How to get a divorce in India.

Divorce in India

 

This article explains all you need to know about getting a divorce in India.

 

Marriage as opposed to relations of blood, is one which we enter into by our own choice and not by virtue of our birth. Conceptually Marriage is both a Sacrament & a Contract.  It is a contract because it is based on offer and acceptance and is akin to an agreement to live together. Sacrament because of it’s religious ties.

As it is connected with the freedom of choice, sometimes we do make choices that do not turn out the way we would want them to be.

Divorce allows a person to break free from an onerous marital relationship. But since marriage is not merely a contract but a very important societal institution. The law has an interest in protecting marriage, and not allowing it to be severed only by choice and on ordinary wear and tear.  Since society in countries like ours takes special interest in protecting it – In our country to get a divorce one needs to prove certain grounds for eg : cruelty/adultery/desertion etc.  Known as matrimonial offences. (Crimes relating to marriage)

A happy marriage is a harbour in the tempest of life an unhappy marriage a tempest in the harbour of life, more and more people are realising the reality of their relationships, and accepting divorce as the rational choice to a better life necessary premised on better relationships. It is no more a taboo and especially so in urban cities.

 

Divorce by Mutual Consent is the easiest way to get a divorce, in this both parties work out their terms on which they agree to part ways- file petition in the court, which is finalised in 6 months. However there may be cases where the decision to part may not be a mutual one, and it is only one party who considers the union to be troublesome and worth getting rid off. Such situations lead to Divorce being contested.

 

Contested Divorce

In this regard we follow the fault based system of divorce. Divorce is granted only on proof of fault or guilty conduct of one party and innocence of the other. The most common ground for divorce is cruelty (Simply such conduct as to make it impossible for parties to live together – this includes mental or/and physical torture). Another common ground is adultery (sexual intercourse outside wedlock) one instance of lapse of virtue can lead to divorce.

Divorces are also common on grounds of desertion (simply wilful abandonment of one spouse by the other without reasonable cause/excuse). Apart from this Conversion of religion/Unsoundness of mind/Renunciation of world are also grounds for divorce.

 

As per the law as it stands our legal system does not allow divorce to be granted on the ground of irretrievable breakdown of marriage or irreconcilable differences.(Known as no fault grounds). Call it impractical & absurd. To get a divorce one has to prove wrongdoing on the part of other spouse, and impeccable conduct of one’s own in order to win. Which is impossible sometimes. Legislature has taken note of this pragmatic reality and a bill on the same topic is pending in the Parliament, which would allow a person to seek divorce on ground of inherent incompatibility leading to breakdown of relationship.

 

PROCEDURE OF GETTING A CONTESTED DIVORCE

  • Ascertain the ground on which you want to seek divorce.
  • Collect evidences.
  • Consult a seasoned divorce lawyer and file a petition in the Family Court of your district.

 

HOW DOES YOUR CASE PROCEED ? AND HOW MUCH TIME DOES IT TAKE ONCE IT IS FILED IN THE COURT 

 

Petition is filed in the court with all the relevant evidences/documents. Person filing the petition is called ‘the petitioner’ and erring spouse responding is ‘the respondent’. (Remember to annex all documents on you rely with the petition itself – Videos/Audio Recordings/Photos are documents within the meaning of evidence act, and admissible in evidence, your’s spouse emails/chats/facebook/twitter updates are also admissible to prove depravity/infidelity or whatever !

 

After you file the petition in the court – erring spouse is summoned, if he/she turns up and enters appearance the matter is bi-parte, if the erring spouse prefers not to contest or come to the court, the matter is proceeded ex parte (in absence) and divorce granted if the matter is worthy of the same.

 

  • In case of bi-parte – the court normally would before seeking a reply from your spouse of the allegations levelled by you – would refer the parties to a mediation or conciliation, so that issues can be resolved amicably this way or the other. Whether leading to a reconciliation (living together) or an amicable divorce.

 

  • If the above fails, the erring spouse/respondent would file a Written Statement to your petition with the necessary documents (Normal time for filing a WS is 30 days (Max : 90 Days). Following which one can file a replication to further elaborate and explain.

 

  • Once that is done the court would frame issues – issues are questions that are to be decided by court at the time of final hearing. For eg : in a Divorce on the ground of adultery – the issues would be “Whether the respondent had sexual intercourse with X during the subsistence of marriage with the petitioner” ? The answer to this question would decide the fate of divorce case. There may be more than one issue in case of multiple grounds. The entire divorce proceedings are premised at answering this question/issue.

 

  • After issues are framed – the court would ask petitioner to lead evidence, his own or/and his witnesses. This also is decided into three stages. First petitioner would lead his witness and examine him. Thereby putting the foundation of his case. (Called examination in chief) Thereafter the opposite party would cross examine the petitioner’s witness. (Called cross examination) Cross examination includes exposing the falsity of a witness’s deposition by putting leading questions, and contradicting the witness. Witness may either withstand the onslaught of questions – thereby retaining the confidence and reliance of the court, or he may stand discredited.

 

  • The Party calling the witness is further given an opportunity to fill the holes the opposite party’s advocate has busted into it and make the court believe in it’s witness.

 

The same process is repeated for each witness on either side. Once petitioner’s evidence is over, respondent leads his or her evidence. Please note petitioner/respondent/family members are all competent witnesses.

 

Once evidences are over. The Court would finally listen to arguments of either side on the case, and then proceed to decide the case.

 

On how the evidences are appreciated, to illustrate in a case based on cruelty the court would normally see whether on the totality of evidences led, is the conduct of respondent such as to make living together a practical impossibility ? Does it pose a great risk to physical or mental well being of the petitioner.

 

The Court’s formal order in the end is known as the ‘decree’. After this either party may appeal in the High Court and then finally the Supreme Court.

 

Normally the process in the Family Court would take anywhere between 2-3 years if contested vigorously. My experience has shown that parties normally lose patience somewhere in between and agree to part ways amicably. Because litigation does not really pay for anybody but the lawyers ! and that is the reason I advise my clients to go in for this only when the mutual option is unquestionably foreclosed.

 

*The Author is a Supreme Court advocate specialising in Divorce & Family Law and can be reached at bharat.law06@gmail.com or 9810553252

Geeta Mehrotra vs State – Supreme Court quashes 498a FIR on ground “Casual, wholesale reference to in-laws won’t justify dowry case”

Courtesy : The Hindu – Oct.23, 2012

Taking note of the increasing dowry-related complaints, the Supreme Court has held that a casual reference to the names of family members of the husband in the FIR filed by the wife without any allegation of their active involvement in the offence will not justify a case against them.

There is a tendency to involve the entire household in a matrimonial dispute, especially if it happens soon after the wedding. This has been borne out of experience, said a Bench of Justices T.S. Thakur and Gyan Sudha Misra

Writing the judgment, Justice Misra said: “If the FIR as it stands does not disclose the specific allegation against the accused, more so against the co-accused, specially in a matter arising out of matrimonial bickering, it would be clear abuse of the legal and judicial process to mechanically send the accused named in the FIR to undergo trial.” Only if the FIR disclosed specific allegations would the court be persuaded “to take cognisance of the offence alleged against the relatives of the main accused who are prima facie not found to have indulged in physical and mental torture of the complainant-wife.”

The Bench said: “It is a well-settled principle laid down in cases too numerous to mention that if the FIR did not disclose the commission of an offence, the court would be justified in quashing the proceedings, [thus] preventing the abuse of the process of law. Simultaneously, the courts are expected to adopt a cautious approach in matters of quashing specially in cases of matrimonial dispute whether the FIR in fact discloses commission of an offence by the relatives of the principal accused or the FIR prima facie discloses a case of over-implication by involving the entire family at the instance of the complainant, who is out to settle scores arising out of the teething problem or skirmish of domestic bickering while settling down in her new matrimonial surrounding.”

In the instant case, Shipra Mehrotra of Allahabad was married to Shyamji Mehrotra of Faridabad in Haryana in 2003. After few months, Shipra filed a complaint under the Dowry Prohibition Act and the Indian Penal Code against her husband, parents-in-law, sister-in-law Geeta Mehrotra and brother-in-law Ramji Mehrotra. Even as these proceedings were pending in an Allahabad trial court, Shipra got an ex parte decree for divorce.

Appellants Geeta and Ramji moved the Allahabad High Court for quashing the case against them contending that the trial court had no jurisdiction to entertain the complaint as the alleged dowry harassment happened in Faridabad. The High Court refused to quash the complaint. .

Allowing the appeal against this order, the Supreme Court said there was only a general allegation that Geeta and Ramji were also involved in physical and mental torture of the complainant without mention of even a single incident against them. Also, how they could be motivated to demand dowry when they were only related as brother and sister of the complainant’s husband? The Bench set aside the criminal proceedings against the two appellants and “consequently the order passed by the High Court shall stand overruled.”

 

Some Judgments on transit bail – anticipatory bail by court in whose jurisdiction arrest is apprehended.

S.no Citation Relevant Excerpts Page N1.
Pritam Singh v. State of Punjab – 1980 CriLJ 1174 (Delhi High Court)

 

“(4) The objection taken to my mind is entirely misconceived. The petitioner is a permanent resident of Delhi and is carrying on his business at this place. According to the First Information Report, the agreement for printing and publishing the book ‘Sachi Sakhi’ was entered into at Delhi between the complainant and the petitioner. The petitioner is apprehending arrest at Delhi, prima fade, therefore. this Court has jurisdiction to grant him not only interim bail but to confirm the same within the purview of Section 438 of the Code of Criminal Procedure. Their Lordships of the Supreme Court in a case reported in Shri Gurbuksh Singh Sibbia and others v. State of Punjab, . have laid down the principles for invoking the

jurisdiction of the High Courts to grant anticipatory bail under section 438 of the Code of Criminal Procedure. In this decision no fetter like the one being sought by Mr. Sodhi can be read….”

2.
Capt.Satish Sharma v. Delhi Administration (Delhi High Court – Division Bench) 1991 CrLJ 950/ ILR 1990 Delhi 203.

 

“15. A similar question arose before this Court in Pritam Singh v. State of Punjab, (1981) 19 Delhi LT 300 : (1981 Cri LJ (NOC) 159) where a cognizable offence was alleged to have been committed in the State of Punjab whereas the anticipatory bail was applied for before the Delhi High Court as the accused had reasonable apprehension of arrest in Delhi. In that context this Court observed that there is nothing in S. 438 which restricts the jurisdiction of the High Court or the Court of Session. One need not mix up the jurisdiction relating to cognizance of an offence with that of granting of bails. Bails are against arrest and detention. Therefore, an appropriate Court within whose jurisdiction the arrest takes place or is apprehended or is contemplated will also have jurisdiction to grant bail to the person concerned. If the Court of session or the High Court has the jurisdiction to grant interim bail, then the power to grant full anticipatory bail will emanate from the same jurisdiction. Con-current jurisdiction in courts situated in different States is not outside the scope of the Cr.P.C. It is not possible to divide the jurisdiction under S. 438, Cr.P.C. into an ad interim and complete, but it is permissible if it is so expedient or desirable, for any of the courts competent to take cognizance of and to try an offence and the courts competent to grant bails or grant anticipatory bail for a specified period only, and thereby this Court rejected the contention of the State of Punjab with regard to jurisdiction of the High Court of Delhi for the grant of anticipatory bail in respect of cognizable offence alleged to have been committed in the State of Punjab. Consequently, the petition for anticipatory bail was allowed finally and not as an interim measure”

***

“20. In the light of what is discussed above, the consensus view of various High Courts that emerges is that the High Court or Court of Session within whose territorial jurisdiction the person has a reasonable apprehension that he would be arrested shall have concurrent jurisdiction to grant anticipatory bail. We agree and endorse this consensus view and more particularly the view expressed by our High Court in Pritam Singh’s case (1981 Cri LJ (NOC) 159) (Delhi) (supra). With respect, we find ourselves unable to agree with the view expressed by the Patna High Court”

***

22. A bare perusal of the Section reveals that no restriction for grant of anticipatory bail have been imposed in S. 438(1) for exercise of jurisdiction by that High Court or Court of Sessions within whose territorial jurisdiction a person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence. On the order hand, such High Court of Session has been conferred jurisdiction to exercise such power. It is no doubt true that the High Court or the Court of Session within whose territorial jurisdiction the offence has been committed and within whose jurisdiction the offence ordinarily be enquired into and tried by a Court shall also have the jurisdiction to grant anticipatory bail. But this does not take away the jurisdiction of the High Court or Court of Session to grant anticipatory bail where a person has reason to believe that he would be arrested in connection with non-bailable offence. S. 438(1) is wide enough to confer jurisdiction not only to the High Court or the Court of Session within whose territorial jurisdiction the offence has been committed and is to be enquired into and tried but also the High Court or the Court of Session where a person has reason to believe that he may be arrested in connection with the commission of non-bailable offence. By taking away the jurisdiction from the High Court or the Court of Session for the grant of anticipatory bail within its territorial jurisdiction respect of a person who may be arrested in connection with non-bailable offence would be reading certain words in the section which are not to be found therein. At the cost of repetition no restriction whatsoever has been placed for exercise of power by the High Court or the court of Session for the grant of anticipatory bail within whose territorial jurisdiction if a person has reason to believe that he may be arrested in connection with non-bailable offence. The purpose for which this beneficial provision of anticipatory bail was introduced in the Code of Criminal Procedure, 1973 has been referred to by the Supreme Court in, para 8 of Gurbaksh Singh Sibbia v. State of Punjab, of that judgment is reproduced…

 
Kailashpati Kedia v. State Of Maharashtra And Ors. 

1996 (0) MPLJ 847 – Madhya Pradesh High Court

“19. The High Courts of Rajasthan, Kerala, Delhi, Bombay, Calcutta and Karnataka have taken a view that the anticipatory bail can be granted in a case registered beyond the jurisdiction of the Court concerned. However, the High Courts at Jammu & Kashmir, Punjab & Haryana and Patna have taken a contra view.  20. We are inclined to accept the view taken by majority of High Courts.  21. We would, therefore, answer the reference in the affirmative and hold that anticipatory bail can be granted even in cases where the offence has been registered at a place beyond the jurisdiction of the High Court but within the territory of India.”  
Feroze Varun Gandhi v. State NCT of Delhi & Anr.

Delhi High Court BAIL APPLN. 547/2009

“The counsel for the petitioner also states that he relies upon the judgment of the Division Bench of this Court rendered in Satish Kumar Sharma vs. Delhi
Administration and Ors. 1991 Crl. Law Journal 950.
Notice. Mr. Manoj Ohri, the learned Additional Public Prosecutor accepts notice on behalf of the State/respondent No.1 and raises objection to the maintainability of the application.  Notice shall now issue to the State of Uttar Pradesh/respondent No.2 through the Resident Commissioner, Uttar Pradesh, returnable for 27th March, 2009 at 2.15 p.m. Till then, in the event of arrest of the petitioner, the
petitioner shall be admitted to interim anticipatory bail on his furnishing
personal bond in the sum of Rs.50,000/- with one surety in the like amount to the satisfaction of the arresting authority. A copy of this order be given dasti to the counsel for the petitioner under the signatures of the Court Master, as prayed.

REVA KHETRAPAL,J
MARCH 20, 2009
km
I-67”

 

 

Good Luck !

 

Bharat Chugh

Advocate Supreme Court of India

Discharge in 498a/406 cases – format for discharge/quash application

This is how your discharge application should be framed. alongwith the necessary law on the subject.  This may be equally useful when seeking a quashing as well.

Here is a specimen 

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

  1. 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 followingdefinition 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.

  1. 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.
  1. 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
  1. 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???

  1. 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

  1. 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”

  1. 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 thatWhere 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”.
  1. 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.
  2. 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 .
  3. 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 inImtiaz 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” inBenumadhab 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

 

 

Judgments where Maintenance denied to wife.

THESE ARE A LIST OF JUDGMENTS THAT HOLD A WIFE WHO WILFULLY DESERTS HER HUSBAND IS NOT ENTITLED TO MAINTENANCE.

 

a)   Harjeet Kaur vs Bhupinder Singh on 30/4/2007
Himachal Pradesh High Court

ORDER

Kuldip Singh, J.

1. The wife has filed this appeal against the judgment and decree dated 1-5-2000 passed the learned District Judge, Shimla in H.M.A.C. No. 6-S/3 of 1997 dissolving the marriage of the parties by a decree of divorce on the ground of desertion. The parties in the judgment are referred in the same manner as in the impugned judgment and decree.’

2. The facts disclosed in the petition filed by husband are that marriage between the parties was solemnized on 7-4-1985 according to rites and customs of Sikhs at Ambala. The parties initially cohabited at Paonta Sahib and then at Jutogh, Shimla where the petitioner was posted. The behaviour of the respondent
towards petitioner was rude and cruel from the very beginning. She would pick up quarrel over petty matters. She never attended to the friends and relatives of the petitioner whenever they visited his place. The attitude of the respondent towards mother, sisters and other members of petitioner’s father’s family was also not good. She used to pick up quarrel with them. She always insisted to live separately. The petitioner being the eldest member of his father’s family could not afford to live separately. This annoyed the respondent.
3. The respondent was in the habit of visiting her parents at Ambala after every 15-20- days. She would insist the petitioner to accompany her and when he expressed his inability to meet this unreasonable demand she turned furious and created tension. She always taunted and harassed the petitioner and often proclaimed that she did not like his looks. A daughter was born front the wedlock on 24-12-1986 at Ambala at the parental house of the respondent. After birth of the child she returned to Jutogh in March 1987 but in July 1987 she left the matrimonial home. During her short stay from March 1987 to July 1987 at Jutogh she created disharmony and friction in the matrimonial home. She was
requested many times to return to Shimla. On Persuasion she came in December 1987 but again left for Ambala in March 1988. On the request of the petitioner and his family members she came back in April 1988 and soon started humiliating and nagging the petitioner. She insisted to go back to her parents’ place in Ambala but the petitioner did not agree to this. The respondent by making her own arrangement left the house of the petitioner in September 1988 and since then she is living at Ambala.

4. In February 1992 she filed a petition for divorce in the Court of
Additional District Judge, Ambala which was withdrawn on 6-8-1992 when she realized that no ground of dissolution of marriage existed. Thereafter, she filed a petition for maintenance in the Court of judicial Magistrate 1st Class, Ambala Cantt. This petition was allowed on 29-11-1994. She filed another petition- for grant of maintenance to minor daughter of the parties which was pending at the time of filing of the present petition.
The case of the petitioner in brief is that respondent has left the
matrimonial home in September 1988 without any excuse and has refused to return to the matrimonial home and this constituted desertion. He further alleged that the attitude and behaviour of the respondent had been cruel throughout her stay with him and so he is entitled to divorce on the ground of mental -cruelty and desertion.

5. The respondent contested the petition. She has taken the plea that the petition has not been filed in accordance with the rules. She has denied all the allegations of cruelty and desertion. The respondent has taken the plea that in fact the petitioner and his family members had been cruel to her during her stay with the petitioner. She denied that she ever asked the petitioner to separate himself from his father’s family. She denied that she was  in the habit of visiting her parents frequently. According to her, she used to visit her parents occasionally. She has alleged that the petitioner used to give her beatings after excessive drinking and that her mother-in-law also used to quarrel with her. She has pleaded that the daughter was not born in December 1986, rather she was born on 24-9-1987 and nobody from the side of her in-laws, including the petitioner, visited her parents’ place after the birth of daughter. She has denied that she came to Shimla along with her child and left the matrimonial home in September 1988.

6. The learned District Judge allowed the petition on the ground of desertion and rejected the case of the petitioner to seek divorce on the ground of cruelty.

7. I have heard the learned Counsel for the parties and have also gone through the record.

8. The learned Counsel for the respondent has submitted that the learned District Judge has misconstrued and misinterpreted the evidence on record. The view taken by the learned District Judge on the point of desertion of the wife is wrong. He has submitted that husband has miserably failed to prove the desertion of the wife. The learned Counsel for the petitioner /husband has supported the impugned judgment and decree and has submitted that the learned District Judge has rightly come to the conclusion that wife has deserted the husband without reasonable cause. He has submitted that the husband has proved factum of desertion as well as intention of the wife not to live with the husband.

9. The husband has appeared as his own witness as P.W. 1. He has deposed that their marriage was solemnized on 7-4-1984 at Ambala and the daughter was born at Ambala in December 1986 from the wedlock. The respondent came to Shimla for short intervals but stayed most of the time with her parents even after the birth of the daughter. She would come to Shimla to stay with the petitioner on persuasion but during her stay at Shimla she would not co-/ operate with the petitioner. She lastly left Shimla in July 1988 and thereafter never returned.

 

In the year 1991 or 1992 she filed a divorce petition against the petitioner at Ambala which was withdrawn by her later on. Then she filed a petition to claim maintenance which was allowed and petitioner was directed to pay maintenance.

She filed another petition for maintenance for the daughter which petition was also allowed. He tried to settle the matter. The petitioner was cross-examined at length but nothing favourable to the respondent has come in the cross-examination of the petitioner. P.W. 2 Sainu Ram is the person who was living in
the neighbourhood of the parties at Jutogh. He has stated that the parties used to quarrel and the quarrel used to be initiated by respondent. P.W. 3 is Dharminder Pal Singh who has stated that respondent used to pick up quarrels.

The respondent used to left matrimonial home after every 3-4 months. She would stay only for a few months and again her parents or brothers would take her to Ambala. In cross-examination he has stated that he has not seen the respondent
at Jutogh since 1988 and she finally left the matrimonial home in 1988. P.W. 4

Jitender Singh is the elder brother of the petitioner. He has stated that behaviour of the respondent with the petitioner has not been good from the very beginning. For the last 10-11 years, the respondent has been staying with her parents. The respondent Harjeet Kaur appeared as R.W. 1. She has stated that she was not treated well by the petitioner whenever she lived with him. He is
habitual of drinking. She has admitted that she filed a divorce petition against the petitioner at Ambala which was withdrawn. She has stated that she did not return to the place of petitioner even in the company of her brother or father or father’s brother after September 1987 because nobody from her in-laws side came to see the child delivered by her. She has further stated that she filed the maintenance petitioner because the petitioner did not turn up at her parents’ place to bring her back to Shimla. She has also admitted that she filed another maintenance case for the daughter. RW-Pradeep Kumar has stated that respondent used to complaint about the behaviour of petitioner. In cross-examination he has stated that his house is close to the house of respondent’s
parents’ house. This is the only evidence led by the parties.

10. It is a fact that respondent is not living with petitioner since
September 1988, that means for the last 19 years the parties are living separately. The respondent herself filed divorce petition for dissolving the marriage of the parties which was withdrawn later on by her. She filed one petition for maintenance for herself and another petition for maintenance of the daughter. The respondent has not shown any reasonable cause to live separately at Ambala. There is nothing on record that respondent ever approached the lawful authorities against the alleged ill treatment of husband. The residence of the respondent after marriage is with the petitioner. She has not placed unimpeachable evidence on record to support her separate living. On the basis of material on record and conduct of the respondent, it is clear that respondent has no intention to live with the petitioner and to continue the matrimonial tie. The petitioner has proved desertion and the respondent has failed to prove any just and reasonable cause to live separately. She has levelled bald allegations against the petitioner which has not been proved. The learned District Judge has appreciated the evidence in its right perspective. The petitioner has proved the factum of desertion as well as animus deserendi on the part of the respondent, The learned Counsel for the respondent has relied on
Lachman Utamchand Kirpalani v. Meena alias Mota for the proposition that petitioner cannot take benefit of his own wrong. He has submitted that respondent has excuse to live separately. The petitioner did not make efforts for reconciliation and for taking back the wife and, therefore, it will be presumed that husband has consented for separate living of wife. In the present case, it has been proved on facts that respondent without any reasonable cause has left the company of the petitioner. The wife is living at Ambala against the wish of the petitioner. It has come on record that petitioner several times made attempts to bring back the respondent but every time after staying for some time at Jutogh she left the company of the petitioner and since September 1988 she has not come back to live with husband in the matrimonial home. In para 20 of Lachman’s case (supra), the Hon’ble Supreme Court has observed as follows:

20. The other matter is this. Once desertion, as defined earlier, is
established there is no obligation on the deserted husband (taking the case where he is the deserted spouse) to appeal to the deserting spouse to change her mind, and the circumstance that the deserted husband makes no effort to take steps to effect a reconciliation with the wife does not debar him from obtaining
the relief of judicial separation, for once desertion is proved the deserting spouse, so long as she evinces no sincere intention to effect a reconciliation and return to the matrimonial home, is presumed to continue in desertion.
The Lachman’s case (supra) helps the petitioner rather than the respondent.

The learned Counsel for the respondent has failed to make out any case for interference.

No other point was urged.
11. In view of above discussion, the appeal is dismissed and the impugned judgment and decree are affirmed with no order as to costs.

& also

b)   GH COURT

 

(G. L. GUPTA, J. ( Single Bench ))

BHEEKHA RAM

VERSUS

GOMA DEVI AND OTHERS

 

1999 CRLJ 1789 RAJ

 

Criminal Revision No. 179 of 1997, D/- 22 -1 -1999.

 

Criminal P.C. (2 of 1974) S. 125

 

JUDGEMENT

 

Order :- This revision by the husband has been preferred against the revisional order D/- 17-3-97 passed by the learned Special Judge-cum-Addl. Sessions Judge, Bikaner whereby he set aside the order D/- 22-4-95 passed by the Judicial Magistrate No. 2, Bikaner refusing maintenance to the respondents Nos. 1 to 3.

 

2. The short facts of the case are that Goma Devi for her and on behalf of her two minor sons filed an application under S. 125, Cr. P. C. against her husband-Bheeka Ram (petitioner in this revision) for maintenance. It was alleged that Goma Devi was married to Bheeka Ram 12-13 years ago but for some time her husband and his parents were torturing her for dowry and that she was beaten and turned out of the house and with great difficulty she was again kept by them. It was further alleged that she purchased a piece of land by selling her ornaments and with the help of her parents she constructed a house and started living there but three months before filing the application Bheekha Ram tried to kill her by burning and thereafter he is neglecting her. It was stated that Bheekha Ram earned Rs. 60/- per day by doing Mason work. It was prayed that she be allowed maintenance @ Rs. 400/- per month for herself and Rs. 250/- each for her children. In the reply, the husband denied the charge of cruelty for dowry. He also denied that he ever gave beating to Goma Devi or that he tried to kill her. He came out with the case that Goma Devi used to misbehave with his parents and, therefore, he purchased a piece of land and constructed a house for living separately but his wife continued to cause mental torture to him by abusing his parents and ignoring him. It was stated that the petitioner left his house without just cause and was not discharging her marital obligations.

 

3. Goma Devi entered into the witness box and examined A. W. 1 Tulchiram. In rebuttal, Bheekha Ram entered into the witness box and examined N. A. W. 2 Kaluram, N. A. W. 3 Modaram and N. A. W. 4 Sampatram. After hearing the counsel for the parties, the learned Magistrate held that the allegations of neglect by the husband were not proved. He further held that the allegations of cruelty for the dowry were also not proved. Holding that the wife left the matrimonial home without just cause, and she was not entitled to maintenance, the learned Magistrate rejected the application of Goma Devi. Goma Devi filed a revision against that order. By the impugned order the learned Addl. Sessions Judge allowed her revision and held that Goma Devi was entitled to maintenance @ Rs. 250/- per month for herself and Rs. 125/- each for her two children.

 

4. Mr. S. D. Vyas vehemently contended that the Addl. Sessions Judge has not properly appreciated the evidence and has committed grave error in reversing the finding of fact recorded by the Magistrate. He cited the cases of Shahzad Bano v. Sher Mohammad, 1990 RCC 57, Bhanwari Bai v. Mohd. Ishaq, 1984 MLR 234, Budharam Kosta v. Pitarbai, 1984 MLR 62 and Raghbir Singh v. Krishna, 1982 MLR 307.

 

5. On the other hand, Mr. G. K. Vyas urged that this Court should not interfere in the revisional order as the Magistrate had not properly considered the evidence and had come to erroneous conclusion.

 

6. I have considered the above arguments. A reading of the order of the Magistrate shows that he had dealt with the evidence of each and every witness. It could not be pointed out by learned counsel for Smt. Goma Devi that the Magistrate had ignored some important piece of evidence appearing in favour of the wife or that there was misreading of the evidence in favour of the husband. It has to be accepted that the learned Addl. Sessions Judge has overstepped when he on reappreciation of evidence has come to a different conclusion. It is trite legal position that the jurisdiction of a revisional Court is not as that of appellate Court which is free to reach its own conclusion on evidence untrammelled by any finding entered by the trial Court. Revisional powers on the other hand belong to supervisory jurisdiction of a superior Court. While exercising revision power, the Court has to confine to the legality and propriety of the findings and also whether the subordinate Court has kept itself within the bound of its jurisdiction including the question whether the Court had failed to exercise the jurisdiction vested in it : vide Associated Cement v. Keshvanand, AIR 1998 SC 596.

 

7. In the instant case, the learned Magistrate has rightly held that the respondent-wife had not been able to establish the allegations of cruelty or demand of dowry and that on her own admission she was living in the house constructed by her husband. On the admissions of Goma Devi that for about 14 years the husband used to give his entire income to her and he was maintaining the family and that her husband was always ready and willing to keep her and her children and there was not love lost between them, the learned Magistrate was perfectly justified in holding that there was no negligence by the husband and the wife was herself responsible for the trouble in the marital relations. The learned Addl. Sessions Judge, it is obvious was influenced by the fact that the husband has filed a divorce petition in the Court of Dist. Judge, Bikaner. By this, he presumed that the husband Bheekha Ram was not willing to continue with the marital relations. In my opinion, this could not be the valid ground for interfering in the order of the learned Magistrate. The matter was to be decided on the basis of the material available on the record of the case under S. 125, Cr. P. C. The Addl. Sessions Judge has obviously erred in allowing the revision on the basis of the subsequent development of the case ignoring the admissions of the wife. 8. The right to be maintained by the husband stems from performance of marital duty. It is only when the Court inter alia comes to the finding that the wife claiming maintenance had been prevented from performing the marital duty by the husband that she could be awarded maintenance. When it is found that the wife declines to live with husband without any just cause and there is no evidence of ill-treatment by the husband, wife is not entitled to maintenance. In the instant case, it is noticed that the husband even sent a registered notice to the wife asking her to stay with him but she refused to accept the notice.

 

9. As already pointed out, in the revisional jurisdiction, the Court cannot be justified in reappraising the evidence and come to its own conclusion when it is not shown that the Magistrate had omitted to consider some vital evidence or had misread the evidence. The learned Addl. Sessions Judge has, obviously exceeded his jurisdiction in reversing the finding of fact recorded by the Magistrate, without cogent reasons. Goma Devi has not been able to establish that she had been neglected by her husband. As a matter of fact she is living with her parents of her own accord. She is, therefore, not entitled for maintenance allowance for herself. However, she is entitled to maintenance allowance for her two kids who are living with her. Bheekha Ram, has not come out with the case that he was giving maintenance allowance to Goma Devi for the children. It is no fault of the children when they are living with their mother. The father is bound to provide maintenance to them.

 

10. Consequently, this revision is partly allowed. The order of the Addl. Sessions Judge granting maintenance to Goma Devi is set aside. The order granting maintenance to the children is upheld.

 

Order accordingly.

c)   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 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 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.

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

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

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, 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.)

18.11.2009

d) POONAM      VERSUS     MAHENDER KUMAR – P & H High Court
IN THE HIGH COURT OF STATE OF PUNJAB AND HARYANA AT CHANDIGARH
Criminal Misc. No.M-24684 of 2008 (O&M)

POONAM   …PETITIONER
VERSUS
MAHENDER KUMAR   …RESPONDENT

Criminal Misc. No.M-24684 of 2008 (O&M)

Present:         Mr.P.L. Goyal,  Advocate,  for the  petitioner.
Mr. S.D. Bansal,  Advocate, for the  respondent.

Marriage of Poonam (petitioner) with Mohinder Kumar (respondent) took place on 23.1.1998. Two sons were born out of the wedlock, who are residing with the respondent. The petitioner is residing with her parents. A case under Sections 406/ 498-A/ 149/ 506 of the Indian Penal Code was registered at the instance of the petitioner against the respondent and others vide F.I.R. No.52 dated 17.2.2000 at Police Station City, Jind. The petitioner filed a petition under Section 125 of the Code of Criminal Procedure (hereinafter referred to as vthe Code’) claiming maintenance from the respondent alleging that he was running wholesale business of sale and purchase of utensils in the name and style of M/s. Laxmi Metal Store and was earning Rs. 10,000/- per month. This petition was contested by the respondent on the ground that the petitioner left her matrimonial house on her own accord and that she was earning about Rs.10,000/- per month as she was M.A.B.Ed. The Judicial Magistrate 1st Class, Jind, vide order dated 9.6.2007 dismissed the petition filed by the petitioner under Section 125 of the Code. The petitioner went in revision against the order passed by the trial Magistrate. The same was also dismissed vide judgment dated 5.8.2008 passed by the Sessions Judge, Jind, although holding that the husband has not been able to prove that the wife has sufficient means to maintain herself and, at the  same  time,   affirming  the  finding    recorded    by  the     trial Magistrate that the petitioner-wife left the company of the respondent on her own accord. Hence this petition under Section 482 of the Code by the petitioner seeking reversal of the orders passed by both the Courts below.

I have heard Mr.P.L. Goyal, Advocate, appearing for the petitioner and Mr. S.D. Bansal, Advocate, appearing for the respondent and  have gone through the records of the case.

The trial Magistrate, after framing issues, recording evidence, both oral and documentary, and hearing the learned counsel for the parties, came to the conclusion that the petitioner has not been able to prove on record that she was ill-treated by the respondent or he was cruel towards her in any manner. Except her statement, the petitioner failed to examine any other witness in support of her case to prove ill-treatment, dowry demand and other allegations made in the petition. Even the parents of the petitioner did not come forward to support her case. The petitioner failed to join her husband even after the petition filed by him for restitution of conjugal rights was accepted by the Court of competent jurisdiction. Petition filed under Section 13 of the Hindu Marriage Act, which was filed by the petitioner, was declined by the Court by holding that there was no desertion on the part of the respondent, rather the petitioner deserted her husband due to her own personal reasons. The petitioner did not take care of her sons, who are residing with the respondent. There is no allegation in the petition that she had ever asked the respondent for giving her the custody of the sons. The petitioner appears to be interested only  in  getting maintenance allowance and  taking divorce from the respondent. The respondent is solely taking care of the children. To bring up two children single handedly is an onerous duty, which the respondent is performing and the petitioner is shirking. The petitioner, in her cross-examination, stated that after she left her matrimonial house, she never tried to contact the respondent or her kids. In the case of Smt.Rohtash Singh v. Ramendri (Smt.), 2000 (2) R.C.R (Criminal) 286, it was held by the Hon’ble Supreme Court that a wife is not entitled to maintenance who has deserted her husband, but a wife who has divorced on account of her desertion is entitled to maintenance from decree of divorce. Failure of the petitioner-wife to prove sufficient grounds justifying her staying away from the respondent-husband and two kids shows that she had left the society of the respondent on her own accord. In these circumstances, both the Courts below were justified in declining the petition filed by the petitioner under Section 125 of the Code.

In view of the  above,    the present petition   is  dismissed being  without any merit.

March  19  , 2009.

(   MOHINDER  PAL )
ak    JUDGE

Concept of Joint Hindu Family/Coparcenory/Partition & Succession under Hindu Succession Act

This article explains and answers the following questions:-

 

i) What is a Joint Hindu Family/Hindu Undivided Family as per the law?

ii) The Joint Hindu Family Property ? who all have a right?

iii) What is a Coparcenary? and who all are Coparceners?

iv) What do we mean by daughters being coparceners as well?

v) The rights and obligations of coparceners? Can a coparcenor sell/gift his interest in ancestral properties?

vi) Who can seek a partition?

vii) What is the difference between self acquired & ancestral properties?

vi) Who is a karta? What are his rights & obligations?

 

Concept of Joint Hindu Family or Hindu Undivided Family (HUF – A Tax term)

A Joint Hindu Family is the normal condition of Hindu Society, or atleast it was until the last few decades. A joint Hindu family is a group of relatives tied together by ties of kinship & marriage and descended from a common ancestor. It includes children, children’s children down the line, spouses.  A joint Hindu Family is normally joint in worship/kitchen/business. Even daughter in laws/widowed daughters who has returned back to their parental side are part of a Hindu joint family. A joint family may encompass countless generations.

A joint family is headed by a karta who is normally the eldest living male member of the family. Karta has some peculiar rights and obligations under traditional Hindu Law, he has the power and duty of superintendence of how the joint family is run, who is getting what ?, how the members are being maintained? He is also entitled to dispose off the property in times of dire need/necessity. After 2005 amendments by which women have been given equal proprietary rights in ancestral property even women can be Kartas.

 

A Coparcenory 

Within the joint family there is a narrower body called the Coparcenary.

This includes the eldest male member + 3 generations. For eg : Son – Father – Grandfather – Great Grandfather. This special group of people are called coparcenors and have a definitive right in ancestral property right since the moment of their conception. Earlier only a Son/Son’s son/Son’s son’s son were coparcenors – now daughters are equally coparcenors after 2005. They can get their share culled out by filing a suit for partition at any time.   A coparcenor’s interest is not fixed it fluctuates by birth and deaths in the family.

 

Ancestral & Self Acquired properties

A property is ancestral when acquired through inheritance from ancestors, this property is always shared by members of a coparcenary equally. On the other hand property is self acquired if it is earned by own efforts/learning or other human endeavour. In the latter – the person acquiring is the sole owner and nobody exercises any right  on the same during his lifetime.

 

Partition

Any coparcenor can at anytime seek a partition of his share. The continuing coparceners can seek to buy out the share of coparcenor expressing his intention to move out by exercising the right of ‘pre-emption’.

 

Can a Coparcenor sell/gift/dispose off his right in ancestral/coparcenary property?

Yes – a coparcenor can sell/gift away his interest to another coparcenor or even a third party. However a third parties right to take possession of property alongwith rest of coparcenary is limited. The family can buy the third party out in order to maintain integrity of the house and to prevent a stranger from getting in with the family. This right is given by Transfer of Property Act as well as the Partition Act.

 

Can a Karta dispose of coparcenary property without consent of the family/other coparceners?

Yes in cases of legal necessity/benefit of estate the karta can alienate joint family property. However such an alienation can be challenged by the continuing coparceners as not being for legal necessity or benefit of estate within 12 years of knowledge of sale/gift.

 

Author is a Supreme Court advocate specialising in Property Laws and Joint Family affairs, with special regard to Joint Family Property & Partition Cases.

Judgments & Guide on how to fight maintenance (24/125) cases

 

This is an article on how to successfully defend a maintenance case filed by your wife. 

These are the judgments, that we have successfully used over the years, alongwith the relevant excerpts, to negative a woman’s claim for maintenance in courts across India. It is always important to do a little homework.

1. Keep a track on your wife’s finances.

2. Her PAN Card No. may be vital to get her income tax returns.

When the maintenance proceedings are on – then in that case you can always emphasise strongly on the fact that these provisions were meant to protect genuinely harassed and incapable women from starvation and destitution, and not a vehicle of oppression allowing women to live as parasites. ‘Incapacity to earn is the most vital consideration’ Hence if a wife is otherwise able bodied and educated and fails to work solely because of sheer lethargy and desire to break down husband financially in that situation she is not entitled to any maintenance.

THESE JUDGMENTS MAY BE IMMENSELY HELPFUL FOR THOSE FACING MAINTENANCE PROCEEDINGS !

1. Madhya Pradesh High Court – Smt. Mamta Jaiswal vs Rajesh Jaiswal on 24 March, 2000 – Equivalent citations: 2000 (4) MPHT 457

“6. In view of this, the question arises as to in what way Section 24 of the Act has to be interpreted. Whether a spouse who has capacity of earning but chooses to remain idle, should be permitted to saddle other spouse with his or her expenditure ? Whether such spouse should be permitted to get pendente life alimony at higher rate from other spouse in such condition ? According to me, Section 24 has been enacted for the purpose of providing a monetary assistance to such spouse who is incapable of supporting himself or herself in spite of sincere efforts made by him or herself. A spouse who is well qualified to get the service immediately with less efforts is not expected to remain idle to squeeze out, to milk out the other spouse by relieving him of his or her own purse by a cut in the nature of pendente life alimony. The law does not expect the increasing number of such idle persons who by remaining in the arena of legal battles, try to squeeze out the adversory by implementing the provisions of law suitable to their purpose. In the present case Mamta Jaiswal is a well qualified woman possessing qualification like M. Sc. M.C. M.Ed. Till 1994 she was serving in Gulamnabi Azad Education College. It impliedly means that she was possessing sufficient experience. How such a lady can remain without service ? It really puts a big question which is to be answered by Mamta Jaiswal with sufficient congent and believable evidence by proving that in spite of sufficient efforts made by her, she was not able to get service and, therefore, she is unable to support herself. A lady who is fighting matrimonial petition filed for divorce, can not be permitted to sit idle and to put her burden on the husband for demanding pendente lite alimony from him during pendency of such matrimonial petition. Section 24 is not meant for creating an army of such idle persons who would be sitting idle waiting for a ‘dole’ to be awarded by her husband who has got a grievance against her and who has gone to the Court for seeking a relief against her. The case may be vice-versa also. If a husband well qualified, sufficient enough to earn, sits idle and puts his burden on the wife and waits for a ‘dole’ to be awarded by remaining entangled in litigation. That is also not permissible. The law does not help indolents as well idles so also does not want an army of self made lazy idles. Everyone has to earn for the purpose of maintenance of himself or herself, atleast, has to make sincere efforts in that direction. If this criteria is not applied, if this attitude is not adopted, there would be a tendency growing amongst such litigants to prolong such litigation and to milk out the adversory who happens to be a spouse, once dear but far away after an emerging of litigation. If such army is permitted to remain in existence, there would be no sincere efforts of amicable settlements because the lazy spouse would be very happy to fight and frustrate the efforts of amicable settlement because he would be reaping the money in the nature of pendente lite alimony, and would prefer to be happy in remaining idle and not bothering himself or herself for any activity to support and maintain himself or herself. That can not he treated to he aim, goal of Section 24. It is indirectly against healthyness of the society. It has enacted for needy persons who in spite of sincere efforts and sufficient efforts arc unable to support and maintain themselves and arc required to fight out the litigation jeopardising their hard earned income by toiling working hours”

2. ) Kumaresan Vs. Aswathi  reported in (2002) 2 MLJ 760

wherein it has been held as under :- “8…….A plain reading of the above provision would show that the only condition required for grant of maintenance pendente lite is the party should not have sufficient independent income for her/his support. If it is found that the applicant has sufficient income for his/her support, no amount can be allowed as maintenance pendente lite as per section 24 of the Act. But of course, if it is found that the applicant has no sufficient independent income for his/her support, such application can be considered and suitable maintenance amount can be awarded pendente lite.”

3. Manokaran @ Ramamoorthy Vs. M. Devaki reported in AIR 2003 Mad 212, wherein it has been held as under :-

“5…..The above averment shows that the petitioner herein/husband is working in Senthil Auto Garage, Annai Sathya Nagar, Chennai-102 and drawing a salary of Rs.2000/- per month. Likewise, it is also seen that the respondent herein/wife is working in Raj T.V and drawing

a salary of Rs.4,500/-. Though the said aspect has not been substantiated, I have already referred to the admission of the respondent herein in her counter statement filed in the main O.P.1310/2000 wherein she admitted that she secured a private job and is getting salary and staying with her brother. On the other hand, it is established particularly from Ex. R-1, the petitioner herein is getting only Rs.70/- per day or Rs.2000/- per month by working in Senthil Auto Garage. I have already referred to the language used in Section 24 which makes it clear that for grant of maintenance pendente lite the party should not have sufficient independent income for her support. In the light of the materials available, particularly the admitted case of the respondent/wife, she is employed in a private Satelite T.V. and earning for her livelihood staying with her brother, it cannot be construed that she is not having sufficient independent income. The Family Court lost its sight to consider the above material aspect.”

If these judgments coupled with strong oral arguments, can really help rule out any adverse maintenance orders.

All you need to know about Mutual Consent Divorce in India.

This article explains all you need to know about getting a divorce by mutual consent. 

 

“A happy marriage is a harbour in the tempest of life, an unhappy marriage is a tempest in the harbour of life.”

Divorces are tough ! But so are marriages that take a toll on your physical/mental well being, divorce is no more a taboo, and people are increasingly accepting the harsh realities of their relationships, and are taking decisions so as to get into better relationships.

In India divorce if contested by the other party, can be got only by proof of cruelty (physical or mental), desertion (unjustified separation of 2 years), adultery (sexual intercourse outside wedlock), insanity etc.

Since the judicial system is fraught with delays and other systemic problems, a contested divorce can easily take you years in the Court.

A divorce by mutual consent on the other hand, is much more pragmatic. It is based on the idea that when two persons agree to get into a relationship out of their free consent, they should have the liberty to end it as well when it turns sour.

Now cutting to the chase, here is what you need for a mutual consent divorce:-

 

Before going to the Court.

i) A separation of one year before filing the case please note that actual physical separation is not required, even if both parties are sleeping in the same bedroom they can be said to be seperated for the purposes of mutual consent, if they are not living together as husband and wife;

ii) A flawlessly drafted MoU (Memorandum of Understanding) that settles the terms on which you part away, people don’t understand the importance of this, this is extremely important so as to end the matters with a finality once and for all, there are no loose ends and make sure there is no litigation in future;

Once the above is done – you have to get drafted the Divorce petition that encapsulates the contents of your earlier MoU.

 

After Court

When you file your divorce by mutual consent petition – it comes up for hearing and your statements are recorded, then the court gives you a period of 6 months (basically to think over your decision) after which,  on recording of final statements divorce decree is passed.

 

Monetary Settlement/Maintenance/Alimony/Child Custody issues.

A Mutual Consent petition gives you the flexibility to come to your own terms with respect to the issue. If a full and final settlement is reached – the money can be paid before the court at the time of final hearing.

In all this procedure enables couples to part away amicably on a good note, without ruinous litigation, and without much expense.

 

The Author is a Divorce Lawyer based in Delhi, practising in the Supreme Court of India and can be reached at bharat.law06@gmail.com

How to fight a false 498A/406? Strategy to pre-empt/prevent false dowry case and come out winning !

*This article endeavours to educate the sufferers of a false 498a/dowry case on how to defend a false case, it also tries to help thousands of families in and around India  who are on the brink of facing such false cases on successfully pre-empting or guarding against such false cases. 

“For men in India marriage is a lottery but you can’t tear up your ticket even if you lose” and it’s not just you who would have to live with the lost lottery but your entire family may have to suffer at the hands of a system so grossly skewed in favour of women.

Marriages may fall apart for a lot of reasons, temperamental issues, compatibility problems, but does that make you an offender in the eyes of law? Yes it does, your estranged wife in order to have her way in arm-twisting you may implicate you and your family in end number of false cases, 498A being the foremost.

498A penalizes cruelty for dowry, almost always comes along with S.406 Allegations which basically penalize the criminal breach of trust, when your wife’s articles are entrusted to you and you fail to return them back – misappropriate them or convert them to own use – you are criminally liable !. By aid of S.34 of the Indian Penal Code – your family/relatives can be held liable for the same if they share the common intention with you.

Now if you think that you have a wife who can potentially do this for money or the kicks that her ego gets out of the same or pure vengeance then you are my friend in a vulnerable situation, but there is a silver lining to this, there are legal strategies that may help minimize, if not completely rule out, the damage or mischief that may occur to you.

The following things may(if done correctly) help in a lot of cases :-

1. Insist on a dowry-less marriage – Preparing of list of articles received at the time of marriage, countersigned by both the families, would help rule out exaggerated claims later !

2. Digging the well much before the fire starts; when trouble starts at home you apprise all concerned of the problems that you are facing, not for the purposes of any action but information;

If you see things going awry in near future, then it would be good idea to seperate from parents to a rented house with sufficient public notices;

3. As per the prevailing law atleast here in Delhi, if your wife approaches a Police Station with her complaint, she is to be forwarded CAW CELL instituted to try and reconcile and investigate and act as buffers so that penal actions are not initiated right away. Once the matter goes to CAW Cell – apply for an anticipatory bail , you are sure to get notice bail atleast – this would help in two ways :-

a) Give you greater confidence, level playing field in the CAW Cell talks;

b) Prevent any hasty arrest on failure of conciliation;

All in all nothing to lose in this and in this step 1. Would help a great deal.

4. Seek a copy of complaint via RTI ASAP, since they deny at the first instance you’d have to appeal there from which may take some time. There are CIC Decisions that would help you here.

5. In the event of an FIR being registered apply for AB again, and quashing of FIR (not always depends on the kind of allegations leveled)

6. Filing Restitution of Conjugal Rights (case that you want her back) may help in some cases, but not in all. Sometimes it helps in defending maintenance cases, and showing your bona fides.

7. Keep a check on your wife’s finances. Would come handy defending maintenance cases.

8. Prosecution (S.340 CrpC) for perjury in cases of false & exaggerated claims in maintenance petitions.

9. Tax Evasion Petitions once you get the List of Istridhan may also help put pressure.

10. Dowry Prohibition Act – penalizes giving of dowry so in case there is a clear admission of DOWRY (not Istridhan) then in that case your in laws are also liable to be prosecuted. Think on these lines !

The above may go a great deal helping you defend correctly, my advise would be to stand your ground, don’t give in to their extortionate tactics, once you’d get an AB the worst would already be over and after that the judicial system with it’s endemic delays won’t treat your wife differently, sooner or later she would realize that frivolous litigation doesn’t pay !

*The Author Bharat Chugh is a Supreme Court Advocate and can be reached at (bharat.law06@gmail.com)

Lie-detector tests take off in India

*Courtesy BBC, News, Mumbai.

An increasing number of companies in India are offering polygraph tests to individuals and companies trying to catch out deceitful spouses and dishonest employees, prompting critics to accuse them of taking the law into their own hands.

Scientist Deepti Puranaik’s job as a polygraph tester puts her in a position somewhere between judicial inquisitor and nosey friend asking personal questions.

She is paid to probe. Working with the Mumbai-based company Helik Advisory, she conducts several tests each week for private clients who pay anything from $150 to $300 (£94 to £188) to determine whether someone is telling the truth.

“There have been some cases of infidelity where a wife might suspect her husband is cheating on her. In other cases a theft might have taken place and the employer wants to know who may be involved in it,” says Puranaik.

The company conducts polygraph tests in a variety of cases.

Sometimes an employer wants to interview test the integrity of prospective employees before hiring them.

Or the test may be designed to catch a culprit – in an infidelity case for example, a robbery in a company, or a theft in a household where the domestic help is suspected.

The company, which has been operating for a year, says it is getting more and more enquiries every day. Often the desire for confidentiality is a factor that leads people to seek its services.

“Many people don’t want to go to the police because it’s very time-consuming and anything which goes to the police is made public,” says Helik chairman and former head of government forensic services for Maharashtra, Rukmani Krishnamurthy.


Truth device

James A Frye, who is on trial for murder, undergoing a truth test which is administered by William Marston (second from right)

American psychologist William Marston (pictured second right) was an early proponent of the lie-detection machine.

Marston believed blood-pressure changes could determine whether someone was lying.

The modern polygraph measures physical changes in a person’s body, such as pulse, breathing and blood-pressure to detect a lie.

“Some clients come to us because they don’t want outsiders to know that a particular robbery has happened in their organisation.”

Anyone who is put forward for a lie-detector test has to consent to it beforehand and undergo a series of preliminary interviews.

Puranaik, who points out that polygraph tests can determine someone’s innocence as well as their guilt, concedes that they are not totally foolproof.

“They are about 80% accurate,” she says.

The polygraph works by measuring physiological changes such as blood pressure, sweating and breathing.

It was invented in 1917 by American William Marston, who was also the creator of the Wonder Woman comic character.

The equipment has been used in India for many years, including by the police.

Polygraph machine

But in 2010 the country’s Supreme Court deemed polygraph evidence from suspects as invalid.

Continue reading the main story

Alternative lie detection

The mouth of truth in Rome, Italy

Before the age of the polygraph, many communities had their own methods of detecting whether they thought someone was being truthful.

Rome’s ancient Mouth of Truth or Bocca della Verita (pictured) was popularly believed to be a lie-detector. It was thought that the hand of a deceitful person, placed in its mouth, would be bitten off.

Another lie-detecting custom, supposed to originate in ancient China, was for a suspect to be given a grain of rice to chew on. If he was able to spit it out, he was thought to be telling the truth. If he couldn’t, he was seen as a liar.

The ruling stated that such tests were an infringement of an individual’s personal liberty, with the result that no-one can be forced to take one as part of an investigation.

Consensual tests are permitted, although such evidence could not alone secure a conviction, merely be used as supporting evidence.

Helik is one of a small number of private companies in India which have started to offer private polygraphs in the past five years.

The wider private forensic market in India is also growing, with companies offering services such as signature verification (cheque fraud is a big problem in India), handwriting analysis and even personality tests.

With a growing population and an already stretched police force, these firms are filling a gap in the market, and they say their work enables the police to concentrate on more serious crimes.

But some in the legal profession are dubious about private firms taking on these roles.

Bharat Chugh, an advocate at India’s Supreme Court, says better regulation has become essential.

“People are practically taking law into their own hands – they are running a parallel machinery in which they are deciding disputes. This is not very good.”

But Krishnamurthy argues that until the government can build more forensic labs in India, companies like hers can serve both private and public needs, and ultimately reduce the backlog of criminal cases.

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