Ld.

Counsel were that on the basis of entire facts narrated in the application coupled with Domestic Incident Report submitted by Protection Officer, she was in dire need of protection orders as per prayer clause of the application under discussion.

6. On the other hand, main submissions of the respondents and their Ld. Counsel were to the effect that no domestic violence had ever been committed against the applicant by any of the respondents; that respondent No.1 is the only married person in his family having liability to support his widow mother aged about 75 years; that respondent No.1 was also having liability to support his other three sisters and one brother, who were all unmarried and depending upon the earnings of respondent No.1; that family of respondents was very poor family and they were having only small house of three small rooms and they cannot spare one room for the applicant exclusively out of this small accommodation; that respondent No. 1 was also ready to reside peacefully with the applicant in his parental house but the applicant herself was of quarrelsome nature and was not co-operating at all on any point with the family members of respondent No.1; that respondent No.1 was still ready to keep her in his parental house provided she cooperates with other family members; that respondents were the victims rather than aggressors and that it was the applicant only who was harassing the respondents on trivial matters. Lastly, a prayer was made to dismiss the application under discussion.

7. I have perused the entire judicial file minutely in view of the above mentioned rival submissions. I have also taken into consideration the view points of the Protection Officer and the Domestic Incident Report submitted by her before this court.

8. On the basis of entire facts and circumstances of this case, I am prima facie of the considered opinion that behaviour of applicant is of such a nature that she is not cooperating with the respondents. She prima facie appears to be harassing the respondents on trivial matters. The applicant has prima facie failed to satisfy this court that respondent No.1 or any of his other family members have really committed any Domestic Violence against her in the given facts and circumstances of this case. The applicant prima facie appears to be residing at present with her parents without any justified reasons. Her in-laws are very much in need of her company and support because all the three sisters and one brother of respondent No.1 are unmarried at present and prima facie depending upon the earnings of respondent No.1 and the mother of respondent No.1 appears to be quite old and physically weak in health.

She also needs the services of her daughter-in-law namely,applicant for her own care and protection.

9. On the basis of above mentioned discussion, I am prima-facie of the considered opinion that no domestic violence has taken place pertaining to this matter and the applicant does not deserve any order in her favour from this court at present. Her application under discussion is prima facie found to be devoid of any merits at this stage it is hereby dismissed. No order as to costs.

10. Let one certified copy of this order be given dasti to the applicant and one such copy collectively to all the respondents as they are all family members. One certified copy of this order be also sent to the SHO of area concerned and one such copy be also given to the Protection Officer for her record, as prayed for. Announced in the open court,

today i.e., on 15th of September, 2007.

( DR. SHAHABUDDIN )

MM. ROHINI / 15/9/07

Supreme Court judgment on misuse of Section 498A of IPC

noreply@blogger.com (Unknown) — Mon, 26 Sep 2016 08:10:00 -0700

1 Satyajit Banerjee and others v. State of West Bengal and others (Supreme Court OF INDIA)

Date of Judgment : 23/11/2004

Indian Penal Code, ss. #498A, 306 - Trial Court acquitted accused but High Court set aside acquittal and

directed a de novo trial - Whether High Court right in directing examination of additional witnesses

under s. 311 in revision?; whether direction of High Court to trial court to record further evidence and take a 'fresh decision from stage one' is without jurisdiction?- Held, direction for retrial should not be

made in all or every case where acquittal of accused is for want of adequate or reliable evidence - Even if a retrial is directed in exercise of revisional powers by High Court, evidence already recorded at initial trial cannot be erased or wiped out from record of case - Trial Judge has to decide case on basis of evidence already on record and additional evidence which would be recorded on retrial - Clarified and reiterate that trial Judge, after retrial, shall take a decision on basis of entire evidence on record and strictly in accordance with law....

2 Ruchi Agarwal v. Amit Kumar Agrawal and Others (Supreme Court OF INDIA)

Date of Judgment : 5/11/2004

#Quashing of criminal complaint - Alleging offences under ss. #498A, 323 and 506 IPC, and ss. 3 and 4 of #Dowry Prohibition Act - #Quashing on ground of lack of territorial jurisdiction - Whether #Quashing of criminal complaint sustainable? - Held, that appellant having received relief she wanted without contest on basis of terms of compromise, cannot now accept argument of appellant - Conduct of appellant indicates that criminal complaint from which this appeal arises was filed by wife only to harass respondents - It would be an abuse of process of court if criminal proceedings from which this appeal arises is allowed to continue....

3 Rajkumar v. State of Madhya Pradesh (Supreme Court OF INDIA)

Date of Judgment : 14/9/2004

Indian Penal Code. 1860, s.302 - duty of the prosecution to establish that the accused had or necessarily would have remained at the house around the time when the attack took place - barring the evidence of PW8 who claimed to have seen the accused at 9.00 a.m. at his house, there is no other evidence to establish the presence of the accused in the house proximate to the time of occurrence - vital link in this behalf is missing in the case - no motive has been proved or seriously suggested for inflicting fatal injuries on the pregnant wife whom the accused married a year back - in a case based on circumstantial evidence, this factor also should be kept in view - no reason to set aside findings of trial court - appeal allowed....

4 Y. Abraham Ajith and others v. Inspector of Police, Chennai and another (Supreme Court OF INDIA)

Date of Judgment : 17/8/2004

Code of Criminal Procedure, 1973, s. 482 - Prayer for #Quashing proceedings - Single Judge of the Madras High Court rejected prayer - Whether judgment of Single Judge sustainable? - Held, in factual scenario disclosed by complainant in complaint petition, inevitable conclusion is that no part of cause of action arose in Chennai and, therefore, concerned magistrate had no jurisdiction to deal with matter - Proceedings are quashed....

5 Sushil Kumar v. State of Haryana (Supreme Court OF INDIA)

Date of Judgment : 10/8/2004

Indian Penal Code, ss. 304B, #498A - Conviction - Appeal against conviction - Whether conviction sustainable? - Held in absence of any evidence to show that victim was subjected to cruelty or harassment soon before death, no offence under s. 304B is made out - Absolutely no evidence of coercion, conviction under s. #498A becomes unwarranted - Convictions and sentences of appellant set aside...

6 Sakatar Singh and Others v. State of Haryana (Supreme Court OF INDIA)

Date of Judgment : 13/4/2004

IPC, ss.306, #498A r/w s.34 - Prosecution has not established allegation of demand - Based on erroneous inferences drawn on unproved facts and placing reliance on statements of interested witnesses trial court came to a wrong conclusion as to guilt of accused persons - High Court failed to notice its legal responsibility of discussing evidence independently and recording its findings on basis of such independent assessment of its own, because it is first court of appeal on facts - Appeal allowed...

7 The State of Andhra Pradesh v. Raj Gopal Asawa and Another (Supreme Court OF INDIA)

Date of Judgment : 17/3/2004

IPC, 1860, ss. 304 B and 498 A and IEA, 1872, s. 113 B - conjoint reading shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment - prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the 'death occurring otherwise than in normal circumstances' - _expression 'soon before' is very relevant - prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates -'Soon before' is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence - hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of #Dowry death as well as for raising a presumption under Section 113-B of the Evidence Act - held on facts that in view of the death occurring within the very few months of the marriage, and the evidence of PWs 2, 3, 4 and 6 that shortly before the deceased committed suicide, demand of #Dowry was made, the plea in untenable. The accusations clearly stand established so far as A-1, respondent no.1 is concerned. So far as accused A-3 is concerned, there is no evidence that he ever made any demand of #Dowry -- custodial sentence of 7 years would meet the end of justice for respondent no.1 - appeal partly allowed....

8 Hans Raj v. State of Haryana (Supreme Court OF INDIA)

Date of Judgment : 26/2/2004

[A] Advocates & Judges - judgments of the learned Additional Sessions Judge and the High Court - constrained to observe that the High Court while disposing of the appeal did not even apply its mind to the facts of the case - disturbing feature noticed by us is that the High Court merely repeated paragraphs after paragraphs from the judgment of the learned Additional Sessions Judge as if those conclusions were its own, reached on an appreciation of the evidence on record - many of the paragraphs are word from word borrowed from the judgment of the learned Additional Sessions Judge without acknowledging that fact - practice deprecated. [B] Deceased committing suicide within seven years of marriage - held, under Section 113-A of the Indian Evidence Act - prosecution has first to establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband (in this case) had subjected her to cruelty - even if these facts are established the Court is not bound to presume that the suicide had been abetted by her husband - section gives a discretion to the Court to raise such a presumption, having regard to all the other circumstances of the case - allegation is of cruelty, nature of cruelty to which the woman was subjected, having regard to the meaning of word cruelty in Section 498-A I.P.C. to be considered - no automatic presumption that the suicide had been abetted by her husband - held on facts, offence under s.306 not made out - conviction under s.#498A ordered....

9 Nallam Veera Stayanandam and Others v. Public Prosecutor, High Court of Andhra Pradesh (Supreme Court OF INDIA)

Date of Judgment : 24/2/2004

Two dying declarations - if the first is accepted all other evidence led by the prosecution would not help the prosecution to establish a case under section 304B IPC because of the fact that even a married woman harassed by demand for #Dowry may meet with an accident and suffer a death which is unrelated to such harassment - it is for the defence to satisfy the court that irrespective of the prosecution case in regard to the #Dowry demand and harassment, the death of the deceased has not occurred because of that and the same resulted from a cause totally alien to such #Dowry demand or harassment - deceased died within 3 years of her marriage - presumption under section 113B of the Evidence Act is available to the prosecution, - first dying declaration accepted - presumption stands rebutted - unless the prosecution is able to establish that the cause of death was not accidental by evidence other than the dying declarations, the prosecution case under section 304B IPC as against the appellants must fail - on facts convicted under s.#498A, IPC....

10 Rishi Anand and another v. Government of N.C.T. of Delhi and others (Supreme Court OF INDIA)

Date of Judgment : 20/3/2002

The High Court, in exercise of its jurisdiction under Section 482 Cr.P.C., ought to have quashed the criminal proceedings against the appellant as there were no allegations, much less of specific nature, even to remotely connect the appellant with the alleged offence under Section 406 IPC.

11 Baburam v. State of Madhya Pradesh (Supreme Court OF INDIA)

Date of Judgment : 29/1/2002

It is extremely dangerous to rely upon the prosecution evidence to base a conviction against the appellant when the prosecution has failed to establish the case against the appellant beyond all reasonable doubt and when there is no motive whatsoever for the appellant to have caused the death or abetted the suicide of the deceased because she failed to bring in sufficient #Dowry ....

12 Satvir Singh and otherswith Tejinder Pal Kaur v. State of Punjab and another (Supreme Court OF INDIA)

Date of Judgment : 27/9/2001

Under Section 304 B, it is not enough that harassment or cruelty was caused to the woman with a demand for #Dowry at some time, but it should have happened .

13 G. Raj Mallaiah and Another v. State of Andhra Pradesh (Supreme Court OF INDIA)

Date of Judgment : 27/4/1995

JUDGMENT: J U D G M E N T S. Rajendra Babu, J. Leave granted. The appellants were chargesheeted for offences arising under Section 304 I.P.C. and Sect ion 3 and 4 of the #Dowry Prohibition Act read with section #498A, I.P.C. The allegation made in ...

14 CASE NO.:Appeal (civil) 877 of 2007 DATE OF JUDGMENT: 21/02/2007

PETITIONER:Smt. Mayadevi Vs. RESPONDENT:Jagdish Prasad

JUDGMENT: (Arising out of SLP (C) NO. 3686 OF 2006)

Challenge in this appeal is to the judgment rendered by a learned Single Judge of the Rajasthan High Court at Jodhpur dismissing the appeal filed by the appellant under Section 28 of the Hindu Marriage Act, 1955 (in short the 'Act').

Respondent filed an application for divorce on the ground of cruelty alleging that because of the acts of cruelty on several occasions perpetuated by the appellant, the respondent-husband was under apprehension that it would not be desirable and safe to stay with the appellant and to continue their marital relationships.

[quote] the appellant used to make demands for money frequently and used to quarrel when money was not paid. She did not even provide food to her husband or the children and used to threaten the

husband to falsely implicate him in a case of #Dowry demand and to kill the children and to put the blame on the respondent-husband and his family members.[quote]

Job Qualified woman can't claim maintenance - Powerful Judgment maintenance denied judgements

noreply@blogger.com (Unknown) — Mon, 26 Sep 2016 08:10:00 -0700

IN THE FAMILY COURT MUMBAI AT BANDRA

PETITION NO. E 119 OF 2013

Firdos Mohd. Shoeb Khan .. Petitioner

Vs.

Mohd.Shoeb Mohd.Salim Khan .. Respondent

ORDER BELOW EXH.27

1. This is an application moved by petitionerFirdoz Mohd. For grant of maintenance from her husband Mohd.Shoeb, during the pendency of petition for grant of maintenance u/s 125 of Cr.P.C. It is submitted by the petitioner that at the time of Nikah Meher amount of Rs.14 lakhs was fixed, yet said amount was not paid by the respondent. Throughout their cohabitation at the matrimonial house the respondent and his family members had illtreated her, harassed her physically and mentally for bringing less dowry. The respondent and his family members had demanded more Rs.50 lakh as dowry and gold ornaments, Mercedes Benz Car etc. from her parents. Due to demand of dowry the petitioner was forced to live separately from April 2011, since then she is residing with her parents. She has no source of income and she is totally depend upon the mercy of her parents. The respondent is capable to pay maintenance to her but he has neglected and refused to pay maintenance.

2. The respondent is a successful businessman, his family is business family. The respondent alongwith his family members was doing business not only in India but also in Dubai and other countries. They are running their business jointly and earning the income more than Rs.15 lakh per month. The respondent and family members were having property at Mumbai, Bangalore, Dubai and other places. The respondent is having six companies, 20 bank accounts at Mumbai, Dubai and Bangalore. His younger brother is working at London, his two siblings are in family business. The respondent is travelling abroad for garment business work. Considering the status of her husband she prayed for grant of maintenance @ Rs.2 lakhs per month.

3. The respondent has filed his reply below Exh.29. According to him, the petitionerwife is not entitled to get maintenance as she is not legally wedded wife. The marriage between petitioner and respondent was dissolved by way of Talaq on 7.09.2014. Secondly, the petitioner is well qualified having good experience and good income therefore, she is not entitled for grant of maintenance. The petitioner has given false address before this Court, actually all earlier communication was made on the address of ancil Tower, New Mill Road, Kurla.

4. The petitioner is living luxurious life, she has huge investment including over rs.1 crores worth of gold and diamond jewellery hidden in separate locker. She is flying international destination at least thrice every year for 15 to 30 days. The petitioner is graduate and working independently in a prime institute likely Nair hospital, Larsen & Tubro etc. Presently she is practicing as a dietitian. Her income is not less than Rs.50,000/per month. She is having sufficient means from her own source, on that count also she is not entitled for grant of maintenance hence, respondent prayed for rejection of application.

5. Heard learned counsel for petitioner and respondent. It is argued by the learned counsel for respondent that on 7.9.2014 their marital tie was dissolved as he had given talaq to her therefore, petitioner has lost the status of wife and being divorcee Muslim wife she is not entitled to get maintenance from the respondent. The Mohd. Law is drastically changed in a recent era. Now a days a Muslim woman who is divorcee or who obtained divorce from her husband is entitled to get maintenance from her husband till she gets remarried. Apart from this, Section 125 of Cr.P.C., itself has given defination of 'wife' which includes divorcee wife. Section 125 explanation (b) read as under :(b) “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.”

6. The above clause clearly shows that the wife though divorcee is entitled to get maintenance from her husband and divorcee wife is included by Legislature in the defination of wife for the purpose of maintenance. The Law in respect of maintenance of Muslim wife is day by day changing. First time in the case of Shabana Banoo Vs. Inbram Khan, reported in I (2010) D.M.C. 37, (SC), the Hon'ble Supreme Court has held that the Muslim Divorcee wife is entitled to get maintenance from her husband.

7. While dealing with the case of Parveen Rao Vs. State of Utterakhand and another, reported in I (2013) D.M.C., 743, the Hon'ble Utterakhand High Court in para No.12 held that,

“In view of proposition of law laid down in aforesaid precedent, it is abundantly clear that the Muslim woman cannot be forced to claim maintenance under the Act only. She is well entitled to claim maintenance u/s 125 of Cr.P.C. irrespective of fact whether she has been divorced or not provided she has not remarried herself.”

8. In the anvil of above legal position it is clear that the Muslim woman who is either divorcee or who obtained divorce entitled to get maintenance till her remarriage. In such circumstances the story brought by respondent that on 7.09.2014 talaq took place between them does not affect the right of petitioner to claim maintenance. The story brought by the respondent that on 7.9.2014 he had given talaq to her is the subject matter of evidence and it can be proved during the course of proceeding but at this stage, the status of respondent cannot be denied. She is having status of wife which is required u/s 125 of Cr.P.C., may be or may not be she is divorcee or non divorcee wife but she is entitled to get maintenance from her husband. Secondly, making story that the husband has given divorce to wife itself entitles the wife for seeking relief of maintenance. When the husband is coming with the case that he has already given divorce and wife is denying the same, then certainly this act comes under the purview of cruelty which entitle the petitioner for seeking relief.

9. It is argued by learned counsel for petitioner that respondent is owner of (i)Khwaja Exports Pvt.Ltd.,(ii) Khan Holdings Pvt.Ltd.(iii)Keygien Textile Industries Pvt.Ltd.(iv) Keygien Global Ltd.(v)Radium Garments Pvt.Ltd. And (vi) MSK Technology Solutions Pvt.Ltd. The petitioner has placed on record the internet output documents respondent is managing director/directors of above stated company. The respondent is joined Keygien Global Ltd. on 26.3.2001, he had joined Keygien Textile Industries Pvt.Ltd. On the same day. He was joined the Khan Holdings Pvt.Ltd. On 25.3.2001. The companies joined him at similar period. A single document is not placed on record to show the net income getting by respondent from above company. The petitioner has given list of the bank accounts hold by respondent and his family. The respondent is holding bank account before HSBC, DIB, ADID (two accounts), S.B.I., Oriental bank of commerce (three accounts) and she has given account nos. She had also given the details of bank account hold by respondent's family, in all total she had provided list of 20 bank accounts. Either of the parties has not placed on record a single bank account statement or passbook issued by Bank.

10. It is admitted position that the respondent and his family members are connected with five companies namely (i)Khwaja Exports Pvt.Ltd.(ii) Keygien Global Ltd.(iii)Radium Garments Pvt.Ltd.(iv) Khan Holdings Pvt.Ltd. The letter issued by P.L. Babaria & Associates Chartered Accountant dated

19.12.2014 shows that the respondent is having 500 share in Khawaja export Pvt.Ltd. Having paid value of rs.5,000/. In other companies he have no share. The above stated Chartered account also certified that in the year 201112 the income of respondent was rs.1,50,670/, in the year 201213 it was Rs.1,81,844/, in 201314 rs.2,00015,/, and in the year 201415 his income was rs.2,10,013/. The income tax returns filed alongwith record shows same story.

11. The statement made by the parties in their earlier proceeding is admissible statement. It appears from the record that the respondent has filed reply to the application of petitioner before 29^th Court M.M.Dadar, Mumbai in case No.25/RA/2012 N 372/2012 relating to Cr.No.367/2011. In her reply she had stated as follows :

I would further like to bring it to your notice that my husband Mohammed Shoeb Khan has not travel out of India. Since August 2010 for any purpose (i.e. not even for business nor for Umrah).

12. The statement made by the petitionerwife clearly shows that the respondent never went to abroad since 2010. Similarly in the same application she had stated that, “I would further like to inform you that my husband has been residing in Dubai since 1992 ( for 16 years) he holds property in Dubai and reissued Passport of Dubai and he has no property in Mumbai and elsewhere in India and he merely holds 500 shares of value Rs.10 (5000 Rs.) in his Garment business”. The above statement made by petitioner support the version of respondent as well as C.A.,of respondent that respondent is holding only property worth Rs.5,000/ in Khawaja Export Pvt.Ltd.

13. In respect of the allegations made by the petitioner in her application filed before M.M., that he is having property at Dubai. Said version if taken into consideration then also she had not filed single documentary evidence to establish above fact. The petitioner has not taken pain to file the memorandum and article of association of company which shows real pictures. The petitioner has not asked the respondent to file the memorandum of his company or memorandum of companies hold by his family. The copies of article of association and memorandum is easily available before the Competent authority.

14. The respondent is submitting that he is earning meagre amount and he is residing on leave and license basis. The respondent has filed on record leave and license deed dated 20.10.2014. Said leave and license agreement is not challenged by the petitioner. It is further argued by the learned counsel for petitioner that the respondent and his family members are doing business and they are earning an amount of Rs.15 lakh per month. The respondent has moved an application for travelling abroad before M.M. Dadar, in criminal case No.1067/PW/2012. In the said application para No.3 the respondent has submitted that he is businessman and he had registered office at Shivri and factory at Bangalore. He is doing business of export of readymade garment to the Gulf countries. In connection with business he is required to travel abroad. In para 6 of that application he further stated that he has come from business family and he has deep root in the society, his family is respectable family. The application for return of passport filed before M.M. Dadar, at the hands of respondent shows that the respondent himself has stated that he was going to London from Bangalore for business deal as his factory is situated at Bangalore. He is engaged in garment factories and required to go abroad in connection with his business. The above statements made by petitioner and respondent are the admissions given by them.

15. The petitioner has admitted that respondent have no property except worth Rs.5,000/in India but at the same time she tried to affirm that respondent is having property at Dubai. The statements made by petitioner as well as the statement made by respondent that he is having office at Mumbai and factory at Bangalore, he used to travel abroad for garment business purpose shows that the parties have affirmed some facts by way of this admission. Admittedly the respondent and his family are connected in garment business. To show details of share no factory details, account statement of factory or memorandum and article of factories are not placed on record. The above admissions given by both the parties come under the purview of Section 17 of Indian Evidence Act which suggests the existence and non existence of economic affairs of both the parties. Once the fact is affirmed by the parties to the proceeding subsequently the parties are not entitled to change their view as per the evidence act admission operates estoppel.

16. The learned counsel for respondent has argued that the petitioner is well qualified and she is earning an amount of Rs.50,000/per month, she is having sufficient income for her maintenance. It is argued by the learned counsel for respondent that before the police station Worli on 12.11.2011 the petitioner has given statement u/s 161 of Cr.P.C. The petitioner has admitted that she has completed degree in Food and Science Nutrician, she had worked as a dietician, she is Post Graduate in Dietician field, she had also worked with Larcen and Tubro etc. but at present she is not working. The above statement made by the petitioner clearly shows that she is well qualified and able to do job. The respondent though submitted that she is having huge investment in crores of rupees but nothing is placed on record. It is clear from the statement of petitioner that petitioner is well qualified having capacity to earn. The Hon'ble Madhya Pradesh High Court in the case of “Mamta Jaiswal Vs. Rajesh Jaiswalheld that well qualified wife is not entitled to remain as an idle and claim maintenance from her husband. In short, the wife is not entitled to advantage of her own wrong, she cannot harass the husband on the count of maintenance though she is capable to earn. In the present case in hand, the petitionerwife is very qualified, she has worked with various companies. This admitted by herself, now she is claiming that she is a housewife, having no source of income. The wife who is well qualified and claiming maintenance by sitting idle is not entitled to get maintenance, secondly she herself has admitted that though her husband is connected with garment business but he has share worth rs.5,000/only. Considering the above circumstances, it is clear that the wife is having good capacity to earn. According to respondent, she is earning but no any documentary evidence is on record that she is earning. Nothing is on record to prove the income of respondent at this primary stage. In such circumstances, in my view, at this juncture petitioner is not entitled to get maintenance. Hence I pass the following order : O R D E R

1. The application is rejected.

Sd/20.2.2015

( S.A. Morey )

Judge,

Dt: 20^thFebruary, 2015. Family Court No.7, Mumbai.

Wife to pay 20,000/- maintenance to Husband u/s24 Hindu Marriage Act- Delhi High court

noreply@blogger.com (Unknown) — Mon, 26 Sep 2016 08:10:00 -0700

Wife to pay 20,000/- maintenance to Husband u/s24 Hindu Marriage Act- Delhi High court

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CM(M) 169/2009

Judgment Delivered on: 31.03.2011

RANI SETHI ….. Petitioner Through : Mr. G.K. Sharma, Adv.

versus

SUNIL SETHI ….. Respondent Through : Mr. B.P. Singh, Adv.

CORAM:

HON’BLE MR. JUSTICE G.S.SISTANI

1. Whether the Reporters of local papers may be allowed to seethe judgment? Yes

2. To be referred to Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

G.S.SISTANI, J. (ORAL)

1. Present petition is directed against the order dated 24.2.2009 passed by learned Additional District Judge, Delhi, on an application filed by respondent (husband) under Section 24 of Hindu Marriage Act, seeking maintenance from the petitioner (wife). By the abovesaid order, trial court has directed the petitioner (wife) to pay maintenance to the respondent (husband) @ `20,000/-, per month, and `10,000/- as litigation expenses and also to provide Zen Car for the use of the respondent (husband).

2. Learned counsel for the petitioner submits that learned trial court has exceeded its jurisdiction and has erroneously come to a finding with regard to the income of the petitioner. While it is not in dispute that petitioner is carrying out the business of running paying guest hostels in the name of Pradise PG, it is submitted by counsel for the

petitioner that the trial court has failed to consider the expenses of running the business which includes providing the students with boarding, lodging and transportation facilities and the earnings from the business are barely sufficient to maintain herself and her

two children, whom she is solely supporting. It is further contended that the financial condition of the petitioner has been ignored by the trial court. Counsel next submits that in fact the financial condition of the petitioner would be evident from the fact that petitioner is residing in a rented accommodation and is paying rent @ `12,500/-, per month. Mr.Sharma submits that trial court has completely lost sight of the fact that petitioner has to maintain and provide for two unmarried children – one son, who is 26 years of age, and a daughter, who is 24 years of age. Counsel next submits that petitioner has to not only provide for their maintenance but also plan their marriages and ensure a secured future for the children. Besides petitioner has to look after herself. It is further submitted that petitioner is medically unfit and is suffering from Leucoderma and arthritis and she has to spend on doctors, medicines and other tests. Copies of medical prescriptions have been placed on record in support of her contention.

3. Learned counsel for the petitioner submits that even otherwise the respondent is an able bodied person and he is in a position to maintain himself. Counsel further submits that respondent is carrying on a business in the name and style of Sethi Contractor

and accordingly the respondent is not entitled to any maintenance. A copy of the visiting card of Sethi Contractor has been placed on record. Stress has also been laid by counsel for the petitioner on the conduct and character of the respondent. Various instances have been cited in the present petition by the petitioner to show that respondent has an immoral character. It is also contended that learned trial court has relied purely on the guess work to assess the income of the petitioner and, thus, the impugned order is liable to be set aside.

4. Learned counsel for the petitioner submits that petitioner has subsequently been able to lay her hands on documents to show that respondent is earning and is able to maintain himself, however, the documents were neither filed along with this petition

nor the same were filed before the trial court at the relevant time. However, it is submitted by counsel for the petitioner that an application has already been moved before the trial court for modification of the impugned order and the petitioner will rely upon those documents before the trial court.

5. Learned counsel for the respondent submits that despite the fact that the business was set up by the respondent and the petitioner together initially, out of the funds received from selling ancestral property of the respondent, and the business is making a good profit, the trial court has been extremely conservative in granting only `20,000/-, per month, as maintenance, for the respondent. Counsel further submits that in the affidavit filed by the respondent on 20.1.2009 before the trial court, the respondent has enlisted the assets of the business, which are reproduced below:

(a) 300 room on rent fully equipped and furnished with double bed 18000×300.00

(b) Taa Bus 1.50 Seaters 54 lacs

(d) Three Maruti Vans 6 lacs

(e) One Maruti Zen 3 lacs

(f) One Accent Viva Car 4 lacs

(g) One Mess kitchen Modular with all apparatus, uttencils, equipments, etc. sufficient for 600 inmates

along with all other required faculties 8 lacs

(h) One Modern Zim with all equipments 2 lacs

(i) One General Store with stock 2 lacs

(j) One Cyber Café with four computers and other necessary equipments 1 ½ lacs

(k) House-hold articles including laptop, Fridge, Air Conditioners (3), Two LCD TVs, etc. Three bed rooms

fully equipped with one drawing room and kitchen with jewellery articles common family ornaments,

ancestral, etc. 20 lacs

6. It is submitted by counsel for the respondent that a perusal of the abovementioned assets of the business would show that petitioner is running a flourishing business. It is further submitted that the assets of the business, business investments and other personal assets owned by the petitioner would give some idea of the status of the petitioner. It is next submitted that petitioner had filed an additional affidavit before the trial court where she had herself admitted that she is running business in the name and style of Paradise Hostel for the purposes of which she has taken 81 flats in two societies on rent, for which she is paying `5,07,000/- as rent;`65,800/- as maintenance + electricity and other expenses towards hostel, bus payments, etc. Petitioner has also admitted in the additional affidavit that she is paying `25,000/-, per month, towards

house keeping; `48,000/-, per month, towards kitchen expenses; `50,000/- towards the salary of drivers, electrician, plumbers, etc; `2,50,000/-, per month, towards Hostel‟s Ration, Grocery Expenditure, for a strength of 386 students.

7. Learned counsel for the respondent submits that respondent was

unceremoniously thrown out of his house and it is only by the order

of the court that few articles were returned, which have been

noticed by the trial court in para 12 of its order. Relevant portion of

which reads as under:

“… an application in the Court for taking his clothes and

chapels lying at the house of the non applicant and the non

applicant has given only two pairs of pants and shirts, one

kurta paijama, three bainyans, two underwears and one pair

of chappals and two sweaters in the court on 21.1.2009 and

other articles of the applicant mentioned in his application

have not yet been given by the non-applicant/ wife.”

8. It is next submitted that the respondent tried setting up another

business and starting life afresh. However, the business was

unsuccessful and the partnership which was entered into for the

purpose of business was dissolved on 1.12.2009. The respondent

has placed a copy of the dissolution of partnership deed dated

1.12.2009 in support of his contention. Counsel further submits

that there is no infirmity in the order of the trial court, which would

CM(M)NO.169/2009 Page 6 of 14

call for interference in the proceedings under Article 227 of the

Constitution of India.

9. I have heard counsel for the parties, who have also drawn the attention of the Court to various documents placed on record as also the affidavits filed by both the parties before the trial court. In this case, the undisputed facts, which emerge, are that marriage between parties was solemnized on 6.12.1982. A son, who is at present 26 years of age, and a daughter, who is at present 24 years, were born out of their wedlock. Admittedly, the parties started residing separately since September, 2006, and thereafter with the intervention of friends and relations, the petitioner and respondent stayed together for a brief period in the matrimonial home, however, the parties again separated on 6.9.2008. Allegation of the respondent is that he was thrown out of the matrimonial home, which prima facie appears to be correct as few of his articles were handed over to him on 20.1.2009 in the Court, as observed by the trial court.

10. It is settled position of law that the law makes provision to strike a balance between the standard of living, status and luxuries that were enjoyed by a spouse in the matrimonial home and after separation. It has been held by the Apex Court that the needs of the parties, capacity to pay etc. must be taken into account while deciding quantum of maintenance.

11. In the case of Jasbir Kaur Sehgal (Smt.) v. District Judge, Dehradun & Others, reported at (1997) 7 Supreme Court Cases 7, it has been held as under:

“8. The wife has no fixed abode of residence. She says she is living in a Gurudwara with her eldest daughter for safety. On the other hand the husband has sufficient income and a house to himself. The Wife has not claimed any litigation expenses in this appeal. She is aggrieved only because of the paltry amount of maintenance fixed by the courts. No set formula can be laid for fixing the amount of maintenance. It has, in the very nature of things, to depend on the facts and circumstance of each case. Some scope for liverage can, however, be always there. Court has to consider the status of the parties, their respective needs, capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate. In the circumstances of the present case we fix maintenance pendente lite at the rate of Rs.5,000/- per month payable by respondent-husband to the appellant-wife.”

12. A Single Judge of this Court in the case of Bharat Hegde v. Saroj Hegde, reported at 140 (2007) DLT 16, had culled out following 11 factors, which can be taken into consideration for deciding the application under Section 24 of Hindu Marriage Act, relevant portion of which reads as under:

8. Unfortunately, in India, parties do not truthfully reveal their income. For self employed persons or persons employed in the unorganized sector, truthful income never surfaces. Tax avoidance is the norm. Tax compliance is the exception in this country. Therefore, in determining the interim maintenance, there cannot be mathematical exactitude. The court has to take a general view. From the various judicial precedents, the under noted 11 factors can be culled out, which are to be taken into consideration while deciding an application under Section 24 of the Hindu Marriage Act. The same are:

(1) Status of the parties.

(2) Reasonable wants of the claimant.

(3) The independent income and property of the claimant.

(4) The number of persons, the non applicant has to maintain.

(5) The amount should aid the applicant to live in a similar life style as he/she enjoyed in the matrimonial home.

(6) Non-applicant‟s liabilities, if any.

(7) Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant.

(8) Payment capacity of the non-applicant.

(9) Some guess work is not ruled out while estimating the income of the non-applicant when all the sources or correct sources are not disclosed.

(10) The non-applicant to defray the cost of litigation.

(11) The amount awarded under Section 125, Cr.P.C. is adjustable against the amount awarded under Section 24 of the Act.

13. The Supreme Court of India in the case of Jasbir Kaur (Smt.) (supra), has also recognized the fact that spouses in the proceedings for maintenance do not truthfully disclose their true income and therefore some guess work on the part of the Court is permissible. Further the Supreme Court has also observed that “considering the diverse claims made by the parties one inflating the income and the other suppressing an element of conjecture and guess work does enter for arriving at the income of the husband. It cannot be done by any mathematical precision”.

14. Further in a recent decision the Apex Court in Neeta Rakesh Jain v. Rakesh Jeetmal Jainreported at AIR 2010 SC 3540, has laid guidelines which the courts may keep in mind at the time of fixing the quantum of maintenance.

“In other words, in the matter of making an order for interim maintenance, the discretion of the court must be guided by the criterion provided in the Section, namely, the means of the parties and also after taking into account incidental and other relevant factors like social status; the background from which both the parties come from and the economical dependence of the petitioner. Since an order for interim maintenance by its very nature is temporary, a detailed and elaborate exercise by the court may not be necessary, but, at the same time, the court has got to take all the relevant factors into account and arrive at a proper amount having regard to the factors which are mentioned in the statute”.

15. While, in this case, petitioner has placed copies of income tax returns for the assessment years 2007-2008 on record, a copy of balance sheet as on 31.3.2007 as also a copy of Profit and Loss Account for the year ended as on 31.3.2007, have also been placed on record. The Profit and Loss Account of the guest house of the petitioner reads as under: “PARADISE PG HOUSE PROP. MRS. RANI SETHI B-75, DUGGAL COLONYKHANPUR, NEW DELHI – 110062 PROFIT & LOSS ACCOUNT FOR THE YEAR ENDED ON 31.03.2007 PARTICULARS AMOUNT PARICULARS AMOUNT

To Establishment 695900.00 By Receipts 8380178.00

To Rent for Flats 3191660.00

” Mess Expenses 1521958.00

” Electricity & Water 295800.00

” Bank Charges 39870.63

” Staff Welfare 51270.00

” Transportation 478756.00

”Telephone Expenses 229234.00

” Vehicle Running & Maintenance 252859.93

” Hire Charges 121000.00

” Bedsheets & Lined 152540.00

” Medicines & Doctor‟s Fee 24128.00

” Printing & Stationery 42190.00

” Travelling & Conveyance 44262.00

” Insurance 15078.00

” Misc. Expenses 37383.00

” Security Expenses 164500.00

” Repair & Maintenance 286856.00

” Interest on Car Loan Amount

Written Off

24571.72

” Amount written Off

” Audit Fee 23697.00

” Depreciation 16200.00

” Net Profit transferred to Capital 191222.07

8380178.00 8380178.00

16. A perusal of the Profit and Loss Account shows that this business is

incurring a profit of `83,80178/- for the year ending on 31.3.2007.

17. The affidavits filed by both the petitioner and the respondent

before the trial court also unfold the details of the business, which

was initially being carried out by both the petitioner and the

respondent and subsequently admittedly by the wife along.

Relevant portion of the affidavit of the respondent reads as under:

“Affidavit of Sunil Sethi s/o late J.N. Sethi R/o A-43, Street No.10, Madhu

Vihar, I.P. Extension, Delhi-110092 (however presently without any

accommodation).

I the above-named deponent do hereby solemnly affirm on oath and state

as under:-

1. I say that being petitioner in the above mentioned case, I am

entitled to swear the present affidavit.

2. I say that the respondent is proprietor of M/s Paradise P.G. House

Informative Society, Sector-VI, Greater Noida, (U.P.).

3. That the said firm established by me and started with the capital

investment of Rs.8,00,000/- in the year of 2003 which I had got

from my share in my ancestral/parental property.

4. I say that the total asset of the said firm owned by the respondent

is about Rs.1,00,000/- approximately. This assessment is dated

05.09.08 when I forced to leave the business.

5. I say that asset of the respondent’s firm as on 05.09.08 were as

under:-

S. Particulars Approx.

CM(M)NO.169/2009 Page 11 of 14

No. value

(in Rs.)

1. 300 room on rent fully equipped and

furnished with double bed

18000×300.00

54 lacs

2. Tata Bus 1.50 Seaters

17 lacs

3. One Tata Winger (9+1 seater)

8 lacs

4. Three Maruti Vans

6 Lacs

5. One Maruti Zen

3 Lacs

6. One Accent Viva Car

4 lacs

7. One Mess Kitchen Modular with all apparatus, utensil, equipments etc.sufficient for 600 inmates along with all other required facilities 8 lacs

8. One Modern Zim with all equipments2 lacs

9. On General Store with stock 2 lacs

10. One Cyber Cafe with four computers

and other necessary equipments

1 ½ lacs

11. House-hold articles including Laptop,

Fridge, Air Conditions (3), Two LCD TVs

etc. Three bed rooms fully equipped

with one drawing room and kitchen with

jewellery articles common family

ornaments, ancestral etc.

20 lacs

6. I say that on 05.05.08, the liability over the firm namely M/s Paradise

was namely Rs.15,00,000/- approx.”

18. The petitioner herein also filed her affidavit before the trial court.

Affidavit of petitioner reads as under:

“I, Rani Sethi w/o Mr. Sunil Sethi r/o Rajdhani Nikunj, Plot no.94, I.P.

Extension, Patparganj, Delhi do hereby solemnly affirm on and declare as

under:

A. ………

B. That following are the details of the monthly expenditure incurred by

me in my business of running Paradise Hostel.

i. That I have hired on rent 50 and 31 flats respectively in two

societies namely informatics and Khushboo whose details

are as follows:

Rent of Flats Maintenance Electricity Bills

Informatics Rs.2,59,000/- Rs.34,800/- +Electivity Bills

Khusboo Rs.2,48,000/- Rs.31,000/- +Electivity Bills

CM(M)NO.169/2009 Page 12 of 14

Total Rent Rs.5,07,000/- Rs.65,800/- +Electivity

Bills

C. That the expenditure incurred and the monthly installments due for

the following are as under:

Hotel Bus EMI-22,216/- PER per month + 9 Lakh

invested in Bus down payment.

Winger’s EMI-10,450/- per month + 2,60,000/-

down payment

Viva’s EMI-10209/- per month

Zen’s EMI-10,540/- per month

Van’s EMI-17,365/- per month

Total EMI-71,365/- per month

D. Staff Salary – Home Keeping 25,000/- per month

Kitchen 48,000/- per month

Drivers and electrician

Total Salary of Staff 1,23,000/- per month

Hostel’s Ration + Grocery Exp.+ Snacks item etc. 2,50,000/- per month

for 386 strength of students

Maintenance Exp. 30,000/- per month

Diesel for Bus 25,000/- per month

Diesel for Generator- Informatics 38,800/- per month

Khushboo 19,400/- per month

House rent 12,500/- per month

House Maintenance 15,000/- per month+Electricity bill

Transport charge of hostel 27,000/- per month

Three buses on hire

E. That it is also submitted that session starts in August of every month.”

19. Taking into consideration the documents, which have been filed on

record of this court and the affidavit of the petitioner, the balance

sheet, the Profit and Loss Account of the guest house and the

income and expenditure of the guest house, it is clear that the

CM(M)NO.169/2009 Page 13 of 14

petitioner has a substantial income from the business, which was at

one time started jointly by both the petitioner and the respondent.

The purpose of section 24 of Hindu Marriage Act is to provide

support to a spouse who has no independent source of income and

is incapable of maintaining himself/herself. It is trite law that the

term „support‟ is not to be construed in a narrow manner so as to

mean bare subsistence. It means that the other spouse, who has no

independent source of income, is provided with such maintenance

so as to live in a similar status as was enjoyed by them in their

matrimonial home. It is the purpose of section 24 that the wife or

the husband who has no sufficient source of income for her or his

support or for the expenses of the proceedings must be provided

with such reasonable sum that strikes equity between the spouses.

20. Taking into consideration the facts of this case and the settled

position of law, I am of the view that learned trial court has

correctly considered the relevant factors and has also rightly relied

upon the judgments of this court as also the Apex Court. I find no

infirmity in the order dated 24.2.2009, which requires interference

by this court in the proceedings under Article 227 of the

Constitution of India. Accordingly, present petition is without any

merit and the same is dismissed.

21. Interim order dated 4.3.2009 stands vacated. All arrears shall be

cleared by the petitioner within a period of three months from today, which shall be paid by the petitioner to the respondent in equal installments and the first installment shall be paid by the petitioner within 15 days from today.

CM NO.3129/2009 (STAY).

22. Application stands dismissed in view of the orders passed in the petition.

G.S. SISTANI, J.

March 31, 2011

‘msr‟

Women father jailed as city court says giving dowry is also an offence

noreply@blogger.com (Unknown) — Mon, 26 Sep 2016 08:09:00 -0700

New Delhi: In a rare judgment, probably the first for the Karkardooma courts, a session’s judge has

ordered the prosecution of a man, who allegedly gave dowry to his daughter’s in-laws at the time of her marriage over two years ago.

In fact, it was his daughter’s complaints and multifarious criminal cases against her estranged husband and his family that have spelled legal trouble for Yashpal Kumar.

Married in December 2006 to Ram Khanna, Kumar’s daughter Rita left her matrimonial home a couple of months later and approached the Crime Against Women (CAW) cell, with the complaint that her husband and in-laws were torturing her.

Subsequently, her husband and other in-laws were booked under the charges of atrocity and harassing her for dowry in an FIR. She also filed a maintenance petition before a magistrate.

One common allegation in all her complaints pertained to how she was ill-treated for bringing insufficient dowry despite her father having spent over Rs 8 lakh in meeting the dowry demands of her husband and his father. While Rita made this particular accusation, she could hardly imagine the legal trouble it would bring to her father.

Khanna’s father also moved the court, asking if they were to be prosecuted for demanding and receiving dowry, how could Rita’s father wriggle out of the charges of giving dowry, which is also an offence under the Dowry Prohibition Act?

After the magistrate trying Khanna and his kin found no substance in the plea and dismissed their complaint, Khanna’s father approached the session’s court in revision of the impugned order. The petition filed through counsel Sanjay Gupta and Manish Shrivastava claimed that all they were pleading for was a fair and just view of the issue. As Khanna and his parents were standing a trial for receiving dowry, Kumar, according to the rule of law, should also undergo the judicial scrutiny of a court under the said Act, contended the counsel. They said that the request was based on Rita’s own version before the magistrate.

Additional Sessions Judge Sanjay Sharma found favor with the counsel’s arguments. “On considering the entire trial court record, I am of the opinion that the contents of the FIR and the maintenance petition filed by Rita, clearly discloses the allegation that her father gave dowry on the alleged demands of Khanna’s father. Since under The Dowry Prohibition Act, giving of dowry is also an offence, therefore, he is prima facie guilty,” said ASJ Sharma.

Allowing the revision petition, the court then sent the matter back to the trial court, directing it to summon Kumar under Section 3 (penalties for giving/taking dowry that can go upto a five year jail term) of the Act and examine him under the relevant criminal procedures. Notably, the order follows a Rohini court’s order last month asking the police to register an FIR against a bride and her kin for giving dowry.

Counter Charge 498A/DVA

noreply@blogger.com (Unknown) — Mon, 26 Sep 2016 08:07:00 -0700

Offence (legally) is the best form of defense. If you had waited for 11 years to get acquitted from

498a case which is so obviously false and blatantly misused, I am sure many of us will take more than that, since some cases are well thought-off(by Advocates Diaboli- Advocates of the Devil!) and evidences and

foolishness on the part of the complainants are fewer and less obvious or provable, like as in your case. My strategy to put pressure (and of course poison their mind, and give them a taste of their own medicine)

was to file counter cases even before my 498a case "charges are framed" by the Public prosecutor of the Magistrate court (I did wait until the police submitted the charge sheet to the court). The 4 different cases which I have filed until now, as per the Indian Penal Code Sections mentioned below:(the courts may not move on these cases and send summons at all, but the mental stress it will be created in the minds of the complainants is unfathomable- the anticipation of imprisonment up to 7 years!(more than what 498a would ever fetch u, which is just 4 years, you could plan to take a Ph.D in that jail period ;) is more stressful than actual conviction to any degree!.

Try it and see the noose loosen around you, you can then decide whether u want to hit the gas pedal further, or quit leaving the vermin wriggling in their death throes(But Dont ever quit giving them the Hell they deserve- is my personal request, but situations may require it sometime). Almost all the advocates will initially say that no counter case is possible, since the matter is under the consideration of a court (As they all advised! us, but we did file the cases after all), but the point here is that u are not trying to disprove the whole case of 498a, you are only citing specific portions, for which you have evidence and can prove as false- you are deconstructing the whole case into portions which you can 'Kill' with counter cases). It’s nothing but a Ruthless mind game, the same game they thought you will succumb to, only now u have decided to Turn Tables!, enjoy your raids and sorties fully... Get Even, if you can’t get Justice! This has 2 logical benefits, 1) You can put the other party in deep distress, which itself is a victory 2) You can start proving the portions as false and can use that proceedings to support you main case of 498a!. IN ANY CASE I WOULD BE GRATEFUL IF YOU GUYS, WHO ARE TRYING WITH SUITABLE COUNTER CASES, CAN KEEP ME POSTED ON THE PROGRESS ON YOUR COUNTER CASES. WE CAN TRY CROSS REFERRING OUR CASES TO THE RESPECTIVE COURTS FOR MAXIMUM MUTUAL BENEFIT(SINCE SOME COURTS MAY BE MORE RECEPTIVE FOR COUNTER CASES THAN OTHERS, AND THE JUDGEMENTS OF THESE COURTS WILL EASE THE RESISTANCE IN THE COURTS WHICH ARE NOT SO RECEPTIVE- LET SYNERGY PREVAIL AND KILL THE ENEMY/EVIL)

1St Case

Case on sections 192, 193, 196 and 209 of I.P.C:ie. 192. Fabricating false evidence, 193. Punishment for false evidence, 196. Using evidence known to be false, 209. Dishonestly making false claim in Court

2nd Case

1 of 8

Case u/s 211 of I.P.C.: 211. False charge of offence made with intent to injure

3rd Case

Separate case: Charging 120 B of I.P.C.,463, 464, 465, 466, 468, 469, 471 r/w 34 of I.P.C. : 120B. Punishment of criminal conspiracy, 463. Forgery, 464. Making a false document, 463. Forgery, 464. Making a false document, 465. Punishment for forgery, 466. Forgery of record of court or of public register, etc, 468. Forgery for purpose of cheating, 469. Forgery for purpose of harming reputation,

471. Using as genuine a forged document

4th Case

Case under section 340 Cr.P.C: Wrongful confinement

*********** Explanation of the above IPC Sections********

192. Fabricating false evidence

Whoever causes any circumstance to exist or makes any false entry in any book or record, or makes any document containing a false statement, intending that such circumstance, false entry or false statement may appear in evidence in a judicial proceeding, or in a proceeding taken by law before a public servant as such, or before an arbitrator, and that such circumstance, false entry or false statement, so appearing in evidence, may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding, is said "to fabricate false evidence".

Illustrations

(a) A, puts jewels into a box belonging to Z, with the intention that they may be found in that box, and that this circumstance may cause Z to be convicted of theft. A has fabricated false evidence.

(b) A makes a false entry in his shop-book for the purpose of using it as corroborative evidence in a Court of Justice. A has fabricated false evidence.

(c) A, with the intention of causing Z to be convicted of a criminal conspiracy, writes a letter in limitation of Z's handwriting, purporting to be addressed to an accomplice in such criminal conspiracy, and puts the letter in a place which he knows that the officers of the Police are likely to search. A has fabricated false evidence.

193. Punishment for false evidence

Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine, 2 of 8 and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.

Explanation 1- A trial before a Court-martial; 101[***] is a judicial proceeding.

Explanation 2- An investigation directed by law preliminary to a proceeding before a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice.

Illustration

A, in an enquiry before a Magistrate for the purpose of ascertaining whether Z ought to be committed for trial, makes on oath a statement which he knows to be false. As this enquiry is a state of a judicial proceeding, A has given false evidence.

Explanation 3- An investigation directed by a Court of Justice according to law, and conducted under the authority of a Court of Justice, is a state of a judicial proceeding, though that investigation may not take place before a Court of Justice.

Illustration

A, in any enquiry before an officer deputed by a Court of Justice to ascertain on the spot the boundaries of land, makes on oath a statement which he knows to be false. As this enquiry is a stage of a judicial proceeding. A has given false evidence.

195. Giving or fabricating false evidence with intent to procure conviction of offence punishable with imprisonment for life or imprisonment

Whoever gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any person to be convicted of an offence which 102[by the law for the time being in force in 103[India]] is not capital, but punishable with 104[imprisonment for life], or imprisonment for a term of seven years or upwards, shall be punished as a person convicted of that offence would be liable to be punished.

Illustration

A gives false evidence before a Court of Justice, intending thereby to cause Z to be convicted of a dacoit. The punishment of dacoit is 104[imprisonment for life], or rigorous imprisonment for a term which may extend to ten years, with or without fine. A, therefore, is liable to 105[imprisonment for life] or imprisonment, with or without fine.

196. Using evidence known to be false

Whoever corruptly uses or attempts to use as true or genuine evidence any evidence which he knows to be false or fabricated, shall be punished in the same manner as if he gave or fabricated false evidence.

197. Issuing or signing false certificate

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Whoever issues or signs any certificate required by law to be given or signed, or relating to any fact of which such certificate is by law admissible in evidence, knowing or believing that such certificate is false in any material point, shall be punished in the same manner as if he gave false evidence.

198. Using as true a certificate known to be false

Whoever corruptly uses or attempts to use any such certificate as a true certificate, knowing the same to be false in any material point, shall be punished in the same manner as if he gave false evidence.

199. False statement made in declaration which is by law receivable as evidence

Whoever, in any declaration made or subscribed by him, which declaration any Court of Justice, or any public servant or other person, is bound or authorized by law to receive as evidence of any fact, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, touching any point material to the object for which the declaration is made or used, shall be punished in the same manner as if he gave false evidence.

209. Dishonestly making false claim in Court

Whoever fraudulently or dishonestly, or with intent to injure or annoy any person, makes in a Court of Justice any claim which he knows to be false, shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine.

Case u/s 211 of I.P.C.: 211. False charge of offence made with intent to injure

211. False charge of offence made with intent to injure

Whoever, with intent to cause injury to any person, institutes or causes to be instituted any criminal proceeding against that person, or falsely charges any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge against that person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; and if such criminal proceeding be instituted on a false charge of an offence punishable with death, 104[imprisonment for life], or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Separate case : Charging 120 B of I.P.C.,463, 464, 465, 466, 468, 469, 471 r/w 34 of I.P.C. : 120B. Punishment of criminal conspiracy, 463. Forgery, 464. Making a false document, 463. Forgery, 464. Making a false document, 465. Punishment for forgery, 466. Forgery of record of court or of public register, etc, 468. Forgery for purpose of cheating, 469. Forgery for purpose of harming reputation,

471. Using as genuine a forged document

120A. Definition of criminal conspiracy

When two or more persons agree to do, or cause to be done,-

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(1) an illegal act, or

(2) an act which is not illegal by illegal means, such an agreement is designated a criminal

conspiracy:

Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.

Explanation- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.]

32[120B. Punishment of criminal conspiracy

(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death?

51[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.]

463. Forgery

Whoever makes any false documents or part of a document with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.

464. Making a false document

A person is said to make a false document-

First- Who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document, or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed or executed, or at a time at which he knows that it was not made, signed, sealed or executed; or Secondly- Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part thereof, after it has been made or executed either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly- Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document, knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practiced upon him, he does not know the contents of the document or the nature of the alteration.

Illustrations

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(a) A has a letter of credit upon B for rupees 10,000 written by Z. A, in order to defraud B, adds a cipher to the 10,000, and makes the sum 1,00,000 intending that it may be delivered by B that Z so wrote the letter. A has committed forgery.

(b) A, without Z's authority, affixes Z's seal to a document purporting to be a conveyance of an estate from Z to A, with the intention to selling the estate to B, and thereby of obtaining from B the purchase-money. A has committed forgery.

(c) A picks up a cheque on a banker-signed by B, payable to bearer, but without any sum having. been inserted in the cheque. A fraudulently fills up the cheque by inserting the sum of ten thousand rupees. A commits forgery.

(d) A leaves with B, his agent, a cheque on a banker, signed by A, without inserting the sum payable and authorises B to fill up the cheque by inserting a sum not exceeding ten thousand rupees for the purpose of making certain payment. B fraudulently fills up the cheque by inserting the sum of twenty thousand rupees. B commits forgery.

(e) A draws a bill of exchange on himself in the name of B without B's authority, intending to discount it as a genuine bill with a banker and intending to take up the bill on its maturity. Here, as A draws the bill with intent to deceive the banker by leading him to suppose that he had the security of B, and thereby to discount the bill, A is guilty of forgery.

(f) Z's will contains the these words-"I direct that all my remaining property be equally divided between , B

and C" A dishonestly scratches out B's name, intending that it may be believed that the whole was left to himself and C. A has committed forgery.

(g) A endorses a Government promissory note and makes it payable to Z or his order by writing on the bill the words "Pay to Z or his order" and signing the endorsement. B dishonestly erases the words "Pay to Z or his order", and thereby converts the special endorsement into a blank endorsement. B commits forgery.

(h) A sells and conveys an estate to Z. A afterwards, in order to defraud Z of his estate, executes a conveyance of the same estate to B, dated six months earlier than the date of the conveyance to Z, intending it to be believed that he had conveyed the estate to B before he conveyed it to Z. A has committed forgery.

(i) Z dictates his will to A. A intentionally writes down a different legatee from the legatee named

by Z, and by representing to Z that he has prepared the will according to his instructions, induces Z to sign the will. A has committed forgery.

(j) A writes a letter and signs it with B's name without B's authority, certifying that A is a man of good character and in distressed circumstances from unforeseen misfortune, intending by means of such letter to obtain alms from Z and other persons. Here, as A made a false document in order to induce Z to part with property. A has committed forgery.

(k) A without B's authority writes a letter and signs it in B's name certifying to A's character, intending thereby to obtain employment under Z. A has committed forgery in as much as he intended to deceive Z by the forged certificate, and thereby to induce Z to enter into an express or implied contract for service.

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Explanation 1- A man's signature of his own name may amount to forgery.

Illustrations

(a) A signs his own name to a bill of exchange, intending that it may be believed that the bill was drawn by another person of the same name. A has committed forgery. (b) A writes the word "accepted" on a piece of paper and signs it with Z's name, in order that B may afterwards write on the paper a bill of exchange drawn by B upon Z, and negotiate the bill as though it had been accepted by Z. A is guilty of forgery; and if B, knowing the fact, draws the bill upon the paper pursuant to A's intention, B is also guilty of forgery.

(c) A picks up a bill of exchange payable to the order of a different person of the same name. A endorses the bill in his own name, intending to cause it to be believed that it was endorsed by the person whose order it was payable; here A has committed forgery.

(d) A purchases an estate sold under execution of a decree against B. B, after the seizure of the estate, in collusion with Z, executes a lease of the estate of Z at a nominal rent and for a long period and dates the lease six months prior to the seizure, with intent to defraud A, and to cause it to be believed that the lease was granted before the seizure. B, though he executes the lease in his own name, commits forgery by antedating it.

(e) A, a trader, in anticipation of insolvency, lodges effects with B for A's benefit, and with intent to defraud his creditors; and in order to give a colour to the transaction, writes a promissory note binding himself to pay to B a sum for value received, and antedates the note, intending that it may be believed to have been made before. A was on the point of insolvency. A has committed forgery under the first head of the definition.

Explanation 2- The making of a false document in the name of a fictitious person, intending it to be believed that the document was made by a real person, or in the name of a deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery.

Illustration

A draws a bill of exchange upon a fictitious person, and fraudulently accepts the bill in the name of such fictitious person with intent to negotiate it. A commits forgery.

465. Punishment for forgery

Whoever commits forgery shall be punished with imprisonment of either description for a term which may

extend to two years, or with fine, or with both.

466. Forgery of record of court or of public register, etc

Whoever forges a document, purporting to be a record or proceeding of or in a Court of Justice, or a register of birth, baptism, marriage or burial, or a register kept by a public servant as such, or a certificate or document purporting to be made by a public servant in his official capacity, or an authority to institute or defend a suit, or to take any proceedings therein, or to confess judgment, or a power of attorney, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

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468. Forgery for purpose of cheating

Whoever commits forgery, intending that the document forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

469. Forgery for purpose of harming reputation

Whoever commits forgery, intending that the document forged shall harm the reputation of any party, or knowing that it is likely to be used for that purpose, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.

470. Forged document

A false document made wholly or in part by forgery is designated "a forged document".

471. Using as genuine a forged document

Whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to

believe to be a forged document, shall be punished in the same manner as if he had forged such document.

Case under section 340 Cr.P.C: Wrongful confinement

340. Wrongful confinement

Whoever wrongfully restrains any person in such a manner as to prevent that person from proceedings beyond certain circumscribing limits, is said "wrongfully to confine" that person.

Illustrations

(a) A causes Z to go within a walled space, and locks Z in. A is thus prevented from proceeding in any direction beyond the circumscribing line of wall. A wrongfully confines Z. (b) A places men with firearms at the outlets of a building, and tells Z that they will fire at Z if Z attempts to leave the building. A wrongfully confines Z.

Happy fighting!, Give to them, right back...........

Domestic Violence Act - Dismissed factor

noreply@blogger.com (Unknown) — Wed, 20 Apr 2016 17:52:00 -0700

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: September 05, 2008

Date of Order : September 30, 2008

CM(M) 105/2006

30.09.2008

Neetu Mittal ...Petitioner Through: Ms. Radhika Chandrasekhar, Adv.

Versus

Kanta Mittal and Ors. ...Respondents

Through: Ms. Nandni Sahni, Adv. for R.1 and 2

Mr. Devendra Singh, Adv. for R.3

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the ? Yes.

2. To be referred to the reporter or not? Yes.

3. Whether should be reported in Digest? Yes.

#JUDGMENT:

1. The petitioner is aggrieved by an order dated 4th January, 2006 passed by the learned Additional Senior Judge allowing an appeal of the respondent against order dated 24.5.2005 of dismissing an application under Order 39 Rule 1 and 2 CPC.

2. The respondents had filed a suit making petitioner, their son and in-laws of the son as defendants wherein they prayed for permanent injunction. An application under Order 39 Rule 1 and 2 was made that the petitioner and other respondents be restrained from forcibly and illegally entering into their house No. B-2/23, Phase-II, Ashok Vihar and from interfering with their peaceful living. The petitioner is wife of Sh. Vikas Mittal son of respondents, Smt. Kanta Mittal and Sh. Ram Kishan Mittal.

3. The learned Senior while allowing appeal observed that wife has a right to live in the matrimonial home after marriage but there was no specific definition of matrimonial home. However, matrimonial home was not just a building made of bricks and walls. It was a home/place comprising of sweetness of relations of family members and elders, full of blessing. In the matrimonial home, matrimonial rights and obligations are to be equally observed. Practically speaking, the residence of husband should be the home of the wife where both the spouses have equal right to reside.

4. The learned Senior Civil Jude found that in this case, the respondents were parents of Sh. Vikas Mittal and in-laws of Neetu Mittal (petitioner). They had separated from their son. The son had taken a flat in Rohini for his own residence and residence of his wife. The son and his wife had agreed to shift there on 10th May, 2005 under a compromise arrived at Police Station. However, the wife did not stay in the flat at Rohini. Her grievance was that flat was not habitable due to deficiency of fan, cooler, etc. Thereafter, she asserted that she had a right to live in her in-laws' house in Ashok Vihar and she wanted to forcibly live there which compelled respondents no. 1 and 2 to file the suit. The learned Senior found that the respondents were aged parents. They had shown by filing medical record that they were suffering from various ailments and at this age of their life they have a right to live peacefully at their home. Since the relations of petitioner were not cordial with them, there was every likelihood of breach of peace to the detriment to their mental and physical health. Due regards have to be given to their rights. It was a admitted fact that the respondents and petitioner could not live together under one roof with peace and harmony. The common use of dining and one kitchen would create further problems and a situation may come when parties may everyday land up at Police station or in the Court, fighting on minor issues.

5. Learned Sr. also observed that the respondents(parents) even apprehend danger to their lives and dignity, as per the complaint made by them to the Police. Under these circumstances, the learned Senior allowed the application under Order 39 Rule 1 and 2 CPC and restrained the defendants (petitioner herein) from forcibly entering into their house and disturbing the peaceful possession of the respondents.

6. Counsel for the petitioner argued that the petitioner being wife of son of respondents no. 1 and 2 has a right to live in the matrimonial home and no injunction could legally have been issued by the learned Civil Judge. She referred to Protection of Women from Act, 2005 and argued that the right of women to live in the shared household was to be protected by every Court and the house of in-laws was a shared household and a matrimonial home and she had a right to live there.

7. In S.R. Batra vs. Taruna Batra AIR 2007 SC 1118, Supreme Court observed as under:

"16. There is no such law in India, like the British Matrimonial Homes Act, 1967 and in any case, the rights which may be available under any law can only be as against the husband and not against the father-in-law or mother-in-law.

17. Here, the house in question belongs to the mother-in-law of Smt. Taruna Batra and it does not belong to her husband Amit Batra. Hence, Smt. Taruna Batra cannot claim any right to live in the said house. xxxxx xxxxx xxxxx

27. Learned counsel for the respondent Smt. Taruna Batra has relied upon Section 19(1)(f) of the Act and claimed that she should be given an alternative accommodation. In our opinion, the claim for alternative accommodation can only be made against the husband and not against the husband's in-laws or other relatives.

28. As regards Section 17(1) of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household, and a 'shared household' would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The property in question in the present case neither belongs to Amit Batra nor was it taken on rent by him nor is it a joint family property of which the husband Amit Batra is a member. It is the exclusive property of appellant no.2, mother of Amit Batra. Hence it cannot be called a 'shared household'.”

8. As observed by the Supreme Court, 'Matrimonial home' is not defined in any of the statutory provisions. However, phrase ?Matrimonial home? refers to the place which is dwelling house used by the parties, i.e., husband and wife or a place which was being used by husband and wife as the family residence. Matrimonial home is not necessarily the house of the parents of the husband. In fact the parents of the husband may allow him to live with them so long as their relations with the son (husband) are cordial and full of love and affection. But if the relations of the son or daughter-in-law with the parents of husband turn sour and are not cordial, the parents can turn them out of their house. The son can live in the house of parents as a matter of right only if the house is an ancestral house in which the son has a share and he can enforce the partition. Where the house is self-acquired house of the parents, son, whether married or unmarried, has no legal right to live in that house and he can live in that house only at the mercy of his parents upto the time the parents allow. Merely because the parents have allowed him to live in the house so long as his relations with the parents were cordial, does not mean that the parents have to bear his burden throughout the life.

9. Once a person gains majority, he becomes independent and parents have no liability to maintain him. It is different thing that out of love and affection, the parents may continue to support him even when he becomes financially independent or continue to help him even after his marriage. This help and support of parents to the son is available only out of their love and affection and out of mutual trust and understanding. There is no legal liability on the parents to continue to support a dis-obedient son or a son which becomes liability on them or a son who dis-respects or dis-regards them or becomes a source of nuisance for them or trouble for them. The parents can always forsake such a son and daughter-in-law and tell them to leave their house and lead their own life and let them live in peace. It is because of love, affection, mutual trust, respect and support that members of a joint family gain from each other that the parents keep supporting their sons and families of sons. In turn, the parents get equal support, love, affection and care. Where this mutual relationship of love, care, trust and support goes, the parents cannot be forced to keep a son or daughter in law with them nor there is any statutory provision which compels parents to suffer because of the acts of residence and his son or daughter in law. A woman has her rights of maintenance against her husband or sons/daughters. She can assert her rights, if any, against the property of her husband, but she cannot thrust herself against the parents of her husband, nor can claim a right to live in the house of parents of her husband, against their consult and wishes.

10. I therefore consider that the order passed by the learned Senior Civil Jude granting injunction does not suffer from any illegality and the petition is hereby dismissed.

September 30, 2008

SHIV NARAYAN DHINGRA J.

Man moves court against wife in false dowry case

noreply@blogger.com (Unknown) — Wed, 20 Apr 2016 17:50:00 -0700

Thursday, Apr 16, 2009, 3:42 IST | Place: New Delhi

A woman and a police officer, who allegedly tried to implicate a man in a dowry case, have got trapped in their own net.

A harassed Nishant Saini, 32, has filed a retaliatory complaint in court seeking the arrest of his wife, Anjali Dargan, 30, for "forcefully giving dowry which he never demanded".

Police officer Asha Sinha, who helped Dargan, is also in trouble. Metropolitan magistrate (MM) Saurabh Pratap Singh Laler ordered deputy commissioner of police (DCP) of south Delhi to take action against the officer for failing to submit a report despite the court's order. 15pt; margin: 5pt 0in; widows: auto;">Saini, an architect, married Dargan, an executive with ITC, in 2007. But their relationship soured within six months. Dargan slapped a dowry case against Saini, alleging that he had taken Rs17 lakh in dowry and forcibly kept her jewellery and stridhan (bride's article) worth Rs20 lakh. Though Saini refuted the charges, he spent six days in Tihar jail. He also lost his job.

Later, Saini filed a counter complaint with the police, accusing his wife and in-laws of forcing him to accept the money he never demanded. When the police refused to register his complaint Saini approached the court under Section 156 (3) of the CrPc, seeking action against his wife and her parents under Section 3 of the Dowry Prohibition Act (DPA). Section 3 DPA is a non-bailable, non compoundable (cannot be withdrawn), cognisable offence for giving, taking or abetting giving or taking of dowry. It carries a minimum punishment of five years in prison. On the other hand, Section 498A (cruelty for dowry), which Dargan had filed against Saini, has a penalty of three years in prison.

Based on Saini's complaint the judge, who was convinced that the wife was involved in the dowry offense, ordered officer Sinha to find out whether the money was willingly given by the woman's family or under pressure from the groom's side. However, Sinha, who had earlier opposed Saini's bail, failed to submit a report and told the court that no case could be registered against the bride or her parents.

"Instead of conducting the investigation, the police were trying to save the accused, forcing us to move a contempt of court application against Sinha," Saini's lawyer Pradip Nawani said. The judge directed Sinha's senior officers to take action against her for contempt of court.

Conceding that many women were misusing dowry laws to settle scores with their husbands, the Delhi high court laid down guidelines for the Delhi Police to be followed during investigations in dowry related complaints and IPC-498A. It said in case an educated woman gets married to a person despite a dowry demand, she and her family become accomplices under section 3 of DPA.

DPA JUDGEMENT IN THE HIGH COURT OF DELHI AT NEW DELHI

noreply@blogger.com (Unknown) — Wed, 20 Apr 2016 17:49:00 -0700

DPA JUDGEMENT

IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT : SECTIONS 3 & 4 OF DOWRY PROHIBITION

ACT SEEKS QUASHMENT OF THE FIR

Crl.M.C.1950/04 & Crl.M.A.6384/2004

Judgment delivered on: March 31, 2006

K.M.ANEES-UL-HAQ & ORS. Petitioners.

Through Mr.G.D.Gandhi, Advocate.

VERSUS

STATE & ANR. Respondents

Through Mr.Ravinder Chadha &

Mr.Jagdish Prasad, Advocates, for State.Mr.Abdul Rehman, R-2, in person. Mr.Anees Ahmad for respondent No.3.

Manju Goel, J.

1. In this petition under section 482 Code of Criminal Procedure (Cr.P.C.), the petitioners who are accused in FIR No.260/2001 P.S. Mayur Vihar under sections 406/420/34 of Indian Penal Code (in short `IPC') and sections 3 & 4 of Dowry Prohibition Act seeks quashment of the FIR and consequent proceedings. Although several grounds have been mentioned in the petition, at the time of hearing the only ground pressed is that of limitation and accordingly the petition will be disposed of only on the question of limitation.

2. The petitioners' counsel submitted that the offence made out against the petitioners is only under section 406 IPC as well as under sections 3 & 4 of Dowry Prohibition Act and that on the date the FIR was filed or cognizance taken both the offences were time barred. Therefore, the real question is what offence is made out in the FIR. The complainant in the FIR is Shri Abdul Rehman. The gist of the FIR is as under:

The complainant/respondent No.2 met petitioner No.1 in 1997 and the two became good friends within a short span of time. In September, 1999 the complainant and his wife attended a marriage in the family of petitioner No.1 at Bangalore where petitioner No.1 and his wife Nusrat Fatima (petitioner No.2) proposed that their nephew (Furkhan-Ul-Haque @ Muneeb) who had earned a Degree in Electronics Engineering would be a good match for Aalya, daughter of the complainant/respondent No.2. The complainant was persuaded to agree to the proposal. Petitioner No.1 and his wife asked for an engagement ceremony in a grand scale. An engagement ceremony was

accordingly held at Asia House on 16.1.2000 and the expenditure incurred by the petitioner on that account accounted to approximately Rs.5 lakhs. Both sides mutually agreed to perform the marriage within the next 6-7 months. In a later visit to Bangalore, the complainant was shown an abandoned factory shed and it was represented to him that the proposed bridegroom was trying to secure a loan to start a business of plywood manufacturing. It was also represented to him that the proposed bridegroom was facing financial crunch. A sum of Rs.3.25 lakhs was paid to petitioner No.2 in this regard. In view of the proposal of the marriage to be held within 6-7 months of the engagement ceremony, relatives of the complainant started arriving in Delhi. On 2.10.2000, petitioner Nos.1 & 2 along with petitioner No.3 (father of Muneeb) visited the complainant and persuaded the complainant to hold the marriage ceremony at Bangalore and 4.11.2000 was fixed as the date of marriage. On 13.10.2000 the complainant went to Bangalore to make arrangements when he carried with him most of the bridal jewellery. The complainant booked a hotel for the purpose of marriage, accommodation for the baarat apart from cooks and other helps which would be required on the occasion. The complainant also booked the articles of furniture to be given as dowry. A sum of Rs.3 lakhs was given to petitioner No.2 for purchase of a car and subsequently another sum of Rs.1.5 lakhs was added towards this fund. A sum of Rs.50,000/- was given to petitioner No.2 for flowers required for the occasion of marriage. On 27.10.2000, petitioner No.2 called the complainant to postpone the marriage due to a death in the family of the bridegroom and the complainant had to agree to the postponment on account of decency. In April, 2001, the complainant again got in touch with petitioner No.2 when petitioner No.2 told him that the bridegroom was finding it difficult to settle down and was facing certain problems in the business front. In the meantime, the boy had been in constant touch with the daughter of the complainant. The business plan of the boy changed from plywood manufacturing to agricultural farming and then to the petrol pump. Later petitioner No.2 told him that the attempt to secure a loan had not succeeded and hinted that complainant should come forward to help the boy financially so that the business can be set up and the marriage can follow. The complainant and his wife by now had become anxious as a lot of time had already been spent after the engagement ceremony. They, therefore, talked to the boy at length and learnt that the boy was in dire need of Rs.5 lakhs which would see him through all problems. On 16.10.2001, the boy called Muneeb came to Delhi when the sum of Rs.5 lakhs was given to him in the presence of petitioner No.1. The boy's side assured the complainant that the marriage would be held sometime in December, 2001/January, 2002. No firm date was, however, communicated to the petitioner. In January, 2002 the boy came to Delhi and remained there for about three weeks and visited the residence of the complainant every morning and spent the day there. Petitioner No.1 agreed to persuade the father of the boy to perform the marriage immediately and assured the complainant that the problems of the boy would be over by March, 2002 and then his parents would be asked to fix a date for marriage. During all this period, petitioner No.2 ruled all the proceedings and everything happened exactly the way she had desired. Even in the month of March,2002 no proposal for a date of marriage came from the side of the boy and they kept on putting off fixing a date by telephoning the complainant every week that they were about to come to Delhi for the purpose. In April, 2002 the complainant had become sceptic about the intentions of the petitioners. By now the boy had developed a practice of telephoning the daughter of the complainant every night. On the night prior to the date of the complaint while the boy was on telephone talking to the daughter of the complainant, the complainant took the phone and asked the boy to have his parents talk to him. The father accordingly called after half an hour and in the conversation that followed it transpired that if the complainant was interested in an early marriage he should give a sum of Rs.25 lakhs in cash to the boy. The complainant then refused to pay any such amount and asked for return of all the articles of dowry and to reimburse him for all the expenses incurred. The complainant had thus been cheated by the fraud and misrepresentation of the petitioners including petitioner Nos.3 & 4 who are the parents of the boy as well as by the boy Muneeb (respondent No.3 herein) himself. The accused named above in the FIR were also accused of having committed breach of trust by retaining all the dowry articles particularly jewellery, clothes & cash and of extorting large sums of money. Further they were accused of wasting precious 2-1/2 years of the life of the complainant's daughter. The complainant asked for strict possible action.

3. Admittedly, the FIR was initially registered only under sections 406/34 IPC and sections 3/4 of Dowry Prohibition Act. According to the counsel for the petitioners, the only offences made out were under section 406 of IPC and sections 3 & 4 of Dowry Prohibition Act. According to him, the date of cancellation of engagement being 5th August, 2000, the FIR could be made latest by 5.8.2001 and thus the FIR dated 25.6.2002 was clearly barred by time.

4. For the purpose of examining the question of limitation, the only thing that can be seen at this point of time is the complaint itself. The complaint nowhere says that the engagement was called off on 5.8.2000. As per the complaint till the evening prior to the date of complaint, the complainant was contemplating the marriage to take place shortly although the complainant had become sceptic about the intentions of the boy's side, viz., the petitioners. The complaint nowhere says that the marriage/ engagement was called off on 5.8.2000. Accordingly the period of limitation cannot start from 5.8.2000. So far as the offence under section 406 is concerned, the period of limitation can start only from the date the misappropriated articles were demanded back. Going by the complaint that date would be 24.6.2002. Therefore, for the offence under section 406 IPC the complaint made on 25.6.2002, on which summons was issued on 22.2.2003, will not be barred by time.

5. It has to be noticed that sufficient allegation about the fraud has also been made out in the complaint. The fraud complained of in the complaint is that the boy Muneeb and the petitioners defrauded the complainant into parting with large sums on the assurance that Muneeb would be married to complainant's daughter but that the petitioners as well as boy Muneeb never had the intention of performing any such marriage. Thus, three offences have been made out, namely, under sections 3 & 4 of Dowry Prohibition Act and under sections 406 & 420 of IPC. The offence under section 420 IPC is punishable with 7 years of imprisonment whereas the offence under section 406 IPC is punishable with 3 years of imprisonment. The offences under sections 3 & 4 of Dowry Prohibition Act are punishable with imprisonment for a term which shall not be less than five years & six months respectively, except for adequate and special reasons. So far as the fraud punishable under section 420 IPC & offences under sections 3 & 4 of Dowry Prohibition Act are concerned, no limitation is prescribed under section 468 of Cr.P.C. So far as section 406 is concerned, the offence takes place only when the entrusted articles are called back and the accused fails to return. This situation arose, according to the complaint, only on 24.6.2002. Therefore, the complaint was made on the following day. Summons from the court was issued on 22.2.2003, i.e., within one year of the date of the offence. Further, section 468 (3) Cr.P.C. prescribes that when several offences are made out the limitation applicable will be determined with reference to the offence which is punishable with more severe sentence. Since the complaint includes offences of fraud punishable under section 420 IPC and sections 3 & 4 of Dowry Prohibition Act, there can be no question of limitation barring the case.

6. The petition under section 482 Cr.P.C. is not only devoid of any merit but is totally frivolous. The filing of the petition has caused much delay in the disposal of the complaint case before the trial court. The same is accordingly dismissed with costs, assessed at Rs.10,000/-. Both parties are directed to appear before the trial court on 18th April, 2006.

Sd./-

March 31, 2006 MANJU GOEL,J

CRPC 340 Criminal case against Wife for making False calim in Maintance Case

noreply@blogger.com (Unknown) — Wed, 20 Apr 2016 17:36:00 -0700

HIS HONOUR JUDGE: 24 th DECEMBER, 2013 . school. The respondent is doing a job as a pre-primary Teacher at she does not want to give written reply. parties. has neither made a complaint under sub-Section (1) in 2011 (Exh.13) for interim maintenance under the provisions of herself and what was stated by her is not true. requirements like food, shelter and clothes from the person who isसतय ं वदं" “Tell dignity and respect in that amount and the income of the petitioner is that the respondent is absolved from the criminal liability. Therefore, th December, 2013 Family Court

No.3, Mumbai.

ORDER BELOW EXH.56

This is an application filed by the petitioner for taking

action for perjury against respondent-wife.

2. According to the petitioner he has filed this petition for decree of divorce. The respondent had filed interim application for maintenance pendentelite on 28-4-2011 stating in para No.10 of said application, “I have no source of income and have become burden on my parents, it is embarrassing and ridiculous situation as I am being compelled to depend upon parents for my daily needs, after marriage”. The respondent has also mentioned, “I do not have any other source of income.”

3. According to the petitioner, the respondent used to work as a Teacher in a school prior to her marriage is admitted position. The petitioner had filed an application for review of order by producing documentary proof that the respondent is working as a school Teacher and her photograph appears in the magazine of the Thakur Public School, Kandivali (E) and having permanent job and also having bank account in Saraswat Bank, Kandivali (E) Branch, vide salary account No.4963957. The respondent had refused to produce any document in spite of the petitioner has filed on recor the book published by the school, where the respondent is working as a Teacher. The respondent has filed her affidavit as per the direction of this Court, which speaks abut her employment. It is admitted that she was working full-time and getting Rs.7500/- per month but in spite of calling upon her to produce her bank statement and income proof, she refrained from doing so.

4. According to the petitioner, after the witness summons and a document brought on record, it is revealed by the order of this Court dated 7-5-2013 that the respondent is a liar and she obtained the interim maintenance order by misguiding this Court by purposefully stating lie on oath and concealing the material fact by not producing documents which are in her possession and made the petitioner to suffer. Therefore, the petitioner has requested for taking legal action against the respondent under the provisions of Section 195 and Section 340 of Criminal Procedure Code.

5. After filing of this application, my learned predecessor has passed order dated 3-7-2013 of issuance of notice under Section 340 of Criminal Procedure Code. The copy of this application was given to the respondent on the same day i.e. on 3-7-2013. On 5-8-2013 the learned Advocate for the respondent had made a remark on the overleaf of the application that she will argue,

6. I have heard learned Advocate Smt. Usha Tanna for the petitioner and learned Advocate Smt. Jivan Vijay for the respondent wife.The learned Advocate for the petitioner has vehemently argued that, though the respondent has source of income, she has made false averments in her application that she did not have any source of income. She has sworn affidavit with false contents. The learned Advocate has further submitted that while deciding the review application of the husband, this Court has made observations in respect of the false averments made by the respondent and therefore, it is necessary to initiate action of perjury against the respondent-wife.

7. Smt. Jivan Vijay, learned Advocate, appearing for the respondent-wife has submitted that false accusations are made against the respondent. She has filed her documents on record and in view of modified order, the quantum of the maintenance was reduced and this Court, while deciding the review application, has imposed exemplary cost of Rs.5000/- on the respondent and therefore already action is taken against the respondent. Now, there is no need to proceed against the respondent under the provisions of Code of Criminal Procedure. The learned Advocate for the respondent has further submitted that there was no malice or intention to mislead this Court and the bonafide mistake of the respondent be excused.

8. I have given my thoughtful consideration to the submissions canvassed by the learned Advocates for both the

9. The provisions of Chapter XXVI of Code of Crimina Procedure deal with offences affecting the administration of justice. Section 195 of said Code speaks about prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. The provisions of Section 340 of the Code reads as under :

“Procedure in cases mentioned in Section 195- (1) When,upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of Section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,-

(a) record a finding to that effect;

(b) make a complaint thereof in writing;

(c ) send it to a Magistrate of the first class having jurisdiction;

(d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and

(e) bind over any person to appear and give evidence before such Magistrate.

(2) The power conferred on a Court by sub-Section (1) in respect of an offence may, in any case where that Court respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of Section 195.

(3) A complaint made under this section shall be signed,-

(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;

(b) in any other case, by the presiding officer of the Court or by such officer of the Court as the Court may authorise in writing in this behalf.

(4) In this section, “Court” has the same meaning as in Section 195.”

10. In the case in hand the petitioner-husband has filed main petition for divorce under the provisions of Section 13(1)(ia) of Hindu Marriage Act. The respondent has submitted written statement at

Exh.12. After the appearance of the respondent, both the parties were referred to the Marriage Counsellor for exploring the possibility of reconciliation and amicable settlement. However, no reconciliation or amicable settlement had taken place. Even after hearing of the argument of present application at Exh.56, I had referred both the parties to Judge Mediator, to work out the settlement between the parties. However, the parties could not come to terms and accordingly Judge Mediator has submitted the report.

11. The respondent had filed interim application No.162 of Section 24 of Hindu Marriage Act. Said application was contested by the petitioner. Said application was decided on 2-3-2012 by my learned predecessor and interim maintenance at the rate of Rs.20,000/- per month was granted to the respondent, from the date of said application i.e. 28-4-2011. The respondent was also given litigation cost of Rs.20,000/-.

12. On 11-5-2012 the petitioner had filed application for review and/or cancellation of maintenance order dated 2-3-2012. The said application was resisted by the respondent by filing her reply on Exh.32 and after hearing both the parties, the said application was decided on 7-5-2013. In view of that order, the quantum of maintenance granted to the respondent was reduced from Rs.20,000/- per month to Rs.13,000/- per month.

13. In the original interim maintenance application at Exh.13 in para No.10 the respondent has stated that she has no source of income and has become burden on her parents, it is embarrassing and ridiculous situation as she being compelled to depend upon parents for her daily needs, after marriage. Further, in para No.13 of said application the respondent has stated that she is a simple graduate and cannot earn her livelihood and it is the duty of the petitioner to provide for the same. While replying these averments, the petitioner had stated in para No.8 of his reply at Exh.17 that the respondent is well educated and accomplish and qualified graduate with expertise in teaching institution and was employed in Nursery Institution and thus the respondent was capable of maintaining

14. Now, it is necessary to see what observations are made by my learned predecessor while deciding the review application at Exh.30, in respect of the income of the respondent-wife. The observations made in para No.10 of said order runs as under :

“While disposing interim maintenance application, this Court in para No.4 has observed that there is no record before Court to believe that respondent-wife is an earning member. This observation was based upon statement of respondent and also from the circumstance that there was no record before Court to prove the earning of the respondent. The documents which are referred herein in this order clearly reveal that on the date of passing of the order and on the date of moving an application for interim maintenance, respondent was an earning member, so respondent has misguided this Court to believe that she do not have any income. She has suppressed vitalinformation from the Court that she is earning about Rs.6804/- by being working as a Pre-primary Teacher in a school”.

15. It is settled position of law that while determining quantum of maintenance the regard shall be had to the status and position of the parties, income of both the parties, reasonable wants of the claimant and number of persons dependent upon the payer. The provisions of maintenance are benevolent provisions. These provisions are made to prevent vagrancy of destitute wife and the minor children. The person who is liable to maintain his dependents, has to provide maintenance to his dependents, so that they can keep their soul and body together and they should not face any problem in their day-to-day life. The needy persons are entitled to get the basic liable to maintain them as per the provisions of law.

16. It is settled principle of law that he who seeks equity,must do equity. The fraud and justice cannot dwell together. The justice seeker must step in the Court with clean hands. The dishonest person cannot be entertained by the Court of law. In matrimonial matters persons come with their family problems before the Court and Court makes every possible attempt to find out solution of their problems. In such circumstances, it is the first and foremost responsibility of the party to tell the truth to the Court, so that Court can go to the root of the matter to solve the real dispute. There should not be game of hide and seek when justice is sought from the Court of law. All the Dharmashastras teach us "the truth”. Foundation of every case must be on true and honest disclosure of facts. No place can be given to lies or falsehood during the course of administration of justice. The person who comes to the Court i.e. house of justice, to seek justice, has to show his bonafides and honesty by making true disclosure of the facts within his knowledge.

17. Here it has been established that the respondent-wife has suppressed vital information from the Court that she is earning about Rs.6804/- by being working as a Pre-primary Teacher in a school. It was the prime duty of the respondent-wife to come in the Court with clean hands by stating that she is earning Rs.6804/- per month. If she wants to claim maintenance from the petitioner, she has to make out a case that it is not possible for her to lead life with at higher side. She has to show the disparity between her income and income of the respondent and by making such type of true disclosure of the facts, she should have claimed maintenance amount from the petitioner. But this has not been happened in this case. The respondent-wife has made false averments in her interim maintenance application by stating that she has no source of income and she is burden upon her parents. She has not taken pain to disclose her income, though it may be meager. On the contrary, she has made false statements on oath.

18. While submitting the application for interim maintenance, the respondent-wife has taken oath and she has sworn affidavit on the application itself. This goes to show that she has made false averments knowingly in a Court proceeding. In such circumstances, prima facie, the offences punishable under Section 177, 181, 182 and 191, read with Section 193 of Indian penal Code are attracted. Because of the false statements made by the respondent in her application for interim maintenance, this Court is misled and misguided and therefore, the petitioner has suffered and he was directed to pay maintenance at the rate of Rs.20,000/- per month.

19. The petitioner was required to file application for review of said order and accepting his contention, the quantum of maintenance was reduced from Rs.20,000/- per month to Rs.13,000/- per month. While deciding the said application, my learned predecessor has imposed exemplary cost of Rs.5000/- on the respondent for making false statements. But it does not mean it is necessary to take action against the respondent as per the provisions of Section 195 and 340 of Criminal Procedure Code. The Deputy Registrar of this Court has to file complaint against the respondent in competent Court for the offences discussed above.

20. In view of my foregoing discussion, I come to the conclusion that, the application at Exh.56 deserves to be allowed. In the result, I proceed to pass the following order.

O R D E R

1. The application at Exh.56 is allowed.

2. The Deputy Registrar of Family Court, Bandra, Mumbai,is directed to file complaint against the respondent-wife in competent Court, for the offences punishable under Section 177, 181, 182 and 191, read with Section 193 of Indian penal Code.

3. The Deputy Registrar is authorized to take true copies of entire proceedings to file along with the complaint in the competent Court.

4. Inform this order to Deputy Registrar, Family Court,

Bandra, Mumbai.

Sd/-24-12-2013

( Subhash R. Kafre )

Judge,

Date : 24

Anti-dowry Law Misused, No Automatic Arrest in Such Cases: SC

noreply@blogger.com (Unknown) — Wed, 20 Apr 2016 17:34:00 -0700

Anti-dowry Law Misused, No Automatic Arrest in Such Cases: SC

By PTI Published: 02nd July 2014 08:19 PM Last Updated: 02nd July 2014 08:50 PM

Email 7

NEW DELHI: Expressing concern over misuse of anti-dowry law by "disgruntled" wives against her husband and in-laws, the Supreme Court on Wednesday ruled that police cannot arrest accused in such cases "automatically" and it must give reasons for taking such steps which would be judicially examined.

The apex court said the attitude to arrest first and then proceed with the rest is "despicable" which must be curbed and directed all state governments to ensure that police do not resort to arresting in all offences punishable up to seven- year jail term including dowry harassment cases.

"We direct all the state governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC (dowry harassment) is registered but to satisfy themselves about the necessity for arrest under the parameters laid down flowing from Section 41 CrPC," a bench headed by Justice C K Prasad said.

It said that the police officer shall furnish the reasons and materials which necessitated the arrest before the magistrate.

"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 cognisable 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 quite a number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested," the bench said.

The bench said the arrest curtails freedom, brings humiliation and casts scars forever and no arrest should be made only because the offence is non-bailable and cognisable.

"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," the bench said.

Referring to crime statistics, the apex court said 1,97,762 persons were arrested in 2012 for offence under Section 498-A and nearly a quarter of those arrested under this provision were women depicting that mothers and sisters of the husbands were liberally included in their arrest net.

"Its share is 6 per cent out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5 per cent of total crimes committed under different sections of penal code, more than any other crimes except theft and hurt," it said.

It said the rate of charge-sheeting in cases is as high as 93.6 per cent, while the conviction rate is only 15 per cent, which is lowest across all heads and as many as 3,72,706 cases are pending at trial stage.

The apex court said that police in the country has not come out of its colonial mindset.

"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," it said.

Not only accepted to giving dowry

noreply@blogger.com (Unknown) — Wed, 20 Apr 2016 17:32:00 -0700

Advocate Pradeep Nawani Nails The Wife, The In Laws And Corrupt Cops

Adv Pradeep Nawani has shown us the way on how to go about nailing the scum t

hat infest the ranks of the Indian police and has also shown us to how to nail the bitter half and her enablers under Dowry Prohibition Act Section 3 (DP3).

Here is the coverage in the news. This is reproduced from DNA India:

NEW DELHI: A Noida court has ordered police to book a woman and her parents for giving dowry. The chief judicial magistrate (CJM) of Noida ordered the police to register an FIR against Noida-based call centre employee Natasha Juyal and her parents under section 3 of the Dowry Prohibition Act (DPA) for giving dowry. The CJM also ordered action against police officers who refused to register Natasha’s husband Namit Juyal’s complaint.

Giving or taking dowry is a criminal offence under Section 3 of the DPA with imprisonment. This is a rare case where the section was evoked against a woman and her family.

Namit’s lawyer Pradeep Nawani argued that Natasha had not only accepted to giving dowry, but also submitted a list of stridhan that was not as per the DPA. Even her claim of huge wedding expense did not match her father’s financial capacity.

According to Nawani, Natasha filed a complaint of dowry harassment in Noida’s sector-20 police station last year, saying Namit was given Rs10 lakh as dowry in 2005.

The Noida police arrested Namit and packed him off to Dasna jail in UP. After getting bail, Namit sought information under RTI from the Noida police, seeking to know on what basis he was arrested.

He was horrified to hear that he was arrested on the basis of his wife’s mere written complaint and verbal statement with no records to back her allegations. He then asked police to register a complaint against his wife and family for giving dowry.

On refusal by the police, he approached court to get a complaint registered against his wife and her parents. He also sought contempt of court action against the police for failing to comply with a supreme court order, stipulating that refusing to register police complaint by a husband in a dowry case is tantamount to the contempt of court.

Here are the orders:

No alimony for woman who desert husband

noreply@blogger.com (Unknown) — Wed, 20 Apr 2016 17:21:00 -0700

“From the perusal of sub Section 4 of Section 125, if wife refused to live with her husband without any sufficient reason, she would not be entitled to receive any maintenance. Learned trail court has recorded finding of fact that wife is residing separately from her husband without any reasonable cause and reason and refused to live with her husband despite offer by the husband to live together.”

Uttaranchal High Court

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Revision No. 201 Of 2006

Smt. Archana Gupta & Another .. Revisionists.

Versus

Sri Rajeev Gupta & Another .Respondents

Mr. M.K. Goyal, learned counsel for the revisionists. Mr. Rakesh Thapliyal, learned counsel for respondent no. 1. Mr. S.S. Adhikari, learned A.G.A. for respondent no. 2.

Dated: November 18, 2009

Hon’ble Alok Singh, J.

(By the Court)

Present revision has been filed by the wife under Sections 397/401 Code of Criminal Procedure read with Section 19(4) of Family Courts Act challenging the order dated 05.10.2006 passed by Principal Judge, Family Court, Dehradun refusing to grant maintenance to revisionist no. 1.

Heard Mr. M.K. Goyal, learned counsel for the revisionists, Mr. Rakesh Thapliyal, learned counsel for respondent no. 1 and Mr. S.S. Adhikari, learned A.G.A. for respondent no. 2.

Learned counsel for the revisionists contended that finding of the learned Principal Judge, Family Court, Dehradun on issue no. 1 that wife is living separately without any sufficient cause is perverse.

In nutshell, brief facts of the present case are that wife/revisionist no. 1 preferred an application under Section 125 Cr.P.C. against the respondent no. 1 seeking 2

maintenance for herself and for their minor son, revisionist no. 2. The main grounds of claim mentioned in the application are that husband has developed bad habits like consuming alkahol, gambling and adultery. That husband wanted to dispose of House No. 416, Block-III, Khurbuda Mohalla, Dehradun. That husband has taken loan to meet his bad habits. It is further contended that husband is living separately and is not maintaining the wife and son. In paragraph no. 8 of the application, it is pleaded that wife is working in inter-college, Tanko, Saharanpur temporarily from where she is getting Rs. 2200/- per month.

Husband filed his written statement before the trial Court and denied the contentions made by the wife in the application. In defence husband has specifically pleaded that wife is under the influence of her father. That under the pressure of wife and her father husband/opposite party had to execute permanent lease of his property in favour of the wife pertaining to property of House No. 416, Block-III, Khurbuda Mohalla, Dehradun. It is further contended that at the time of execution of lease, it was agreed between the parties that from the date of execution of lease wife would start living with the husband and her father would not interfere in the matrimonial affair of the husband and wife. It was further pleaded by the husband that it is the wife who wanted to live separately under the influence of her father. Further case of husband is that she resigned from the service from where she was getting Rs. 3, 000/- per month and joined the service at Saharanpur for Rs. 2200/- per month, under the influence 3

of her father. No prudent man shall leave the service of the higher pay scale and shall join the service of the lower pay scale. It was further contended by the husband that under the influence of her father, wife neglected the husband. The further case is that wife is residing separately without any cause and reason.

Learned Principal Judge, Family Court, Dehradun has framed three issues in the matter.

1. As to whether wife is living separately without any appropriate reasons from the husband.

2. As to whether the applicant is unable to maintain herself and her son, applicant no. 2.

3. As to whether the applicant is entitled for any maintenance for herself and minor son.

Learned trial Court, while deciding the issue no. 1, has recorded finding of fact that without any sufficient or reasonable cause wife is living separately. Wife has refused to join company of husband despite the fact that husband wanted her to live with him. It was further held by the learned trial court that wife is under the influence of her father and could not prove allegations of bad habits like consumption of alcohol, gambling and adultery against the husband. While deciding the issue nos. 2 and 3, learned trial Court declined to grant any maintenance to the wife on the basis of finding recorded in issue no. 1 and on the ground that wife is employed and getting Rs. 2200/- per month. However, learned trial Court granted Rs. 2000/- per month as maintenance for applicant no. 2, i.e. minor son.

Sub Section 4 of Section 125 Cr.P.C. can be pressed in the present matter, which reads as under: 4

“(4) No wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of

proceeding, as the case may be,] from

her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living

separately by mutual consent”.

From the perusal of sub Section 4 of Section 125, if wife refused to live with her husband without any sufficient reason, she would not be entitled to receive any maintenance. Learned trail court has recorded finding of fact that wife is residing separately from her husband without any reasonable cause and reason and refused to live with her husband despite offer by the husband to live together.

I, myself, carefully perused the statements recorded by learned trial court. I find no perversity in the findings of fact recorded by learned Principal Judge, Family Court, Dehradun of the fact that wife is living separately without any sufficient cause and reason and she refused to live with her husband without any sufficient reason. In view of findings that wife is residing separately from her husband without reasonable cause and reason, her application seeking maintenance was rightly rejected by the learned trial Court.

Wife is entitled for maintenance from the husband under sub Section a (1) of Section 125 Cr.P.C., if she is unable to maintain herself. As per the admission made by the wife in the application under Section 125 CrPC and as per the finding recorded by the learned Principal Judge, 5

Family Court, Dehradun, wife is employed in a school and getting salary of Rs. 2200/- per month. Revisionist/wife nowhere says that out of this amount of Rs. 2200/- she is unable to maintain herself. On this ground also revisionist is not entitled for any maintenance from the husband.

Having perused the record and findings recorded by the Principal Judge, Family Court, Dehradun, I do not find any valid reason to interfere with the findings of fact recorded by the learned trial Court. The impugned judgment is hereby confirmed. Revision is dismissed.

No order as to costs.

(Alok Singh, J.

_____________

There is NO Injury reported by wife complainant, So, No ‘physical’ cruelty

noreply@blogger.com (Unknown) — Wed, 20 Apr 2016 17:17:00 -0700

IN THE COURT OF METROPOLITAN MAGISTRATE, xxx, DELHI

FIR NO. xx/20

PS : xxxx

U/s 498a/406/34 IPC

Application for Discharge u/s 239 CrPc

The allegations, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence under IPC 498-A or make out a case against the accused.

Section 498A reads as follows:

“498A: Husband or relative of husband of a woman subjecting her to cruelty- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation – For the purpose of this section ‘cruelty’ means -

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

There is NO Injury reported by wife/complainant, So, No ‘physical’ cruelty.

The vagueness of mental cruelty is cleared by the Supreme Court of India by lying the following definition of “mental cruelty” in V.Bhagat Vs. Mrs.D.Bhagat AIR 1994 SC 710:

“the parties cannot reasonably be expected to live together”. The situation must be such that the wronged party cannot reasonably be asked to put with such conduct and continue to live with the other party.”

Also, cruelty is defined in Dr.N.G.Dastane Vs. Mrs.S.Dastane (1975) 2 SCC 326 and Savitri Devi Vs Ramesh Chand , 2003, Cri LJ 2759 (Del) : 2003 (3) Crime 100

>> However, the wife/complainant wants to live with the husband/accused. She has filed a case u/s 9 for Restitution of Conjugal Rights.

Both Parties are willing to LIVE together, so, there is NO CRUELTY.

Where there was allegation by wife against her husband but such allegations were not supported by any reliable evidence. Wife was prepared to live with her Husband. The accused was entitled for benefit of doubt. Lawrence Vs State of Kerala, 2002 Cri LJ 3458 (Ker.)

Supreme Court in Ajay Mitra Vs State of M.P. and others reported in 2003 (3) KCCR 2043 held that the FIR which does not allege or disclose essential requirement of a penal provision are prima facie satisfied , cannot form the foundation or constitute the starting point of lawfull investigation.

And, In the case of Ashok Chaturvedi and other Vs Shitul H Chanchani and another reported in ( 1998) 7 S.C.C. 698 it was held that allowing the criminal proceeding to continue even when the allegation of the complaint petition do not make out any offence would be tantamount to abuse of the process of the court.

Prosecution has blindly “denied” all the paragraphs of application for discharge u/s239, whereas applicant/husband has attached wife/ complainant’s own admittance/statements and prosecution’s own documents as a part of application from Annexure R1 to Annexure R 16

Prosecution has denied the Affidavit submitted in the Punjab and Haryana High Court by the Jagmohan Singh, DSP on behalf of SSP, patiala and State of Punjab.

How can Prosecution deny their own affidavit filed in HIGH COURT ??

Prosecution has denied all the para, even their own complaints and its contradictions,

For example, in the charge-sheet in line 33 of Page 2 reads as “Mr.SoAndso. left Zirakpur on 14-10-2005 for Gujarat and asked me that I can go to my parental house at Patiala and can live with my parents for about 10 days”

Contrary to above para, line 13 of page 2 (back side) reads as “he asked me that why I have not returned to Zirakpur, on this I asked that I am waiting for him as he while going to Gujarat in October 2005 asked me that until and unless he do not return back from to Zirakpur and not reached Patiala, I need not come to Zirakpur of my own”

Can wife/complainant’s version/statement be relied upon?

Is wife/complainant speaking truth?

Is wife/complainant approached the Court with Clean hands?

In para 20, prosecution have even denied the Powers of the Hon’ble Court.

Prosecution has admitted in para 2 that investigation was carried out by Women Cell, Patiala

Women Cell report clearly states that “she (complainant) is determined to teach a lesson to her husband and his family by leveling serious allegations”

Women cell investigation concluded that “No action is required by Police, so, the complaint to be filed”

Wife /Complainant has not approached the court with clean hands, all bills all fake, prepared with an intension to procure the conviction.

How can anyone taunt for bring inferior/cheap articles, when the ‘claimed’ articles don’t have any existence???

Complainant/wife claims that the Bills of Gift articles are not Fake. If the bills are assumed to be true, It is pertinent to note that these bills are of LG brand products

Is there any brand better than LG ?

How can anyone taunt for a LG product? Is LG inferior brand???

As such “”Taunting is not Cruelty”” in Savitri Devi Vs Ramesh Chand , 2003, Cri LJ 2759 (Del) : 2003 (3) Crime 100

Complainant/wife has filed petition for “Restitution of Conjugal Rights” under section 9 of HMA.

How can complainant/wife live with a Criminal? This itself shows that complaint u/s 498a was filed to fulfill the uterious motives.

Complainant has admitted that there were frequent picnic tours, more than 8 destinations have been admitted by complainant for her total stay of about 10 months.

So, the allegations doesn’t fall under the preview of mental or physical cruelty because “The mental cruelty can broadly be defined as

that conduct which inflicts upon the other party such mental pain

and suffering as would make it not possible for that party to live with the other”

NO SPECIFIC ALLEGATIONS, even the allegations of Demand of dowry etc. is not quantified/ specified in the complaint. All allegations are VAGUE.

In Krishan Jeet Singh Vs State of Haryana, II (2003) DMC 127 (P&H) it was held that “Where there is no specific allegations in complaint, charge could not be proved” also in Hon’ble HIGH COURT OF DELHI in CRL.M.C.7262/2006 on 23.02.2007 in Smt. Neera Singh Vs STATE (GOVT. OF NCT OF DELHI) and ORS held that “vague allegations as made in the complaint by the petitioner against every member of the family of husband cannot be accepted by any court at their face value and the allegations have to be scrutinized carefully by the Court before framing charge”.

Hon’ble Court shall refer to a leading decision of SC court reported in State of Haryana Vs. Bhajan Lal [1992 Suppl. {1} SCC 335] in which SC court pointed out certain category of cases by way of illustrations wherein the inherent power can be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice. The same are as follows :-

Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

In the case of Pepsi Food Limited and another Vs Special Judicial Magistrate and others reported in AIR 1998 S.C 128 it was held that Summoning and Accussed in a criminal case is serious matter .Criminal Law cannot be set into Motion as matter of course .

in the case of Saritha Vs R.Ramachandra reported in (I) (2003) DMC 37 ( DB ) made an observation that “the court would like to go on record that for nothing the educated women are approaching the courts for divorce and resorting to proceedings against in-laws under section 498a , IPC implicating not only the husbands but also their family members whether in India or Abroad. This is nothing but misuse of the beneficial provision intended to save the women from unscrupulous husbands . It has taken a reverse trend now. In some cases this kind of actions is coming as a formidable hurdle in the reconciliation efforts made by either well meaning people or the courts. and the sanctity attached to the marriage in Hindu Religion and the statutory mandate that the courts try to save the marriage through conciliatory efforts till last , are being buried neck-deep . It is for the law commission and the parliament either to continue that provision ( section 498a IPC ) in the same form or to make that offense non cognizable and bailable so that ill-educated women of this country do not misuse the provision to harass innocent people for the sin of contracting marriage with egoistic women “

Judgments

It is the duty of the court, even at the stage of framing the charge to consider whether there was sufficient material to go into trial. In other words, whether the evidence collected by the prosecution ,if rebutted, warrant any conviction. In doing so, the court can also consider the material on record in State of assam Vs. Achit Ranjan Dey, 1989 Cri LJ 1117 at 1118 (Gau), Sessions Judge Vs. I R redid, 1972 Cri LJ 1485, Abdul Aziz Vs. State of Mysore, 1975 Cri LJ 335 (kant)

State of Karnataka Vs. L. Muniswamy , a three judge Bench of SC Court had observed that at the stage of framing the charge, the Court has to apply its mind to the question whether or not there is any ground for presuming the commission of the offence by the accused. As framing of charge affects a persons liberty substantially, need for proper consideration of material warranting such order was emphasized.

When offences not prima facia made out against accused person framing of charge not proper in Imtiaz Ahmed Vs State of m.P. , 1997 Cri LJ 1844 (MP)

Allegations has to be specific in Krishan Jeet singh Vs. State of Haryana, 11 (2003) DMC 127 (P & H)

General allegations are not sufficient to procure 498-A in Surajmal Barithia V. State of west Bengal 11 (2003) DMC 546 (Cal) (DB)

Vague allegations are not acceptable in sher Singh V. state of Punjab 11 (2003) DMC 192 (P & H)

Bhajan Lal Bhatia & ors. Vs. Sarita Neelam 2005 Vol I HLR 59

Where evidence on record neither disclosed that there was cruelty on part o the accused which was of such a nature as was likely to drive victim to commit suicide or cause grave injury or danger to her life or limb or mental or physical health nor showed that she was harassed by accused with regard to any demand for additional dowry, section 498-A could not be attracted in such circumstances in Bomma Ilaiach Vs. State of U.P. , 2003 Cri LJ 2439 (AP)

Where there is no specific allegations in complaint, charge could not be proved in Krishan Jeet Singh Vs State of Haryana, II (2003) DMC 127 (P&H)

Conviction not sustainable in the absence of evidence of ‘torture’ or “harassment” in Benumadhab Padhi Mohapatra Vs State, 2004 (13) AIC 253 (ori.)

Taunting is not Cruelty in Savitri Devi Vs Ramesh Chand , 2003, Cri LJ 2759 (Del) : 2003 (3) Crime 100

Dr. Sant Singh Vs. State of Punjab, 11 (2003) DMC 232 (P & H)

Where there was allegation by wife against her husband but such allegations were not supported by any reliable evidence. Wife was prepared to live with her Husband. The accused was entitled for benefit of dobut. Lawrence Vs State of Kerala, 2002 Cri LJ 3458 (Ker.)

State of Haryana Vs. Bhajan Lal, 1992 Supp (1) SCC 335,

Janata Dal Vs. H.S.Chowdhary, (1992) 4 SCC 305,

State of Bihar Vs. P.P. Sharma, (1992)Supp. 1 SCC 222,

Roopan Deol Bajaj Vs. Kanwar Pal Singh Gill, (1995) 6 SCC 194,

State of U.P. Vs. O.P.Sharma, 1996(1) ALD (Crl.) 823 (SC) = (1996) 7 SCC 705

State of Maharashtra Vs. Ishwar Piraji Kalpatri, 1996(1) ALD (Crol.) 139 (SC) =(1996) 1 SCC 542

Kumar Bhada, (1997 Rashmi Kumar Vs. Maheswh) 2 SCC 397

Rajesh Bajaj Vs. State NCT of Delhi, 1999 (1) ALD (Crl.) 760 (SC) = (1999(3) SCC 259

Satvinder Kaur Vs. State (Govt. of NCT of Delhi), (1999)8 SCC 728,

Jagdish Ram Vs. State of Rajasthan, 2004(1) ALD (Crl.) 672 (SC) = (2004) 4 SCC 432,

A.V. Mohan Rao Vs. M. Kishan Rao, (2002) 6 SCC 174,

State of Karnataka Vs. M. Devendrappa, 2002(1) ALD (Crl.) 412 (SC) = 2002(3) SCC 89

State of Orissa Vs. Saroj Kumar Sahoo, (2005)13 SCC 540

Sushil Kumar Sharma Vs. Union of India (UOI) and Ors – Jul 19 2005 JT 2005 (6) SC 266 it was held that by misuse of the 498A provision a new LEGAL TERRORISM can be unleashed.

HIGH COURT OF DELHI in CRL.M.C.7262/2006 on 23.02.2007 in Smt. Neera Singh Vs STATE (GOVT. OF NCT OF DELHI) and ORS held that “vague allegations as made in the complaint by the petitioner against every member of the family of husband cannot be accepted by any court at their face value and the allegations have to be scrutinized carefully by the Court before framing charge”.

In R.P. Kapur. vs. State of Punjab (AIR 1960 SC 866), SC Court summarized some categories of cases where inherent power can and should be exercised to quash proceedings.

Madhavrao Jiwaji Rao Scindia and Ors. v. Sambhajirao Chandrojirao Angre and Ors. [1988 [1] SCC 692], SC Court has reiterated the same principle and laid down that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence.

Pratibha Rani Vs. Suraj Kumar and Anr. [1985] 2 SCC 370

State of Bihar Vs. Murad Ali Khan & Ors. [1988 [4] SCC 655]

Feel free to talk !

Good Luck !

Bharat Chugh

Advocate Supreme Court of India

Man seeked Maintenance of Rs. 8000/- from his Liv-in Partner of 10 years

noreply@blogger.com (Unknown) — Wed, 20 Apr 2016 17:15:00 -0700

Man seeked Maintenance of Rs. 8000/- from his Liv-in Partner of 10 years

Man seeks alimony from partner

Saswati Mukherjee, TNN | Jul 14, 2010, 03.23AM IST

HYDERABAD: Giving gender equality a fresh twist, a jobless man has sought Rs 8,000 a month as alimony from his 'gainfully' employed partner.

This gender bender case, which has landed at the Andhra Pradesh High Court, however, gets even more curiouser in its detail. The couple in question are not legally wedded but have been in a live-in relationship for the last 10 years and even have a daughter.

The Mahbubnagar-based couple's happily ever after story hit a roadblock when the woman, who is 42, in a fit of rage filed a case of 'dowry harassment' against her jobless live-in partner, who is 51, alleging that he was physically assaulting her.

The woman, a multi-purpose health worker with a government hospital with a decent monthly salary of Rs 20,000 (especially in the context of a small town like Mahbubnagar), even moved out of the house with the child.

With sections 498 A, 506 and 509 of IPC pressed against him, the man moved the AP High Court seeking anticipatory bail stating that the charges were invalid since the two were never legally married. And then he served a googly — he filed a simultaneous petition seeking maintenance of Rs 8,000 from his live-in partner of 10 years.

When the case first came up for hearing at the High Court a few days ago, the counsel representing the man referred to a recent Supreme Court judgment wherein the apex court had granted alimony to a woman in a live-in relationship from her partner citing that the number of years the two had put together were 'considerable', akin to a marriage. The man in this case has now pinned his hope on the apex court verdict with his counsel arguing how he too has put in 10 years of his life into this relationship and is thus a 'considerable' time period for him to earn his alimony from the earning partner.

In the first hearing, the HC judge had asked the man's counsel to look into the merits of the case himself and also consider whether the SC judgment can apply here, given the difference in the gender of the alimony seeker.

A similar case was filed by a Tamil Nadu resident Kalaiselvan who had sought a whopping Rs 25 lakh from his ex-wife, a news story that flashes on many websites catering to aggrieved husbands. But the judgment on the case is awaited.

On Tuesday, the HC posted the Mahbubnagar man's alimony petition case for its next hearing on July 30. Clearly, an unusual gender test for the AP High Court.

Rich wives pay alimony to hubbies to end marriage asap

noreply@blogger.com (Unknown) — Wed, 20 Apr 2016 17:12:00 -0700

In recent divorce cases, courts, deviating from the norm, have been denying maintenance to the wife if she is capable of earning or was earning in the past. There are also cases of the wife being asked to pay maintenance to the husband.

The husband paying maintenance to the wife is the textbook model for divorce proceedings. However, in a recently developed trend, the courts have been denying maintenance to the wife if she is capable of earning or was earning in the past. There have also been cases where the court, instead of going the conventional way, has told the wife to pay maintenance to the husband. Even the wives, in a hurry to end the marriage as soon as possible, are opting for out-of-court settlements and paying the husbands a permanent alimony.

Maintenance Plea by the wife rejected

In a recent judgement, a trial court in Delhi denied the plea of a woman seeking maintenance from her husband. It was reported that the trial court dismissed the woman's plea seeking residential maintenance from her estranged husband, and observed that no financial assistance can be provided to a woman if she earns as much as her husband. Anuradha Shukla Bharadwaj, additional sessions judge, observed, "In the era of gender equality, bias cannot be shown to one gender and discretionary relief of financial assistance cannot be granted to wives despite their capability to earn as much as their husbands."

The court, reportedly, said that rental maintenance would have been awarded to the wife had she proved that she was incapable of arranging an accommodation for herself. However, in this case, she was living with her mother.

Although uncommon, it is not the first time that a court has denied maintenance to the wife. There have been several cases where the court has supported the husband and denied the wife's plea for maintenance. Advocate Samama Suhail shares a similar case, "The husband was an NRI from the UK and the wife was working with a multinational bank here in Delhi, and she was drawing a salary of `60,000-70,000. They had a troubled marriage so the wife filed for divorce. She asked for maintenance under Section 125 of the Code of Criminal Procedure, 1973, from her husband, stating that he was quite rich. However, her plea for maintenance was rejected and the court ruled that since she was earning well, she didn't need her husband's money to survive, despite the fact that he was quite well-off."

According to advocate Osama Suhail, "A trend has developed recently wherein the court is denying maintenance to the wife if she has capability, capacity and past employment." Citing a case, he says, "There was a case in which the wife was a dentist by profession and used to be employed. However, at the time of divorce, she wasn't working and asked for maintenance from her husband. But the court denied her maintenance because, in this case, she had the capability and capacity, and was working in the past. So, she could work again to support herself."

Family resource cake

According to advocate Prabhjit Jauhar, it is not necessary that either of the party has to pay maintenance to the other in divorce cases. Says Jauhar, "In 2004, Justice Vikramjeet Sen of the Delhi High Court (as he then was) worked out a formula involving a 'family resource cake' in order to provide maintenance to even working wives. Justice Sen, in the said judgment, combined the income of both the spouses, calling it the 'family resource cake.' Half of the 'cake' was allocated to the husband to meet his expenses, and the other half to the wife and children, for their maintenance. This method has been widely followed by other courts in Delhi when awarding maintenance to either spouse."

Maintenance in favour of the husband

Although in most cases, the wife is awarded maintenance to enjoy the same lifestyle as that of the husband, there are also instances where the reverse happens. Not only is the wife refused maintenance, in many cases, she is also asked to pay maintenance to the husband. Advocate Osama Suhail recalls a four-year-old case in Delhi where the court granted maintenance to the husband. He shares, "In this case, the Karkardooma Court granted maintenance in favour of the husband, who was suffering from a mental disorder, while the wife had a government job. The wife earned about `20,000, and the husband was granted a maintenance of `2,000." He adds, "I have seen many applications in which the husband has asked for maintenance but has been dismissed by courts, despite the fact that he was entitled to it, as the court followed the principle that the husband is supposed to be the breadwinner of the family. Although Section 24 of the Hindu Marriage Act (HMA) is written in a very gender neutral manner, its interpretation is broadly in favour of women, and thereby discriminatory."

There was another case in which a court passed a judgment supporting the plea of a husband who, under Section 24 of the HMA, wanted maintenance from his wife. The trial court directed the wife to pay the husband `20,000 per month as maintenance, `10,000 as litigation expenses and also to provide a car for him. This judgment was later challenged in the High Court by the wife, but the HC also supported the judgment of the trial court. The wife was running a paying guest facility while the husband was unemployed.

Wives pay out-of-court settlement

Advocate Shilpi Jain says she has seen only two cases in her twenty-five-year career where the husband got the 'permanent alimony' in an out-of-court settlement. She says, "In both the cases, the wife was in a hurry to move out of the marriage. She agreed to the amount demanded by the husband so that he could have no future claim on her. In one of the cases, which is still being considered for mutual consent, the wife and the husband are trying for an out-of-court settlement. They both have dual citizenship and were in the US. They came to India a few months back. As the wife is earning more, she is ready to pay `60-70 lakh as permanent alimony in an out-of-court settlement. The husband, however, wants more and they are still trying to reach a consensus. The wife has returned to the US and is in a hurry to end the marriage. According to the husband, she is in a relationship and wants to get rid of him and move on in life."

In another case, a well-to-do woman who wanted to opt out of her marriage gave away her property and some cash to the husband, to get 'rid' of him. This was also an out-of-court settlement. Jain recalls, "In both the cases, the women were in a hurry to get out of the relationship. They were rich and ready to pay the husbands to end the marriage as soon as possible. In this case, which was about four years ago, the woman gave the man her house, which was worth `1.25 crore at that time, along with some cash."

The law which allows the husband to seek maintenance from his wife

According to advocate Prabhjit Jauhar, husbands can only seek maintenance under Section 24 of the Hindu Marriage Act. "Section 24 of the Hindu Marriage Act, 1955, provides that the court, in case of either the wife or the husband having no independent income sufficient for her or his support, may, on the application of either of the spouses, order to pay to the petitioner the expenses of the proceedings and monthly expenses during the proceedings such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable. So, under this section, even the husband can file an application claiming maintenance pendent elite in the pending divorce case. But the only pre-requisite is that he should not have sufficient income to maintain and support self in consonance with the lifestyle and income of the wife. Assuming the wife is earning much more than the husband, the husband only in that eventuality shall have the locus to file for maintenance."

Need material evidence to prove dowry demand - SUPREME COURT OF INDIA

noreply@blogger.com (Unknown) — Wed, 20 Apr 2016 17:10:00 -0700

SUPREME COURT OF INDIA

Bench: A Pasayat, P Sathasivam CASE

NO.:

Appeal (crl.) 222 of 2008

PETITIONER:

Ran Singh and Anr.

RESPONDENT:

State of Haryana and Anr. DATE OF JUDGMENT: 30/01/2008 BENCH:

Dr. ARIJIT PASAYAT & P. SATHASIVAM JUDGMENT:

J U D G M E N T

( Arising out of SLP (Crl.) No.3089 of 2006) Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the order passed by a learned Single Judge of the Punjab and Haryana High Court allowing the Revision Petition filed under Section 401 of the Code of Criminal Procedure, 1973 (in short the 'Code') which was filed before it by Kurra Ram since deceased and represented by his daughter i.e. respondent No.2 in the present appeal.

3. Background facts in a nutshell are as follows :

A complaint was filed by the aforesaid Kurra Ram alleging commission of offences punishable under Sections 498- A, 406, 323, 506, 148 and 149 of the Indian Penal Code, 1860 (in short the 'IPC') by Jaswant-son in law and husband of his daughter-Saroj, Ran Singh and Raj Bala, the present appellants who were father and mother of Jaswant and two others namely, Jai Singh and Suman, the brother and married sister of Jaswant.

It was stated in the complaint that Saroj got married to Jaswant on 14.4.1994 and that she was harassed for dowry by the aforesaid accused persons. Learned Additional Chief Judicial Magistrate, Hissar, after recording preliminary evidence of the complainant, decided to proceed against all the accused persons for the alleged offences. Separate Revision Petitions were filed by Jai Singh, Ran Singh and Suman taking the stand that there is no offence made out so far as they are concerned. Learned Additional Sessions Judge found that no case was made out against aforesaid accused persons and directed that proceedings would continue only against Jaswant. The order dated 4.11.2003 disposing of the revisions in the aforesaid manner was challenged by Kurra Ram in the Revision Petition before the High Court. It was held by High Court that there is no ground to proceed against Jai Singh and Suman who may just be living in the house, but may not be interfering in matrimonial problems of Saroj and Jaswant. Therefore, the order of the Additional Sessions Judge was upheld to that extent. But so far as the present appellants are concerned the High Court inter alia observed as follows:

"However, when articles of dowry are handed over to elder members in the family that will mean that those were handed over to Ran Singh and Raj Bala i.e. father and mother of the husband who could misappropriate. It is they who can practice cruelty for less dowry or otherwise."

( Underlined for emphasis )

The High Court noted that police had earlier registered a case and had sent cancellation report and thereafter the complaint was filed by Kurra Ram who appeared as PW-1, as his son Rajesh appeared as PW-2 and Saroj as PW-3.

4. Learned counsel for the appellants submitted that the High Court failed to notice that some customary articles were given to relatives of the bridegroom. That cannot be covered by the expression 'dowry'. High Court noticed the fact that the complainant tried to rope even a married sister who was living far away and the brother, which shows the tendency to falsely implicate them. Reference is also made to the following observations of the High Court:

"..They are close relatives but the fact remains that an effort is made by the complainant to implicate as many persons as possible, in such matters."

5. Learned counsel for the respondent-State and the complainant submitted that it is not a case where the Additional Sessions Judge should have interfered and the High Court has therefore rightly set aside the order dated 4.11.2003 which was impugned before it.

6. Section 2 of the Dowry Prohibition Act, 1961 (in short 'Dowry Act') defines "dowry" as under:Section 2. Definition of 'dowry' In this Act, 'dowry' means any property or valuable security given or agreed to be given either directly or indirectly

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person,

at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mehr in the case of persons to whom the Muslim personal law (Shariat) applies.

Explanation I- For the removal of doubts, it is hereby declared that any presents made at the time of a marriage to either party to the marriage in the form of cash, ornaments, clothes or other articles, shall not be deemed to be dowry within the meaning of this section, unless they are made as consideration for the marriage of the said parties.

Explanation II- The expression 'valuable security' has the same meaning in Section 30 of the Indian Penal Code

(45 of 1860)."

7. The word "dowry" is defined in Section 2 of the Dowry Act. Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third "at any time" after the marriage. The third occasion may appear to be unending period. But the crucial words are "in connection with the marriage of the said parties". Other payments which are customary payments e.g. given at the time of birth of a child or other ceremonies as are prevalent in different societies are not covered by the expression "dowry". (See Satvir Singh v. State of Punja b (2001 (8) SCC 633)) .

8. The High Court has fallen in grave error while observing that present appellants "could misappropriate" and "who can practice cruelty". The conclusions to say the least are presumptuous. Learned Additional Sessions Judge by a well reasoned order had held that there was no material to show that demand for any dowry was made and an attempt was made to rope in many persons. When the High Court was interfering with such conclusions arrived at on facts it ought to have indicated the reasons necessitating such interference. That has not been done and on the contrary on presumptuous conclusions the order of learned Additional Sessions Judge has been set aside.

9. Reasons introduce clarity in an order. On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever brief, in its order indicative of an application of its mind. The absence of reasons has rendered the High Court's judgment not sustainable.

10. Even in respect of administrative orders Lord Denning M.R. in Breen v. Amalgamated Engineering Union (1971 (1) All E.R. 1148) observed "The giving of reasons is one of the fundamentals of good administration". In Alexander Machinery (Dudley) Ltd. v. Crabtree (1974 LCR 120) it was observed: "Failure to give reasons amounts to denial of justice". Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at". Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The "inscrutable face of a sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance.

11. It is to be noted that the High Court itself has held that there was an attempt to rope in many persons and it did not find any merit or challenge to the discharge of the married sister and the brother.

12. Above being the position, the impugned order of the High Court cannot be maintained and is set aside. We make it clear that we have not expressed any opinion on merits so far as husband Jaswant is concerned.

13. The appeal is allowed to the aforesaid extent.

DVA only against who are in domestic relationship

noreply@blogger.com (Unknown) — Wed, 20 Apr 2016 17:09:00 -0700

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: September 20, 2010

Date of Order: 4th October, 2010

+ Crl.M.C.No. 4246/2009

% 04.10.2010 Razia Begum ... Petitioner Through: Mr. Ajay M. Lal, Advocate

Versus

State, NCT of Delhi & Ors. ... Respondents Through: Mr. Sunil Sharma, APP for the State

Mr. S.D.Ansari, Advocate for the respondents

Crl.M.C.No. 4375/2009

% 04.10.2010 Abdul Rub & Ors. ... Petitioners Through: Mr. S.D.Ansari, Advocate

Versus

Razia Begum ... Respondent Through: Mr. Ajay M. Lal, Advocate

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment?

2. To be referred to the reporter or not?

3. Whether judgment should be reported in Digest?

JUDGMENT

These two petitions have been filed assailing order dated 29th October, 2009 passed by the learned Additional

Session Judge. One petition has been filed by the Smt. Razia Begum widow of the deceased Abdul Rauf and

other has been filed by her father-in-law, brothers-in-law and others who were made respondents in the

application under Section 22 of Protection of Women from Domestic Violence Act, 2005 (in short Domestic

Violence Act) by Razia Begum. Crl.MC-4246/09 & 4375/09 Page 1 of 5

2. In her application under Domestic Violence Act, Razia Begum had made 11 respondents and she specified

her relations with respondents as under:

2. That the complainant/aggrieved person married to one Abdul Rauf on 1.10.1995 who was the son of

respondents no. 3, 7 & 9 and brother of respondents no. 1, 2, 4, 5, 8, 10 & 11 and dewar (brother-in-law) of

respondent no.6. That the marriage between the complainant/aggrieved person with the aforesaid late Abdul

Rauf was duly performed and solemnized on 1.10.1995 in accordance with all essential Muslim/Islamic

customs rites and ceremonies, and law at Delhi. However, unfortunately the husband of

complainant/aggrieved person had expired on 2.9.2006.

x x x x x

Razia Begum vs State Nct Of Delhi & Ors. on 4 October, 2010

Indian Kanoon - http://indiankanoon.org/doc/1404656/ 14. That respondent no.1 and respondent no.8 are the jeth of the complaint/aggrieved person respondent no.2 is

the father-in-law, respondents no. 3 & 4 are dewars,

respondents no. 5 & 9 are mothers-in-law, respondent no.6 is the jethani of the complainant, respondent no. 7,

10 & 11 are nands (sisters-in-law).

3. The order of learned MM passed under Section 22 of Domestic Violence Act shows that the order was

passed against five male respondents and all woman respondents seem to have been dropped. The five

respondents against whom order has been passed are Abdul Rab, Abdul Samad, Abdul Khaliq, Kasim and

Abdul Wahab. While first four respondents have been shown as residents of H.No. 450 Chawri Bazar, Chittla

Gate, Jama Masjid but the fifth respondent i.e. Abdul Wahab has been shown as resident of H.No. 1456, Kala

Mehal, Khirki, Jama Masjid, Delhi. Vide her order, the learned MM directed payment of maintenance of `

10,000/- p.m. to the wife from the date of filing of petition and also held that widow was entitled to stay/reside

at the second floor of the joint household and could be evicted only after due process of law. However, order

of learned MM did not specify which of the respondents was liable to pay what amount and why

4. In appeal before the learned Additional Sessions Judge, the relatives of widow did not assail the order

regarding residence given to the widow and stated that she was already living there and they have filed civil

suit in this respect but Crl.MC-4246/09 & 4375/09 Page 2 of 5 assailed the order for granting maintenance.

The learned Session Judge in appeal reduced the maintenance from ` 10,000/- to ` 6,000/- vide his order dated

29th October, 2009 both the parties are before the Court.

5. Neither the order of learned MM nor the order passed by learned Additional Sessions judge specify as to

which of the respondent out of the five would be liable to make the payment and why. The learned MM has

only discussed the broad allegations and counter allegations but her order is conspicuously silent as to who

were in the domestic relationship with the widow and who out of the five persons had deprived the widow of

financial resources, if any, and who was liable to pay maintenance. Same is true in respect of the order passed

by learned Additional Session Judge. The order of learned Additional Sessions Judge is equally silent as to

who would be liable to pay the maintenance.

6. It has to be noticed that although Domestic Violence Act is not a penal law but it is a peculiar Act where

non-compliance of the order passed under the Act has been made as an offence under Section 31 of the Act

and an FIR can be registered against the person who does not comply with the order and this offence is triable

by the same Magistrate who passed the interim order for protection or maintenance. In view of this provision

under Section 31, it becomes incumbent and responsibility of the Magistrate to be careful in passing order and

to specify as to whether there was domestic relationship between the aggrieved person and the respondent and

who was the person responsible for compliance of the order.

7. Under Domestic Violence Act every relative of the husband cannot be made as a respondent. Only those

persons can be made respondents, who satisfy the definition of Section 2(q) which reads as under:

"respondent" means any adult male person who is, or has been, in a domestic relationship with the aggrieved

person and against whom the aggrieved person has sought any relief under this Act: Crl.MC-4246/09 &

4375/09 Page 3 of 5 Provided that an aggrieved wife or female living in a relationship in the nature of a

marriage may also file a complaint against a relative of the husband or the male partner.

8. Thus, in order to fix liability upon a respondent the respondent must be a person who is or has been in

domestic relationship with the aggrieved person. Domestic relationship is defined in Section 2(f) of the Act

which reads as under: "domestic relationship' means a relationship between two persons who live or have, at

any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or

through a relationship in the nature of marriage, adoption or are family members living together as a joint

family."

Razia Begum vs State Nct Of Delhi & Ors. on 4 October, 2010

Indian Kanoon - http://indiankanoon.org/doc/1404656/ 2Thus, it is apparent from above definition that in order to constitute domestic relationship there must have

been living together in a shared household and there must be relationship as specified in Section 2(f).

9. The entire complaint of the complainant/Razia Begum does not show that she was in domestic relationship

with each of the respondents nor the orders of the learned MM or Sessions Judge show that why the order has

been passed against all male relatives named by the complainant in her complaint, without coming to a

conclusion whether any domestic relationship existed between the aggrieved person and the respondents.

10. One of the respondents against whom order has been passed is Abdul Wahab. He has not lived even in the

house where aggrieved person Razia was living. The learned MM and learned Sessions Judge passed

maintenance order against him also. The parentage of respondent Kasim has not been given in the complaint.

The complaint also shows that even cousin (brother) of the husband has been made a respondent. It is

expected from the trial Court that before passing an order under Domestic Violence Act, it must be satisfied

that there existed a domestic relationship between the petitioner and the respondent. It is also incumbent upon

the Court to specify as to which of the respondents would be liable to make the payment of interim

maintenance and why, keeping in view the provisions of the Act and the Crl.MC-4246/09 & 4375/09 Page 4

of 5 decision of this Court in Crl. M.C. No.3878/2009 Vijay Verma v. State NCT of Delhi & Anr.

[MANU/DE/1946/2010] decided on 13th August, 2010 and Crl. Rev. P. No. 253/2010 Harbans Lal Malik v.

Payal Malik [MANU/DE/1842/2010] decided on 29th July, 2010

11. The trial Court and the Sessions Judge passed interim orders without satisfying themselves of basic

requirement of domestic violence act that the order can be passed only against the 'respondents' who had been

in 'domestic relationship' with the 'aggrieved person'. The order passed by the learned MM and the learned

Sessions Judge are hereby set aside the matter is remanded back to learned MM to pass order in accordance

with law and in accordance with judgments given in Crl. M.C. No.3878/2009 Vijay Verma v. State NCT of

Delhi & Anr. and Crl. Rev. P. No. 253/2010 Harbans Lal Malik v. Payal Malik.

12. However, till the order is passed by the learned MM afresh, Razia Begum shall not be dispossessed from

the portion of house in her occupation and petitioner Abdul Rub and Abdul Khaliq till then shall jointly pay a

sum of `5,000/- p.m. as maintenance to Razia Begum from the date of application. Both the petitions stand

disposed of.

October 04, 2010 SHIV NARAYAN DHINGRA, J. vn

Crl.MC-4246/09 & 4375/09 Page 5 of 5

Razia Begum vs State Nct Of Delhi & Ors. on 4 October, 2010

Indian Kanoon - http://indiankanoon.org/doc/1404656/ 3

Justice Dhingra Explains The Meaning Of Shared Household

noreply@blogger.com (Unknown) — Wed, 20 Apr 2016 17:07:00 -0700

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: September 05, 2008

Date of Order : September 30, 2008

CM(M) 105/2006

30.09.2008

Neetu Mittal ...Petitioner Through: Ms. Radhika Chandrasekhar, Adv.

Versus

Kanta Mittal and Ors. ...Respondents

Through: Ms. Nandni Sahni, Adv. for R.1 and 2

Mr. Devendra Singh, Adv. for R.3

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment? Yes.

2. To be referred to the reporter or not? Yes.

3. Whether judgment should be reported in Digest? Yes.

JUDGMENT:

1. The petitioner is aggrieved by an order dated 4th January, 2006 passed by the learned Additional Senior Judge allowing an appeal of the respondent against order dated 24.5.2005 of Civil Judge dismissing an application under Order 39 Rule 1 and 2 CPC.

3. The learned Senior Civil Judge while allowing appeal observed that wife has a right to live in the matrimonial home after marriage but there was no specific definition of matrimonial home. However, matrimonial home was not just a building made of bricks and walls. It was a home/place comprising of sweetness of relations of family members and elders, full of blessing. In the matrimonial home, matrimonial rights and obligations are to be equally observed. Practically speaking, the residence of husband should be the home of the wife where both the spouses have equal right to reside.

4. The learned Senior Civil Jude found that in this case, the respondents were parents of Sh. Vikas Mittal and in-laws of Neetu Mittal (petitioner). They had separated from their son. The son had taken a flat in Rohini for his own residence and residence of his wife. The son and his wife had agreed to shift there on 10th May, 2005 under a compromise arrived at Police Station. However, the wife did not stay in the flat at Rohini. Her grievance was that flat was not habitable due to deficiency of fan, cooler, etc. Thereafter, she asserted that she had a right to live in her in-laws' house in Ashok Vihar and she wanted to forcibly live there which compelled respondents no. 1 and 2 to file the suit. The learned Senior Civil Judge found that the respondents were aged parents. They had shown by filing medical record that they were suffering from various ailments and at this age of their life they have a right to live peacefully at their home. Since the relations of petitioner were not cordial with them, there was every likelihood of breach of peace to the detriment to their mental and physical health. Due regards have to be given to their rights. It was a admitted fact that the respondents and petitioner could not live together under one roof with peace and harmony. The common use of dining and one kitchen would create further problems and a situation may come when parties may everyday land up at Police station or in the Court, fighting on minor issues.

5. Learned Sr. Civil Judge also observed that the respondents(parents) even apprehend danger to their lives and dignity, as per the complaint made by them to the Police. Under these circumstances, the learned Senior Civil Judge allowed the application under Order 39 Rule 1 and 2 CPC and restrained the defendants (petitioner herein) from forcibly entering into their house and disturbing the peaceful possession of the respondents.

6. Counsel for the petitioner argued that the petitioner being wife of son of respondents no. 1 and 2 has a right to live in the matrimonial home and no injunction could legally have been issued by the learned Civil Judge. She referred to Protection of Women from Domestic Violence Act, 2005 and argued that the right of women to live in the shared household was to be protected by every Court and the house of in-laws was a shared household and a matrimonial home and she had a right to live there.

7. In S.R. Batra vs. Taruna Batra AIR 2007 SC 1118, Supreme Court observed as under:

10. I therefore consider that the order passed by the learned Senior Civil Jude granting injunction does not suffer from any illegality and the petition is hereby dismissed.

September 30, 2008

SHIV NARAYAN DHINGRA J.

Defamation Law, Defamation Lawyers

noreply@blogger.com (Unknown) — Wed, 20 Apr 2016 17:04:00 -0700

1St Case

2nd Case

1 of 8

Case u/s 211 of I.P.C.: 211. False charge of offence made with intent to injure

3rd Case

471. Using as genuine a forged document

4th Case

Case under section 340 Cr.P.C: Wrongful confinement

*********** Explanation of the above IPC Sections********

192. Fabricating false evidence

Illustrations

(a) A, puts jewels into a box belonging to Z, with the intention that they may be found in that box, and that this circumstance may cause Z to be convicted of theft. A has fabricated false evidence.

(b) A makes a false entry in his shop-book for the purpose of using it as corroborative evidence in a Court of Justice. A has fabricated false evidence.

193. Punishment for false evidence

Explanation 1- A trial before a Court-martial; 101[***] is a judicial proceeding.

Illustration

195. Giving or fabricating false evidence with intent to procure conviction of offence punishable with imprisonment for life or imprisonment

Illustration

196. Using evidence known to be false

197. Issuing or signing false certificate

3 of 8

198. Using as true a certificate known to be false

199. False statement made in declaration which is by law receivable as evidence

209. Dishonestly making false claim in Court

Case u/s 211 of I.P.C.: 211. False charge of offence made with intent to injure

211. False charge of offence made with intent to injure

Separate case : Charging 120 B of I.P.C.,463, 464, 465, 466, 468, 469, 471 r/w 34 of I.P.C. : 120B. Punishment of criminal conspiracy, 463. Forgery, 464. Making a false document, 463. Forgery, 464. Making a false document, 465. Punishment for forgery, 466. Forgery of record of court or of public register, etc, 468. Forgery for purpose of cheating, 469. Forgery for purpose of harming reputation,

471. Using as genuine a forged document

120A. Definition of criminal conspiracy

When two or more persons agree to do, or cause to be done,-

4 of 8

(1) an illegal act, or

(2) an act which is not illegal by illegal means, such an agreement is designated a criminal

conspiracy:

Explanation- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.]

32[120B. Punishment of criminal conspiracy

(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death?

463. Forgery

464. Making a false document

A person is said to make a false document-

Illustrations

5 of 8

(f) Z's will contains the these words-"I direct that all my remaining property be equally divided between , B and C" A dishonestly scratches out B's name, intending that it may be believed that the whole was left to himself and C. A has committed forgery.

(i) Z dictates his will to A. A intentionally writes down a different legatee from the legatee named

by Z, and by representing to Z that he has prepared the will according to his instructions, induces Z to sign the will. A has committed forgery.

6 of 8

Explanation 1- A man's signature of his own name may amount to forgery.

Illustrations

Illustration

A draws a bill of exchange upon a fictitious person, and fraudulently accepts the bill in the name of such fictitious person with intent to negotiate it. A commits forgery.

465. Punishment for forgery

Whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

466. Forgery of record of court or of public register, etc

7 of 8

468. Forgery for purpose of cheating

469. Forgery for purpose of harming reputation

470. Forged document

A false document made wholly or in part by forgery is designated "a forged document".

471. Using as genuine a forged document

Whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document.

Case under section 340 Cr.P.C: Wrongful confinement

340. Wrongful confinement

Whoever wrongfully restrains any person in such a manner as to prevent that person from proceedings beyond certain circumscribing limits, is said "wrongfully to confine" that person.

Illustrations

Happy fighting!, Give to them, right back...........

Unemployed man can't be forced to pay alimony: HC - Judgment

noreply@blogger.com (Unknown) — Wed, 20 Apr 2016 17:03:00 -0700

Crl.M.C.No. 491/2009 Sanjay Bhardwaj & Ors. v. The State & Anr.

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: 9th August, 2010

Date of Order: 27th August, 2010

+Crl.M.C.No. 491/2009

27.08.2010

Sanjay Bhardwaj & Ors. ... Petitioner

Through: Dr. Naipal Singh, Advocate

Versus

The State & Anr. ... Respondents

Through: Mr. O.P.Saxena, APP for the State

With Mr. Gajraj Singh, SI

Mr. K.C.Jain, Adv. for the Complainant/Wife

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment? Yes.

2. To be referred to the reporter or not? Yes.

3. Whether judgment should be reported in Digest? Yes.

JUDGMENT

husband has to maintain a wife, living separately from him, irrespective of the fact whether he earns or not. Court cannot tell the husband that he should beg, borrow or steal but give maintenance to the wife, more so when the husband and wife are almost equally qualified and almost equally capable of earning and both of them claimed to be gainfully employed before marriage. If the husband was BSc. and Masters in Marketing Management from Pondicherry University, the wife was MA (English) & MBA. If the husband was working as a Manager abroad, the wife with MBA degree was also working in an MNC in India. Under these circumstances, fixing of maintenance by the Court without there being even a prima facie proof of the husband being employed in India and with clear proof of the fact that the passport of the husband was seized, he was not permitted to leave country, (the bail was given with a condition that he shall keep visiting Investigating Officer as and when called) is contrary to law and not warranted under provisions of Domestic Violence Act.

5. We are living in an era of equality of s*xes. The Constitution provides equal treatment to be given irrespective of s*x, caste and creed. An unemployed husband, who is holding an MBA degree, cannot be treated differently to an unemployed wife, who is also holding an MBA degree. Since both are on equal footing one cannot be asked to maintain other unless one is employed and other is not employed. As far as dependency on parents is concerned, I consider that once a person is grown up, educated he cannot be asked to beg and borrow from the parents and maintain wife. The parents had done their duty of educating them and now they cannot be burdened to maintain husband and wife as both are grown up and must take care of themselves.

Violence Act. The petition is allowed. The orders passed by Metropolitan Magistrate and learned Additional Sessions Judge are hereby set aside.

August 27, 2010 SHIV NARAYAN DHINGRA, J.

Respondent mean any adult male person only - Important Judgment

noreply@blogger.com (Unknown) — Wed, 20 Apr 2016 17:03:00 -0700

Applicability of section 340 of CrPC, and 194 of IPC etc

noreply@blogger.com (Unknown) — Wed, 20 Apr 2016 16:57:00 -0700

BEFORE THE HON’BLE ……… AT……

. M.A. No. x/2012

Mrs. …………………… ---Applicant

V/S

Mr. ……………………… ---Opponent

APPLICATION FILED U/S 191 & 195 OF IPC. READ WITH 340, 250, 357 OF Cr. PC.

Application filed on behalf of Opponent is as under:

1. That the applicant has filed above mentioned application under ………….. of the Act.

2. …………………………………………………………………………………………………………………………

3. That this Opponent says that the applicant has deposed falsely from para x to XXX under affidivat .

4. As per Section 191 of IPC if someone being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false and which she either knows or believes to be false or does not believe to be true is said to give false evidence.

5. As per Section 195 of IPC if someone gives or fabricates false evidence intending thereby to cause ,or knowing it to be likely that he will thereby cause, any person to be convicted of an offence which by the law for the time being in force in India is not capital, but punishable with imprisonment for life ,or imprisonment for a term of seven years or upward, shall be punished as a person convicted of that offence would be liable to be punished. So the applicant be prosecuted, tried and penalized under section 340 of Cr. PC.

6. As the applicant has filed false complaint against the Opponent, Opponent has to secure his presence before Hon’ble Court on each and every date .He has to face false trial pass through great hardship under such circumstances the applicant has enjoyed all the proceedings and wasted the precious time of Hon’ble Court.

7. The Opponent further says that the applicant has harassed him by filing false application and evidences so she may be directed to pay the compensation as per Section 250 and 357 of Crpc to the Opponent.

It is therefore prayed that:

1. The applicant may kindly be prosecuted and tried and punished as per section 195 of IPC 340 of Cr. PC.

2. The applicant may kindly be directed to pay compensation of Rs XXXXXXXX to the Opponent

3. Any other just and equitable order in the interest of justice be kindly be passed

Place

Date: Opponent