Nyaya Yodha: Justice Warrior

Let the games begin–MIL can file DV on DIL

2011-09-02T20:43:00.001+05:30

There is real good news for all those feminist mother in laws, who celebrated when the abominable DV Act (PWDVA) was passed. Due to a their collective sad karma some of them later got the short end of the stick when their daughter in laws realized their newly discovered route of quick women-empowerment-by-filing-DV-case-on-in-laws and starting kicking them.

Now Delhi HC has upheld the DV case filed by a mother in law on her daughter in law (see judgment below). Let the feminist mother in laws rejoice, after all now they can now file the case at least, not sure if they would like to win it though since it will fly in the face of their much touted cause of ‘women empowerment’.

And on a larger scale, the games will be going on for time to come in Indian families. No body should be left behind in filing cases on anyone else! Daughter in laws were ‘empowered’ already, now mother in laws are too. We want laws for children to file cases on parents, and parents to file cases on grandparents/ and vice-versa. What can stupid society do that laws cannot? More empowerment to the masses, shall we say!

Kusum Lata Sharma vs State & Anr. on 2 September, 2011

Author: Mukta Gupta

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ Crl. M.C. No. 725/2011 & Crl. M.A. No.2797/2011 (Stay)

% Reserved on: 19th July, 2011

Decided on: 2nd September, 2011

KUSUM LATA SHARMA ..... Petitioner Through: Mr. Atul Verma, Advocate

versus

STATE & ANR. ..... Respondents Through: Mr. Pawan Bahl, APP for the State

Mr. M.S. Jadhav, Adv. for R-2.

Coram:

HON'BLE MS. JUSTICE MUKTA GUPTA

1. Whether the Reporters of local papers may Not Necessary be allowed to see the judgment?

2. To be referred to Reporter or not? Yes

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

MUKTA GUPTA, J.

1. The Petitioner, one of the Respondents in a Complaint Case No.

40/2011, PS Hauz Khas, New Delhi titled as "Ms. Shakuntala Sharma vs.

Nagender Vashishtha & Ors" received summons from the Court of learned

Metropolitan Magistrate under Section 12 of the Protection of Women from

Crl. M.C. 725/2011 Page 1 of 10 Domestic Violence Act, 2005(in short the „Act‟) to appear on 8th March, 2011.

The Petitioner states that the Complainant/Respondent No. 2 is her mother-in-

law who is having property dispute with the Petitioner‟s husband since 2005

and in order to coerce the Petitioner‟s husband to forego his share in the

property left behind by Petitioner‟s father-in-law, the Respondent no.2 has

filed the complaint.

2. It is contended that the object of the Act was for redressal of married

women who were subjected to cruelty by their husband or in-laws. The object

of the Act clearly states that it does not enable any relative of the husband or

the male partner to file a complaint against the wife or the female partner.

Thus in a nutshell the contention is that a mother-in-law cannot take recourse

to the proceedings under Section 12 of the Act to file a complaint against the

daughter-in-law.

3. The learned counsel for the Petitioner relies upon the object of the Act

and contends that as per para „2‟ and „4‟ of the Statements of Objects &

Reasons of the Act, the Act was enacted to address to the phenomena of

cruelty inflicted under Section 498A IPC in its entirety. It is further

contended that as per Section 2, the Respondent means any adult male person

who is or has been in a relationship with the aggrieved person and against

whom any relief has been sought under this Act. The proviso to Section 2(q)

Crl. M.C. 725/2011 Page 2 of 10 which provides that an aggrieved wife or female living in a relationship in the

nature of marriage may also file a complaint against a relative or the husband

or the male partner does not include a female relative.

4. The issue whether the „females‟ are included or not in the definition of

„Respondent‟ in Section 2(q) of the Act came up for consideration before the

Hon‟ble Supreme Court in Sou. Sandhya Manoj Wankhade vs. Manoj

Bhimrao Wankhade & Ors., 2011 (3) SCC 650 wherein their Lordships held:-

13. It is true that the expression "female" has not been used in the proviso to Section 2(q) also, but, on the other hand, if the Legislature intended to exclude females from the ambit of the complaint, which can be filed by an aggrieved wife, females would have been specifically excluded, instead of it being provided in the proviso that a complaint could also be filed against a relative of the husband or the male partner. No restrictive meaning has been given to the expression "relative", nor has the said expression been specifically defined in the Domestic Violence Act, 2005, to make it specific to males only.

14. In such circumstances, it is clear that the legislature never intended to exclude female relatives of the husband or male partner from the ambit of a complaint that can be made under the provisions of the Domestic Violence Act, 2005.

15. In our view, both the Sessions Judge and the High Court went wrong in holding otherwise, possibly being influenced by the definition of the expression "Respondent" in the main body of Section 2(q) of the aforesaid Act.

16. The Appeal, therefore, succeeds. The judgments and orders, both of the learned Sessions Judge, Amravati, dated 15 th July, 2009 and the Nagpur Bench of the Bombay High Court dated 5th March, 2010, in Crl. Writ Petition No. 588 of 2009 are set aside.

Crl. M.C. 725/2011 Page 3 of 10 Consequently, the trial Court shall also proceed against the said Respondent Nos. 2 and 3 on the complaint filed by the Appellant"

5. Division Bench of this Court in "Varsha Kapoor vs. UOI & Ors. 2010

VI AD(Delhi) 472 interpreting Section 2(q) of the Act also came to the same

conclusion. Thus the issue whether under Section 2(q) of the Act "the female

relative" would be inclusive in the definition is no more res integra. The

Division Bench held as under:-

"12. When we interpret the provisions of Section 2 (q) in the context of the aforesaid scheme, our conclusion would be that the petition is maintainable even against a woman in the situation contained in proviso to Section 2(q) of the DV Act. No doubt, the provision is not very satisfactorily worded and there appears to be some ambiguity in the definition of „respondent‟ as contained in Section 2 (q). The Director of Southern Institute for Social Science Research, Dr. S.S. Jagnayak in his report has described the ambiguity in Section 2(q) as "Loopholes to Escape the Respondents from the Cult of this Law" and opined in the following words:

"As per Section 2 Clause (q) the respondent means any adult male person who is or has been in a domestic relationship. Hence, a plain reading of the Act would show that an application will not lie under the provisions of this Act against a female. But, when Section 19(1) proviso is perused, it can be seen that the petition is maintainable, even against a lady. Often this has taken as a contention, when ladies are arrayed as respondents and it is contended that petition against female respondents are not maintainable. This is a loophole which should be plugged."

13. But then, Courts are not supposed to throw their hands up in the air expressing their helplessness. It becomes the duty of the Court to give correct interpretation to such a provision having

Crl. M.C. 725/2011 Page 4 of 10 regard to the purpose sought to be achieved by enacting a particular legislation. This so expressed by the Supreme Court in the case of Ahmedabad Municipal Corpn. Anr. Vs. Nilaybhai R. Thakore & Anr. [(1999) 8 SCC 139 in the following words:

"14. Before proceeding to interpret Rule 7 in the manner which we think is the correct interpretation, we have to bear in mind that it is not the jurisdiction of the court to enter into the arena of the legislative prerogative of enacting laws. However, keeping in mind the fact that the Rule in question is only a subordinate legislation and by declaring the Rule ultra vires, as has been done by the High Court, we would be only causing considerable damage to the cause for which the Municipality had enacted this Rule. We, therefore, think it appropriate to rely upon the famous and oft-quoted principle relied by Lord Denning in the case of Seaford Court Estates Ltd. v. Asher [1994] 2 All ER 155 wherein he held : "When a defect appears a judge cannot simply fold his hand and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament and then he must supplement the written words so as to give 'force and life' to the intention of the Legislature. A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases". This statement of law made by Lord Denning has been consistently followed by this Court starting in the case of M. Pentiah and Ors. v. Muddala Veeramallappa and Ors. : [1961]2SCR295 and followed as recently as in the case of S. Gopal Reddy v. Slate of Andhra Pradesh : 1996CriLJ3237 . Thus, following the above Rule of interpretation and with a view to iron out the creases in the impugned Rule which offends Article 14, we interpret Rule 7 as follows : "Local student means a student who has passed H.S.C./New S.S.C.

Crl. M.C. 725/2011 Page 5 of 10 examination and the qualifying examination from any of the High Schools or Colleges situated within the Ahmedabad Municipal Corporation limits and includes a permanent resident student of Ahmedabad

Municipality who acquires the above qualifications from any of the High School or College situated within Ahmedabad Urban Development Area."

14. This Court also followed the aforesaid principles in the case of Star India P. Ltd. Vs. The Telecom Regulatory Authority of India and Ors. [146 (2008) DLT 445 (DB) in the following words:

"28. It is also a firmly entrenched principle of interpretation of statutes that the Court is obliged to correct obvious drafting errors and adopt the

constructive role of 'finding the intention of Parliament... not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it' as enunciated in State of Bihar v. Bihar Distillery Ltd.: AIR1997SC1511 . The Court should also endeavor to harmoniously construe a statute so that provisions which appear to be

irreconcilable can be given effect to, rather than strike down one or the other. It must also not be forgotten that jural presumption is in favor of the

constitutionality of a statute."

15. Having regard to the purpose which the DV Act seeks to achieve and when we read Section 2 (q) along with other provisions, out task is quite simple, which may in first blush appear to be somewhat tricky. We are of the considered view that the manner in which definition of „respondent‟ is given under Section 2(q) of DV Act, it has to be segregated into two independent and mutually exclusive parts, not treating proviso as adjunct to the main provision. These two parts are:

a) Main enacting part which deals with those aggrieved persons, who are „in a domestic relationship‟. Thus, in those cases where aggrieved person is in a domestic

Crl. M.C. 725/2011 Page 6 of 10 relationship with other person against whom she has sought any relief under the DV Act, in that case, such person as respondent has to be an adult male person. Given that aggrieved person has to be a female, such aggrieved person in a domestic relationship can be a mother, a sister, a daughter, sister-in-law, etc.

b) Proviso, on the other hand, deals with limited and specific class of aggrieved person, viz. a wife or a female living in relationship in the nature of marriage. First time by this legislation, the legislator has accepted live in relationship by giving those female who are not formally married, but are living with a male person in a relationship, which is in the nature of marriage, also akin to wife, though not equivalent to wife. This proviso, therefore, caters for wife or a female in a live in relationship. In their case, the definition of „respondent‟ is widened by not limiting it to „adult male person‟ only, but also including „a relative of husband or the male partner‟, as the case may be.

What follows is that on the one hand, aggrieved persons other than wife or a female living in a relationship in the nature of marriage, viz., sister, mother, daughter or sister-in-law as aggrieved person can file application against adult male person only. But on the other hand, wife or female living in a relationship in the nature of marriage is given right to file complaint not only against husband or male partner, but also against his relatives.

16. Having dissected definition into two parts, the rationale for including a female/woman under the expression „relative of the husband or male partner‟ is not difficult to fathom. It is common knowledge that in case a wife is harassed by husband, other family members may also join husband in treating the wife cruelty and such family members would invariably include female relatives as well. If restricted interpretation is given, as contended by the petitioner, the very purpose for which this Act is enacted would be defeated. It would be very easy for the

Crl. M.C. 725/2011 Page 7 of 10 husband or other male members to frustrate the remedy by ensuring that the violence on the wife is perpetrated by female members. Even when Protection Order under Section 18 or Residence Order under Section 19 is passed, the same can easily be defeated by violating the said orders at the hands of the female relatives of the husband.

19. It is also well-recognized principle of law that while interpreting a provision in statute, it is the duty of the Court to give effect to all provisions. When aforesaid provisions are read conjointly keeping the scheme of the DV Act, it becomes abundantly clear that the legislator intended female relatives also to be respondents in the proceedings initiated by wife or female living in relationship in the nature of marriage."

6. The next issue which arises for consideration is whether the word

„aggrieved person‟ in Section 2(a) of the Act has to be given a restricted

meaning in view of the Statement of Objects & Reasons so as to include the

daughter-in-law only and excludes only a mother-in-law, sister-in-law or

daughter from its ambit. The relevant Sections read as under:-

"2(a) "aggrieved person" means any woman who is or has been in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;

(b).......................

(c).......................

(d)......................

(e)......................

(f) "domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a

Crl. M.C. 725/2011 Page 8 of 10 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;"

7. Thus, a perusal of Section 2(a) and 2(f) of the Act shows that any

woman who is in a domestic relationship, the said domestic relationship being

one between two persons who lived at any point of time together in a shared

household related by consanguinity, marriage or through a relationship in the

nature of marriage, adoption or family members living as a joint family and

alleges that she has been subjected to any domestic violence by the

Respondent is entitled to relief under the Act.

8. The word „aggrieved person‟ cannot be given a restricted meaning in

view of para „2‟ of the Statement of Objects & Reasons which states that:-

"The phenomenon of domestic violence is widely prevalent but has remained largely invisible in the public domain. Presently, where a woman is subjected to cruelty by her husband or his relatives, it is an offence under Section 498A of the Indian Penal Code. The civil law does not however address this phenomenon in its entirety.

Thus, it is evident that phenomenon which was sought to be addressed was

"domestic violence" and not "domestic violence qua the daughter-in-law or

the wife only as contemplated under Section 498A.

9. As a matter of fact, para „4(i)‟ clarifies that even those women who are

sisters, widows, mothers, single woman or living with the abuser are entitled

Crl. M.C. 725/2011 Page 9 of 10 to legal protection under the proposed legislation. A mother who is being

maltreated and harassed by her son would be an "aggrieved person". If the

said harassment is caused through the female relative of the son i.e. his wife,

the said female relative will fall within the ambit of the „respondent‟. This

phenomenon of the daughters-in-law harassing their mothers-in-law especially

who are dependent is not uncommon in the Indian society.

10. In view of the authoritative pronouncement of the Hon‟ble Supreme

Court, para „4‟ of the Statement of Objects and Reasons cannot be stated to

have excluded a female relative of the male partner or a respondent and thus, a

mother-in-law being an "aggrieved person" can file a complaint against the

daughter-in-law as a respondent.

11. Thus, I find that no case for quashing of the complaint is made out.

Petition and application are dismissed.

(MUKTA GUPTA)

JUDGE

SEPTEMBER 02, 2011

vkm

Crl. M.C. 725/2011 Page 10 of 10

All are respondents under PWDVA, enjoy!

2011-02-21T18:58:00.001+05:30

                                      REPORTABLE
              IN THE SUPREME COURT OF INDIA
              CRIMINAL APPELLATE JURISDICTION
            CRIMINAL APPEAL NO.271 OF 2011
      (Arising out of SLP (Crl.) No.2854 of 2010)

Sou. Sandhya Manoj Wankhade ... Appellant

Vs.

Manoj Bhimrao Wankhade & Ors. ... Respondents

J U D G M E N T

ALTAMAS KABIR, J.
1. Leave granted.

2.    This Appeal is directed against the judgment
and   order    dated   5th   March,   2010,   passed   by   the
                                   2

Nagpur Bench of the Bombay High Court in Crl. W.P.
No.588 of 2009, inter alia, directing the Appellant to vacate her matrimonial house and confirming the order of the Sessions Judge deleting the names of the other Respondents from the proceedings.

3.     The   Appellant        herein     was     married       to     the
Respondent      No.1    on    20th     January,      2005,     and   the
marriage was registered under the provisions of the Special Marriage Act, 1954. After her marriage, the Appellant began to reside with the Respondent No.1
at     Khorej    Colony,      Amravati,       where     her     widowed
mother-in-law       and      sister-in-law,       the      Respondent
Nos.2 and 3 respectively, were residing.                      According
to the Appellant, the marriage began to turn sour after about one year of the marriage and she was
even    assaulted      by    her    husband    and    by     the    other
respondents.       It is her specific case that on 16th
June,    2007,    she       was    mercilessly       beaten     by   the
Respondent No.1, which incident was reported to the
                                    3

police and a case under Section 498-A I.P.C. came to be registered against him.

4.     In addition to the above, the Appellant appears
to     have    filed     a    complaint,            being    Misc.    Crl.
Application         No.203    of    2007,      on    16th   July,     2007,
against all the Respondents under Sections 12, 18,
19,    20     and   22   of   the       Protection     of    Women     from
Domestic Violence Act, 2005, hereinafter referred
to    as    "the     Domestic       Violence        Act,    2005".       An
application         filed     by    the       Appellant      before    the
Judicial Magistrate, First Class, Amravati, under Section 23 of the above Act was allowed by the
learned       Magistrate,      who       by   his    order    dated    16th
August, 2007, directed the Respondent No.1 husband to pay interim maintenance to the Appellant at the
rate of        1,500/- per month from the date of the
application till the final disposal of the main application and also restrained all the Respondents
from        dispossessing          the        Appellant       from     her
                                 4

matrimonial home at Khorej Colony, Amravati, till the final disposal of the main application.

5.   It further appears that the said order of the
learned     Magistrate     dated       16th    August,    2007,     was
challenged by Respondent No.1 in Crl. Appeal No.115
of   2007        before   the        learned     Sessions     Judge,
Amravati, who by his order dated 2nd May, 2008, dismissed the said appeal. Aggrieved by the orders
passed      by     the    learned       Sessions         Judge,     the
Respondent No.1 filed Criminal Application No.3034 of 2008 in the High Court under Section 482 Cr.P.C.
challenging the order dated 16th August, 2007 of the Judicial Magistrate, First Class, Amravati and the order dated 2nd May, 2008 of the Sessions Judge, Amravati. The said application was dismissed by the High Court on 4th September, 2009.

6.   In the meanwhile, the Respondent No.2 filed an
application       in   Misc.    Crl.    Application        No.203    of
2007 in the Court of the Judicial Magistrate, First
                               5

Class, Amravati, praying for modification of its order dated 16th August, 2007 and a direction to the Appellant to leave the house of Respondent No.2.
The said application for modification was dismissed by the learned Magistrate on 14th July, 2008 holding
that     it   was   not   maintainable.       Thereupon,      the
Respondent Nos.2 and 3 filed Crl. Appeal No.159 of
2008 on 11th August, 2008, under Section 29 of the Domestic Violence Act, 2005, questioning the orders passed by the learned Magistrate on 16th August,
2007 and 14th July, 2008, on the ground that being women they could not be made Respondents in the
proceedings     filed     by    the    Appellant    under     the
provisions of the Domestic Violence Act, 2005, and
that   the    matrimonial      house   of   the   Appellant   at
Khorej    Colony,   Amravati,      belonged   exclusively     to
Ramabai, the Respondent No.2 and mother-in-law of the Appellant and did not, therefore, come within the definition of "shared house". The said Criminal Appeal No.159 of 2008 was allowed by the learned
                                6

Sessions Judge vide his judgment dated 15th July,
2009.     The learned Sessions Judge allowed Criminal
Appeal No.159 of 2008 and set aside the judgment and order dated 14th July, 2008 and also modified the order dated 16th August, 2007, to the extent of
setting     aside       the   injunction     restraining      the
Respondents        from   dispossessing      or   evicting    the
Appellant        from   her   matrimonial    house   at    Khorej
Colony, Amravati.         The Respondent No.1 husband was
directed to provide separate accommodation for the residence of the Appellant or to pay a sum of
1,000/- per month to the Appellant from the date of filing of the application till its final decision, in lieu of providing accommodation.

7.      In Criminal Writ Petition No.588 of 2009, the
Appellant herein challenged the judgment and order
dated     15th    July,   2009,     passed   by   the     learned
Sessions Judge, Amravati, in Crl. Appeal No.159 of 2008, claiming that she had a right to stay in her
                               7

matrimonial house. Although, the question as to
whether a female member of the husband's family could be made a party to the proceedings under the Domestic Violence Act, 2005, had been raised in Crl. Appeal No.159 of 2008, the learned Sessions Judge in his order dated 15th July, 2009, did not decide the said question and did not absolve the Respondent Nos.2 and 3 herein in his order, but only observed that female members cannot be made parties in proceedings under the Domestic Violence Act, 2005, as "females" are not included in the definition of "respondent" in Section 2(q) of the said Act.

8. The learned Single Judge of the High Court
disposed of the writ petition by his judgment and order dated 5th March, 2010, with a direction to the Appellant to vacate her matrimonial house, which was in the name of the Respondent No.2, with a further direction to the Trial Court to expedite
8

the hearing of the Misc. Crl. Application No.203 of
2007 filed by the Appellant herein and to decide
the same within a period of six months. A further
direction was given confirming the order relating to deletion of the names of the `other members'.

9.   Questioning the said judgment and order of the
Nagpur Bench of the Bombay High Court, Mr. Garvesh
Kabra,        learned    Advocate    appearing        for    the
Appellant, submitted that the High Court had erred in confirming the order of the learned Sessions
Judge    in     regard   to   deletion   of   names     of   the
Respondent Nos.2 and 3 from the proceedings, upon confirmation of the finding of the Sessions Judge that no female could be made a party to a petition under the Domestic Violence Act, 2005, since the expression "female" had not been included in the definition of "respondent" in the said Act. Mr.
Kabra submitted that it would be evident from a plain reading of the proviso to Section 2(q) of the
                               9

Domestic Violence Act, 2005, that a wife or a
female living in a relationship in the nature of marriage can, not only file a complaint against her husband or male partner but also against relatives of the husband or male partner. The term "relative"
not having been defined in the Act, it could not be said that it excluded females from its operation.

10. Mr.     Satyajit     A.        Desai,    learned        Advocate
appearing for the Respondents, on the other hand, defended the orders passed by the Sessions Judge
and   the   High     Court     and    urged        that    the   term
"relative" must be deemed to include within its ambit only male members of the husband's family or
the family of the male partner.                    Learned counsel
submitted that when the expression "female" had not been specifically included within the definition of
"respondent"    in     Section       2(q)     of     the    Domestic
Violence Act, 2005, it has to be held that it was
                           10

the intention of the legislature to exclude female members from the ambit thereof.

11. Having     carefully   considered    the   submissions
made on behalf of the respective parties, we are
unable   to    sustain   the    decisions,   both   of   the
learned Sessions Judge as also the High Court, in relation to the interpretation of the expression
"respondent"     in   Section    2(q)   of   the    Domestic
Violence Act, 2005.        For the sake of reference,
Section 2(q) of the above-said Act is extracted hereinbelow :-

    "2(q). "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:
        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."
                                11

12. From the above definition it would be apparent that although Section 2(q) defines a respondent to mean any adult male person, who is or has been in a
domestic relationship with the aggrieved person,
the proviso widens the scope of the said definition
by including a relative of the husband or male
partner within the scope of a complaint, which may be filed by an aggrieved wife or a female living in a relationship in the nature of a marriage.

13. It is true that the expression "female" has not been used in the proviso to Section 2(q) also, but, on the other hand, if the Legislature intended to exclude females from the ambit of the complaint, which can be filed by an aggrieved wife, females would have been specifically excluded, instead of it being provided in the proviso that a complaint
could   also    be     filed   against      a     relative   of    the
husband    or    the    male    partner.           No   restrictive
meaning    has        been     given       to     the    expression
                            12

"relative", nor has the said expression been
specifically defined in the Domestic Violence Act, 2005, to make it specific to males only.

14. In such circumstances, it is clear that the
legislature never intended to exclude female
relatives of the husband or male partner from the ambit of a complaint that can be made under the provisions of the Domestic Violence Act, 2005.

15. In our view, both the Sessions Judge and the
High Court went wrong in holding otherwise,
possibly being influenced by the definition of the expression "respondent" in the main body of Section
2(q) of the aforesaid Act.

16. The Appeal, therefore, succeeds.           The judgments
and orders, both of the learned Sessions Judge,
Amravati, dated 15th        July, 2009 and the Nagpur
Bench of the Bombay High Court dated 5th March, 2010, in Crl. Writ Petition No.588 of 2009 are set
                          13

aside. Consequently, the trial Court shall
also
proceed against the said Respondent Nos.2 and 3 on the complaint filed by the Appellant.

17. The appeal is allowed accordingly.

................................................J.
(ALTAMAS KABIR)

................................................J.
(CYRIAC JOSEPH) New Delhi
Dated:31.01.2011

Learn how to use IPC sections 498a, 307, and 376 to create negotiating spaces!

2011-02-08T10:38:00.001+05:30

http://www.thehindu.com/news/national/article1159868.ece

Referring to news item above:

I am not saying it's not abused. Just because it empowers women and gives them a negotiating space, [there are demands] that it be repealed. This is male chauvinism.”

Justice Ganguly pointed out that Section 307 of the IPC was the most abused with instances of even a slap being construed as an attempt on one's life.

As a SC judge, Justice A K Ganguly believes that IPC 498a gives women a negotiating space. The citizens would like to know further from the learned SC judge all the other sections of IPC which are meant to give negotiating space to citizens.

He states that IPC 307 (attempt to murder) is most abused. I hope it is not because judiciary treats charges like “attempt to murder” as providing negotiating space to citizens to solve their private disputes! It is because of this dilution of what is criminal law and what is civil law, the former Chief Justice Balakrishnan even suggested publicly that rape victims should be given choice to marry the accused. Not sure if he also meant that rape law can be used to create a negotiating space! In the same breath the same SC judges will say that atrocities on women are increasing, we must protect women.

The SC judges need to be sent back to school to re-educate themselves about criminal law. We really hope they are not using the IPC sections to help create negotiating spaces in their families, and among friends and relatives.

Child’s wish is High Court’s command

2010-12-30T14:11:00.001+05:30

See Uttarakhand HC judgment below. What idiocy in name of welfare of child! If a child runs away from home, does the court equate “child’s wish” =”welfare of child” and child should then live as an orphan because effectively that is what child wished for in practical terms? Or does the court rule away minor child’s wish and be returned to parents?

Did the court consider the following facts?

Child is only 6 years old, not of age where she can express a considered preference.
Fact of crying of a 6 years old girl in front of a unfamiliar court room in unfamiliar crowd should be given only that much significance as is required in the context.
Courts are implicitly saying they can be manipulated by either parent (mostly mothers) into poisoning or influencing a child’s mind. Just make sure you bring child in front of court and make her cry, the rest of job is done!

--------------------------------------------------------------------------------------------

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL FIRST APPEAL NO. 86 OF 2010

Popendra Datt Painuly,

S/o Sri Purshottam Datt Painuly,

R/o Tehri Visthapit Basti, Village Pathri, Near Pathri Railway Station, Tehsil and District Haridwar. .Appellant.

Versus

1. Smt. Sunita,

D/o Sri Shyam Lal Ratudi,

C/o Shanti Prasad Kotiyal,

R/o Gali No. 6, Haridwar Road, I.D.P.L. Durga Mandir Rishikesh, P.S. Rishikesh, District Dehradun.

2. Km. Ritu, D/o Popendra Datt Painuly, Through her guardian Mother Smt. Sunita, D/o Sri Shyam Lal Ratudi, C/o Shanti Prasad Kotiyal, I.D.P.L. Durga Mandir, Rishikesh, P.S. Rishikesh, District Dehradun. ..Respondents.

Present:- Sri Vivek Shukla, Advocate for the appellant.

Coram: Hon'ble Prafulla C. Pant, J. Hon'ble Sudhanshu Dhulia, J.

Prafulla C. Pant, J. (Oral)

1. This is Delay Condonation Application No. 10753 of 2010 for condonation of delay in filing the appeal against order dated 29.3.2010, passed by Additional Judge, Family Court, Rishikesh in Misc. Case No. 4 of 2008 (G & W).

2. Heard.

3. There is delay of 232 days, which is sufficiently explained in the affidavit filed by the appellant. The Delay Condonation Application No. 10753 of 2010 is allowed, and delay is condoned.

4. Also heard on admission, and perused the order dated 29.3.2010 passed by trial court, whereby the application for custody of female child to the appellant (father) is declined.

5. Brief facts of the case are that appellant Popendra Dutt Painuly got a decree of divorce against his wife Smt. Sunita (respondent no. 1) vide judgment and order dated 3.7.2007 passed by Judge, Family Court, Haridwar in Original Suit No. 33 of 2007. It appears that two children (both female) had born out of the wedlock, and they were living with their mother. An application was moved before the Additional Judge, Family Court, Haridwar for custody of child Kumari Ritu, aged 6 years, by the father (present appellant).

6. The impugned order shows that respondent Smt. Sunita brought Kumari Ritu to give the custody of the child to the present appellant in the court. But the child started crying and insisted that she would not leave company of her maternal grand-father, with whom her mother is living. Keeping in mind the interest of the child, the trial court rejected the application for custody of child, moved by the father.

7. It is a settled principle of law that in the matters of custody of children, the paramount consideration is the interest of the child. It is a case of custody of a minor female child, aged 6 years, who expressed before the court that she is not inclined to go to with her father, and insisted that she would live with her maternal grand- father, where she is living with her mother. Considering the facts and circumstances of the case, this court does not find any illegality in the order dated 29.3.2010 passed by the trial court on the application, moved by the divorcee husband (father of the child).

8. Therefore, the appeal is dismissed summarily with the observation that the appellant is not barred from moving fresh application in the changed circumstances of the case, for the custody of the child.

(Sudhanshu Dhulia, J.) (Prafulla C. Pant, J.) 23.12.2010

Rathour

Advice to women on IPC 498a, DV case, maintenance etc.

2010-11-13T12:43:00.001+05:30

This blog gets a reasonable number of hits everyday. The main goal of the blog is clearly mentioned, both in its name, and in description. However it is quite likely that some of the visitors are women who have wandered over here and have filed a complaint against husband/in-laws/relatives/children/pet dog, or intend to do so. This post is specifically meant for them.

Firstly, IPC 498a was made to protect a woman from injury to life or limb, or mental harassment to the extent to drive her to suicide. All problems in marital life do not attract 498a, to the extent made clear in this SC judgment too.

Q: I want him to stay away from his parents and take a separate house, but he will not listen.

A: Maybe you do not realize that we are not living in a western country, where it is normal for individuals to live their own lives, and parents to live separately from children. Be sure that this is the same result you want from your brothers, i.e., they too should abandon parents or their wives should file 498a on them and surprise!!!, you may also get included as an accused, being relative of a husband. Or you firmly believe that when your children grow up, they are also entitled to ask you and your husband to move out since you are such a drag on their lives. Children learn from parents -- what goes around, comes around.

Q: But I need to teach a lesson to my husband, his parents etc. etc..

A: You will definitely be able to teach lesson but the results may not be what you intended. A sure separation/divorce is guaranteed in every 498a case. Be very clear if that is what you want by misusing law meant to protect women in desperate situation.

Q: I want to get a divorce and will not get one easily, so filing 498a may help me to get divorce.

A: Did it ever occur to you that laws are made in a democratic country by their elected representatives, and you are also responsible for the laws by having elected (or not voted) the lawmakers? Taking an illegal shortcut to achieve your ends may work in short term, but it may also give unintended results you did not hope for. For example, if you want to remarry after divorce, you may find out that many divorcee men do not want to marry ex-498a wives, since they fear they and their families could get hit by 498a by you after marriage. Be careful what you wish for.

On the other hand, many men have also learnt the techniques on how to survive false 498a cases, this blog is just one effort to help them fight injustice. So if you hoped for a quick divorce and fat alimony, but instead found out to be hanging around in courts with no divorce in sight, then that option of mutual consent divorce which you forego will seem like such a great idea! Alas, 498a is non-compoundable in most states, so now you got stuck.

Finally, following is official advice of Hyderabad police for women who want to file 498a. See if something is applicable for your case:

http://www.hyderabadpolice.gov.in/WomenCorner/498A.htm

Q: My husband does not listen to me, I want to file for maintenance under CrPC 125, DV Act (PWDVA) etc. because I am entitled to that as a wife. I will stay separately and enjoy the maintenance every month without having to work.

A: Surely you have been advised by some well-wishers, maybe even lawyers you approached. It reminds me of the saying: “With friends like these, who needs enemies?”. Did they not tell you that to file under DV Act, you have to allege domestic violence, so they will give you some cookie-cutter template to insert into your petition to allege things like: “I was not given food”, “I was thrown out in middle of night”, “I was locked in the bathroom by my mother-in-law”, and so on.

If any of these things are true or something similarly bad was done to you, then and then only you are eligible to file complaint under DV Act. If husband and his family have proofs otherwise, you may get nothing. Even if they are unable to prove, but you are unable to prove either, you may get a token maintenance. Did you intend to live next 30-40 years living like that? If you get remarried, then maintenance will also end. If you are capable of working, you could have a career, and earn lot more while doing something useful. But your advisers will not let you see that, they want you to believe you could get all the golden eggs by killing the hen right away. Option of filing maintenance should be used only if you cannot earn, and cannot live with husband due to his fault.

There is also a misconception being propagated that DV Act is more civil in nature, unlike 498a. So you can use DV Act to get maintenance from husband, and still continue to enjoy the status of being married (on paper at least). The problem is that you have to allege domestic violence under DV complaint, and if allegations are false, then your husband and his relatives will never trust you again in their life. A DV complaint is also a route to final divorce, just like 498a. If anyone says otherwise including your lawyer, ask them how many cases they have handled where woman and man are living happily in marriage after DV complaint was filed?

Read this post by another woman, who is happily re-married for 14 years now after becoming widow, but wants to file DV case on previous in-laws.

http://www.lawyersclubindia.com/forum/domestic-voilence-a-new-turn-26194.asp

can a widow who remarried and is living happily with her new husband with whom she has kids, can file case under D V act on her previous father in law and mother in law ,after 11 yrs of her remarriage .her first hubby died in 1993 and she got remarried in 1996, whats her locus standi

pl advice

Even though she says she is living happily, probably she is not happy enough, so her ‘advisers’ will try to make her happier, but these advisers will stick around with you only so long as the going is good. And you will get dropped like a hot stone as soon as they realize that you are not going to bring much moolah for anyone.

Here is a public legal notice by a mother against her own daughter, who probably filed false complaint against her husband and got divorce. When you misuse law, you break the trust of many people, including your own blood relatives, so don’t be surprised at the results.

Live-in like wife, not mistress – says Supreme Court

2010-10-21T17:15:00.001+05:30

After the recent episode where Supreme Court wanted to see if palimony could be applicable for live-in relationship of 14 years, the air has cleared. Link to previous news below:

http://timesofindia.indiatimes.com/india/Should-a-concubine-get-maintenance-SC-to-examine-the-question/articleshow/6685247.cms

Today’s news where SC has distinguished that there are 2 kind (hopefully we stop at 2) of live-in relationships when it comes to eligibility of maintenance to women:

1. Live-in relationship in nature of marriage

2. Live-in relationship of any other kind

And SC has clarified that the second kind are NOT eligible for maintenance by women. Link to the news below:

http://www.ndtv.com/article/india/no-alimony-for-live-in-relationships-says-supreme-court-61303

In this case, the Supreme Court said it will have to determine whether the woman was a "mistress" or the equivalent of a wife.

The Supreme Court also said, "No doubt because of this view many women who have had live-in relationship would be excluded from the benefit of the provisions the protection of Women from Domestic Violence Act 2005, which talks about relationship in the nature of marriage."

That would be a symbolic blow to the feminism-fired Domestic Violence Industry which wants empowered women to be free from marriage constraints but free to file domestic violence complaints on male partners so that they can seek maintenance.

All women in household deserve protection under PWDVA

2010-09-22T18:50:00.001+05:30

When laws are made to satisfy whims of a few feminazis, the result is such litigation as in this Delhi case below.

--------------------------------------------------------------

IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGE-II (NORTH-WEST) ROHINI COURTS: DELHI

Crl. Revision No. 367/2010

1. Santosh Kaur
W/o Sh. Mohan Lal Kashyap
R/o 6-D, Janta Flats, Satyawati Colony,
Behind Laxmi Bai College,
Ashok Vihar, Phase-III,
Delhi.

2. Ms. Ritu Kashyap
D/o Sh. Mohan Lal Kashyap
R/o 6-D, Janta Flats, Satyawati Colony,
Behind Laxmi Bai College,
Ashok Vihar, Phase-III,
Delhi.
3. Mrs. Sarika Mehta
W/o Sh. Kamal Mehta
R/o F-8, 2nd Floor,
Kamla Nagar,
Delhi
............ Revisionists
Versus
Smt. Nidhi Kashyap
W/o Sh. Gaurav Kashyap
D/o Sh. K.C. Ahuja
R/o C-4/428, Lawrence Road,
Delhi . 110035

............ Respondent

Date of institution: 29.5.2010
Arguments heard on: 16.8.2010
Date of Decision: 28.8.2010
ORDER:

This revision has been filed against the summoning
orders dated 24.2.2010, 25.3.2010 and 23.4.2010 passed by the
Ld. Trial Court in the petition filed by the respondent Nidhi
Kashyap under Section 12 of the Protection of Women from
Domestic Violence Act, 2005. The revisionist no.1 Smt.
Santosh Kaur is the mother-in-law of the respondent whereas the
revisionist no.2 Ms. Ritu Kashyap is her unmarried sister-in-law
(Nanand) and respondent no.3 Mrs. Sarika Mehta is her married
sister-in-law (Nanand).

Briefly the case of the respondent Nidhi Kashyap/
applicant before the Trial Court is that she was the class mate of
revisionist no.2 Ritu Kashyap who is the real sister of Gaurav
Kashyap (respondent no.1 before the Ld. Trial Court) and had
friendly relations with him. According to Nidhi Kashyap, her
father is a property dealer and mother is a bank employee and
they have strong a financial background. It is pleaded that they
are only two sisters and therefore as a part of well planned
conspiracy, the revisionists before this court induced her to enter
into a matrimonial relationship with Gaurav Kashyap despite the
fact that both belonged to different communities. According to
the respondent, her marriage with Gaurav Kashyap was
solemnized secretly on 29.7.2008 at Arya Samaj Mandir, Birla
Line, Kamla Nagar, Delhi according to Hindu rites and
ceremonies after which she left for her parental home as she was
asked to disclose the factum of her marriage to them only after
45 days. It is further pleaded by Nidhi Kashyap that on
12.9.2008 when she entered into her matrimonial home at 6-D,
Janta Flats, Satyawati Colony, behind Laxmi Bai College, Ashok
Vihar, Phase-III, Delhi the revisionists before this court, under a
well planned design conspiracy and in a pre planned manner,
called her parents at their home and disclosed the factum of the
marriage of their son with the present respondent (Nidhi
Kashyap) on which her parents received a serious shock but
finding no alternative they ultimately gave their consent and
approval to the matrimonial ties and on 12.10.2008 as per the
demands of her in-laws, her parents organized a joint reception
where they gave a large amount of gold and jewellery and
domestic articles and cash to her. According to Nidhi Kashyap,
the respondent before this court court, the revisionists are in
domestic relationship with her due to her matrimonial
relationship with Gaurav Kashyap (respondent no. 1 before the
Ld. Trial Court). She has alleged that on 13.10.2008 after she
entered into her matrimonial home, her Nanand the revisionist
no.2 Ritu Kashyap raised a demand of Hundai i10 car and it was
made clear to her that in case if she wants to live peacefully she
would have to ask her parents to satisfy their demands. Again on
13.10.2008, her mother-in-law Smt. Santosh Kashyap the
revisionist no.1 before this court took a sum of Rs.20,000/- from
her purse against her will and consent and in the evening the
revisionists no.2 and 3 took away entire gold and diamond
jewelleries except one Mangal Sutra, one gold ring, nose pin
and ear rings and thereafter did not return the same to her despite
her repeated requests and demands. The present respondent
Nidhi Kashyap has also mentioned numerous other occasions
alleging that the revisionists before this court had been
disclosing their intent and expectations for cash and other
articles from time to time and she had been subjected to
harassment, torture and violence on account of the repeated
dowry demands made by the revisionists before this court
including her married sister-in-law Sarika Mehta. According to
Nidhi Kashyap, her entire jewellery is lying with her in-laws. A
petition under Section 9 of the Hindu Marriage Act filed by
Gaurav Kashyap the husband of the present respondent is also
pending adjudication before the Ld. ADJ, Rohini. She has
alleged that she has been compelled to make a complaint before
the Crime Against Women Cell, Pitam Pura, Delhi on account of
the callous conduct on the part of her in-laws including the
present revisionists. She has further alleged that her husband
Gaurav Kashyap is the owner of property bearing no. 6-D, Janta
Flats, Satyawati Colony, Behind Laxmi Bai College, Ashok
Vihar, Phase-III, Delhi and he and his parents are owning and
possessing 100 sq. plot as Samaipur Badli, Delhi. Further, she
has alleged that her husband Gaurav Kashyap and his parents are
owning and possessing the HIG Flat in TDI Sonepat having a
market value to the tune of Rs.22 lacs and are running a factory
under the name and style of MCO Chemical, Samaypur, Delhi
and are owning and possessing two godowns at Samaypur and
Swaroop Nagar and her husband Gaurav Kashyap is having one
house at Sri Nagar, Bharat Nagar, Delhi. It is also alleged by the
respondent before this court that her husband and his parents are
owning and possessing a Maruti 800 car bearing no. DL-6019
and are also owning a truck Tata-407 and two victor bikes. She
has now demanded that her husband Gaurav Kashyap i.e. the
respondent no.1 before the Ld. Trial Court is under a legal
obligation to maintain her and she requires independent
residential accommodation which is available at the rental value
of Rs.10,000/- per month excluding the water and electricity
charges and also requires Rs.30,000/- per month for her
maintenance and Rs. 5 lacs on account of mental torture, pain
and agony suffered by her. According to the present respondent
she cannot remain dependent upon her parents for her shelter and
therefore, her husband Gaurav Kashyap is required to make the
arrangements for separate residential accommodation. In her
petition, the present respondent Nidhi Kashyap has further
demanded that her husband and her in-laws including the present
revisionists should be restrained from entering into her parental
home and from making any kind of communication to her and
from committing any act of Domestic Violence and aiding or
abetting in the commission of acts of domestic violence.
Further, she has demanded that they be restrained from
alienating and parting with her istridhan articles and also from
creating any third part interest and parting with the possession of
the property bearing No. D-6, Janta Flats, Satyawati Colony,
Behind Laxmi Bai College, Ashok Vihar, Delhi and property
bearing no. 77, Bharat Nagar Delhi till her husband make the
provisions for her independent residential accommodation. She
has also claimed Rs.3,000/- from her in-laws including the
present revisionists as litigation expenses.

Pursuant to the aforesaid petition, the Ld. Trial Court
sought a Domestic Incident Report from the Protection Officer.
The said report was duly filed which I have duly perused. The
said report clearly reflects that Smt. Sarika Mehta the revisionist
no.3 before this court is not a member of the shared household
and is separately residing at her matrimonial home residing at F-
8, 2nd Floor, Kamla Nagar, Delhi with her husband Sh. Kamal
Mehta whereas Smt. Santosh Kaur the mother-in-law and Ritu
Kashyap the unmarried sister-in-law are all residing at 6-D, Janta
Flats, Satyawati Colony, Behind Laxmi Bai College, Delhi. The
report further shows that only one incident of domestic violence
on 3.7.2009 by the husband has been reported on which day the
present respondent was beaten by her husband and was asked to
leave the house. The report further reflects that the only incident
of verbal and emotional abuse are of insults for not having
brought dowry, demeaning, humiliating, undermining, ridicule
and name calling by her husband and her in-laws and preventing
her from meeting a particular person. She has also alleged
economic violence upon her by her husband by not providing her
money, food, clothes, medicine etc. and forcing her out of the
matrimonial house and has alleged that her in-laws including the
present revisionists have disposed off her istridhan articles by
selling or pawing the same without her consent and forcibly
taken away her salary, income or wages etc.

The revisionists before this court have alleged that
the orders of summoning are also bad as they have been passed
without calling upon the respondent to furnish and establish the
material facts necessitated for passing such orders. It is
submitted that no domestic violence has ever been committed by
the revisionists upon the respondent before this court
(complainant before the Ld. Trial Court) and the petitioner under
the Domestic Violence Act has been filed on false and frivolous
grounds and the complaint filed by the present respondents
against them before Crime Against Women Cell, Pitam Pura has
been filed only to harass, humiliate and to extort money from
them. The revisionists have pointed out that the marriage of
Gaurav Kashyap with the present respondent was a simple one
without any demand and was an outcome of the love affair.
They have pointed out that the parents of the present respondent
were against her marriage and therefore, they secretly got
married without informing their family members at Arya Samaj
Mandir which was a dowry less marriage and the respondent had
come in wearing clothes and it is in this background that the
parents of Gaurav Kashyap including the revisionists organized a
reception on 12.10.2008 at Janak Vatika, Bharat Nagar. The
revisionists have further pointed out that on 3.7.2009 the present
respondent Nidhi Kashyap picked up a quarrel with her husband
Gaurav Kashyap and called her father with 5-6 other people who
beaten up Gaurav Kashyap and even shouted on road and use
abusive language for Gaurav Kashyap. Thereafter the present
respondent went to her parent's house by saying that she would
not live nor would maintain any relations with them and Gaurav
Kashyap made umpteen efforts to bring her back but she refused.
According to the revisionists they are themselves aggrieved and
victim of the violence inflicted upon them by the present
respondent. It is further stated that all the properties mentioned
by the present respondent does not belong to the husband of the
respondent. The revisionists have placed their reliance on the
following authorities:

1. S.R. Batra & Anr. vs. Smt. Taruna Batra reported in 1
(2007) SLT 1.
2. Shumita Didi Sandhu Vs. Sanjay Singh Sandhu reported
in 2007 (96) DRJ 697.
3. Mohd. Maqeenuddin Ahmed & Ors. Vs. The State of
Andhra Pradesh & Anr. reported in 2008 (1) JCC 85.
The Protection of Women from Domestic Violence
Act, 2005 is a special legislation in favour of women. It is the
duty of the court to ensure that this special legislation reaches
out to the effected lot but at the same time is not allowed to be
misused by anyone.

Wikipedia defines domestic relationship between
two individuals as a legal or personal relationship to live
together or share one domestic life but are neither joined by
marriage nor the civil union.

The Indian law i.e. Protection of Women from
Domestic Violence Act, 2005 does not define family but it
defines Domestic 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. Domestic relations
are meant to cover sisters, widows, mothers and daughters and
single women. The Indian law does not specify separate
relationship and mentions members in a joint family.

The intent of Protection of Women from Domestic
Violence Act, 2005 is to protect the value system and institution
of family and save it from destruction. This being so, the
provisions of the Protection of Women from Domestic Violence
Act, 2005 have to be so interpreted to ensure that the existing
family system is preserved. The misuse and abuse of the Act is a
matter of serious concern for the courts who are required to be
careful and ensure that a woman petitioner is not made a puppet
or pawn in the hands of her male relatives so as to manipulate
the Protection of Women from Domestic Violence Act, 2005
and use it for ulterior motives.

In the present case it is an admitted case of the parties
before this court that the respondent Nidhi Kashyap who is the
wife of Gaurav Kashyap (respondent no.1 before the Ld. Trial
Court) has filed the complaint under special legislation
(Protection of Women from Domestic Violence Act, 2005)
wherein she has spared none and roped the entire family
including the young unmarried sister-in-law who was her friend
and class-mate even before her marriage and also her married
sister-in-law who is residing separately with her own family. It
is admitted that the marriage between the present respondent
Nidhi Kashyap with Gaurav Kashyap was solemnized secretly
and was an outcome of a love affair as Nidhi Kashyap was
known to Gaurav Kashyap through the revisionist no.2 Ritu
Kashyap who was the batch mate of Nidhi Kashyap and was
studying with her. It is also an admitted case of the parties that
on having come to know of marriage a reception had been
organized after which the present respondent Nidhi Kashyap
started staying with her husband and her in-laws. It appears that
unfortunately the said marriage is not worked out resulting into
spade of litigation between the parties and Gaurav Kashyap even
filed a petition under Section 9 of the Hindu Marriage act
which is still pending adjudication and the present respondent
Nidhi Kashyap has filed a case in Crime Against Women Cell
alleging dowry demands and harassment against one and all.

The provisions of the Protection of Women from
Domestic Violence Act, 2005 have been invoked by the
respondent Nidhi Kashyap not only against her husband Gaurav
Kashyap but also against her aged father-in-law Mohan Lal
Kashyap (respondent no.2 before the Ld. Trial Court), motherin-
law Smt. Santosh Kaur (present revisionist no.1 before this
court), unmarried sister Ritu Kashyap (revisionist no.2 before
this court with whom Nidhi Kashyap was previously studying
and through whom she came to know Gaurav Kashyap and had a
love affair), married sister Smt. Sarika Mehta and her husband
Sh. Kamal Mehta who both are residing at F-8, 2nd Floor, Kala
Nagar, Delhi.

At the very outset I may observe that merely because
the revisionist no.3 Smt. Sarika Mehta happen to be the real
sister of the husband of present respondent would not ipso-facto
imply a domestic relationship to the extent as contemplated
under the Protection of Women from Domestic Violence Act,
2005 as she is residing separately with her own husband and
cannot be deemed to be a member of the shared household as a
joint family. The revisionist no.2 Ritu Kashyap is a young girl
of 22 years who had been the classmate of the present
respondent and through whom the present respondent had came
into contact with Gaurav Kashyap and had an affair culminating
into the marriage. The revisionist no.1 is the aged mother-in-law.
The allegations against her are general and non specific.
Daughters married or unmarried cannot be terrorized
into abandoning their parental family under the fear of their
involvement into litigations connected with Domestic Violence.

Married sisters residing in their own matrimonial houses are not
a part of the shared household or joint family as contemplated
under the Protection of Women from Domestic Violence Act,
2005 but at the same time they have certain rights in their
parental home which cannot be denied to them. Even an
unmarried sister of the husband residing in the shared household
with her parents has certain rights which cannot be taken away.

Making wild allegations against an unmarried sister-in-law of a
tender marriageable age by an estranged wife of brother
tentamounts to inflicting violence upon her and it is the duty of
the court to ensure that she is protected from the same. Violence
can also be inflicted by an estranged wife or daughter-in-law or
sister-in-law upon other members of the husband's family to gain
and secure personal points and financial control or for separating
her husband from his parents and other family members. In the
zeal and endeavour to implement the rights of one woman
(daughter-in-law) it is necessary for the courts to ensure that the
rights of another woman (in her capacity as mother-in-law or
sister-in-law married or unmarried) are not taken away or
infringed in any manner. The Protection of Women from
Domestic Violence Act, 2005 protects the mothers, sisters and
daughters from any kind of physical and mental abuse or
violence in as much as it does the daughter-in-law. The court as
a protector and implementor of rights, is required to perform a
balancing act. It is necessary to ensure that it does not get
swayed by the astute legal drafting of the counsels and is
required to get at the truth of the allegations by examining the
pleadings on the touch-stone of reasonableness and probabilities.

Where a complaint appears to have been filed on filmsy grounds
only to humiliate the family members, the same is required to be
thrown out at the earliest opportunity. Mother-in-law or sister'sin-
law (married or unmarried) cannot be permitted to be
subjected to harassment only because they happen to be related
to the estranged husband of the woman (complainant).

In the present case firstly I have considered the
allegations reflected in the Domestic Incidence Report and the
allegations so made by the complainant Nidhi Kashyap before
the court which do not inspire confidence and appears to have
been made in routine. The respondent has alleged that the
present revisionists had forcibly taken away her salary and
wages which allegations on the face of it are false and incorrect
since it is an admitted case of the respondent before this court
that she is not working. The question of her husband or in-laws
taking away her salary, income, wages etc. under these
circumstances does not arise.

Secondly the report of the Protection Officer also
show that the dowry related harassment pertains to the demand
of car and cash of Rs.3 lacs. The respondent Nidhi Kashyap has
also attached the list of Stridhan articles alongwith the petition to
support and substantiate her allegations regarding
misappropriation of her Stridhan articles which I have perused. I
may observe that the said list so attached along with the petition
is not a duly authenticated list signed by both the parties as
required under the Dowry Prohibition Act. This is the list of
articles which only the respondent Nidhi Kashyap claims were
her stridhan which list does not bear the signatures of the
respondent. Under the given circumstances as the list is not
signed by both parties, it was necessary for the complainant
Nidhi Kashyap to have attached alongwith her list the receipts/
bills showing purchase of these articles which has not been done.
Therefore, the above allegations also do not appear to be credible
and truth-full particularly keeping in view the background that
the marriage between the respondent and Gaurav Kashyap was a
secret, runaway marriage as an outcome of a love affair which
marriage was kept secret for many days and ultimately when the
same was disclosed to the parents of the respondent by her inlaws
a joint reception was organized.

Thirdly the present respondent Nidhi Kashyap has
not placed on record any document to show that her husband is
the owner of any of the aforesaid properties or have any
independent right over the same. The allegations are non
specific and general. It is settled law that the claim for
alternative accommodation can only be made by a women
against her husband and not against in-laws or other
relatives nor can she claim any right to stay in the said house
(Ref: S.R. Batra & Anr. Vs. Smt. Taruna Batra reported in 1
(2007) SLT 1 and Shumita Didi Sandhu Vs. Sanjay Singh
Sandhu reported in 2007 (96) DRJ 697). The present
respondent has not placed on record any document to show that
the properties in the present case belonging to her husband
Gaurav Kashyap and the complaint in Crime Against Women
Cell.

Lastly it is an admitted case of the parties including
that of the complainant Nidhi Kashyap that her marriage with
Gaurav Kashyap is an outcome of the long standing love affair
between them. She was a classmate of the revisionist no.2 Ritu
Kashyap through whom she was introduced to Gaurav Kashyap
(her real brother) with whom she developed love affair
culminating into a secret marriage which was disclosed to her
parents much later. This being the background of the case, the
allegations made by the complainant against one and all family
members of her husband where none have been spared do not
appear probable. It is apparent on the face of the pleadings that
they have been so drafted so as to involved all the family
members of the husband sparing none including the present
revisionists who are the aged mother-in-law, unmarried sister-inlaw
of marriageable age and married sister-in-law residing
separately. This, it appears has been done for the purpose of
harassing the entire family of the husband with a sinister motive
and design to harass and humiliate them. Given the background
of the case, the allegations made against the Revisionists on the
face of it do not appear to be truthful and probable warranting
any interference from the court under this Special Legislation.

In view of the above background and in the interest
of justice, I hereby set aside the orders of dated 24.2.2010,
25.3.2010 and 23.4.2010 passed by the Ld. Trial Court thereby
summoning the present revisionists i.e. Smt. Santosh Kaur, Ms.
Ritu Kashyap and Smt. Sarika Mehta since there does not exist
sufficient material on record to summon them and to proceed
against them under the Protection of Women from Domestic
Violence Act, 2005.

Revision is accordingly allowed. Trial court record
be sent back along with the copy of this order. Revision file be
consigned to Record Room.

Announced in the open court (Dr. KAMINI LAU)
Dated: 28.8.2010 ASJ-II(NW): Rohini

Santosh Kaur Vs. Nidhi Kashyap
CR No. 367/2010
28.8.2010

Present: None for the Revisionists.
None for the respondent.

Vide my separate detailed order dictated and
announced in the open court, I set aside the orders of dated

24.2.2010, 25.3.2010 and 23.4.2010 passed by the Ld. Trial
Court thereby summoning the present revisionists i.e. Smt.
Santosh Kaur, Ms. Ritu Kashyap and Smt. Sarika Mehta since
there does not exist sufficient material on record to summon
them and to proceed against them under the Protection of
Women from Domestic Violence Act, 2005.
Revision is accordingly allowed. Trial court record
be sent back along with the copy of this order. Revision file be
consigned to Record Room.
(Dr. Kamini Lau)
ASJ-II (NW)/ 28.8.2010

High Courts doing what only Supreme Court can

2010-09-22T10:03:00.001+05:30

Uttarakhand High court takes up powers of Supreme Court to grant divorce based on irretrievable breakdown of marriage! Only Supreme Court has this power under article 142 of constitution, and laid down by them clearly in a prior judgment. Such is the state of high courts that they cannot even follow simple principles of constitution and precedents laid down by Supreme Court!

----------------------------------------------------------------------------------------------------------

we will be indirectly allowing the parties to the matrimony to live further miserable life all time to come. Therefore, in the interest of justice, we find it just and proper to allow this appeal and grant the decree of divorce on the ground that marriage between the parties has been irretrievably broken down.

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
First Appeal No. 40 of 2010
Dayal Joshi
S/o Late Shri Chandramani Joshi
R/o Hindustan Zinc Smelter
Quarter No. 217-B/4, Devari
Tehsil-Girva, District Udaipur,
Rajasthan
………………. Appellant
Versus
Smt Usha Joshi
W/o Shri Dayal Joshi
D/o Bholadutt Harbola
R/o Unchapul, Harinagar
Haripurnayak, Haldwani, Nainital
…….. .Respondent
Shri A.M.Saklani, Advocate, present for the appellant Shri R.S.Sammal, with Vishal Singh, Prem Kaushal, B.S.Bhandari, Advocates, present for the respondent
Coram: Hon'ble Prafulla C. Pant, J. Hon'ble Nirmal Yadav, J.
Oral: Hon'ble Prafulla C.Pant, J.

This appeal, preferred under section 19 of Family Court Act, 1984, is directed against the judgment and order dated 16.06.2010 passed by Judge, Family Court, 2 Nainital, in Suit No. 128 of 2007 whereby said court has dismissed the petition of the appellant, moved under section 13 of Hindu Marriage Act, 1955.

(2) Heard learned counsel for the parties and perused the papers on record.

(3) Brief facts of the case are that the appellant Dayal Joshi got married to respondent Uma Joshi on 24.04.1992 in Mehat Gaon, District Almora. A female child (named Khusbu) was born out of the wedlock on 31.10.1995. The appellant/husband lives in Udaipur where he is employed with Hindustan Zinc Limited. It appears that after a couple of years of marriage, the parties to matrimony started quarreling and their relations got soured. The husband / appellant filed a divorce petition in the year 2006 alleging that his wife used to quarrel with him and did not pay respect to his parents. He has further alleged that the respondent (wife) did not even care to see her daughter Khusbu when she was suffering from illness. It is also pleaded by the husband that the wife left her matrimonial home in the year 1996 leaving the young female child with him. He has also pleaded that on several occasions he made efforts to bring back his wife but to no avail. Lastly it is pleaded by the husband 3 that for more than ten years the parties to matrimony are living separately, and now it has become impossible for them to live together, as such the decree of divorce is prayed.

(4) The respondent (wife) admitted having married to the appellant on 24.04.1992. It is also admitted to her that the female child (Khusbu) was born out of the wedlock on 31.10.1995. However, she denied rest of the allegations. She pleaded that she paid respect to her in-laws. She alleged that it was the husband who treated her with cruelty. She further pleaded that she was beaten by her husband and that is what made her to leave her husband's house in the year 1996. She has further pleaded that she is ready to live with her husband provided he undertakes not to make demand of dowry and not to harass her. She has also alleged that her husband has illicit relations with one Pushpa Papne.

(5) On the basis that pleading of the parties, the trial court framed following issues:-

(i) Whether, the respondent quarreled with her husband and in-laws as pleaded in para 2 and 3 of the divorce petition?

(ii) Whether, the respondent, leaving her eight months old female child, left her husband's house on 25.06.1996 as pleaded in para 5 and 6 in the petition?

(iii) Whether, the petitioner treated the respondent with cruelty and committed ` MARPEET ` against her, and she was made to leave her husband's house on 26.05.1996 as pleaded in para 5 of the written statement?

(iv) Whether, on 10.05.2005 the petitioner (appellant) came to the house of the respondent and cohabited with her as alleged in para 10 of the written statement, if so it effect?

(v) Whether, the petitioner had illicit relations with one Pushpa and out of the said relation a son was born, as alleged in para-2 of the additional plea in the written statement?
(vi) To what relief, if any, the petitioner is entitled?

After recording the evidence and hearing the parties, the trial court decided issue no.1, issue no.2 and issue no.3, issue no.4 in affirmative. No finding was given on issue no.5. Issue no.6 was decided in negative.

With these findings, the trial court dismissed the divorce petition vide impugned order dated 16.06.2010. Hence this appeal.

(6) Learned counsel for the appellant argued that the trial court has erred in law in holding that the respondent has not treated the petitioner with cruelty. It is further contended that the trial court has not appreciated the facts and evidence on record correctly in holding that the petitioner has not been deserted by the respondent. Lastly it is also submitted that even other wise it is a case of irretrievable breakdown of marriage, and the decree of divorce should have been granted of that ground, as the parties are admittedly living separately for last ten years (now 14 years).

(7) Having re assessed evidence on record, we find that small quarrels between the spouses or mere fact that the respondent did not prepare tea for the parents of the petitioner, do not constitute cruelty to entitle him decree of divorce. However, this depends on the facts and the circumstances of the case, what a particular act on part of a spouse would constitute cruelty against the other spouse.

(8) In the present case the marriage between the parties is admitted. It is also admitted between the parties that a female child was born out of the wedlock. It is also not disputed that said child is living with her father. Not even the fact that since 1996 they are living separately, is disputed. It has also come on the record that after this divorce petition was filed, the respondent filed a criminal complaint against her husband and in-laws on 28th of April 1996 in respect of offences punishable under section 498A, 494, 504 I.P.C., and one punishable under section 3/4 of Dowry Prohibition Act, 1961. Certainly this report appears to have been lodged after the respondent lived separately for more than ten years from her husband. This has further worsened condition and soured the relations between the parties to the matrimony, and we can say that the marriage between the parties has now been irretrievably broken down.

(9) In the above circumstances, we are of the view, that if we dismiss this appeal and maintain the dismissal of decree of divorce, we will be indirectly allowing the parties to the matrimony to live further miserable life all time to come. Therefore, in the interest of justice, we find it just and proper to allow this appeal and grant the decree of divorce on the ground that marriage between the parties has been irretrievably broken down. However, we are conscious of the fact that respondent Uma Joshi is not an earning member. She needs reasonable amount for her maintenance from her husband (petitioner/appellant). To asses the amount of alimony we have to see economic status of the parties. Petitioner/appellant Dayal Joshi is an employee with Hindustan Zinc Limited whose total salary in 2008 was 15,029.00 (Basic pay 8150.00, DA 6879.00, PP 00.00) as per the salary slip shown to us by the appellant. We have also to keep in mind that the daughter of the parties is living with the father. Considering all the relevant facts and circumstances we are of the view that directing the petitioner to pay one time lumpsum permanent alimony amounting Rs. 5 lakhs to his wife would meet the ends of justice.

(10) Accordingly, the appeal is allowed, and impugned judgment and order dated 16.06.2010 passed by Judge, Family Court, Nainital, in Suit No. 128 of 2007, is set aside. The petition moved under section 13 of Hindu Marriage Act, 1955, is allowed on the condition that the petitioner/appellant shall pay Rs. 5 lakhs as lumpsum permanent alimony to respondent (wife) within a period of three months or deposit in her favour before the trial court, within said time. In case the condition is fulfilled, the decree of divorce shall stand granted. In case the petitioner/appellant fails to comply with the condition mentioned above, this appeal shall stand dismissed.
(Nirmal Yadav, J.) (Prafulla C. Pant, J.)
26.08.2010
N.P

Supreme court in need of jurisdiction on foreign citizens!

2010-09-19T12:57:00.001+05:30

Ha ha … Supreme court wants to find whether it has jurisdiction to conduct trial in case of foreign citizens, but at the same time tries to restrain Interpol from carrying out US court’s order in the same case!

Does it really enhance standing of India’s judiciary in the world? Will Interpol respect such an order made by Indian court made in respect of citizens of another country?

http://www.ndtv.com/news/india/court-restrains-interpol-from-taking-custody-of-child-from-nri-18497.php

The Supreme Court on Friday restrained the Interpol from taking custody of a minor boy from his NRI mother's possession and decided to examine the crucial question whether Indian courts can entertain matrimonial disputes if the couple is foreign citizens.

No additional liability on husband regarding maintenance under PWDVA

2010-08-30T16:24:00.001+05:30

Full judgment link:

http://lobis.nic.in/dhc/SND/judgement/28-08-2010/SND27082010CRLMM4912009.pdf

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 A5000/- 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 A 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 sexes. The Constitution provides equal treatment to be given irrespective of sex, 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.

August 27, 2010

SHIV NARAYAN DHINGRA, J.
vn

A pathetic attempt to work around a pathetic law

2010-08-05T10:35:00.001+05:30

There is an Urdu saying: “marz badhta hi gaya, jyon jyon dawa ki”… “the malady continued to increase as more medicine was given”. The recent direction by SC to law ministry seems to be a step in same vain. Since there is a sad excuse of a law called IPC 498a, where courts are unable to settle when parties want to settle, the law should be made compoundable. The ex-CJI and current NHRC chief had also made a suggestion a few months back regarding rape law -- that rape victims’ choice to marry the accused be respected. What exactly were these criminal laws meant for, is a complete confusion after judicial intervention and re-interpretation!

http://www.indianexpress.com/news/Allow-dowry-cases-to-be-settled-outside-court--SC-to-govt/656185

The Supreme Court has sought an amendment in the Indian Penal Code to make dowry harassment a “compoundable offence” — which would allow willing families to settle their problems outside court. The Supreme Court made the request, to be placed before Union Law Minister Veerappa Moily, in a unique manner, through a judicial order.

The amendment would relieve the courts from the “burden” of hearing dowry cases in which warring families are happy to settle, but the penal code does not allow them to do so, the Supreme Court said in a July 30 judicial order released on Wednesday.

…

…

The price of marriage is forever saying sorry to wife

2010-08-05T10:26:00.001+05:30

The high court of Kolkata has taken over the mantle of sermonising the duties of a man towards his wife. From previous year pronouncement of Justice Katju of SC -- “do what your wife tells you and never question her authority”, to another pronouncement this year by Justice Deepak Verma of SC that “Whenever a person is married, there is no question of independence”.

If the allegations against this cop are really true, then a sorry is not enough, and it is a fit case for criminal prosecution – under a relevant section of IPC. But the judges seem to be more concerned that a policeman was not aware of implications of complaint under IPC 498a!

http://timesofindia.indiatimes.com/city/kolkata-/Say-sorry-to-your-wife-HC-orders-cop/articleshow/6254113.cms

TNN, Aug 4, 2010, 01.02am IST

KOLKATA: Dinesh Ray, a police constable posted at Cooch Behar, came all the way to Calcutta high court, praying for anticipatory bail. Ray feared arrest after his father-in-law lodged a complaint of wife torture under Section 498A of the IPC. The court asked Ray's counsel to ensure that the constable apologises to his wife by next Tuesday, failing which the court would take action against the accused.

The alleged wife torture began a month after Dinesh married Tapashi of Jalpaiguri in December, 2009. It continued for months till Dinesh recently thrashed his wife so much that Tapashi had to be rushed to a nursing home. Her father Sunil Ray lodged a complaint with the Gokulvita police.

When Ray's counsel Ranjana Talapatra moved the anticipatory bail, the division bench of Justice Ashim Kumar Banerjee and Justice Raghunath Ray held that it was shameful act on the part of the accused because he happens to be a police constable and is quite aware of the implication of the complaint under 498A. However, the bench did not turn down the bail application.

Wife to pay 2 lakh damages for alleging husband was impotent

2010-08-01T13:36:00.001+05:30

In a successful defamation case against false allegation of wife, a court in MP has awarded 2 lakh damages to be given to a man who was alleged to be impotent by ex-wife.

http://ibnlive.in.com/news/woman-says-exhusband-impotent-to-pay-damages/127603-3.html?from=prestory

Harda (MP): A local court has ordered a woman to give Rs 2 lakh as compensation to her estranged husband for alleging that he was impotent.

District and Sessions Judge Jagdish Prasad Parashar asked Vandana Gurjar to compensate her ex-husband Hemant Chhalotre while delivering his judgement on Monday in a defamation case filed by the latter.

Hemant had argued that Vandana's false allegation had rendered him "unmarriageable" and sullied his prestige. The duo had tied the nuptial knot nine years ago but separated three months later, after Vandana returned to her parents home following marital discord.

She also lodged a complaint against her husband and in-laws at a police station in Bhopal alleging that they harassed her for dowry and further claimed that she could not have conjugal bliss with Hemant "as he was impotent".

A police case was registered against Hemant and his parents, but a local court acquitted them of all charges in 2004.

Following this, Vandana filed a petition in a higher court seeking divorce pleading that Hemant was impotent. The court accepted her petition and ordered dissolution of the marriage.

Enraged on the charge of impotence, Hemant filed a defamation case against Vandana on February 10, 2006 seeking compensation.

Jurisdiction of foreign court in divorce; When domestic relationship exists; no PWDVA after divorce

2010-07-31T20:58:00.001+05:30

The important part of judgment are made in bold below. The funny part is that lower court judge does not give reasoned order based on merits of case, but prefers to show erudition by quoting from an author’s work.:

“being a woman is a terribly difficult task, since it consists principally in dealing with men”

It is said a judge speaks from his judgements, but if one wants to score points with feminists, without going into merits of case, then it is better left for scholarly work after retirement.

----------------------------------------------------------------------------------------

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: 6th July, 2010

Date of Order: 29th July, 2010

+ Crl. Rev. P. No. 253/2010

% 29.07.2010 Harbans Lal Malik … Petitioner Through: Mr. Dharam Raj, Advocate

Versus

Payal Malik … Respondents Through: Mr. R.Jain, Mr. Deepak Aggarwal &

Mr. D.Jain, Advocates

+ Crl. Rev. P. No. 252/2010

% 29.07.2010 Varun Malik … Petitioner Through: Mr. Dharam Raj, Advocate

Versus

Payal Malik … Respondents Through: Mr. R.Jain, Mr. Deepak Aggarwal &

Mr. D.Jain, Advocates

+ Crl. Rev. P. No. 338/2010

% 29.07.2010 Nagesh Malik … Petitioner Through: Mr. Dharam Raj, Advocate

Versus

Payal Malik … Respondents Through: Mr. R.Jain, Mr. Deepak Aggarwal &

Mr. D.Jain, Advocates

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

These petitions arise out of order passed by the learned Additional Sessions Judge on 7th May, 2010 while disposing of two appeals against the order dated 27th July, 2009 passed by the learned MM.

2. The undisputed facts are that Ms. Payal Malik used to live with her parents before marriage at Hissar. Her marriage took place with Mr. Nagesh Malik Crl. Rev. P. No.252/2010, 253/2010 & 338/2010 Page 1 of 16 whose parents used to live at Panipat. Marriage of the parties was solemnized at Panipat on 30th August, 2001. Nagesh Malik was already working in USA and after marriage both of them went to USA on 20th September, 2001 where they settled their matrimonial home and lived together. On 24th October, 2002 a female child was born to the couple at USA, who was named as Vanishka. The parties continued living together in USA till 2008. It seems deep differences arose between the parties and they could not pull on together. There are allegations and counter allegations made by wife and husband which are not relevant for the purpose of deciding this petition. However, husband alleged that on 6th August, 2008 due to these differences, parties executed a post-nuptial agreement and decided to obtain divorce from each other, sticking to the agreement. Wife refutes having signed the agreement voluntarily and alleges that she was turned out from USA by her husband on 22nd August, 2008. Whereas the husbands contention is that she of her own left USA without joining the husband for obtaining divorce through a Court in USA. The husband filed a divorce petition before Superior Court of New Jersey Chancery Division Family Court USA on 27th August, 2008. The notice of divorce suit was duly served on her. The Court of New Jersey allowed the divorce petition and a decree of divorce was granted on 4th December, 2008.

3. On 13th January, 2009 wife filed a complaint before CAW Cell Hissar against husband and in-laws. Ms. Sushila, Inspector of CAW Cell Hissar, vide her report dated 20th January, 2009, observed that the allegations in the complaint were not true and it was useless to keep the complaint pending further. Thereafter, wife filed a complaint in the Court of MM at Delhi making her husband (Nagesh Malik), father-in-law (Harbans Lal Malik), mother-in-law (Neelam Malik) and brother-in-law (Varun Malik) as parties under Section 12 of Protection of Women from Domestic Violence Act, 2005 [in short Domestic Violence Act] with a prayer that Court should pass a protection order under Section 18, residence order under Section 19, Crl. Rev. P. No.252/2010, 253/2010 & 338/2010 Page 2 of 16 monetary relief order under Section 20, compensation order under Section 22 and interim orders under Section 23 of the Act. She made allegations of mal-treatment at the hands of respondents from day one of the marriage till she left USA and came to India. She stated, after coming back from USA she went to her in-laws house at Panipat but found the house locked as her parents-in-law had gone to USA. She also stated that her husband had sent a complaint to SP Panipat leveling certain scandalous allegations against her. She graduated from Delhi University in 1998 and had done interior designing course from South Delhi Polytechnic. She alleged that her in-laws had three houses and an industrial unit in Panipat. They had properties in Delhi as well and respondent no.1 (her husband) had share in properties of her in- laws. She submitted that her complaint at CAW Cell Hissar could not be pursued by her as her in-laws had tried to mislead Haryana police and also because of a tragedy in her family. She left her parents house and came to Delhi to pursue her career prospects. She was presently residing at Malviya Nagar, Delhi. Till the time she was not given back her matrimonial home (at Panipat), she would live in Delhi, so the Court of MM at Delhi had jurisdiction. She prayed that custody of child Vanshika should be given to her. She should be given shares in properties at Panipat and Delhi as well as a house in New Jersey, USA. She should be given Rs.20,000/- per month for her maintenance and education as she intended to pursue further study and Court should direct for return of her dowry articles. Along with main application under the Domestic Violence Act, applications for interim reliefs were made. She in the application under Section 23 of the Act prayed for a residence or in lieu thereof a sum of Rs.20,000/- per month and Rs.50,000/- as onetime payment to meet education expenses, a car or Rs.8,000/- per month in lieu of the car and Rs.20,000/- per month for her day-to-day expenses and Rs.50,000/- as onetime payment to repay her debts.

Crl. Rev. P. No.252/2010, 253/2010 & 338/2010 Page 3 of 16

4. The learned MM, by her order dated 27th July, 2009 directed that an amount of Rs.50,000/- per month be paid to wife as interim maintenance jointly or severally by respondents no. 1,2 & 4. She dropped respondent no.3 from the array of respondents on the ground that petition against a female respondent was not maintainable.

5. It was pleaded before the learned MM by the petitioner that there was a decree of divorce granted by a Competent Court of New Jersey, Chancery Division after following due procedure as laid down in USA. After grant of divorce there was no domestic relationship of Ms. Payal Malik with any of the respondents. (It is noted in the order of MM that the decree of divorce passed by the Court of US was placed on record.) Reliance was also placed by the petitioner on post nuptial agreement as entered into between husband and wife. The learned trial Court did not think it proper to deal with the issue whether an application under Section 12 of Domestic Violence Act could be entertained at all in respect of a divorced wife and whether the decree of divorce granted by the foreign Court where the parties had lived together for more than seven years, had some value or not.

6. The trial Court after discussing the objects and aims of The Protection of Women Against Domestic Violence Act, 2005 and after reproducing a quote from novelist Joseph Conrad “being a woman is a terribly difficult task, since it consists principally in dealing with men” [as if men, though given birth by women, are ferocious animals and not human beings, but cannibals] passed an order for grant of maintenance.

7. In appeal before the learned Sessions Judge, an argument was pressed that the judgment given by New Jersey Court was conclusive evidence of status of the parties and in view of Section 14 of Code of Civil Procedure and Section 4 of The Indian Evidence Act, unless the judgment was set aside the trial Court Crl. Rev. P. No.252/2010, 253/2010 & 338/2010 Page 4 of 16 should not have entertained the petition under Section 12 of The Protection of Women Against Domestic Violence Act. It was pleaded that only an application under Section 125 Cr.P.C. (which is applicable to divorced wife) could have been entertained by a Court, if moved. It was argued by wife that decree of divorce was obtained by fraud and was hit by Section 13 CPC and therefore could not stand in the way of entertaining an application under Section 12 of Domestic Violence Act.

8. The learned Sessions Judge while deciding appeal observed that the provisions of Domestic Violence Act are to be interpreted taking help of Section 125 Cr.P.C. and the explanation given under Section 125 Cr.P.C. of “Wife” is to be read in Domestic Violence Act also. He further observed that the Court has to take pragmatic approach and unless the dissolution of marriage was proved by evidence, the Court has not to act on the decree. He therefore dismissed the appeal filed by husband and other respondents observing that there was no illegality in the order of learned trial Court in granting maintenance. He allowed an appeal filed by wife in respect of execution of the order of of MM and directed that Ministry of External Affairs be sent a request to execute the order dated 27th July, 2009 as per law.

9. The first issue arising in this case is whether an application under Section 12 of Domestic Violence Act made by the respondent could have been entertained against all the respondents (petitioners herein) as arrayed in her application and whether the Court without discussing the domestic and legal relationship of different respondents with the petitioner, could have passed an order against the petitioners making them jointly and severally liable to pay maintenance of Rs.50,000/-.

10. Under Section 12, an aggrieved person can file an application to Magistrate against the respondents. The respondent has been defined under Section 2 (q). The definition reads as under:

Crl. Rev. P. No.252/2010, 253/2010 & 338/2010 Page 5 of 16 “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: 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.

11. It is apparent that in order to make a person as respondent in a petition under Section 12, there must exist a domestic relationship between the respondent and the aggrieved person. If there is no domestic relationship between the aggrieved person and the respondent, the Court of MM cannot pass an order against such a person under the Act. Domestic relationship is defined under Section 2 (f) of the Act and is 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;

12. It is apparent that domestic relationship arises between the two persons, who have lived together in a shared household and 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. The definition speaks of living together at any point of time however it does not speak of having relation at any point of time. Thus, if the domestic relationship continued and if the parties have lived together at any point of time in a shared household, the person can be a respondent but if the relationship does not continue and the relationship had been in the past and is not in the present, a person cannot be made respondent on the ground of a past relationship. The domestic relationship between the aggrieved person and the respondent must be present and alive at the time when complaint under Domestic Violence Act is filed and if this relationship is not alive on the date when complaint is filed, the domestic relationship cannot be said to be there. The first respondent made by the wife in her complaint before the learned MM in this case Crl. Rev. P. No.252/2010, 253/2010 & 338/2010 Page 6 of 16 was husband with whom the wife had lived under the same roof in a shared household till 22nd August, 2008 in USA. She had not lived for last 7 1/2 years with respondent no.1 in India. Respondent No.4 is Varun Malik who is brother of the husband. Under no circumstances it can be said that brother of husband, who was a major and independent, living separately from this husband and wife, had any kind of domestic relationship or moral or legal responsibility/obligations towards his brothers wife. He had not lived in domestic relationship with Payal Malik at any point of time. Merely because a person is brother of the husband he cannot be arrayed as a respondent, nor does an MM gets authority over each and every relative of the husband, without going into the fact whether a domestic relationship or shared household was there between the aggrieved person and the respondent.

13. The other respondent made in this case is Harbans Lal, father of Nagesh Malik. Nagesh Malik was living in USA he came to India to solemnize his marriage with an appropriate person. After marriage was solemnized he left India and went to USA. He lived all along with his wife in USA, birth of the child had taken place in USA. In all such cases where boy lives abroad and is settled abroad but comes to India for marriage, it is known to the girl as well as to the parents of the girl that they are choosing a groom who is not living with his parents but settled abroad. His links with the parents are only as with any other relative. He is not dependent on parents may be parents, if poor, take financial help from him.

14. The girl and the parents of the girl knew it very well that they had selected a person for marriage with whom the girl was going to live abroad and the matrimonial home and the shared household was going to be outside India. This act of marrying a person settled abroad is a voluntary act of the girl. If she had not intended to enjoy the fat salary which boys working abroad get and the material facilities available abroad, she could have refused to marry him and settled for a boy having moderate salary within India. After having chosen a person living abroad, putting the responsibility, after failure of marriage, on the shoulders on his parents and making them criminals in the eyes of law because matrimonial ties between the two could not last for long, does not sound either legally correct or morally correct. How can the parents of a boy who is working abroad, living abroad, an adult, free to take his own decisions, be arrayed as criminals or respondents if the marriage between him and his wife failed due to any reason whatsoever after few years of marriage. If the sin committed by such parents of boy is that they facilitated the marriage, then this sin is equally committed by parents of the girl. If such marriage fails then parents of both bride and groom would have to share equal responsibility. The responsibility of parents of the groom cannot be more. Shelter of Indian culture and joint family cannot be taken to book only relatives of boy. A womans shared household in India in such cases is also her parents house where she lived before marriage and not her in-laws house where she did not live after marriage.

15. When the shared household of husband and wife had not been in India for the last 08 years at any point of time, it is strange that the learned MM did not even think it proper to discuss as to how the father or the brother of the boy could be made respondents in proceedings of domestic violence, after husband and wife had not been able to pull on together. In the present case, Mr. Harbans Lal Malik petitioner could not be said to have shared household with the respondent since the respondent had not lived in his house as a family member, in a joint family of which Harbans Lal Malik was the head.

16. It is important to consider as to what “family” is and what “joint family” is. As per Blacks Law Dictionary (VI Edition) “family” means a collective body of persons who live in one house under one head or management. Dictionary states that the meaning of word “family” necessarily depends on field of law in which word is used, but this is the most common meaning. “Family” also means a group of blood relatives and all the relations who descend from a common ancestor or who spring Crl. Rev. P. No.252/2010, 253/2010 & 338/2010 Page 8 of 16 from a common root. However, for the purpose of domestic violence act where the object is to protect a woman from domestic violence, “family” has to be defined as a collective body of persons who live in one house under one head or management. In Chambers Dictionary (1994-95) again the “family” is defined as all those who live in one house i.e. parents, children servants; parents and their children. In Shorter Oxford English Dictionary (1993 ed.) “family” is defined as a group of persons living in one household including parents and their children, boarders, servants and such a group is a organizational unit of society.

17. A Hindu Joint Family or Hindu Undivided Family (HUF) or a Joint Family is an extended family arrangement prevalent among Hindus of the Indian subcontinent, consisting of many generations living under the same roof. All the male members are blood relatives and all the women are either mothers, wives, unmarried daughters or widowed relatives, all bound by the common sapinda relationship. The joint family status being the result of birth, possession of joint cord that knits the members of the family together is not property but the relationship. The family is headed by a patriarch, usually the oldest male, who makes decisions on economic and social matters on behalf of the entire family. The patriarchs wife generally exerts control over the kitchen, child rearing and minor religious practices. All money goes to the common pool and all property is held jointly. The essential features of a joint family are:

Head of the family takes all decisions

All members live under one roof

Share the same kitchen

Three generations living together (though often two or more brothers live together or father and son live together or all the descendants of male live together)

Income and expenditure in a common pool - property held together. Crl. Rev. P. No.252/2010, 253/2010 & 338/2010 Page 9 of 16 A common place of worship

All decisions are made by the male head of the family patrilineal, patriarchal.

18. Thus, in order to constitute a family and domestic relationship it is necessary that the persons who constitute domestic relationship must be living together in the same house under one head. If they are living separate then they are not a family but they are relatives related by blood or consanguinity to each other. Where parents live separate from their son like any other relative, the family of son cannot include his parents. The parents can be included in the family of son only when they are dependent upon the son and/or are living along with the son in the same house. But when they are not dependent upon the son and they are living separate, the parents shall constitute a separate family and son, his wife and children shall constitute a separate family. There can be no domestic relationship of the wife of son with the parents when the parents are not living along with the son and there can be no domestic relationship of a wife with the parents of her husband when son along with the wife is living abroad, maintaining a family there and children are born abroad. I, therefore consider that Harbans Lal Malik could not have been made as a respondent in a petition under Domestic Violence Act as he had no domestic relationship with aggrieved person even if this marriage between her and her husband was subsisting.

19. I, also consider that the definition of “wife” as available under Section 125 Cr.P.C could not be imported into Domestic Violence Act. The Legislature was well aware of Section 125 Cr.P.C. and if Legislature intended, it would have defined “wife” as in Section 125 Cr.P.C in Domestic Violence Act as well. The purpose and object of Domestic Violence and provision under Section 125 Cr.P.C. is different. While Domestic Violence Act has been enacted by the Parliament to prevent acts of domestic violence on women living in a shared household. Section 125 of Cr.P.C. is to prevent vagrancy where wife is left high and dry without maintenance. Law gives Crl. Rev. P. No.252/2010, 253/2010 & 338/2010 Page 10 of 16 a right to claim maintenance under Civil Law as well as Section 125 Cr.P.C. even to a divorced wife, but an act of domestic violence cannot be committed on a divorced wife, who is not living with her husband or family and is free to live wherever she wants. She has a right to claim maintenance and enforce other rights as per law. She has a right to claim custody of children as per law but denial of these rights do not amount to domestic violence. Domestic Violence is not perceived in this manner. The definition of “Domestic Violence” as given in Section 3 of The Protection of Women from Domestic Violence Act, 2005 and is under:

3. D e f i n i t i o n o f d o m e s t i c v i o l e n c e .- For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it -

(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or (b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

© has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

Explanation I.-For the purposes of this section,-

(i) “physical abuse” means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;

(ii) “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;

(iii) “verbal and emotional abuse” includes-

Crl. Rev. P. No.252/2010, 253/2010 & 338/2010 Page 11 of 16 (a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and

(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.

(iv) “economic abuse” includes-

(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;

(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.

20. This definition pre supposes that the woman is living with the person who committed violence and domestic relationship is not dead buried or severed. This does not speak of past violence which a woman suffered before grant of divorce.

21. The next question which arises is whether the learned Court of MM could have ignored the decree granted by the Court of New Jersey, USA. Section 14 of CPC reads as under:

14. Presumption as to foreign judgments. The Court shall presume upon the production of any document purporting to be a certified copy of a foreign judgment that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction.

Crl. Rev. P. No.252/2010, 253/2010 & 338/2010 Page 12 of 16

22. It is evident from the reading of this provision that the Court has to presume, if a certified copy of foreign judgment is produced that such judgment was pronounced by a Court of competent jurisdiction unless the contrary appears on record or is proved. Obtaining of divorce by husband from New Jersey Court is not denied in this case. Prima facie New Jersey, USA Court had jurisdiction is evident from the fact that husband and wife lived together in New Jersey for 7 1/2 years. The laws of New Jersey provided that the jurisdiction in a matrimonial matter can be assumed by the Court if the parties have ordinarily lived there for one year. In the present case admittedly the parties lived there for 7 1/2 years thus prima facie there was no issue whether the Court of New Jersey had jurisdiction or not.

23. Section 13 of CPC provides as under:

13. When foreign judgment not conclusive.

A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-

(a) where it has not been pronounced by a Court of competent jurisdiction;

(b) where it has not been given on the merits of the case; © where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of 1[India] in cases in which such law is applicable; (d) where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) where it has been obtained by fraud;

(f) where it sustains a claim founded on a breach of any law in force in 1[India].

24. It is evident that a foreign judgment has to be on the face of it considered to be final. The explanations as mentioned in Section 13 are to be proved by a person who alleges that the foreign judgment was not to be relied on and should not be considered. A foreign judgment can be set aside by a competent Court, only when the person aggrieved from foreign judgment asks for a declaration Crl. Rev. P. No.252/2010, 253/2010 & 338/2010 Page 13 of 16 that the judgment should not be acted upon. So long as the foreign judgment is not set aside and the issue regarding foreign judgment is not adjudicated by a competent Court, the judgment cannot be ignored and a Court cannot brush aside a foreign judgment as a non- consequential. Section 13 & 14 of CPC provide how a foreign judgment is to be dealt with. A Court in India has to presume that the judgment delivered by a foreign Court where the parties had lived for 7 1/2 years and given birth to a girl, is a judgment given by a competent court and if anyone wants that this judgment be disregarded, he has to prove the same before the Court. So long as he does not prove it, the judgment is considered as a valid judgment and has to be given effect to.

25. It was argued by the respondent Counsel that the respondent did not participate in proceedings before the Court of New Jersey, USA. Participating or not participating before the Court is not a ground for setting aside its judgment. The grounds for setting aside a foreign judgment are given in Section 13 CPC and this is not one of the grounds.

26. The question of jurisdiction was considered by the Court of New Jersey, USA that awarded decree of divorce and it is not shown by the Counsel for respondent how Court of New Jersey had no jurisdiction when the two parties lived there for 7 1/2 years and gave birth to a US citizen within the jurisdiction of that Court. Learned Counsel for the respondent relied upon Y. Narasimha Rao v. Venkata Lakshmi (1991) 3 SCC 451 to press the point that a decree of divorce granted by a foreign Court should not be relied upon since the parties were married in India and they were governed by Hindu Marriage Act. A bare perusal of the judgment of New Jersey Court would show that the divorce was granted on the ground of cruelty which is one of the grounds available under Hindu Marriage Act.

27. In Y. Narasimha Raos case (supra), decree of divorce was obtained by husband from the Circuit Court of St. Louis Country Missouri, USA by creating a jurisdiction of that Court as the condition for invoking jurisdiction of that Court was 90 days residence. Supreme Court observed that the residence does not mean a “temporary residence” for the purpose of obtaining divorce but it must be “habitual residence “which is intended to be a permanent residence for future as well, since it was not the case, the decree was found to be null and void. It is not the position in this case. The parties had made New Jersey as their home for 7 1/2 years thus the Court of New Jersey could not be said to have assumed jurisdiction only on the basis of temporary residence of husband. I also consider that issue of assuming jurisdiction on the basis of temporary residence may have no force today when statutory provisions in India allow assumption of jurisdiction on the basis of a temporary residence [Section 27(1)(a) of Protection of Women from Domestic Violence Act, 2005].

28. I am surprised that the Courts below did not give weight to the judgment of New Jersey where parties lived for 7 1/2 years but assumed jurisdiction under Domestic Violence Act because of the pure temporary residence (as pleaded by her) of wife in Delhi who is otherwise resident of Hissar. The Court of ASJ wanted that the order of the Court of MM should be honoured by the US while the Court here would not honour a decree of Court of USA where the husband and wife lived for 7 1/2 years.

29. I consider that the decree of divorce granted by the Court of New Jersey, USA where husband and wife lived together for 7 1/2 years and gave birth to a child could not be ignored and it could not be said that domestic relationship of the wife continued with her husband in New Jersey or her in-laws living at Panipat. Crl. Rev. P. No.252/2010, 253/2010 & 338/2010 Page 15 of 16

30. The learned MM and learned ASJ committed jurisdictional error by assuming jurisdiction under Domestic Violence Act, in view of admitted fact that the wife had all along, before filing the petition under Domestic Violence Act, lived with her husband in USA. Her shared household had been in USA, her husband was still living in USA the child was born in USA. The courts below also committed grave error by making brother or father of the husband and father of the husband jointly responsible for payment of Rs.50,000/- to the wife. There was no justification for directing brother of the husband to pay this amount. Once a son grows and he starts earning, marries, makes his separate home, and sires children the burden of his wife cannot be put on the shoulders of his father or brother on an estrangement between husband and wife. This burden has to be borne by the husband alone and not by the parents or bothers or sister of the husband, unless and until the husband had been contributing to the joint family as a member of HUF and has a right of deriving benefits from the joint family. If the husband had not been contributing or deriving benefits from the joint family, had not been member of the joint family and the parents had been treated like any other relative, how can the parents be burdened with the responsibility of his wife.

31. In view of my above discussion, order dated 27th July, 2009 passed by learned MM and order dated 7th May, 2010 passed by learned ASJ, directing payment of Rs.50,000/- jointly and severally, ignoring the decree of divorce and without devolving upon the domestic relationship are illegal and not tenable. The orders are set aside. No order as to costs.

July 29, 2010 SHIV NARAYAN DHINGRA, J. vn

Crl. Rev. P. No.252/2010, 253/2010 & 338/2010 Page 16 of 16

Supreme Court upholds decision of HC for daughter in law to pay rent to mother in law

2010-07-22T11:14:00.001+05:30

The judgment of Mumbai HC which asked daughter in law to honour the rental agreement and pay Rs 5,000 payment to mother in law.

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IN THE HIGH COURT OF JUDICATURE AT MUMBAI
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8283 OF 2008
Sanchita Amitabh Dasgupta .. Petitioner.
Vs.
Amitabh Prashant Dasgupta & Anr. .. Respondents.
Mr.Nikhil Karnavat i/b Mr.Ajit Kulkarni for the petitioner.
Mr.Anil Dhavale i/b A.Apte for the respondents.
Coram: D.B. BHOSALE, J.
Dated : 17TH AUGUST, 2009
P.C.
. Heard learned counsel for the parties.

2. Counsel for the petitioner submits that the petitioner and
her husband were inducted in the flat by respondent no.2 –
mother-in-law by executing the leave and license agreement
dated 26.6.2006 and, therefore, the order of Family Court
directing her to vacate the flat and hand it over to respondent
no.2 is wrong and illegal. Rule expedited.

3. Under the leave and license agreement the petitioner is
liable to pay Rs.5,000/- per month to respondent no.2 which has
not been paid since long. The petitioner alone is in possession
of the flat. In the circumstances there shall be interim relief in
terms of prayer clause (b) subject to the petitioner depositing
the entire arrears of license fee under the leave and license
agreement dated 26.6.2006 in this court within a period of eight
weeks from today and shall also deposit monthly license fee
during pendency of this writ petition every month. If the
petitioner fails to deposit the amount, as aforestated, this
petition shall stand dismissed for non prosecution without
reference to the court. If the petitioner deposits the amount,
liberty to respondent no.2 to withdraw the said amount without
prejudice to her rights and contentions. Pendency of this
petition shall not operate as stay to further proceedings before
the Family Court.

(D. B. Bhosale, J.)

Supreme court order which does not change anything with above Mumbai HC order

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Supreme Court Order
ITEM NO.6 COURT NO.4 SECTION IX
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Civil)
No(s).26247/2009
(From the judgement and order dated 17/08/2009 in WP No.
8283/2008 of The HIGH COURT OF JUDICATURE AT BOMBAY)
SANCHITA AMITABH DASGUPTA Petitioner(s)
VERSUS
AMITABH PRASHANT DASGUPTA & ANR. Respondent(s)
(With appln(s) for exemption from filing c/c of the impugned
Judgment and prayer for interim relief )
Date: 19/07/2010 This Petition was called on for hearing
today.
CORAM :
HON'BLE MR. JUSTICE DALVEER BHANDARI
HON'BLE MR. JUSTICE DEEPAK VERMA
For Petitioner(s) Mrs.Neela Gokhale,ADv.
Mr.Vijay Kumar, Adv.
for Mr. Vishwajit Singh,Adv.
For Respondent(s) Mrs.Seema, Adv.
Mr.Nitin S.Tambwekar, Adv.
Mr.B.S.Sai, Adv.
For Mr. K. Rajeev,Adv.
Ms. Anagha S.Desai ,Adv
Ms.Seema Dhyavle, Adv.

UPON hearing counsel the Court made the following
O R D E R

We are not inclined to interfere with the impugned
order. The Special Leave Petition is, accordingly, dismissed.

(G.V.Ramana) (Neeru Bala Vij)
Court Master Court Master

Bangalore inspector confirms men are disposable in eyes of law

2010-07-22T10:13:00.001+05:30

Even suicide note of a man is not enough reason for law to move its rear, is well-exemplified in the case below, where a young man committed suicide to escape from wife’s threat of false dowry case against him and his family.

Will police wake up when men in their own family and relations commit suicide in similar situation? Maybe they will, but it will be too late anyway. When a man lets another man die by treating him as disposable asset, he increases his own probability of being disposed off by society one day! It’s all about collective karma…

http://www.bangaloremirror.com/article/10/20100720201007200523421056440d345/Inspector-goes-soft-on-woman-despite-husband%E2%80%99s-suicide-note.html?pageno=1

Inspector goes soft on woman despite husband’s suicide note

Tells victim’s family that laws favour the fair sex and he would book even a dog if a woman filed a complaint against it

Posted On Tuesday, July 20, 2010 at 05:23:42 AM

Here’s a cop with a difference. Mico Layout Police Inspector C N Janardhana Rao believes that the law will always support a woman, no matter what. He told the victim’s family who went to lodge a complaint that he would book even a dog if a woman files a complaint against it.

No wonder he refused to take up a suo motu case of abetment of suicide against Ruchi Goel, wife of Ashish Goel, a senior software engineer with Trainz Consulting who recently killed himself, despite his leaving behind a note that clearly implicated his wife in his death. “Our laws always favour a woman victim and not a male victim,” Rao said.

BRASS TACKS
Ashish hanged himself at his BTM Layout house on June 23. He left a suicide note stating that he took the step because his wife had threatened him with a dowry harassment case if he did not pay her Rs 1 crore. When Mico Layout police refused to register a case, Ashish’s family leveraged some powerful political contacts in Delhi. The police finally registered a case on June 30. Rao confirmed this. “I was compelled to register a case against the girl because of pressure from Goel’s family,” he said.
Rao’s boss, Deputy Commissioner of Police (South East) B N S Reddy, however, has a different take on the matter. “There is no difference between a man or woman in the eyes of the law. If my officer has taken a contrary stand, it is wrong and he needs to be corrected. I will direct him to speed up the investigation,’’ he said.

A SORRY AFFAIR
Ashish and Ruchi got married in April 2009. She hailed from Meerut while he came from neighbouring Aligarh. Apparently, Ashish had an affair with another girl before he married Ruchi. After Ruchi learnt about it, the issue became a source of constant friction between the couple. Three months after their marriage, she went back to her parents’ home. After a while, Ashish brought her back to Bangalore.
But the fights continued and in April this year Ashish, according to his family, was pressured to try and find a job in Meerut. On June 20, he got a call from Ruchi in which she reportedly demanded Rs 1 crore in a week’s time, failing which she threatened to file a dowry harassment case against him and his family. This apparently acted as the trigger for Ashish to kill himself.

How police makes false rape cases

2010-07-20T11:03:00.001+05:30

Delhi HC judge S N Dhingra does some plain speaking on how police convert incidents of young men and women ‘eloping’ together into rape cases against the men. Some social injustice in the name of social norms!

http://news.oneindia.in/2010/06/17/delhi-hc-slams-police-over-honour-killing-cases.html

New Delhi, Jun 17: In the wake of alarming and growing number of honour killing cases, the Delhi High Court has come down heavily upon the police for failing to protect people.

Referring to a massive hunt launched by the police in Mar 2010 to find Delhi police Commissioner's dog, that went missing, the court remarked, “You can search the entire city if a dog of your boss is lost but you can’t provide protection to the people. This is what you are. What to talk about humanity when you don’t have shame."

Slamming the police's practice of turning the girl's elopment cases into rape cases and putting the boy behind the bar, vacation judge Justice SN Dhingra said, “Its unfortunate that elopement cases are converted into rape cases. Your police is party in all cases of honour killings. You connive with parents and turn your face the other side. You send boys behind bars on rape charges and allow the parents to kill their daughter.

“How can you be so insensitive for a few bucks? In case of elopement, you register the case under section 376 (rape) of Indian Penal Code. You do not register case or take action where you should have done,” the judge said, adding that by putting men behind bars for marrying the woman they love the police were turning "normal citizens to criminals".

These observations came when the court was hearing a case, which was brought up by Delhi High Court Legal Services Aid Authority, about a man was sent to jail for eloping with a girl on a complaint by her parents alleging she has been raped.

The court heard that the girl, who is now pregnant, is all by herself now as her parents have abandoned her while the boy who loves her is in jail.

The High Court's observations on honour killing comes after a gruesome murder of a couple in Delhi was reported on Wednesday, Jun 16. A 19-year-old boy and her male friend were gagged, beaten up with iron roads and killed through electrocution by the girl's family for wanting to marry against the caste norms.

Income of parents not allowed to calculate maintenance

2010-07-20T11:01:00.001+05:30

The important portions of the full judgment are made bold below:

http://lobis.nic.in/dhc/AS/judgement/03-07-2010/AS02072010CMM10452008.pdf

CM(M) No.1045/2008

* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) No.1045/2008 & CM No.13003/2008
Date of Decision : July 02, 2010

SMT. SUSHILA DEVI         ..... Petitioner
        Through:      Mr.K.Sunil, Advocate
             with Petitioner in person.

versus

SHRI JOGINDER KUMAR           ..... Respondent
        Through: Mr.Saurabh Tiwari,
             Advocate with Respondent
             in person.
CORAM:
HON’BLE MS. JUSTICE ARUNA SURESH

(1)    Whether reporters of local paper may be
           allowed to see the judgment?
(2)     To be referred to the reporter or not?    Yes
(3)     Whether the judgment should be reported
          in the Digest ?          Yes

J U D G M E N T
ARUNA SURESH, J.

1. Impugned in this petition is the order of the Trial Court dated 8th August 2008, whereby while allowing application of the petitioner (respondent in the main petition) filed under Section 24 of the Hindu Marriage Act (hereinafter referred to as ‘the Act’), it awarded her maintenance @ Rs.3,000/-per month, besides litigation expenses of Rs.5,100/-.Being dissatisfied by the said order, she has filed this petition.

2. Mr.K. Sunil, counsel appearing on behalf of the petitioner has submitted that the court awarded meagre amount of maintenance without considering income of the respondent (petitioner in the main petition) in the correct perspective as he is a man of means and therefore, she should have been awarded maintenance as claimed by her i.e. at least Rs.8,000/- to Rs.10,000/- per month. He further submitted that respondent-husband owns agricultural land measuring 12 Bighas and 17 Biswas in village Nizampur, Delhi and the total annual income of the parents of the petitioner is about Rs.8,60,000/-. Besides, he owns two residential houses in the name of his father in old Lal Dora Mundaka, in which
there is a godown and a factory and he has income from the said business.

3. Mr.Saurabh Tiwari, counsel appearing on behalf of the respondent has submitted that the entire properties, as detailed by the petitioner, are owned by parents of the respondent and there is no property in his name. He has no right in the properties of his parents and is presently unemployed and has no earnings. He further submitted that petitioner is earning Rs.10,000/- per month from tailoring and embroidery work and she is living in her matrimonial home. Despite differences, she is being provided with all comforts and her necessary expenses including her medical needs which are being taken care of by the respondent.

4. It is an admitted fact that petitioner is residing in her matrimonial home. Therefore, she is being provided with a residential accommodation and she is not to bear any expenses for her residence. Petitioner has denied that she has any independent income from tailoring and embroidery work. Court, therefore,
rightly did not believe the submissions of the respondent that petitioner was earning about Rs.10,000/- per month. Petitioner has not disclosed any source of income of the respondent. She has only referred to the immovable properties including the agricultural land, which, admittedly, are in the name of the parents of the respondent. Nothing was placed on record to show that respondent owned any property in his name independent of the immovable assets of his parents. Being a son, may be that he is living with his parents, the fact remains that he can be made liable to pay maintenance only from his earnings and not from the properties, unless these properties give him some rental income. In this case, neither respondent owned any property nor has any rental income.

5. Disbelieving the respondent that he was unemployed, Court awarded maintenance of Rs.3,000/- per month to the petitioner keeping in view the financial status of both the parties. In ‘Smt. Jasbir Kaur Sehgal Vs. District Judge, Dehradun and Ors., MANU/SC/0835/1997, it was observed that no set formula can be laid for fixing the amount of maintenance. It has, in very nature of things, to depend on the facts and circumstances of each case. While fixing the maintenance, 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 those he is obliged under the law and statutory but not voluntary payments or deductions. While awarding maintenance, Court also has to consider that amount fixed for the wife is such that she can have reasonable comfort in her life considering her status and living style which she maintained while living with her husband.

6. In this case, since Trial Court was not provided with any specific information regarding source of income of the respondent. It had to adopt a probable formula to award maintenance to the wife. Status of the parents of the husband, in no manner, can be considered by the Court while awarding maintenance to his wife. It is the duty of the husband to maintain the wife and not of his parents.

7. In view of my discussion as above, I find no reason to interfere in the impugned order of the Trial Court dated 8th August, 2008.

Hence, petition is accordingly dismissed.
CM No.13003/2008 (for stay)

8. With dismissal of the petition itself, this application has become infructuous. It is accordingly dismissed.

ARUNA SURESH
(JUDGE)
JULY 02, 2010
sb

Delhi HC says live-in relationship invariably initiated and perpetuated by male

2010-07-20T10:58:00.001+05:30

I could not make sense out of it. Even though Supreme Court ruled so much in a recent judgment on Khushboo’s case that live-in relationships are a reality in society, the Delhi HC judgment in a PWDVA (Domestic Violence Act) case below seems to put all burden on men of initiating and perpetuating a live-in relationship. Actually, it says an assumption can fairly be drawn. On what common sense, or any other basis was this assumption drawn is of course a mystery. What is not a mystery is that many court decisions will continue to treat women as children without a will or decision making capability of their own, when the issue at hand is granting some relief to women.

http://commandos.in/wiki/sif/pwdva/judgments/hc/aruna-prasad-vs-union-of-india-constitutionality-of-pwdva-challenged-and-held

5. Learned Counsel for the Petitioner has drawn attention to the definition of "domestic
relationship" contained in Section 2(f) of the Act. He has strenuously objected to the
placing of married persons on the same platform as those in a relationship in the nature of marriage. We find no reason why equal treatment should not be accorded to wife as well as woman who has been living with a man as his common-law wife or even as a mistress. Like treatment to both does not, in any manner, derogate from the sanctity of marriage since an assumption can fairly be drawn that a "live-in relationship" is invariably initiated and perpetuated by the male. Once again, we do not rule out the exception but such cases would be rare to find, thus obviating the need of Parliament to provide protection to the male victim. The Court should also not be impervious to social stigma which always sticks to women and not to the men, even though both partake of a relationship which is only in the nature of marriage.

Movie masala in dowry case, coming to a theatre near you

2010-07-12T10:27:00.001+05:30

http://movies.indiatimes.com/news-gossip/news/Tina-Ambanis-Niece-Battered-For-Dowry/articleshow/6137952.cms

The niece of one of India’s wealthiest women filed a complaint of dowry-related assault with the Gamdevi police last week.

Mana met and married Arup Chatterjee, 44, in Delhi on November 27, 1996, after a brief courtship. According to her complaint, that was the start of all her troubles. She alleged that Arup wanted all the baratis to be ferried by a private airplane and also expected a Rolex, neither of which materialised. In the complaint, Mana added that Arup often hit her after getting drunk and even tried to kill her on several occasions. She further alleged that Arup recently forced her into transferring Rs 28 lakh from Mana’s personal account. The couple has two children of school going age.

While it is not clear what the immediate trigger was, Mana Chatterjee, 39, daughter of Tina Ambani’s elder sister, Jagruti, told the cops that she was unable to take the beatings and the harassment any longer and therefore reached out for help from the police. What emerged was a horrifying story of thirteen long years of domestic abuse.

…

Arup was produced in the Girgaum court on Tuesday and remanded to police custody till July 12. “The main question is why is Arup harassing Mana for money after so many years, especially since they are financially sound,” an officer from the Gamdevi Police Station said. The cops have started recoding statements of friends and family members.

It is simple! There was no harassing or beating in the first place… a woman complains about baraatis not being taken in private plane AFTER 13 years of marriage, and she is to be taken seriously! And a financially sound person is beating wife for 13 years to get a Rolex from her! Is that credulous?

It has been seen by SIFF volunteers that sometimes women in long marriages who have either had an adulterous relationship, or lose/give away money given by husband, or both; resort to such tactics to save their own skin.

The powers of and procedure to be followed by CAW Cells

2010-07-05T10:35:00.001+05:30

Here are some judgments extracts from Delhi High court giving useful information about the powers and procedures of Crime Against Women (CAW) Cells. The interesting thing is that in all judgments the high court says that CAW is supposed to do reconciliation. Well in that case they should change the name to something else. Because implicitly a complaint in CAW cell will be treated as crime done by someone against a woman (read wife). After all it is all there in the name.

In Raj Kumar Khanna v. The State (NCT of Delhi) and Ors.; 2002 (1) JCC 327, The Hon’ble Delhi High Court has held that Police Headquarter framed the procedure to be followed by the C.A.W. Cell with the intention of preventing abuse of the process of law but in this case police committed abuse of the process established by its Commissioner. No attempt was made to resolve the difference between the spouses or no efforts were made to bring about amicable settlement for which purpose Crime against Women Cell was created.
This cell is meant to safeguard the marriage and not to ruin it by registering case immediately on the asking of the complainant. Once an FIR is registered it becomes difficult to solve matrimonial tangles and things reach such a pass that it cannot be restored back.

In Crl. M. No.9052/2007 and W.P. (Crl.)1045/2007, the Hon’ble Delhi High Court on 13/8/2007 has held that this petition has been filed by the petitioner with a prayer that the conversation recorded by the petitioner between his father and the father of the respondent should be heard by the CAW Cell and should be made part of the investigation. The Hon’ble Court has held that it considers that CAW Cell has no power to investigate the crime.
It is not a police station where First Information Reports get registered.
Investigation in any crime can be done only after registration of FIR. CAW Cell only makes reconciliatory efforts between the parties that also up to the stage of pre- registration of FIR. The investigation can also be done by CAW Cell if it is referred to it after registration of FIR. Since no FIR has been registered in this case, no directions can be given to CAW Cell for investigation. The petition is infructuous and is hereby dismissed.

In W.P. (Crl.) No.1032/2007 and Crl.M.A.No. 8989/07 on 10.8.2007, the Hon’ble Delhi High Court has again held that It is stated by the counsel for petitioner that CAW Cell was threatening the petitioner for appearance. It is made clear that CAW Cell has no authority to secure the presence of any person either by coercion or by threat. CAW Cell is only a conciliatory body where efforts are made for conciliation with the free will of the parties.
If any person is not willing to go to CAW Cell, he cannot be compelled. It is also directed that CAW Cell, in future, instead of issuing summons to the parties it shall send request letters asking them to appear for the purpose of conciliation and not for the purpose of investigation. The petitioner is at liberty not to appear before CAW Cell. No threat or coercive steps shall be taken by the CAW Cell. No further direction can be given by the Court in respect of respondent No. 5, who according to the petitioner has refused to accompany him. It is alleged that she was living under the influence of her parents. Earlier when she appeared in this Court, she was living with the petitioner. She refused to meet her parents at that time. If the respondent is such an immature lady that when she comes under the influence of petitioner, she refuses to meet her parents and next time when she comes under the influence of her parents, she refuses to meet the petitioner, the Court cannot help the petitioner. The petition is disposed of in above terms.

The Hon’ble Delhi High Court has held State. Crl.M. A. No. 8813/07 in
W.P.(Crl.) No. 1009/2007. The parties were referred to CAW Cell where CAW Cell after making enquiries, came to the conclusion that it was not a case of cruelty or harassment on the part of the husband. The CAW Cell recommended a Closure Report saying that no case is made out against the husband or family of the husband. After this recommendation, respondent no.
2 made an application under Section 156(3) before the learned Metropolitan Magistrate. Learned Metropolitan Magistrate without giving any reason as to why he considered that a case was made out, ordered for registration of an FIR. I consider that it is a fit case where operation of the order can be stayed. The operation of the order dated 3rd August, 2007 wrongly mentioned as dated 30th July, 2007 is stayed. Trial Court record be called.

Irretrievable break down – OR how to get Smriti Shinde her divorce

2010-07-03T18:09:00.001+05:30

Here is the earlier news when Supreme Court thought it fit to issue notices to Union Law and Justice Ministry in Smriti Shinde’s divorce case. People are not fools to notice that when men have approached Supreme Court for divorce, they have been given sermons like “obey your wife” by Justice Katju, and recently by another SC judge that “a man should not expect freedom in marriage”. But when a minister’s daughter wants divorce, all stops must be pulled in name of constitution and what else!

The latest news is that the cabinet has approved introduction of an amendment which will allow people like Smriti Shinde to get divorce. Voila! The funny thing is that everyone including media is calling it as divorce on grounds of irretrievable break down of marriage, when in reality it is nothing but addition of a minor clause in marriage acts to allow people like Shinde to be granted divorce in case the other party does not turn up after filing mutual consent petition.

http://pib.nic.in/release/release.asp?relid=62464

Thursday, June 10, 2010

The Union Cabinet today approved the introduction of a Bill, namely, the Marriage Laws (Amendment) Bill, 2010 to further amend the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954, to provide therein irretrievable break down of marriage as a ground of divorce.

The Bill would provide safeguards to parties to marriage who file petition for grant of divorce by consent from the harassment in court if any of the party does not come to the court or wilfully avoids the court to keep the divorce proceedings inconslusive.

At present, various grounds for dissolution of marriage by a decree of divorce are laid down in section 13 of the Hindu Marriage Act, 1955. The grounds inter alia include adultery, cruelty, desertion, conversion to another religion, unsoundness of mind, virulent and incurable form of leprosy, venereal disease in a communicable form, renouncement of the world and not heard as being alive for a period of seven years or more. Section 27 of the Special Marriage Act, 1954 also lays down similar grounds.

However, section 13-B of the Hindu Marriage Act and Section 28 of the Special Marriage Act provide for divorce by mutual consent as a ground for presenting a petition for dissolution of marriage. The said sections inter alia provide that a petition for dissolution of marriage by mutual consent, if not withdrawn before six months after its presentation or not later than 18 months, then, the court may, on being satisfied after making inquiry, grant decree of divorce by mutual consent. However, it has been observed that the parties who have filed petition for mutual consent suffer in case one of the parties abstains himself or herself from court proceedings and keeps the divorce proceedings inconclusive. This has been causing considerable hardship to the party in dire need of divorce.

Incidentally, it may be pertinent to point out here that such a legal proposition has been recommended by the Law Commission of India in its 217th report on ‘Irretrievable Breakdown of Marriage – Another Ground for Divorce’. Further, the Hon’ble Supreme Court, in the case of Ms. Jorden Diengdeh Vs. S.S. Chopra reported in AIR 1985 SC 935 and in the case of Naveen Kohli Vs. Neelu Kohli reported in AIR 2006 SC 1675, has observed and recommended that irretrievable breakdown of marriage should be incorporated as another ground for grant of divorce.

Rape allegation after staying together for 8 years!

2010-07-03T11:45:00.001+05:30

And still some people think that there are no false allegations of rape … even Supreme Court is on record saying that. At least one should be expected to see what is happening around!

http://in.jagran.yahoo.com/news/local/uttarpradesh/4_1_6485586_1.html

अफसर के सवालों पर निरुत्तर हुयी बलात्कार का आरोप लगाने वाली युवती

Jun 12, 01:07 am

झांसी। एक युवक पर कमरे में बंद कर मारपीट कर बलात्कार का आरोप लगाने वाली युवती पुलिस अफसर के सवालों पर बगलें झांकती नजर आयी। इस मामले में युवती का चिकित्सकीय परीक्षण कराने व क्षेत्राधिकारी को जांच के आदेश दे दिये गये है।

हुआ यूं कि खुद को सकरार थाना क्षेत्र अन्तर्गत ग्राम मगरपुर निवासी बताने वाली एक युवती आज दो अधिवक्ताओं के साथ वरिष्ठ पुलिस अधीक्षक के पास पहुंची और शिकायती प्रार्थना पत्र सौंपते हुये आरोप लगाया कि एक युवक ने कल रात उसे एक कमरे में बंद कर मारा पीटा तथा बलात्कार किया। आरोप गंभीर देख कप्तान ने तत्काल थानाध्यक्ष सकरार को फोन मिलाकर जब पूछताछ की तो पता चला कि उक्त युवती आरोपी बनाये गये युवक के साथ पिछले आठ साल से रह रही है और इस बात की जानकारी पूरे गांव को है। कल रात दोनों में मारपीट हुयी थी और गांव के लोगों ने इसकी सूचना पुलिस को दी थी। इस पर पुलिस ने मौके पर पहुंचकर युवक को हिरासत में ले लिया।

इस जानकारी के बाद जब युवती से युवक के साथ रहने के बारे में सवाल पूछे गये तो वह निरुत्तर हो गयी। सच्चाई सामने आते ही युवती के साथ आये अधिवक्ता भी चुपचाप कुर्सी से उठ खड़े हुये। वरिष्ठ पुलिस अधीक्षक ने क्षेत्राधिकारी को बुलवाकर मामले की जांच करने तथा युवती का चिकित्सकीय परीक्षण कराने के आदेश जारी कर दिये।

No proof of cruelty leads to no maintenance

2010-07-01T10:50:00.001+05:30

In this Bombay High court bench’s judgment, the principle adopted is that though strict proof of cruelty is not required in maintenance under CrPC 125, nevertheless the statements made by wife need to have some supporting evidence at least. Read the bold sentences in the end of judgment.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO.226 OF 2002

Sanjay Sudhakar Bhosale,
Age : 35 years, Occu.Service,
R/o. Mental Hospital Servant Quarters,
Yeroda,Pune District Pune – 6 …Petitioner
Versus
Khristina w/o Sanjay Bhosale …Respondent
…..
Mr.Gopal D.Kale, Advocate for the petitioner
Mr.N.K.Choudhari, Advocate holding for Mr.R.N.Dhorde,
Advocate for respondent
…..
CORAM : V.R. KINGAONKAR, J.
Date of Reserving the Judgment: 24.3.2008
Date of Pronouncing the Judgment: 8.4.2008

JUDGMENT
1. By this revision petition, petitioner seeks
immunity from liability to pay maintenance allowance
as per Judgment rendered in Criminal Revision
Petition No.60 of 2000, by learned Additional
Sessions Judge, Shrirampur, to respondent. He
challenges the said Judgment reversing order of
dismissal of the respondent’s application for
maintenance passed by learned Judicial Magistrate
(First Class), Shrirampur.

2. It would be useful to first note the admitted
facts. The spouses belong to Christian community.
Their marriage was performed on 14.5.1998 in
accordance with tenets of Christian religion. The
petitioner is employed as Wardboy in Yerwada Mental
Hospital, at Pune. He resides in one of the
Government quarters, out of nine such quarters, which
are in one row, situated at back side of the mental
hospital. He was a divorcee when he performed
marriage with the respondent. She went to reside
with him after the marriage. His parents and two
brothers reside with him in the same residential
quarter. The marriage was shortlived. The spouses
are incompatible.

3. The respondent (wife) filed application under
Section 125 of the Cr.P.C. for separate maintenance
allowance. She asserted that for about six months,
she was somehow treated alright in the matrimonial
home. Thereafter, the husband started mental and
physical harassment to her at instigation of his
parents and brothers. Her in-laws used to express
dissatisfaction regarding gifts given in the
marriage. They used to abuse her. The husband
(petitioner) used to beat her in drunken condition.
He used to make unlawful demand of gold locket
weighing 15 gms., a T.V. set and a mixer, which she
was asked to bring from the parents. Her parents
attempted to convince and plead with her husband.
Still, however, he and his relatives continued the
unlawful demand, which her parents were unable to
meet out. He used to suspect her fedility. She
apprehended danger to her life in the matrimonial
home. He mercilessly beaten up her on 21.2.1999 and
drove her out of the matrimonial home. She lodged a
complaint at the Police Station. She is unable to
maintain herself. The husband (petitioner) has got
sufficient means to provide separate maintenance.
Consequently, she demanded separate maintenance
allowance at rate of Rs.1,500/- (Rs.One thousand five
hundred) from him.

4. By filing written statement (Exh.14), the
husband (present petitioner) denied truth into all
the material allegations made by the wife. He denied
that she was being ill-treated or harassed in the
matrimonial house. He submitted that on 5th October,
1998, maternal uncle of the respondent (wife) visited
his house and pretended that her another maternal
uncle, who is inhabitant of Ahmednagar, was seriously
ill. Lateron she went with her brother. She did not
return home after 2/3 days as per the assurance and
hence, he visited her parents’ house on 25th October
1998. They assured him to send her after the “Natal”
festival. Thereafter, they avoided to send her and
she refused to accompany him. He was ready and
willing to maintain her. She deserted him without
any substantial reason. He denied that she was
neglected by him. He urged, therefore, to dismiss
the application.

5. The parties went to the trial before the
learned Judicial Magistrate (F.C.), Shrirampur in the
proceedings (Criminal M.A.No.85 of 1999). The
respondent examined herself in support of her
application. The present petitioner also examined
himself and adduced evidence of two neighbours in
support of his defence. On appreciation of their
evidence, the learned Magistrate came to the
conclusion that the respondent (wife) failed to prove
that she was neglected and refused to be maintained
by the husband. The learned Magistrate held that
within a short span of five months of the marriage,
she left his company, probably because she wanted
separate residence without domestic chore in respect
of his parents and the brothers. The learned
Magistrate held that allegations of matrimonial
cruelty are invented by the respondent (wife) and
were unacceptable. In keeping with such findings,
her application was dismissed.

6. Feeling aggrieved, the wife preferred revision
application (Cri.Revision Petition No.60 of 2000),
which was allowed under the impugned order. The
revisional Court reversed findings of the learned
Magistrate and came to the conclusion that the
version of the wife could not be discarded in the set
of circumstances. The revisional Court awarded
maintenance allowance at rate of Rs.700/- (Rs.Seven
hundred) p.m. in her favour from date of the
application. The husband impugns Judgment rendered
by the learned Sessions Judge in the revisional
jurisdiction whereby the criminal revision petition
No.60 of 2000 was allowed.

7. Clinching question is as to whether the
findings of the learned Judicial Magistrate could be
regarded as perverse, arbitrary and patently
erroneous so as to warrant interference by the
learned Sessions Judge in the exercise of revisional
jurisdiction. It is well settled that, normally, the
revisional Court will not reappreciate the evidence.
The impugned Judgment does not show that the learned
Sessions Judge recorded finding that the appreciation
of the evidence, as done by the learned Magistrate
suffered from vice of arbitrariness, perversity or
capriciousness.

8. In the above background, I would briefly take survey of the evidence tendered by the parties. PW-1 Khristina (wife) testified that after six months of the marriage, the husband and his relatives started giving cruel treatment to her on account of demand of money. This part of her statement is discripant with allegations in the pleadings. In her application,she alleged that a gold locket, weighing 15 gms, a T.V. set and a mixer were demanded by the husband from her parents. There is no whisper of any such demand throughout her oral statement before the learned Magistrate. She stated that on 21st February 1999, the husband beaten up her and drove her out of the house. She lodged a complaint at the Yerwada Police Station, Pune. Her version shows that she had written two letters and narrated her plight in the matrimonial home to her father. Her brother used to visit her matrimonial home. Neither of them entered the witness box nor the letters sent by her or copy of Police complaint lodged by her, have been placed on record. Her real married sister, by name, Archana resides in Yerwada locality at Pune. Her maternal uncle resides at Akurdi, Pune. She admits that she never informed her sister or any other relative about the ill-treatment meted out to her at hands of the husband and his relatives, except and save to her father. This conduct of the respondent was duly noticed by the learned Magistrate. She admitted that on 5th October 1998, her brother and maternal uncle visited the house of her husband to inform that her another maternal uncle, who is inhabitant of Ahmednagar, was suffering from illness. This admission corroborates contention of the husband that she was allowed to go to Ahmednagar to meet her ailing maternal uncle.

9. The learned Magistrate also noticed that the two neighbours, namely, DW-2 Shubhangi and DW-3 Bashid corroborated version of the husband. The version of DW-1 Sanjay (husband) would show that there was no ill-treatment given to the wife. He states that on 5th October 1998, brother of the wife and her maternal uncle visited his house and informed that her another maternal uncle, who is inhabitant of Ahmednagar, was suffering from illness and they requested him to send her with them. His version shows that he allowed them to take her away after 2/3 days. Thereafter, on 11th October 1998, her brother took her to Ahmednagar. His version shows that he made attempts to fetch her back but it was invain.
The version of DW-Shubhangi reveals that the petitioner and his wife were never seen quarrelling with each other. Her version reveals that the respondent (wife) resided with the petitioner only for five months after the marriage and he is not addicted to any vice. There is only a middle wall between the residential quarter of the petitioner and DW-Shubhangi. She has no reason to speak lie nor any tangible material is gathered during her cross-examination. Similarly, DW-3 Bashid deposed that after five months of the marriage, the wife left house of the petitioner – Sanjay. In other words, the version of petitioner – Sanjay stands corroborated by the versions of two neighbours.

10. There is solitary and interested version of PW-Khristina in support of her application for separate maintenance allowance. Her version gives inconsistent account about so-called unlawful demand.
She deviated from her pleadings. The findings of the learned Magistrate are based on due appreciation of the evidence. The further development may be noticed. The petitioner filed an application for restitution of conjugal rights in the Family Court at Pune. His application (P.A.No.500 of 2002) is allowed by the Family Court on 21st July 2003. So far, the respondent (wife) has not challenged the Judgment of the Family Court. The Family Court raised a specific issue as follows :

” Whether the petitioner proves that the respondent without any reasonable excuse has withdrawn from the society ?” . The learned Judge of the Family Court recorded an affirmative finding on the said issue. It is manifest, therefore, that not only the learned Judicial Magistrate, on appreciation of the evidence tendered by the spouses, came to the conclusion that she left his house, probably under burden of the domestic chores, but the civil Court also found that she is guilty of deserting him without any reasonable excuse.

11. The impugned Judgment reveals that the learned Sessions Judge undertook reassessment of the entire evidence though he was supposed to exercise the revisional jurisdiction. The learned Sessions Judge did not find any particular fault in the process of appreciation of evidence, as done by the learned Magistrate. The relevant observations of the learned Sessions Judge may be reproduced as follows : “14.On carefully scrutinising the evidence of the applicant and opponent it will reveal that the matrimonial life of the applicant was not smoothly going on due to some quarrel and ultimately, it was resulted into leaving the house of opponent, by the applicant. Observations made by the lower Court that the applicant had stayed for short period in the house of the opponent and therefore, there is no possibility of ill-treatment, does not appear to be proper and legal in the circumstances of the case.
When the applicant has positively stated that she was subjected to ill-treatment not only that but she has lodged complaint in Yerwada Police Station, this will prima-facie give rise that she was ill-treated and, therefore, she has left the house of the opponent. Provisions of Sec.125 of Code of Criminal Procedure need not require that there must be a strict proof of cruelty”.
. The above observations of the learned Sessions Judge would indicate that he accepted version of the wife only because she gave positive statement that she was subjected to ill-treatment and had lodged the complaint at Yerwada Police Station. As stated before, there is no scintilla of evidence to show that really she had lodged a complaint about the matrimonial cruelty. Nor her so-called positive statement finds support from her pleadings. In this view of the matter, it is difficult to countenance the findings of the learned Sessions Judge. Her mere statement could not have been taken as gospel truth as regards neglect and refusal of the husband to maintain her. It is overlooked by the learned Sessions Judge that within a short span of the marriage, the wife left his company and no notice was given within a reasonable time by her, seeking restitution of the conjugal rights.

12. The Apex Court, in “Deb Narayan Halder vs.Smt.Anushree Halder” 2003 (3) B Cr C 286, held that the appellate Court or revisional Court while setting aside findings recorded by Court below must notice those findings and where the findings are of facts,evidence on record must be discussed, which should justify reversal of findings recorded by the Court below. The Apex Court held that when the maintenance application of the wife was rejected by the learned Magistrate, holding that she had on her own left the matrimonial home, the High Court was not justified in reversing such findings recorded by the trial Court and to grant maintenance to the wife.

13. In view of foregoing discussion, it will have to be said that the findings of the learned Magistrate should not have been interfered with by the revisional Court and for the reasons, which are recorded by it. The inferences drawn by the learned Sessions Judge are improper and incorrect. There is misinterpretation of the evidence by the learned Sessions Judge. Under these circumstances, the impugned Judgment is unsustainable and liable to be interfered with.

14. In the result, the petition is allowed. The impugned Judgment is set aside and the Judgment rendered by the learned Magistrate in Criminal Misc.Application No.85 of 1999 is restored. The wife’s application under Section 125 of the Cr.P.C. is dismissed. However, the payment of maintenance allowance, if any, during the intervening period, is not refundable by her. No costs.

( V.R.KINGAONKAR )
JUDGE
(vvr/crirev226.02)

Delhi HC orders initiates proceedings under CrPC 195 against police officers

2010-06-27T19:14:00.001+05:30

This could happen more often! It really only requires an order by judges to do it, and those judges who don’t give such orders are responsible for the devil may care attitude of police.

http://www.ptinews.com/news/742065_HC-orders-criminal-proceedings-against-police-officials

New Delhi, Jun 25 (PTI) Pulling up the city police chief for not taking action against his erring officers, the Delhi High Court has issued direction for initiating criminal proceedings against three police personnel for falsely implicating a man in a criminal case.

Justice S N Dhingra passed the order on a plea by Manjeet Singh Chug who alleged that police are trying to protect three officers by not acting against them despite directions given in this regard on behalf of the Lt Governor.

"Registrar General of this court is directed to send a complaint under Section 195 CrPC for initiating criminal proceedings against the concerned police officials for falsely implicating the applicant (M S Chug)," Justice Dhingra said.

Dowry givers to be prosecuted – Delhi sessions court

2010-06-27T18:51:00.001+05:30

For people used to the lawlessness where you bribe your way out of everything from jumping a red light, to getting a driver’s license; this will come as a shock! However, it is nothing but application of the grand-old law called Dowry Prohibition Act of 1961, which is followed in breach mostly.

http://www.deccanherald.com/content/77747/dowry-givers-should-prosecuted-court.html

New Delhi, Jun 27 (PTI)

Observing that the anti-dowry law has been reduced to a ''paper tiger'' due to the bride's family giving away dowry in many cases, a court here said they also need to be prosecuted like the groom's family to eliminate the social evil.

"Dowry is a two way traffic and unless there is a giver there can be no taker and it is for this reason that in order to eliminate this evil both the giver and taker have been made liable (under Section 3 of the Dowry Prohibition Act)," Additional Sessions Judge Kamini Lau said.

"It is not possible to leave one and book another," the court said while resenting the prevalent practice of the bride's family giving dowry.

"It is unfortunate that this legislation has been reduced to a mere paper tiger and what is more unfortunate is the fact that it is none else but the family of the woman (involved in the marriage) who is responsible for non-accomplishment of this legislation," the court said.It further said the social welfare legislation meant to remove the evil of dowry should be implemented effectively.

"Dowry is shamelessly demanded, given and received under the pretext of social compulsions. It is time that this social welfare legislation (Dowry Prohibition Act) is ruthlessly implemented and none is permitted to take the shield of social compulsions. This has become all the more necessary in order to check the misuse and abuse of Special Laws," ASJ Lau said.

The court also said the expensive gifts given by relatives to a couple before and after marriage must be brought to the notice of authorities for levying taxes.It passed the observations while dismissing a plea of a woman seeking to quash criminal proceedings initiated against her family for giving dowry, which came following a complaint by her husband who faced dowry harassment charges.

In the case, Uma Devi, estranged wife of Sunil Garg, had challenged the order passed by a Metropolitan Magistrate in October last year directing registration of an FIR against her family members for giving dowry during her marriage in April 2008.The magistrate had ordered registration of the FIR on Garg's complaint referring to her admission of giving gifts and money to his family.

Delhi HC’s ‘super-judge’ S N Dhingra tells men their place in marriage!

2010-06-25T19:34:00.001+05:30

Ha… know your duties man! tells the Delhi HC. Only problem is that here the man is forced to go to jail if unable to buy separate house for wife, but not clear if there was any obligation put on wife or not! She will get a separate house to live separately from in-laws, but what does husband get in return? Any peace of mind? Not possible. How can that be written in a mediation (read: legal, ‘civilized’, state sponsored husbands’ extortion) based agreement?

Wives do not have any obligation under Indian legal system.. they have only privileges. Men have no privileges, they have only obligations. Now judges are enforcing the obligations on men with all the brutal state power at their disposal.

http://www.indianexpress.com/news/buy-house-for-wife-or-go-to-jail-hc-tells-man/638470/

The Delhi High Court has asked a man to purchase a house for his wife to live separately from her in-laws or be ready to go behind bars for not fulfilling a condition arrived at during mediation in the trial court.

Justice S N Dhingra asked the woman, who had filed a criminal complaint related to dowry harassment against her husband and in-laws, to find out a house, available at Rs 18 lakh, which would be bought by her husband.

Minister openly give mass dowry, will he get prosecuted?

2010-06-24T18:29:00.001+05:30

The law is an ass, or maybe the law is only in the book. Even though dowry prohibition act is decades old, the law book is not to be opened and eyes are to be kept shut when a minister openly distributes dowry and even names it 'Dahej Vitran Kendra' (Dowry distribution centre)

http://www.centralchronicle.com/viewnews.asp?articleID=37343

By Our Staff Reporter
Sagar, June 2:
Madhya Pradesh Panchayats and Rural Development Minister Gopal Bhargav is again embroiled in controversy for spending crores while simultaneously solemnising the wedding of more than 1,000 women under the Mukhya Mantri Kanyadan Yojana.
Gifts worth crores, collected from government and other sources, were distributed on Monday when the mass marriage took place at the Minister's native place Garhakota. Mr Bhargav represents Rehli and one of the conditions imposed was that at least one member of each couple must hail from there.

Entire Garhakota wore a festive look as brides, grooms, wedding parties, hoardings and posters were observed everywhere. Large-scale arrangements were made for boarding and lodging.

The Minister and his wife Rekha ceremoniously washed the brides' feet while their son Abhishek was in charge of gifts' distribution.

It was announced that gifts of Rs 51,000 would be presented to each couple and this figure was mentioned even in the government press note that followed the event while the ceiling is Rs 10,000 each.

''This is the eighth such wedding I have organised,'' said Mr Bhargav who has so far united 7,000 couples in his constituency. A 'Dahej Vitran Kendra' (Dowry Distribution Centre) was set up for distributing gifts that had the Minister's name printed on them and the wall clock had his photograph. Gifts included television sets, fans, compact disc players, chairs, cots, gold and silver jewellery, liquefied petroleum gas cylinders, watches, mattresses, sheets and copies of the 'Ramcharitmanas'.

The couples included those from various castes, 26 Muslim pairs and 19 differently-able couples. As many as 250 priests were called and each given Rs 500, a shawl and coconut. Barbers, washer men and cobblers also offered services while a beauty parlour was set up to deck brides. Firecrackers and band music added to the charm.

Man - Injure yourself to get bail

2010-06-24T16:31:00.001+05:30

While this “King Solomon” kind of justice is desirable, it will be effective only if such measures are adopted against all kinds of dubious and false complaints.

------------------------------------------------------

IN THE HIGH COURT OF DELHI AT NEW DELHI
http://courtnic.nic.in/dhcorder/dhcqrydisp_O.asp?pn=100378&yr=2010
16.06.2010

Present: Mr. Yogesh Swroop and Mr. Ranjeet Khatri, Advocates for the
petitioner.
Mr. Jaideep Malik, APP for the State with Inspector Sudhir Kumar.

Bail Application No.1107/2010

When the parties were living together, wife (complainant) was
allegedly beaten up by the petitioner (husband), who is an advocate. It is
stated by counsel for the petitioner that the injuries on the person of the wife
as given in MLC were self-inflicted and he can show how such injuries can be
self-inflicted.

[b]The SHO, Inspector Sudhir Kumar, who is present in court, shall
be informed by the petitioner/applicant before he starts inflicting these kinds
of injuries on himself and the Inspector shall prepare a video of the injuries
so inflicted by the applicant on himself. After inflicting injuries, the SHO
shall take him to the hospital for opinion.

If the applicant is able to show that these injuries can be self-
inflicted on the same parts of the body as were found on body parts of the wife,
this court shall consider this application for bail on 21st June, 2010.
A copy of this order be given DASTI.[/b]

SHIV NARAYAN DHINGRA

[VACATION JUDGE]
JUNE 16, 2010

Press release:Bangalore family court refuses memorandums on children welfare and rights

2010-06-21T17:35:00.001+05:30

Note: This press release was sent on 14th Jun to media people.

Save Indian Family Foundation (SIFF), Children’s Rights Initiative for Shared Parenting (CRISP) and All India Mothers-in-Law Protection Forum (AIMPF) are pro-family NGOs creating awareness in the society about rampant family-breaking being done by misuse of dowry harassment laws, domestic violence laws, maintenance laws and child custody laws.

On the eve of International Family Day, i.e. on May 14, the above NGOs had conducted a joint press conference and stressed upon the importance of strong families and fatherly role models for children and society. They had also asked the Indian Govt. to take immediate steps to stop family breaking due to misuse of dowry laws, violation of civil liberties of innocents under Section 498A, Domestic Violence laws and promote family harmony. Additionally, they had declared a month long campaign called, “Family Breaking Awareness Campaign”.

As part of the conclusion of the campaign, the NGOs, SIFF, CRISP and AIMPF approached the Principal Judge at the Family Court of Bangalore on 11^th June 2010, in order to submit the following two memorandums of demands (kindly click on the webpage links below to read the contents),

1. Memorandum for Children’s Welfare in Family Courts.

2. Memorandum regarding Children’s Rights to be with both parents

The above two memorandums are primarily about with the welfare of children in family courts, and children’s rights to be with both parents, as per United Nations’ CRC guidelines. The demands by and large pertained to providing a proper, congenial and conducive atmosphere for visitation of children so that parents, mostly fathers, who are alienated from their children can spend some quality time with their children. Also stressed is need for granting of immediate visitation orders, and shared parenting of children by both parents so that children grow up under love and care of both parents.

However, the Principal Judge of Family Court at Bangalore refused to accept the memorandum of demands after having a cursory look at them.

Our organizations are however not hampered by this turn of events, and will redouble our efforts in spreading the message about children’s welfare and their need to be with both parents. We will continue to engage with society, media, lawmakers, government, ministries, NGOs, and higher judiciary in furthering this noble cause. It is to be noted that several high court judges are themselves in favour shared parenting being implemented in family courts, as per details in the second memorandum.

Nonetheless, the Family Breaking Awareness Month campaign is concluded with this activity and refusal to accept memorandum of demands by the Bangalore Family Court.

We thank our media friends who participated with us in the campaign and helped us in spreading the message.

Thanks and Regards

SIFF, CRISP and AIMPF

Fathers’ day event at Bangalore

2010-06-20T22:07:00.001+05:30

Pictures of Fathers’ day event organised by CRISP (Children Rights Initiative for Shared Parenting) at Bangalore, near Mahatma Gandhi Statue, MG Road on 19th Jun are at link below.

http://picasaweb.google.com/117467678735351888483/CRISPFathersDayEventOn19thJun2010Bangalore

A father showing picture of his daughter at Fathers’ Day event

Another ‘glorious’ statement by another SC judge

2010-06-17T17:00:00.001+05:30

People haven’t forgotten the advice given last year by Justice Katju of Supreme Court to husbands “Do what the wife tells you and never question her authority.” . Now another ‘sage’ advice comes the way of Indian husbands from another SC judge Deepak Verma.

However, one would expect more logic from an SC judge who says “restrictions on independence are like dividends”… it is difficult to fathom how is restriction on independence is a dividend in itself. It is more a tax than dividend.

Since the judge has talked in financial terms to explain marriage, let us try to understand a bit deeper what he has said. In financial terms, a dividend is paid on an investment. In this case, the SC judge’s statement implies without doubt that the dividend is being given by husband to wife. So far so good. So it means that the investment has been made by wife by marrying a man, and husband has to pay the dividend to wife on that investment. Herein matrimony is like a deposit with husband, and he pays dividend. He pays dividend by getting restricted in his independence. The assumption is he must be enjoying some deposit automatically made by matrimony. There is no thought being given that the so assumed matrimony deposit may be in negative balance than positive.

Does it make any sense? Does the wife not have to pay any dividend to husband? The deposit is made one way, from wife to husband, not the other way round! Besides, where does the Hindu Marriage Act say about any legal position, that wife has done a lifetime favour on husband by marrying him? She can only claim maintenance etc as per the laws. But it seems more like that the judges have decided to take a particular position on law, and since they cannot come up with a good enough logical reason, they will indulge in making some populous statements from their ‘temple of justice’, hoping that the sheeple will take it with their heads bowed in awe and wonder at the authority that flows from the mouth of a Supreme Court judge!

http://economictimes.indiatimes.com/news/politics/nation/Forget-about-freedom-SC-to-husbands/articleshow/6034997.cms

NEW DELHI: Married men should forget about their freedom after they tie the nuptial knot as restrictions on their independence are like “dividends” they have to pay for matrimony, the Supreme Court said on Thursday in a divorce suit.

“Whenever a person is married, there is no question of independence,” Justice Deepak Verma said, hearing a divorce suit between Colonel Ajit Sharma (name changed) and his estranged wife and software professional Seema Sharma (name changed).

By making the observations, the court revisited the remarks of the vacation bench of Justice Markandey Katju and Justice Verma of 2009 wherein it had said: “Do what the wife tells you and never question her authority.”

Justice Katju had said: “If men want to rule their life then they should always be on the right side of their wife. Otherwise, a defiant husband’s life would be ruled by others.”

He said that if the “wife says turn right, turn right and if she says turn left, then turn left”. On Thursday, the observation about husbands surrendering their independence came when the court was told that Seema had wished “happy Independence Day” to her husband when both of them filed a divorce suit by mutual consent.

The bench of Justice Verma and Justice K S Radhakrishnan was hearing an appeal filed by Ajit seeking divorce from his wife. They have a 14-year-old daughter Priyanka (name changed) studying at a boarding school in Dehradun.

Initially, the court said: “We are not made to break up marriages.” Thereafter, the court counselled the couple to go for reconciliation. The two were told by the court that for them, the welfare and the future of their child should be the top priority.

However, soon realising that the couple could not live peacefully under one roof, the court worked out a package that could mitigate the difficulties of the mother who was to bring up Priyanka after separation.

The court asked Ajit to suggest a package that he was willing to offer his estranged wife so that she could bear the expenses of bringing up their daughter. The court said that the package should factor in inflation, price rise and the cost of child’s education, her marriage and other needs. It gave Ajit time to think over it.

When SC resumed hearing, Seema was told that besides Ajit bearing entire expenses of Priyanka’s education till senior secondary, he would pay her Rs 4 lakh and give a 250 square metre plot in Secunderabad in Andhra Pradesh.

Ajit said she could dispose the house to mop up more money. The package was in addition to the Rs 1.50 lakh that has already been given to Seema by him. An insurance policy of Rs 5 lakh in the name of their daughter has also been given to her.

After a second adjournment, Seema told SC that she wanted a plot of land in Delhi or Gurgaon and demanded an arrangement for their daughter’s education after school.

Divorce made easier, or rather possible – but watch out!

2010-06-17T16:59:00.001+05:30

This recent news about making "irretrievable breakdown of marriage" a ground for divorce has led to many people talking about how beneficial it will be for the separated couples who cannot get divorce under Hindu Marriage Act as it currently exists.

The only problem is the definition of irretrievable breakdown of marriage. Most likely, it will not be granted for less than 5 years of separation. Then again, it will be need to be proved to the satisfaction of the court. Given the time taken by Indian courts, who is to say how many more years it might take once a divorce application is filed on this new proposed ground.

http://timesofindia.indiatimes.com/india/Govt-to-consider-making-it-easier-to-get-divorce/articleshow/6029884.cms

NEW DELHI: Sparring couples may now have a way out of their misery without having to go through the blame game. The Cabinet on Thursday is expected to consider a proposal to amend matrimonial laws for making "irretrievable breakdown of marriage" a ground for divorce.

The proposal moved by law ministry suggests amendment to the Hindu Marriage Act 1955 and Special Marriage Act 1954 to add the new basis for granting divorce.

Breakdown of marriage is currently not a ground for divorce despite several Supreme Court verdicts favouring it and the Law Commission recommending that it be included in the provision of the law.

The amendment will enable couples to get divorce if one of them refuses to live with the other and will not work towards reconciliation, and the court is convinced that there is no hope of the two leading a normal matrimonial life.

The legal fraternity seems to be split over the proposed amendment. Some experts feel that growing individuality in society has contributed to an increasing number of cases ending at the divorce court with both parties dishing out dirty laundry. The amendment would make parting of ways less bitter.

But several other experts warned of pitfalls in the proposed law. Eminent lawyer Kamini Jaiswal felt the amendment may not be a "bad idea" for urban women wanting to opt out of a relationship, but it may adversely impact rural women who have few options. "I feel there should be a comprehensive look at all laws relating to maintenance and alimony instead of a piecemeal look at one amendment," she added.

Kirti Singh, former Law Commission member described the amendment as "disastrous" if it came without adequate safeguards. "The amendment should only be brought when women are given adequate share in household assets and maintenance. Most women get a pittance from the courts and most do not want to get out of a marriage only because there is nothing to sustain them outside it," she said, adding that this would only provide relief to men.

Comment: Both of the suggestions above are made by lawyers or related to law making. Interestingly, both are worried about what bad effect it may have on maintenance of women. One feels it is not bad idea for urban women but bad for rural women! Basically, one can trust lawyers to welcome any law which generates more income for them. And all laws and amendments do that. There is a direct conflict of interest between a lawyer’s desire for justice, and more complexity in laws. The former reduces income, the second increases it since litigants become totally dependent on lawyers hoping to get out of the legal complexity.

According to the existing Hindu Marriage Act, 1955, divorce can be granted on three grounds -- matrimonial fault, divorce by mutual consent and frustration due to specified circumstances.

According to the first ground, marriage can be dissolved when either spouse has committed a matrimonial offence. Under this provision, it is necessary to have a guilty and an innocent party in matrimonial dispute and only the innocent party can seek divorce.

Divorce on mutual consent is based on the fact that since two persons can marry by their free will, they should also be allowed to move out of their relationship if both agree to do so.

Under "frustration by reason of specified circumstances", divorce can be granted to a person whose spouse has met with "civil death" -- disappeared without a trace for at least seven years -- or renounced the world.

The law commission in its report points out that the ground of matrimonial fault is not always sufficient for divorce and may cause injustice in disputes where the marriage cannot work although none of the parties is at fault, or the fault is of such a nature that the parties to the marriage do not want to reveal it.

The report suggests that in such circumstances it will be in the interest of justice to dissolve the marriage through the proposed amendment.

And who could have thought of this?

2010-06-08T15:41:00.001+05:30

I don’t know how the newspaper terms this as a significant judgment in a divorce case, since the HC judgment is specific to the particular case as given in news below.

The important part I think is that though HC judgment was completely against the allegations, there are no costs at all (leave exemplary) ordered, or any strictures passed for bringing frivolous and vexatious cases to courts.

http://www.dnaindia.com/mumbai/report_father-disallowing-children-to-watch-tv-is-not-cruelty-bombay-hc_1393090

Mumbai: In a significant judgment in a divorce case, the Bombay high court has held that decision of a father disallowing children from watching television programmes continuously and forcing them to go to bed early could not be termed as "cruelty".

Dismissing an appeal filed by a 37-year-old housewife from Pune against a family court's order refusing to grant her divorce, justice AP Deshpande and justice RP Sondurbaldota observed recently that such conduct cannot amount to harassment leading to mental cruelty.

The housewife examined her 12-year-old daughter to prove
the charges of cruelty.

She alleged that her husband wanted his two children to watch Marathi programmes and not Hindi serials. She further alleged that the children were asked not to watch television continuously and to go to bed early.

The judges cross-examined the daughter who did not support her mother's allegations of cruelty.

The bench disagreed with the appellant that her husband had indulged in cruelty by stealing toys of their children, beating them in front of their friends, not allowing daughter to operate computer at home and disconnecting television wire to prevent them from watching serials.

In the cross-examination, the daughter admitted that their father beat her and brother often but it was only to discipline them by preventing them from watching television.

She further said that he kept the toys in cupboard to give to
her cousin, Rohit. She also told the court that at the relevant time she did not know how to operate the computer.

The judges noted, "the four complaints made in the examination-in-chief which would otherwise make the respondent (husband) a villain, stand completely explained in the cross-examination which would show father to a good parent who wanted children to be disciplined, to be able to share toys with other children and not get addicted to television and also not use the electronic items that they cannot handle".

"One fails to understand how this conduct can amount to harassment leading to mental cruelty. The appellant has failed to establish that her husband had treated her with cruelty after solemnisation of marriage", the bench remarked.

The court also noted that the allegations made by the appellant were of general nature and she had not cited any specific instances of cruelty.

The respondent denied all allegations and claimed that both had not at all separated and were living together as husband and wife in the matrimonial home with their children.

The couple had married on August 15, 1991, at Mumbai and had two issues from the marriage, daughter Apporva and son Achintya.

Being prosecuted is no bar for getting job as judge

2010-06-08T15:35:00.001+05:30

All people facing prosecution and then facing problems in getting private jobs due to some overzealous (read stupid) HR departments can use this Mumbai HC judgment in their favour. Sue the particular company for Rs 1 Crore at least for denying the job opportunity not based on merit, but on frivolous reasons.

http://economictimes.indiatimes.com/news/politics/nation/Candidate-facing-prosecution-cant-be-denied-post-of-Judge-HC/articleshow/6019675.cms

MUMBAI: In an important order, the Bombay High Court has held that a candidate who has been selected for the post of a Magistrate or a Judge cannot be denied the appointment merely because he is facing prosecution.

"It cannot be laid down as a rule that merely because he is facing prosecution he must be denied an appointment because indeed the candidate may be facing prosecution for a frivolous reason or for trifles", observed Justice S A Bobde and Justice P D Kode recently.

Hearing a petition filed by aggrieved candidate and Buldana-based lawyer, the bench held that it would be open for the Government to make an appointment of such a candidate.

In this case the government had refused to appoint the petitioner as Judicial Magistrate First Class (JMFC) on the ground that he was facing prosecution in a dowry harassment case for offence under section 498A read with section 34 IPC.

"The question that arises is whether the reason that a candidate for selection to JMFC's post is facing prosecution under section 498A IPC is a strong and cogent reason for not accepting the recommendation of the selection committee".

"We find that the term 'strong and cogent' reason cannot be defined by its very nature and indeed has not been defined. Whether a reason such as pending prosecution of a candidate is strong and cogent, would depend on the fact of each case but it cannot be laid down as a rule that merely because he is facing prosecution the appointment should be denied to him.

Another rape for non-marriage scam!

2010-06-02T11:35:00.001+05:30

As usual, the police has promptly dispatched team to arrest the accused… see another post just few days back about police treating live-in relationship gone sour as rape!

http://www.ndtv.com/news/cities/woman-alleges-rape-after-ex-lover-breaks-marriage-promise-29095.php

A jilted lover lodged a complaint against her former lover on Sunday after he dumped her and tried to marry someone else. The 29-year-old engineer was in love with Jitendra Vasant Patil , a resident of Nandurbar, for the past four years.

According to the Shivajinagar police, the victim claimed that Patil forced her to have a physical relationship with him, saying he wanted to marry her.

Patil, an interior designer, was introduced to the victim through a common friend in Kothrud in 2006.

The woman, who was working with Infosys in Wakad till April last year, left her job and went back to her home in Nandurbar.

Patil had recently told her he was going on some official business to Delhi but instead went back home to Nandurbar. The victim came to know about Patil's impending marriage with another woman on May 28 through a friend. She registered a complaint the next day in Nadurbar. Patil's marriage was later called off.

"As her lover tried to get married to another girl recently, the victim realized she had been duped and filed a case of rape in Nandurbar police station," said investigating officer PI Maya Bankar. "As the incident happened in Pune and the girl stays in Kothrud, the case was transferred to the Kothrud police station."

The case was later transferred from Kothrud to Shivajinagar police station as the alleged crime occurred under its jurisdiction. Initial investigations revealed that the couple had stayed at various hotels from 2006 till recently, and most of these were in Shivajinagar. Bankar checked with Hotel Dwarka and found Patil and the complainant had stayed there on many occasions in 2006.

"We have sent a team to Nandurbar to arrest Patil," said Bankar.

Brain-deficient police treats live-in relationship as rape!

2010-05-30T12:31:00.001+05:30

Here is another instance of action-happy, but brain-deficient Indian police whose policy on any rape complaint by a woman seems to be to lodge FIR, arrest the man accused, and then think of what to do about investigation and putting charges.

When lawmakers have made laws like PWDVA (protection of women against domestic violence act), which clearly recognize the occurrence of live-in relationships, and provide reliefs for woman in a live-in relationship; it is clear that a rape charge by a woman in a live-in relationship is nothing but abuse of laws.

Indian Supreme Court has recently said that live-in relationships are not illegal. But it surely seems being a man in live-in relationship is clearly illegal, or such man is just waiting for his time to get branded a criminal.

http://www.hindustantimes.com/Police-should-be-extra-careful-in-this-case/Article1-550526.aspx

The live-in partner of 27-year-old Jet Airways pilot, Varun Agarwal, may have accused him of rape after he refused to marry her, but legal experts say police should be more careful when investigating cases like these.

Lawyers say rape is a heinous crime that deserves strict punishment, but whether the provisions governing rape are applicable here is the question.

Agarwal’s live-in partner, an airhostess, complained to the Powai police that he repeatedly raped her after promising to marry her. The police have lodged a first information report accusing Agarwal of raping and cheating the complainant.

Lawyers say in such cases the police should first conduct a preliminary inquiry into the allegations. Special public prosecutor Rohini Salian said the complainant is an adult mature enough to decide that she wants to live-in with the pilot. Even if it is assumed that she succumbed to physical relationship under threat, why did she keep quiet for so long, Salian asked. “The police could have conducted an initial inquiry before lodging the FIR,” Salian said. “The facts and circumstance of the case suggest that the pilot should not have been booked for rape.”

Public prosecutor Satish Borulkar agreed saying intercourse with the promise of marriage cannot be rape. “The Supreme Court held in 2009 that sexual intercourse following promise of marriage cannot be construed as rape,” Borulkar said. “The consent is there, even if with a false promise.”

“When we talk about a live-in relationship, intercourse by consent is implicit. The man, in this case, cannot be booked for rape,” said advocate Shrikant Shivade. Legal experts said under the Indian Penal Code, charges of rape can be applied only if intercourse is by force.

“Even if consent is unwilling or under threat or under duress, it amounts to consent,” said advocate Sayaji Nangre. “The person can be tried for cheating, but not rape.”

Wife prefers to level dowry harassment charge than attempt to murder!

2010-05-26T10:35:00.001+05:30

How do we know a false /cooked dowry harassment story from a true one? Well, here is one for you. It would have been enough if the wife left things at all the stories about ill-treatment, mental cruelty blah blah, but she could not stop at that, could she? So she added the story that husband tried to smother her with a pillow. And you are complaining only about pimples and dowry harassment to Deccan Herald! Just admit that so far you are unsuccessful at extorting any money, and going to newspaper is the final trump card you think you have. It won’t work!

http://www.deccanherald.com/content/71620/software-engineer-jail-torturing-wife.html

A City-based engineer, distraught with his wife’s pimples, allegedly tortured her and landed in jail along with his mother, while his father managed to get bail.

Gagan Hiremath, a manager in a software firm, ill-treated his wife, Sarwamangala, physically and mentally. The girl’s tight schedule at the workplace and overseas assignments gave her very little time to get to know well her fiance before marriage.

A dejected Sarwamangala told Deccan Herald: “We got to know each other through a marriage bureau in Seshadripuram and elders from both sides blessed us. But finally, no one came to my rescue or listened to my problems.”

Initially, her husband looked naïve and understanding but he showed his true colours during honeymoon. “He started cursing my parents and brothers over marriage arrangements and later, he and his parents, pestered me to get Rs 50 lakh as dowry,” she said. She alleged that her mother-in-law treated her as a slave.

“The day I stepped into their house, they gave me a list of dos and don’ts –– supposed to wake up before sunrise, clean the kitchen, toilet, prepare bed coffee, breakfast and leave for work at 7.30 am. And when I returned at 8 pm, they taunted and forced me to bring money or walk out. I didn’t have anyone by my side and my husband, instead of supporting me, made my life more miserable,” she said.

She took everything in her stride thinking that it was a teething problem. “Not a single day did he allow me to stay in peace and one day, things went to the extreme when he attempted to smother me to death with a pillow. I managed to escape and landed at my brother’s place,” she recalled.

Gagan’s family refused to talk. Sarwamangala’s brother, Shivaprabhu Hiremath said, “In order to come out of jail, Gagan has confessed to the court that he is undergoing psychiatric treatment.”

Innocence is a matter of trial - which will not finish in your lifetime!

2010-05-21T16:17:00.001+05:30

http://www.indiankanoon.org/doc/1440610/
////////////

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.574 OF 2010

[arising out of SLP(Crl.)No.3562 of 2009]

K. NEELAVENI ..... APPELLANT VERSUS

STATE REP. BY INSP. OF

POLICE & ORS. .....RESPONDENTS J U D G M E N T

HON. C.K. PRASAD, J.

Leave granted.

1. The appellant-wife aggrieved by the order dated 29th September, 2008
passed by the High Court of Judicature at Madras in Criminal O.P. No. 23473
of 2008, whereby it had quashed the charge sheet under Sections 406 and 494
of the Indian Penal Code, has preferred this appeal seeking special leave to
appeal.

2. Shorn of unnecessary details, the facts giving rise to the present appeal
are that the appellant-wife K. Neelaveni on 07/11/2002 gave a written report
to the Inspector of Selaiyur Police Station, inter alia, alleging 2

that her marriage was performed with accused respondent No. 2 - S.K. Siva
Kumar on 3rd September, 1997 in which gold ornaments and various other
household articles were given by her parents. She had further alleged that
her husband used to abuse her and her family members under influence of
alcohol and demanded Rs. 50,000/- from her parents. According to the First
Information Report, when she was pregnant, on scan it was found that she was
carrying a female foetus, her husband and his family members started
harassing her and insisted for aborting the child. On her refusal to give
consent for abortion according to the informant on 18.1.1998, her husband,
mother-in-law, brother-in-law and sister-in-law assaulted her and had driven
her out from the matrimonial home and the husband left her on way to her
parents house. She gave birth to a girl child on 25.6.1998.

3. Informant in the written report had further alleged that her husband had
married another lady namely, Bharathi without her consent with the help and
in the presence of other accused persons. She had further alleged that a
female child was born to them in the wedlock.

4. On the basis of the aforesaid written report, a case under Sections 406,
494 and 498A of the Indian Penal Code 3 was registered against the accused persons. Police after usual investigation submitted charge sheet under Sections 406. 494 and 498A of the Indian Penal Code.

5. Accused persons namely respondent Nos. 2 to 13 filed petition before the
High Court for quashing the charge sheet under Sections 406 and 494 of the
Indian Penal Code, inter alia, contending that in the absence of any
material to show that "the second marriage was duly performed with religious
rites and essential ceremonies" charge sheet under Section 494 of the Indian
Penal Code is fit to be quashed. It was, further, contended that allegations
made in the First Information Report and the materials collected during the
course of investigation do not fulfill the ingredients of offence under
Section 406 of the Indian Penal Code. Aforesaid submissions found favour
with the High Court and it had quashed the charge sheet under Sections 406
and 494 of the Indian Penal Code. While doing so the High Court observed as
follows:-

"As rightly contended by the learned counsel for the petitioners, a careful reading of the complaint of the second respondent, statements of witnesses recorded under Section 161 Cr.P.C. and the charge sheet do not reveal the ingredients constituting the
offences under Section 494 and 406 IPC, yet the first respondent has chosen
to file the charge for the said offences. Therefore, this court is constrained to

quash the charge sheet as against the petitioners as far as the offences
under Sections 406 and 494 IPC alone are concerned. It is made clear that
the charge sheet as against the petitioners under Section 498A IPC is not
quashed."

6. Mr. Guru Krishna Kumar, the learned counsel on behalf of the appellant
submits that the conclusion arrived at by the High Court that the charge
sheet did not reveal the ingredients constituting the offences under
Sections 494 and 406 of the Indian Penal Code is erroneous. He draws our
attention to the First Information Report and submits that there is an
allegation of the second marriage and even birth to a child and hence it
cannot be said that ingredients constituting offence under Section 494 of
the Indian Penal Code do not exist. He pointed out that the High Court while
considering the application for quashing of the charge sheet was obliged to
take into account the allegations made in the First Information Report and
the materials collected during the course of investigation. He submits that
in case the allegations made in the First Information Report and the
materials collected during the course of the investigation are taken into
account, same constitute an offence under Section 494 of the Indian Penal
code. It has further been pointed out that gold ornaments and household
articles were given to the husband and she was driven out from the matrimonial home on a refusal to consent for
abortion. Accordingly, Mr. Guru Krishna Kumar submits that allegation in the
First Information Report and the materials collected during the course of
investigation clearly constitute offences under Sections 406 and 494 of the
Indian Penal Code.

7. Mr. R. Shunmugasundaram, learned senior counsel appearing on behalf of
respondent Nos. 2 to 13, however, submits that the ingredients of an offence
under Sections 406 and 494 of the Indian Penal Code do not exist and,
therefore, the High Court did not err in quashing the charge sheet under
Sections 406 and 494 of the Indian Penal code.

8. We have given our thoughtful consideration to the submissions advanced
and we are inclined to accept the submission of Mr. Guru Krishna Kumar,
learned counsel for the appellant. From a perusal of the allegations made in
the First Information Report, it is evident that the appellant has clearly
alleged that her husband had married another lady namely Bharathi and the
said marriage had taken place in the presence and with the support of other
accused persons. She had also stated that from the second marriage with
Bharathi a girl child was born. In the First Information Report, it had clearly been alleged that besides gold ornaments
other household articles were given in marriage and further she was
subjected to cruelty and driven out from the matrimonial home by the accused
persons. In our opinion, the allegations made in the First Information
Report, at this stage, have to be accepted as true, and allegations so made
prima facie, constitute offences under Sections 406 and 494 of the Indian
Penal Code. It has to be borne in mind that while considering the
application for quashing of the charge sheet, the allegations made in the
First Information Report and the materials collected during the course of
the investigation are required to be considered. Truthfulness or otherwise
of the allegation is not fit to be gone into at this stage as it is always a
matter of trial. Essential ceremonies of the Marriage were gone into or not
is a matter of trial.

9. From what we have said above, we are of the opinion that the High Court
erred in holding that the charge sheet does not reveal the ingredients
constituting the offences under Sections 494 and 406 of the Indian Penal
Code.

10. It seems that accused persons approached the High Court for quashing of
the charge sheet even before any order was passed by the Magistrate in terms
of Section 190 of the Code of Criminal Procedure. In our opinion, when a report is
submitted to the Magistrate he is required to be prima facie satisfied that
the facts disclosed therein constitute an offence. It is trite that the
Magistrate is not bound by the conclusion of the investigating agency in the
police report i.e. in the charge sheet and it is open to him after exercise
of judicial discretion to take the view that facts disclosed in the report
do not constitute any offence for taking cognizance. Quashing of Sections
406 and 494 of Indian Penal Code from the charge sheet even before the
exercise of discretion by the Magistrate under Section 190 of the Code of
Criminal Procedure is undesirable. In our opinion, in the facts and
circumstances of the case, quashing of the charge sheet under Sections 406
and 494 of the Indian Penal Code at this stage in exercise of the power
under Section 482 of the Code of Criminal Procedure was absolutely uncalled
for.

11. It is relevant here to state that offences under Sections 406, 494 and
498A are triable by a Magistrate, First Class and as all these offences are
punishable with imprisonment for a term exceeding two years, the case has to
be tried as a warrant case. The procedure for trial of warrant case by a
Magistrate instituted on a police report is provided under Chapter XIX Part A of the Code of Criminal Procedure,
1973. Section 239 inter alia provides that if upon considering the police
report and the document sent with it under Section 173 and making such
examination, if any, of the accused and after giving the prosecution and the
accused an opportunity of being heard, the Magistrate considers the charge
against the accused to be groundless, he shall discharge the accused and
record his reasons for so doing. It seems that the accused persons even
before the case had reached that stage filed an application for quashing of
the charge sheet under Sections 406 and 494 of the Indian Penal Code. In our
opinion, the High Court ought not to have interfered after the submission of
the charge sheet and even before the Magistrate examining as to whether the
accused persons deserved to be discharged in terms of Section 239 of the
Code of Criminal Procedure.

12. There is yet another reason which the High Court ought to have
considered before quashing the charge sheet under Sections 406 and 494 of
the Indian Penal Code. All the offences are triable by Magistrate and
quashing of the charge sheet under Sections 406 and 494 of the Indian Penal
Code had not resulted into exonerating the accused persons from facing the
trial itself. Matter would have been different had the offences under Sections 406 and 494 of the Indian Penal
Code been triable as sessions case. In matter like this the High Court ought
to have allowed the provisions of the Code of Criminal Procedure referred to
above its full play.

13. For all these reasons we are unable to sustain the order impugned in
the present appeal.

14. We hasten to add that all the observations made in this judgment are
for the purpose of disposal of this appeal and shall have no bearing during
the course of trial.

15. In the result, we allow the appeal and set aside the impugned judgment.

..................J

[ D.K. JAIN ]

..................J

[ C.K. PRASAD ]

NEW DELHI

MARCH 22, 2010.

Newspaper report is not evidence unless corroborated

2010-05-21T14:56:00.001+05:30

R.S.A. No. 1947 of 2006 1

IN THE PUNJAB AND HARYANA HIGH COURT AT

CHANDIGARH

R.S.A. No. 1947 of 2006 (O&M)

Date of Decision : 30.5.2009

Niranjan Singh

.......... Appellant

Versus

Smt. Kulwant Kaur & others.

...... Respondents

CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA

Present : Mr. D.S. Pheruman, Advocate

for the appellant.

Mr. Arun Abrol, Advocate

for respondents No. 1 to 3.

****

VINOD K. SHARMA, J. (ORAL)

This regular second appeal is directed against the judgment and decree dated 16.11.2004, passed by the learned lower appellate Court vide which suit filed by the plaintiff / appellant seeking damages on the ground of defamation stands dismissed.

The plaintiff / appellant brought a suit for recovery of a sum of Rs. 50,000/- as damages on the plea that a news item published in the newspapers had defamed him and his family members. The learned trial Court decreed the suit by holding that the news item published in "Aaj Di Awaj" was defamatory in nature. However, the damages of Rs. 20,000/- only were granted against claim of Rs. R.S.A. 50,000/-.

The defendant / respondents preferred an appeal against the judgment and decree passed by the learned trial Court. The appeal was accepted by the learned lower appellate Court by recording following findings :-

"12. It is admitted that Harminder Singh son of the plaintiff was married with Kulwant Kaur appellant. The plaintiff Naranjan Singh has taken a plea that the marriage was simple and no dowry articles were given but on the other hand the appellants have taken a plea that huge dowry articles were given but the plaintiff and his family members were not satisfied with the dowry articles and raised a demand of car, cash, amount etc. The relations between her and her husband became strained and Harminder Singh filed a petition under Section 13 of the Hindu Marriage Act for dissolution of marriage by a decree of divorce. On the other hand the appellant filed a complaint and also lodged FIR under section 406/498-A/34 I.P.C. Against the plaintiff and others. In the meantime a news was published in the news paper "Aj Di Awaj" Jalandhar regarding the demand of dowry by Naranjan Singh and his family members. It is the case of the plaintiff Naranjan Singh that this news item was transmitted by the appellants to defendant no.4 for its publication in the daily news paper "Aj Di Awaj" But this fact is denied by the appellants. The appellants also filed an application to the S.S.P. Gurdaspur levelling the allegations of maltreatment and beating by Harminder Singh to the appellant Kulwant Kaur. That case is still pending in the court. Thus the case of the plaintiff Naranjan Singh is based on the news item. A copy of the news paper is Ex.P.1. As already mentioned above the appellants have denied to have got this news published in the news paper. The publisher has not been examined in the court to know as to how he has got this news published. Thus the maker of the statement to the news paper has not appeared into the witness box. It has been observed in the ruling Amal Kumar Chatterjee Vs. State of U.P. & Ors. (Supra) that the presumption of genuineness attached under section 81 of the Evidence Act to a newspaper report cannot be treated as proof of the facts reported therein. Their Lordships have also observed that it is well settled that a statement of fact contained in a newspaper is merely hearsay and therefore inadmissible in evidence in the absence of the maker of the statement appearing in court and deposing to have perceived the fact reported. In the case in hand as already mentioned above the maker of the statement has not appeared into the witness box and no evidence has been brought on record to show as to who had got this news published in the newspaper. So this piece of evidence is only hear-say and cannot be read into evidence. Moreover, it is the case of the appellants that Naranjan Singh and his son were not satisfied with the dowry articles and they were demanding more dowry and were humiliating and harassing the appellant Kulwant Kaur for bringing more dowry and thus she lodged FIR against them. That case is still pending in the court. In this way no court has given its verdict that the demand of dowry by the plaintiff and his family members is a concocted story by the appellants and in fact they were not demanding dowry.

Naranjan Singh plaintiff also filed a complaint under section 500 IPC against Kulwant Kaur and others which was dismissed by the court of Shri Jasbir Singh, Judl. Magistrate Ist Class, Gurdaspur and a copy of the order is Ex. D.1. Thus the court of Shri Jasbir Singh, Judl. Magistrate Ist Class, Gurdaspur, came to the conclusion that no offence under section 500 I.P.C. is made out.

The learned counsel for the appellant contends that the appeal raises the following substantial questions of law :-

Whether the learned lower appellate Court was justified in reversing the well reasoned judgment merely for want of examination of publisher of news item ?

In support of the substantial question of law the learned counsel for the appellant contends that once the news item was duly exhibited, and relied upon by the learned trial Court, it was not open to the learned lower appellate Court to have reversed the findings merely for want of examination of publisher. The contention, therefore, is that the finding of learned lower appellate Court is perverse, which deserves to be set aside.

On consideration, I find no force in the contention raised by the learned counsel for the appellant. A reading of the findings recorded by the learned lower appellate Court, reproduced above, would show that the plaintiff has not been non-suited for non-examination of publisher as contended, but for the reason that in absence of examination of publisher the source of news item was not proved. The learned lower appellate Court held, that once the defendant / respondents denied to have authored the news item, in absence of involvement of defendant / appellant with the news item, they could not be fastened with the liability of damages.

The findings of the learned lower appellate Court finds support from the judgment of the Hon'ble Allahabad High Court in the case of Amal Kumar Chatterjee Vs. State of U.P. And Ors. 2000(1) Civil Court Cases 544, wherein the Hon'ble Allahabad High Court has been pleased to lay down as under :-

"2. Shri Mishra has submitted that the police has prepared a list of Mafia leaders in which the name of the petitioner has been included and the said action is wholly unjustified in law. The only document filed along with the petition is a photo copy of a newspaper report. In Laxmi Raj Shetty Vs. State of Tamil Nadu, 1988(3) SCC 319 it has been held as under :-

"We cannot take judicial notice of the facts stated in a news item being in the nature of hearsay secondary evidence, unless proved by evidence aliunde. A report in a newspaper is only hearsay evidence. A newspaper is not one of the documents referred to in Section 78(2) of the Evidence Act, 1872 by which an allegation of fact can be proved. The presumption of genuineness attached under Section 81 of the Evidence Act to a newspaper report cannot be treated as proof of the facts reported therein. It is now well settled that a statement of fact contained in a newspaper is merely hearsay and, therefore, inadmissible in evidence in the absence of the maker of the statement appearing in Court and deposing to have perceived the fact reported."

This has been reiterated in Quamarul Islam Vs. S.K. Kanta 1994(1)JT(SC) 452. It is, therefore, not possible to place reliance on newspaper report in absence of any other reliable documentary material."

The finding recorded by the learned lower appellate Court, therefore, is based on settled law, and therefore cannot be said to be perverse, as contended by the learned counsel for the appellant. The substantial question of law is accordingly answered against the appellant.

The appeal is ordered to be dismissed, being devoid of any merit.

30.5.2009 ( VINOD K. SHARMA ) 'sp' JUDGE

SC Judgment: Proving cruelty must for conviction under IPC 304-B

2010-05-21T14:39:00.001+05:30

http://www.deccanherald.com/content/70500/sc-prove-cruelty-dowry-death.html

New Delhi,May 19, pti:

The Supreme Court has held that husband or other family members can be convicted for dowry death only if it is proved that the wife was subjected to cruelty or harassment in pursuit of the demand and not on mere presumption.

The apex court said Section 304-B (dowry death) can be invoked against the accused only if there is material evidence to support the allegation and not on mere presumption that the victim died within seven years of marriage.

Under Section 304-B read with Section 113-B of the Indian Evidence Act, a husband and his family members can be prosecuted for causing dowry death of the woman if the same occurs within seven years of the marriage.

“In order to hold an accused guilty of an offence under Section 304-B of the IPC, it has to be shown that apart from the fact that the woman died on account of burns or bodily injury, otherwise than under normal circumstances within seven years of marriage, it also has to be shown that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry.

“Only then would such death be called dowry death and such husband or relative shall be deemed to have caused the death of the woman concerned,” a bench of Justices Altamas Kabir and H L Gokhale said in a judgement.

The apex court passed the judgment while acquitting Durga Prasad and one of his relatives sentenced to seven years imprisonment in a case of harassment and dowry death in Madhya Pradesh.

A sessions court had sentenced the accused for harassing Kripa Bai for dowry resulting in her committing suicide.

Attraction to brother-in-law is cruelty and ground for divorce

2010-05-21T14:33:00.001+05:30

http://www.dnaindia.com/mumbai/report_attraction-to-brother-in-law-is-cruelty-bombay-high-court_1380780

Mumbai: Not allowing the husband to consummate the marriage and showing “improper interest” towards the brother-in-law amounts to cruelty and is a legitimate ground for divorce, stated a ruling passed by the Bombay high court this week

The high court dissolved the seven-year-old marriage of a Pune-based businessman by granting him a decree of divorce.

The couple, who had tied the knot in November, 2002, had stayed together for only six months.

The husband, in his appeal, had stated that during their honeymoon in Goa, his wife had revealed to him that she was in love with someone else and had been forced to marry. The husband also alleged that the wife did not allow him to consummate the marriage.

It was further alleged by the husband that after returning from the honeymoon, the wife quarrelled with him over petty issues. “She also openly declared her attraction towards my brother,” alleged the husband.

The husband’s appeal stated that on February 13, 2003, when only his brother was at home and their cousin was in the next room, the wife had gone to him under the pretext of serving food. She then sat next to him on the sofa and started getting intimate with him. “My brother raised an alarm and my cousin came running and was shocked to see her clinging to my brother,” stated the husband’s appeal.

In her defence, the wife had argued that the husband and the in-laws had treated her cruelly, as she was under-educated and belonged to a poor family. She also told the court that her husband and in-laws threw her out of the house on March 25, 2003 and since then she has not been allowed to return.

The husband had first moved the family court in Pune, seeking divorce on the ground of cruelty. This was rejected in April, 2005. The high court on May 6 overturned the family court’s ruling and granted divorce to the husband.

The court in its order observed that the wife tried to be physically close to the brother-in-law, followed him into his bedroom under the pretext of some work, and shared dirty jokes with him. Such gestures left the brother-in-law embarrassed, who then requested her to keep away from him, noted the court.

“The allegations of cruelty made against the wife are serious enough and would strike at the very foundation of the marriage. The incidents must have shocked the husband, causing mental anguish and extreme hardship to him. This conduct would undoubtedly amount to mental cruelty,” observed the division bench of Justice AP Deshpande and Justice Rekha Sondurbaldota. The judges also remarked, “It is obvious from the records and proceedings that there is hardly any life left in the marriage of the parties. Their married life lasted only for six months and they have been living separately for the last seven years.”

Press Release: Pro-Family NGOs announce Family Breaking Awareness Month on International Family Day

2010-05-12T00:06:00.001+05:30

PRESS RELEASE

Sub: Pro-Family NGOs announce Family Breaking Awareness Month on International Family Day

Today, 14th May 2010, on the eve of “International Family Day” we are announcing the beginning of “Family Breaking Awareness Month” and demand Government’s direct intervention to take necessary steps to curb the misuse of these laws, punish those people who do so and save the family system of India from breaking down. We demand the Government should,

Scrap Section 498A of the Indian Penal Code.
Scrap the current form of Protection of Women from Domestic Violence Act and rewrite it, taking into account representation from all the stakeholders like husbands, senior citizens and children.
Make all other gender biased laws / provisions, gender neutral.
Disallow Women and Child Development ministry from drafting any law whatsoever.
Minimize interference of the foreign agencies with vested interests in the family situation of India viz. USAID, UNIFEM, UN, and finally the United States of America.
Form a National Commission for Men to study problems of men and their families.
Form a Men’s Welfare Ministry to implement the recommendations made by the National Commission for Men.
Immediately ban extravagant marriages and make pre-nuptial agreements a norm.
Make shared-parenting and / or joint custody a norm rather than an exception.

Why the above demands?

Scrap Section 498A of the Indian Penal Code: Section 498A of the Indian Penal Code is thoroughly unconstitutional and needs to be done away with, immediately. It does not provide any relief other than the facility of “Arrest on Demand” acting as a tool to break family. Any physical cruelty happening like hurt, grievous hurt, abetment to suicide, attempt to murder, murder, etc. have relevant sections in the Indian Penal Code which are effective enough. For mental cruelty the relief of divorce is available under the various marriage laws and for emotional cruelty like blackmail and extortion too, provisions are available in the Indian Penal Code. Under such circumstances, redundant laws like section 498A of IPC only violates civil liberties of innocent people and breaks families without serving any constructive purpose and hence this Section should be scrapped with immediate effect.
Domestic Violence Act: The fallacies of the current form of the Domestic Violence Act start from the name itself – Protection of Women from Domestic Violence Act – and continue within the Act. The name itself rules out men and children from any protection from domestic violence. Further, there are many provisions which violate fundamental rights granted to citizens by the Constitution of India. Hence, it is utmost necessary that the current form is scrapped and a new Act of “Domestic Harmony” be drafted that can ensure and promote stronger families for the betterment of the society especially children who are the future of the country.
Gender Neutral Laws: Any gender biased provision will have elements of sympathy embedded in it and will always tend to over-empower one gender over another which ultimately leads to violations of civil liberties and human rights. Hence all other laws like rape laws, molestation and sexual assault provisions, maintenance provisions be made gender neutral and words like “Man”, “Woman” be replaced by “Person” and “Husband”, “Wife” be replaced by “Spouse”.
WCD Ministry should not draft laws: The Women and Child Development (WCD) Ministry should not be allowed to draft any laws whatsoever due to above demand. Being women-centric, it is not their mandate to take into account problems of men while drafting laws but by making gender biased laws they, for sure create problems for men and this is not acceptable. Hence, their inputs may be considered; however, the power of law drafting cannot be restrained to them.
Minimize foreign agencies interference: The family systems of western countries like the United States have already been almost finished off due to the over-indulgence of anti-male feminist policies. Their societies are plagued with problems like teenage pregnancies (one in three girls in US is a victim), sexually transmitted disease, drug abuse, juvenile crime, fatherless children, etc. Hence, agencies funded and influenced by the U.S. should be completely disallowed from either interfering in the family situation of India or formulating any policies. Family system is the backbone of India’s progress which will ensure Dr. Kalam’s vision of India as a superpower by 2020. It is but obvious that U.S. will try every means to delay the progress and drag the vision. And the easiest way to do so is to slowly erode the family system of India and impede her progress. Hence, today, on the pretext of International Family Day we urge the Indian Government to take a stand against interference by USAID, UNIFEM and UN in India’s policies, laws and provisions around the family.
National Commission for Men: Since the last 63 years of Indian Independence not a single rupee has been allocated for men’s welfare or a single study done about men’s problems. Every year 58000 husbands are committing suicides – double the number of married women as per National Crime Records Bureau. Also an analysis of suicides reveals that, family problems, is the number one cause of married men’s suicides. And there are many more problems like rising unemployment, sexual harassment, domestic violence, dowry harassment, dropping academic performance (for boys), sudden deaths due to stress related diseases like heart attack, blood pressure, diabetes, prostate cancer which need to be studied in detail and addressed. And this can only be done by a proper “National Commission for Men” which can submit recommendations to the Government about problems of men and their suggestive solutions.
Men’s Welfare Ministry: As mentioned above, a lot of problems of men are not only lying unattended but there is a lack of awareness about them as well. Men’s welfare ministry shall be the interface of the Government of India that would act upon the recommendations of the National Commission for Men and implement them for the benefit of men.
Extravagant marriages: Nowadays, marriages have become almost like an industry with special wedding malls and marriage loans coming up. Marriage industry is worth an estimated Rs. 50,000 crores annually which amounts to roughly 0.1% of India’s GDP. This is a huge burden on people who marry their offsprings/siblings especially those having daughters/sisters. A person’s entire life’s savings goes into one marriage and then, when the marriage does not work due to any reason it’s the husband and his family who has to pay the price. Government must immediately formulate a law to ban extravagant marriages and book people who do so. Also make pre-nuptial agreements a must for every marriage so that later, no false claims of expenses and gifts can be made by either party. These steps will ensure that marrying one’s son / daughter is no longer a burden and will save many families from breaking down.
Shared Parenting and Joint Custody: The most unfortunate and silent victims of family breaking are children for they suffer for no fault of theirs other than the sheer misfortune of having warring parents. When a family breaks due to any reason the impact of the tragedy is very deep on children who develop deep psychological scars. Almost 99% of the children are deprived of father’s love during a separation that can span years given the current state of inefficient Indian Judiciary. This has already set the foundation of a fatherless society in India – on the lines of the U.S. This will give rise to crime and more unforeseen social problems in future. Already in the U.S., fatherless children are,

a. 5 times more likely to commit suicide
b. 32 times more likely to run away
c. 20 times more likely to have behavioral disorders
d. 14 times more likely to commit rape
e. 9 times more likely to drop out of school
f. 10 times more likely to abuse chemical substances
g. 9 times more likely to end up in a state operated institution
h. 20 times more likely to end up in prison

Do we want such a future for our children? If not, then the Government should immediately step in to ensure Shared Parenting.

Today, we are announcing a month long campaign starting tomorrow i.e. 15^th May 2010 – International Family Day. During this campaign we will create awareness about family breaking due to laws, bias against husbands, fathers, children and senior citizens of the family. We will be distributing pamphlets in the family court to create awareness about misuse of marital laws. We will be meeting judges of the family court and the criminal court and sensitize them about our problems and family breaking issues.

We request our media friends to participate with us in the campaign to “Save Indian Family” by giving this campaign wide and huge publicity.

Thanks and Regards

SIFF, CRISP and AIMPF.

Married sister gets relief under domestic violence act

2010-05-10T19:45:00.001+05:30

Good for this lady, but unless citizens rise up together against injustice in the name of women protection laws, they will be wasting their energy and time in fighting lone battles…

Married sister can’t be booked under DV Act

New Delhi, May 10, 2010

Married sisters of a man, living separately from the joint family, cannot be prosecuted under the Domestic Violence (DV) Act on a complaint of his wife, a Delhi court has held.

Additional Sessions Judge Kamini Lau expressed concern over “misuse” of special laws by making women parties in the petitions just because they happened to be sisters of the man.

“Married sisters residing in their own matrimonial houses are not a part of the shared household or joint family, as contemplated under the Domestic Violence Act,” the court said.

It, however, clarified that the married sisters were not denied the rights, which could be claimed from their parental home.

The observations were made by the court while dismissing the plea of a woman who challenged an order of the Metropolitan Magistrate, refusing to summon married sisters of her estranged husband in the case under the Domestic Violence Act.

WCD does not spend any money against dowry or extravagant marriages!

2010-05-09T14:18:00.001+05:30

This is the response received to an RTI application filed on Women and Child Development Ministry. According to this RTI response, WCD ministry has not spent a single Rupee on any advertisement campaign against dowry, or extravagant marriages in Apr 2009-Mar 2010.

RTI response is also given in PDF format below:

http://dl.dropbox.com/u/2371641/RTIs_SIFF/WCD-RTI-anti-dowry-exp-marriage.pdf

So should we not make sure that there is accountability from a ministry which purports to work for women empowerment, but spends money and time on making goof-ups like carrying ex-Pakistani air chief’s photo in its advertisement on National Girl Child Day.

Woman pesters her own parents for dowry, rebuked

2010-05-09T13:16:00.001+05:30

This is the reality of all social evils, when people want to live off someone else, and the name ‘tradition’ is given to such social practices to paper over the uncomfortable truth that we are and becoming even more of a decadent society.

And the feminist brigade still wants everyone to believe that only the patriarchal males are responsible for such evils as dowry. They want to escape from the fact that they themselves are responsible for it, but can’t face it because it hits them directly in face of their so called women empowerment.

The news below:

http://www.hindustantimes.com/Woman-pesters-her-own-parents-for-dowry-rebuked/Article1-539941.aspx

It was a case the village Panchayat had never handled.

For the last few days Mohammedpur Kadim village under Modi Nagar in Ghaziabad was witnessing a bitter argument in a family over dowry. But in this case it wasn’t the groom’s family that was making the demands.

Newly married Poonam Kumar (22) was pressurising and demanding dowry from her parents, who had reportedly promised her the same earlier.

Village head Dhan Pal Singh told HT that Poonam came to her parents’ house on Monday and had an altercation with them. She started demanding the dowry they had promised her earlier.

Poonam also reportedly tried to lodge a complaint with the police but nothing happened. “She kept on pressurising her father Vijay Pal and family members that she would go back to her husband’s house only after she gets dowry. The altercations continued for over two days,” the village head said.

On Tuesday the village Panchayat had to step in. The Panchayat called the woman's in-laws and parents. The proceedings of the Panchayat went on for hours. The woman's in-laws apologised for the behaviour of their daughter-in-law and said they never demanded any dowry.

After a lot of deliberations and on constant requests by her parents that they do not have sufficient funds for fulfil her demands, the in-laws stepped in. “We are self-sufficient and would not allow you to take anything from your parents,” the village head quoted in-laws.

The woman finally consented and decided to leave for her husband’s house without taking any dowry from her parents.

Custody of child: Mumbai HC judgment

2010-05-08T19:54:00.001+05:30

The decision in this child custody case seems to follow the precedent that one parent cannot neglect the child for a long time, and then one day demand custody of child based on a single event. The preference of child is the other important criterion.

http://www.hindustantimes.com/rssfeed/mumbai/Court-gives-custody-of-child-to-father/Article1-540841.aspx

HT Correspondent, May 08, 2010

A man spending a few days in jail cannot be the reason to deny him of his child’s custody, said the Bombay High Court. In a reprieve to a leading city builder, the Bombay High Court granted custody of his 11-year-old son while rejecting his wife’s appeal. The mother can meet the son every weekend.

A division bench of Justice A.P. Deshpande and Justice R.P. Sondurbaldota said: “In our view, the arrest of the father and his detention for a period of 14 days in police custody will have absolutely no bearing in determining the question of guardianship and custody for the reason that he was not even prosecuted though arrested.”

“There is hardly any material on record to indicate that the character of the respondent is not good so as to refuse him the relief claimed,” observed the judges.

The couple, belonging to Sunni Muslim sect, got married in March 1997.

Six years ago, he was arrested for an offence investigated by the Mumbai Police’s Economic Offence Wing.

The man claimed that his wife neglected the child and left the house and the son when he was just 13 months old.

The court also took a note of the provisions of the Muslim Personal Law, which says that father is the natural guardian of a child. Under the law, the mother is entitled to custody of her male child until he is seven years and of the female child until she attains puberty. The court had interviewed the child who wanted to stay with his father.

“The wishes of the minor also need to be considered by the court if the minor is old enough to form an intelligent preference,” said the court.

Only legally wedded wife can get maintenance under Hindu laws

2010-05-06T12:55:00.001+05:30

http://timesofindia.indiatimes.com/City/Mumbai/2nd-wife-has-no-legal-claim-/articleshow/5891496.cms

MUMBAI: A 64-year-old television actor, who is the second wife of an Andheri resident, recently moved the Bombay high court, seeking maintenance from her former husband, after their 17-year relationship ended. However, a division bench of Justice A P Deshpande and Justice R P Sondurbaldota rejected her maintenance plea, saying she was not the "legally wedded wife''.

"As far as Hindus are concerned, marriage laws fall under the Hindu Marriage Act. So, unless the marriage is valid under the provisions of the HMA, those entering into such a marriage cannot describe themselves as a man and wife,'' said the bench. Under the HMA, a second marriage between two Hindus is valid only if neither of them has a spouse who is alive. Any violation of this rule means that such a marriage is null and void, said the court, and no maintenance could be claimed.

Interestingly, TOI in its April 28, 2010, edition, had reported about another bench of the HC, which had rejected another second wife's maintenance claim, but directed her to approach the courts under the recently enacted Domestic Violence Act.

Seema Patil married Nathuram (now 64) in 1983, when the latter was already married. After 17 years, the couple separated in December, 1999 and the next year, Nathuram moved the family court, seeking to declare his marriage with Seema null and void. Seema, in turn, filed a counter claim, alleging that Nathuram had deceived her by saying he was divorced. She also urged the court for alimony.

The family court rejected Nathuram's plea to annul the marriage saying he wanted to take advantage of a wrong committed by him. But the court also restrained Seema from visiting Nathuram's home or office and dismissed her plea for maintenance. Seema then moved HC.

A wife can approach the court seeking maintenance under three different laws —the Hindu Marriage Act, Hindu Adoption and Maintenance Act and the Criminal Procedure Code. When Seema's lawyers cited a Delhi HC order awarding maintenance to a second wife, the Bombay HC said it did not agree with that verdict.

"According to the law, a marriage under the Hindu Marriage Act is void ipso jure and the woman entering into such a marriage is not a wife within the meaning of either the HMA or CrPC. The expression, 'wife', used in both the statutes means only a 'legally wed' wife. The Hindu Adoption and Maintenance Act cannot be treated differently for the meaning to the word 'wife' used therein,'' said the judges while dismissing her plea for maintenance. The court also said Seema seemed to have a sufficient source of living—service pension, retirement dues and also her pays from TV serials. She stays in Khar.

Delhi Additional Sessions Judge convicts DCP, ACP of Delhi for contempt of court

2010-04-30T13:30:00.001+05:30

IN THE COURT OF SMT. PRATIBHA RANI,
DJIII CUM I/C ASJ (WEST), DELHI
***
M No. 12/09
D.N. Joshi, Advocate & Anr.
..........Petitioners
Versus
Sh. Sharad Aggarwal, I.P.S. & Ors.
.........Respondents
****
M No.3/2010
Smt. Meena Sen & Anr.
..........Petitioners
Versus
Smt. Damini & Anr.
.........Respondents
****
ORDER
An application under Sec. 12 of Contempt of Courts
Act   1971   for   initiating   contempt   proceedings   against   the
respondents has been filed by Sh. D.N. Joshi and Daya Ram
Badalia, Advocates.    During the pendency of   this application,
another   application was   filed   by Smt. Meena Sen   and   her
husband Sh. Ramesh Chandra Sen with identical prayer and
this application was also ordered to be put up with connected
matter.

2. In the present case,   the short question involved iswhether arrest of Deepak Sen (husband), Ramesh Chand Sen
(fatherinlaw)   and   Smt   Meena   Sen   (motherinlaw)   on
10.8.2009 in FIR No.122/09 under Sec.406/498A/34 IPC, PS
Tilak Nagar pending hearing of application for anticipatory bail,
was justified.     In the instant   case,   though the permission to
arrest   the main   accused   i.e.   the   husband was   obtained   on
17.6.2009 but no arrest was made and permission to arrest the
collateral accused was obtained from the DCP on 7.8.2009 and
the main accused as well as the collateral accused have been
arrested on 11.08.2009 just a day before settlement/hearing of
the anticipatory bail application by this Court.

3. Perusal of   record   reveals   that   the application for
anticipatory bail was filed on 30.6.2009.   on 1.7.2009 Sh. R.S.
Goswami,   Advocate   for   complainant   Smt.   Damini   Chawla
appeared   in   Court.   Counsel   for   the   complainant   took   the
initiative and Applicants agreed to have meeting in the office of
Counsel for the complainant on 8.7.2009 and application for bail
was adjourned to 10.7.2009.   On 10.7.2009 the Court directed
both the parties to appear before Mediation Cell, Tis Hazari
Courts   on   14.7.2009   and   bail   application was   adjourned   to
17.7.2009.    The matter could not be settled in Mediation Cell
but at   the request of   the parties,   to make further efforts for
settlement,   the hearing   of bail application was   adjourned to
4.8.2009 and then to 12.8.2009.

4. In the meantime all three above accused were
arrested on 11.8.2009.

5. In reply to application for   contempt of Court, Sh.Sharad Aggarwal DCP, Param Aditya – ACP, Inspector Satya
Dev Dahiya and ASI Joginder Singh Rathi all have shown a
defiant mood   that   they   did   nothing   wrong   in   arresting   the
accused persons as there was no protection from Court.   They
have   raised   all   possible   technical   objections   such   as   non
compliance of Order 27A CPC, Section 140 of D.P. Act and
Sec.80 CPC without realising that Order 27 CPC and Section
80 CPC applies to Civil Court and not Criminal Court.   Section
140 of D.P. Act applies to acts done in discharge of duties and
not acts done in violation of law.

6. On merits, I may mention that power to arrest and
justification of arrest are two different things.   The power must
be exercised sparingly. This is more so in case of matrimonial
disputes which are defiant. In such cases arrest may add to the
agony of parties and spoil the chances of reconciliation. That is
why   order   No.330/2007   dated   8.11.2007   was   issued   by
Commissioner of Police, restructuring powers to arrest in such
cases. In the case Chander Bhan Vs. State 151 (2008) DLT 691
Hon'ble High Court of Delhi   laid down guidelines for arrest   in
such cases.   But all those were put on a side in this case.

7. Though the IO took permission to arrest but copies
thereof placed on record show that they are empty formalities.
The sanctioning authority did not care to see and find out how
the   proceedings   were   going   on,   whether   there   was   any
prospect of settlement.    It did not call   the complainant or her
counsel   to find out   if complainant was serious in pressing for
arrest of accused when hearing was listed for 12.08.2009 for settlement/arguments on anticipatory bail application. It granted
permission in perfunctory manner as   if permission is   to be
granted in each and every case merely on being asked.   The
order   is as short as 'As Proposed”.    This defeated the very
purpose with which administrative instructions were issued by
Commissioner of Police and Judicial guidelines were laid down
by Hon'ble High Court.

8. The sanctioning authority did not bother to see that
if bail has not been granted, it had not been dismissed also and
efforts   for   settlement   by   both   the   parties was   a   continuous
process and date was already fixed for settlement/arguments.
After   all   there must   have   been   some   cogent   reasons   for
adjourning the bail application. The sanctioning authority ought
to have tried to find out those reasons. It did not apply its mind
to the facts of the case and acted blindly in granting permission
to arrest. This   speaks   volumes   about   how irresponsible   the
DCP must have been acting in matters which are not pending
before Court.

9. The persons arrested were senior citizens one of
whom was lady. They had status in society. One of them was
arrested from his office in Jodhpur, Rajasthan. The lady was
arrested from School, she is operating, in front of her students.
The arrest caused immense damage to them.

10. What is more painful is that Sanctioning Authority
has not realised even now that matter has already been settled.
First motion for divorce by mutual consent was recorded on
18.1.2009 and petition for quashing FIR was filed in the Hon'ble High Court in November, 2009.

11. Ld. Counsel for the petitioner has relied up on Arts
and   Commerce   College,   Pen,   District   Raigad   Vs.   State   of
Maharashtra & Ors. 1994 Cri.L.J. 172; Km. Shakuntala & Ors.
Vs. The State of U.P. & Ors. 1996 Cri.L.J. 1774; Tapan Kumar
Mukherjee Vs. Sri Heromoni Mondal & Anr. AIR 1991 SC 281;
In re Sanjiv Datta & Ors. 1995 Cri.L.J. 2910; Ms. Sophy Kelly
and Anr. Vs. Chandrakant & Ors. AIR 1999 SC 1042; Afzal &
Anr. Vs. State of Haryana & Ors. 1996 Cri.L.J. 1679; Union of
India & Ors. Vs. Subedar Devassy PV AIR 2006 SC 909;
Tukaram etc. Vs. Santosh Mahadeorao Sayam & Ors. 1995
Cri.L.J.   57;   Sudhakar   Mahadeorao   Kawale   Vs.   State   of
Maharashtra & Anr. 1994 Cri.L.J. 735; T.M.A. Pai Foundation &
Ors. Vs. State of Karnataka & Ors. 1995 Cri.L.J. 3220; and
Bank of Baroda Vs. Sadruddin Hasan Daya & Anr.   (2004) 1
SCC 360 in support of his contentions that all the respondents
are   liable   to   be   punished   for   committing   the   contempt   by
arresting the Applicants during pendency of the bail application.

12. In the the case Chander Bhan & Anr. Vs. State151
(2008) DLT 691, Hon'ble Mr.   Justice Kailash Gambhir while
expressing serious concern on the issue involved observed that
what is not comprehended by young minds while invoking the
provisions of the likes of Sections 498A and 406 of IPC is that
these provisions to a large extent have done incalculable harm
in   breaking matrimony   of   the   couples.     It   has   been   further
observed that despite the western culture influencing the young
minds of our country, still it has been seen that Indian families value their own age old traditions and culture, where, mutual respect,   character   and morals   are   still   kept   at   a   very   high pedestal.   I would like to refer to paras 10 and 1 of the report
which is as under :
“10. It has been noticed in diverse cases,
where   the   brides   and   their   family members   in
litigation find the doors of conciliation shut   from
the side of groom and his family members only on
account   of   there   having   suffered   the   wrath   of
Police harassment   first at   the stage when matter
is pending before Crime against Women Cell and
thereafter   at   the   time   of   seeking   grant   of
anticipatory or regular bail and then the ordeal of
long drawn trial.

11. Daily, matters come before this Court
seeking bail and for quashing of FIRs registered
under Section 498A/406 of the IPC. This Court is
of   the view that   it   is essential   to lay down some
broad guidelines and to give directions   in such
matters in order to salvage and save the institution
of   marriage   and   matrimonial   homes   of   the
couples.”

13. Reverting to the facts of the present case, I am of
the considered view that the directions given above by Hon'ble
High Court of Delhi have been violated by the respondents.
The Sanctioning Authority is trying to justify its action.    This
shows that it has scant regard for process of law and decision
of   Hon'ble   High   Court.   I   find   it   a   fit   case   for   informing
Commissioner of Police as to how his subordinates are working.
I hope that   the Commissioner of Police would personally look
into the matter and take strong action against defiant officers
under intimation to undersigned.

It would also be appropriate to bring this matter to the notice of
Hon'ble High Court about the insensitive attitude of the senior
police officers while dealing with such matters in flagrant
violations of the directions of Hon'ble High Court. Hence a copy
hereof be sent to the Registrar General, High Court of Delhi for
being placed before Hon'ble Mr. Kailash Gambhir, Judge, High
Court of Delhi whose Lordship showed utmost concern about
the matter and took initiative of laying down detailed guidelines
for all concerned. The applications stand disposed of
accordingly.

Announced in the open Court
24.4.2009 ( PRATIBHA RANI )
DJIIIcumI/c ASJ(W)/Delhi

Pune police’s false rapes report: come on feminists, stop being cry babies!

2010-04-29T23:02:00.001+05:30

Ha… police cover up, or feminist cover up? You decide. I have highlighted the important points you can use to bash up the feminist women dis-empowering NGOs.

The link to original news about police report on rapes is given below:

http://timesofindia.indiatimes.com/city/pune/70-rape-victims-in-city-are-minors-Study-/articleshow/5865509.cms

Below is the latest news update on above report:

http://www.punemirror.in/index.aspx?page=article&sectid=2&contentid=201004282010042823514675722129e15&sectxslt=

Ruckus over cops’ rape stats

Pune police report that said 74 per cent of rapes since 2008 were consensual sex based on false promises of marriage has divided the city into two factions. One side condemns the police for shirking responsibilty and the other is glad cops are trying to understand why there has been spike in rape cases

By Chaitraly Deshmukh
Posted On Wednesday, April 28, 2010 at 11:51:46 PM

Neelam Gorhe lashes out against the Pune police at a press conference yesterday while holding a copy of the Pune Mirror’s report on the shocking statistics
A day after Pune Mirror carried news on Pune police’s internal report on rapes that said 74 per cent of rapes reported to them were intercourse with mutual consent, angry womens’ organisations launched a frontal attack on the police accusing them of ‘distorting facts’ and ‘concocting the report to shrug off their responsibility’.

However, Save India Family NGO, which works for men harassed by women, has supported the police and its report. Former IPS officer Kiran Bedi, too, appreciated the police for being transparent.

Denying the charges levelled by womens’ organisations, Additional Commissioner of Police (Crime) A D Shinde says, “We are just scrutinising the facts of the cases reported to us and not generalising it.

Our ultimate aim is to curb rape cases in the most effective manner and we need co-operation from NGOs and womens’ organisations. This is in no way a cover-up operation. We are just understanding the situation in better way so that a strategy and action plan can be worked out.”

Former IPS officer Dr Kiran Bedi, hails the police for being transparent. She says, “We should be thankful that the police is at least trying to strategise after studying the situation.

Their data is based only on legal facts. Law students, psychologists, sociologists and non government organisations should now come forward to analyse the data and work out strategy.

This report draws only broad conclusions. Aspects like delay in filing an FIR should be studied in detail. In India, we do little research on such topics but this would encourage the police and benefit public.”

Centre For Human Right Advocacy president, advocate Rajendra Anbhule says, “The police is not trying to cover up the issue.

The report has been prepared for internal consumption and for the knowledge of police officials on the prevailing situation. From a legal view, the delay in registering the FIR is important.

In rape cases with consensual sex, the victims report to the police after a long time which weakens the case for want of evidence. It would be better to try and overcome the situation instead of arguing about the credibility of the report.”

Anath Hindu Mahila Ashram Superintendent Sharayu Muchalambkar says, “The police is doing a good job. On Tuesday, they organised a programme discussed the issue with us.

Officials have studied the issue and worked out an action plan. They plan to display posters at public places displaying safety tips for women. They are heading in the right direction.”

Some women misuse law to extort money
Save India Family Foundation (SIFF) and All India Men Welfare Association spokesperson Mahesh Kalge says, “There is manifestation of misunderstanding about the definition between rape and cheating in a relationship. In India, it is common for girls to allege rape after having consensual sex.

In many cases, the girls withdraw their allegations after a monetary settlement or marriage with the man against whom they complained.

Indian laws define cheating in a relationship as rape and men who indulge in consensual sex are branded rapists the moment the women claim it was against her wish. Pseudo women empowerment groups use this legal provision as a tool to extort money.

Sadly, the law gives complete amnesty to women and never punishes a woman for filing a false complainant. Neither the law nor the society is considerate about the reputation of a man who falls victim to such a woman.”

CIC judgment which allowed police case diary using RTI

2010-04-29T22:46:00.001+05:30

This judgment explains the scope of Section 8(1) (g) of RTI act as applied to police case diary:

RTI Act’s Sec 8(1) (g): information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;

The gist of the judgment is:

We say this while still recognizing that in all requests for information under RTI Act, especially when they pertain to the law enforcement authorities, it becomes necessary to strike a fine balance between the imperatives of the confidentiality of the sources of information, witness protection and so on, with the right of the citizen to get information.

…

…

We wish to add here that we accept the merit of the police authority’s contention that an open-ended order by this Commission to make available to any information seeker, all the details of investigation into a crime, will have serious implications for law enforcement and will have potentiality for misuse by criminal elements. Each case will, therefore, have to be examined independently, on the basis of facts specific to that case.
In this particular case, we don’t find that the apprehensions of the police about disclosure of information are justified.

The important portions of judgment are in bold below:

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

F. NO.CIC/AT/A/2006/00071
Dated the 11th May, 2006

Appellant: Shri Kuldeep Kumar, D-652, Mandir Marg, New Delhi-110001.

Respondents: Shri B.S. Brar, Jt. Commissioner of Police & First Appellate Authority, First Floor, Police Headquarters, I.P. Estate, New Delhi.

Shri Anand Mohan, Dy. Commissioner of Police-cum-PIO, New Delhi
District, New Delhi.

This appeal has been filed by Shri Kuldeep Kumar of D-652, Mandir Marg, New Delhi against the order dated the 2nd February, 06 of the appellate authority, Shri B.S.Brar, JCP, New Delhi Range.

2. The appellant had asked for the following information from the PIO, Delhi Police, Parliament Street through his application dated the 22nd November, 05:-

1) “What is the basis of the Investigating Officer time and again expressed view that theft has been committed by only (SIC) out of three persons?

2) In what manner these three have been examined?

3) Please give date-wise details of each and every investigational step/s overall taken to solve the case; and

4) What is the result/status of this case now?”

3. The parties were called for hearing on 11.05.06. The appellant was present in person. The PIO and the appellate authority were represented by Shri R.S. Ghumman, DCP, Legal Cell, PHQ, New Delhi.

4. It appears from the records that the police authorities had made an attempt to verbally apprise the appellant about the status of the case which was treated by the former as “Untraced.” Sub-Inspector, Shri Ravi Kumar (Investigating Officer) met the appellant at his residence on 17th December, 05 and made available to him “untrace report as well as some information in this case.”

5. The appellant is not satisfied with the information given to him and wishes to have more details from the PIO. The summary of the case already provided to him by the PIO does not satisfy him. He wants to have “date-wise details of each and every investigational step(s) undertaken by the police to examine the suspects and others thoroughly,” which was not provided in spite of his ‘three’ requests. He was informed by the APIO on 20.1.06 that “the complete information under the RTI Act, 05 has already been given to you vide office letter No. 11/DIC-NDD, dated 9.1.06 and there is no more to intimate you in this connection. As the complainant you have been kept amply informed.”

6. The appellate authority upheld the PIO’s action and through his order dated 2.2.06 turned down the appellant’s first appeal.

7. The appellant’s case is that the information supplied to him by the PIO was not corresponding to the points the appellant had made. It was only a para-wise action taken report and not a detailed account of how the case was investigated. The appellant has also complained that the APIO has signed the letters in which his signatures are different all three places. The communication of the APIO did not mention the name and the address of the appellate authority.

8. During the hearing of this appeal, we attempted to elicit from the appellant the exact information he wanted to have from the PIO. From what we understood he already has from the PIO the following:-

1) The ‘untrace report’ dated 22.11.05;
2) A summary of the result of the police investigation in the case of theft in the appellant’s house.
9. The appellant informed us that he was interested in receiving from the police in considerable detail, the manner of their investigating the case which led to the ‘untrace report’ being filed. When asked to be specific about his request, the appellant said that he had already received from the police the names and the identities of the suspects in the case. As a matter of fact, the names of the suspects were supplied by the appellant himself to the police. Additionally, he wished to have the following from the police:-

1) dates on which the police conducted investigation in this case;
2) The methodololgy adopted for investigation;
3) The full text of the depositions given by those interrogated by the police;
4) Any physical verification or connected investigation conducted by the police.

10. Mr. Ghumman, representing the JCP responding to the points made by the appellant pointed out that the information which the appellant has sought forms part of the police case diary. He brought to our notice judgements of the Hon’ble Supreme Court of India in the Mukund Lal Vs Union of India and Mahinder Singh Vs. Union of India in which the apex court allowed the police to treat the Case Diary as a privileged document. Further in Mahabirji Birajman Mandir Vs Prem Narain Shukla, the Hon’ble Allahabad High Court had held, “The case diary contains not only the statements of witnesses recorded under Section 161 CrPC, and the site plan or other documents prepared by the Investigating Officer, but also reports or observations of the Investigating Officer or his superiors. These reports are of a confidential nature and privilege can be claimed thereof. Further, the disclosure of the contents of such reports cannot help any of the parties to the litigation, as the report invariably contains the opinion of such officers and their opinion in inadmissible in evidence.”

11. Further, the DCP, Legal Cell, Shri R.S. Ghumman, pointed out that the information sought by the appellant comes within the exemption of Section 8(1)(g) of the RTI Act. This section allows exemption for information, the disclosure of which would endanger the life and physical safety of any person or identify source of information or assistance given in confidence for law enforcement or security purposes.

12. We are in agreement with the appellate authority’s averment that disclosing the details of the case diary will have far reaching consequences in terms of the confidentiality of the information received by the police and may even endanger the physical safety of those examined by the police authorities. However, we also notice that in spite of claiming absolute exemption under Section 8(1)(g), the PIO had voluntarily given some information to the appellant about the status of his case along with the reason as to why it was treated as untraced. In our view, some more information than what has been given to the appellant can also be given to him without unduly compromising the investigation or the witnesses etc. We say this while still recognizing that in all requests for information under RTI Act, especially when they pertain to the law enforcement authorities, it becomes necessary to strike a fine balance between the imperatives of the confidentiality of the sources of information, witness protection and so on, with the right of the citizen to get information. In our view, in this particular case, that balance will not be unduly affected if the following further information is furnished by the PIO to the appellant:-

1. the dates on which the Investigating officer actually investigated the case;
2. Dates on which actions, such as, searches etc., connected with the investigation, were taken;

3. A gist of the depositions of those examined by the police without disclosing names or details which could compromise witness/source confidentiality and safety.

13. We wish to add here that we accept the merit of the police authority’s contention that an open-ended order by this Commission to make available to any information seeker, all the details of investigation into a crime, will have serious implications for law enforcement and will have potentiality for misuse by criminal elements. Each case will, therefore, have to be examined independently, on the basis of facts specific to that case.
In this particular case, we don’t find that the apprehensions of the police about disclosure of information are justified.

14. In view of this, Shri B.S. Brar, appellate authority and Shri Anand Mohan, PIO are instructed to furnish to the appellant the additional information as at paragraph 12 above.

15. The appeal is partly allowed.
Sd/- Sd/-
(A.N. TIWARI) (PROF. M.M. ANSARI)
INFORMATION COMMISSIONER INFORMATION COMMISSIONER

Authenticated by –

(P.K. GERA)
REGISTRAR

Address of parties:

1. Shri Kuldeep Kumar, D-652, Mandir Marg, New Delhi-110001.
2. Shri B.S. Brar, Jt. Commssioner of Police, PHQs, Delhi-110002.
3. Shri Anand Mohan, PIO & DCP, New Delhi Area, Parliament Street, New Delhi-
110001.

Punjab SIC judgment which allows case diary from police through RTI

2010-04-29T22:36:00.001+05:30

The judgment below has been copied from original link of Punjab SIC website given below as given by google search.

http://www.google.com/url?sa=t&source=web&ct=res&cd=2&ved=0CAwQFjAB&url=http%3A%2F%2Fwww.infocommpunjab.com%2Fhtm%2Fdocuments%2F2009%2FOrders%252016%255B1%255D.11.2009.doc&ei=5rjZS-u5HI2gsgPOiJGwAQ&usg=AFQjCNFVw0qpmHUtxfMf6l8ttTJ6hpdMcg&sig2=Ys-RWEwowx4Wn-PDqFtsMA

Note: The garbled text in 2 paras in judgment below is as in original judgment.

The main points of the judgment are:

That section 22 of RTI act has overriding effect on Sec 172 of CrPC.
That case diary maintained by police is “information” as per RTI Act.
To claim exemption under sec 8 (h) of RTI act, the police should not only allege but also at least prima facie show that disclosure of information would impede the process of investigation / prosecution etc.

Now go ahead and be empowered with police.

The important portions are in bold below:

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

STATE INFORMATION COMMISSION, PUNJAB

SCO No. 84-85, 2^nd Floor, Sector 17-C, CHANDIGARH.

Smt. Jagvinder Kaur,

w/o Gurpreet Singh Mansahia,

c/o Master Sukhdev Singh,

Uchhi Pully, Shivam Chowk,

Chahal Colony, St. No. 3,

Patiala Bye-pass, Sangrur, Punjab.

_________Complainant

Vs.

Public Information Officer,

O/o Senior Superintendent of Police,

Bathinda.

________ Respondent

CC No. 3209 of 2009

ORDER

Jagvinder Kaur vide her application dated 08.09.2009, addressed to the PIO, office of the SSP, Bathinda had sought information under Right to Information Act, as per the details mentioned below: -

“A complaint dated 22.3.09 and 23.04.2009 filed by me to DGP/Pb./CHD for conducting enquiry into FIR No. 36 dt. 18.03.09 registered at PS Rampura Phool against Gurpreet Singh s/o Sh. Harpal Singh Mansahia and Jagvinder Kaur w/o Gurpreet Singh. Kindly arrange to supply the following information:

1. Attested copies of complete inquiry report alongwith noting file.

2. Attested copies of complete case diary (Zimni) relating to FIR No. 36 dt. 18.03.09.”

In response, SSP, Bathinda vide his letter No. 731/RTI dated 10.10.2009 informed the information seeker that: -

“ÒÒfe w[eZdwK BzL 36$09Hn$XH302, 307, 447, 511, 506, fjzLvzL EkDk okwg[ok ftZu nkg d'ôD j'. nkg B{z ubkD g/ô ndkbs eoB ;w/A ;pzXs BebK fdZshnK ik u[ZehnK jB. i' foekov wzfrnk j? d/Dk n;zGt j?."

Aggrieved against the denial of the information under RTI, Jagvinder Kaur filed a complaint with the State Commission alleging that the PIO has failed to provide information within the specified time under Section 7(1) of the Right to Information Act. It was further alleged that the information sought concerns the life and liberty of her husband, who is in judicial custody and lodged in Bathinda jail.

Contd…P2/-

-2-

It was pleaded that the information be provided within 48 hours and that a direction to this effect should be issued to the PIO.

Notice was issued to the parties. In response to the notice, SSP, Bathinda vide his letter No. 24328/C dated 03.11.2009 placed on record his reply. The operative part of the reply is reproduced below : -

“w[edwk T[es d/ ;pzX ftu fog'oN w[Zy nc;o EkDk okwg[ok gk;'A jk;b ehsh rJh j? fizBk dh fog'oN w[skfpe w[eZdwk dk ubkB g/ô ndkbs eod/ ;w/A gqkoED B{z ;kohnK BebK fdZshnK ik u[ZehnK jB. fJ; s'A fJbktk gqkoED tZb'A w[eZdwk dhnK fiwBh fog'oNK dh wzr ehsh j? fi; d/ ;pzX ftu vhHvhHJ/Hbhrb pfmzvk gk;'A eB {zBh okfJ jk;b ehsh rJh j? fiBK dh okfJ w[skfpe wzrh rJh ;{uBk ;?e;B 172 ns/ 172(3) ;hHnkoHghH;hHsfjs nkT[Adh j? ns/ i' Indian Evidence Act 1872 d/ w[skpe w[jJhnk BjhA ehsh ik ;edh. “

During the course of hearing, the difference of opinion between the complainant and the respondent was narrowed down to only one issue: - Whether attested copies of complete case diary (Zimni) relating to FIR No. 36/9 of Police Station Rampura Phool could be obtained by the complainant under the provisions of the Right to Information Act?

On this issue, the respondent’s stand is that he had obtained legal opinion from District Attorney, Bathinda, who had opined that this information can not be supplied in view of the provisions of Section 172 of the Cr.P.C. The respondent submitted that there is a specific bar imposed by Section 172(3) Cr.P.C. against supply of this information.

Complainant on the other hand argued that Section 22 of the RTI Act overrides all other Acts for the time being in force. To the extent the provisions of Section 172 and 172(3) Cr.P.C. are contrary to the substantive provisions of The Right to Information Act, these Sections of Cr.P.C shall stand superseded and will have no adverse effect on the request of an information seeker. He further argued that in the present case, ‘challan’ has been presented in the Court. Since investigation has been completed and trial is under process before the judicial court, discloser of information relating to case-diary (Zimni) could not possibly have any prejudicial effect on investigation or prosecution of the accused. The information, therefore, should not be denied under provisions of RTI Act.

Contd…P2/-

-3-

On 04.11.2009, respondent sought an adjournment, which was allowed and the case was heard on 12.11.2009. The respondent, in the meantime, placed on record letter No. 7411/Spl.C dated 11.11.2009. A copy of the opinion of the District Attorney which had been obtained by the respondent, was enclosed with the letter dated 11.11.2009. The opinion given by the District Attorney is reproduced: -

"w?A T[es ohg'oN B{z tkfunk j? w/oh okJ/ d/ wskfpe 1996(1)R.C.R. g/i Bzpo 650 (c'N' ekgh bc j?) ns/ The Right to Information Act, 2005 dh Xkok 8( H ) prosecution of offenders ekoB vke{w?AN ;gbkJh eoB go eB{zBh o'e j?. feTAfe d'ôh d/ fybkc ;wkfJs wkD:'r e'oN nkc bkn d/ ftZu ehsh ik ojh j?.

;jh$F

T[g fibk nNkoBh pfmzvk

11H11H09”

To sum up, the plea of the respondent is two –fold:-

i) In view of the express bar contained in Section 172 and 172(3) Cr.P.C. against supply of case diary, the same cannot be given to the information seeker. The respondent relied on 1996(1) RCR 650.

ii) There is a bar under Section 8(1)(h) of the RTI Act against supply of document in cases where prosecution of offenders is pending in court of law.

I have heard the parties and gone through their respective stand. It is true that Section 172(3) imposes a bar qua the accused or his agent from calling the record of case diary. The relevant provision is produced below: -

Section 172 (3) : -

“Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court; but, if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of Section 161 or Section 145 as the case may be, of the Indian Evidence Act, 1872 (1 of 1872), shall apply.”

A perusal of the above Section of Cr.P.C makes it clear that there is no blanket blacking-out of the contents of the case diary; the bar contained in Section 172(3) is only qua the accused or his agent. This bar also is tempered by the fact that if these are used by police officer who made them to refresh his memories, or if Court uses them for the purpose of contradicting such police officers, the provision of Section 116 or Section 145 as the case may be of the Indian Evidence Act shall apply.

However, the issue before me does not pertain to what happens to daily-diary in a criminal trial before a judicial court; it may or may not be sharable with an accused or his agent under Section 172 Cr. P.C. The question which needs determination is:- can copies of daily-dairy be withheld from an information seeker under the provisions of RTI Act, on the ground that Section 172 Cr.P.C. bars an accused or his agent from calling for such diaries in trial?

Section 22 of the RTI Act, 2005, which is reproduced below, makes it clear that the provisions of the Right to Information Act shall apply, even if there is any inconsistency in any other law for the time being in force.

Section 22: -

“Act to have overriding effect. – The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Officials Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.”

The provisions of Section 22 have an overriding effect and therefore it must be held that so far as supply of information under RTI Act is concerned, the provisions of Section 172 Cr. P. C shall not act as a bar.

The next question which needs to be determined is: whether a case diary is an information within the meaning of Section 2(f) of the RTI Act. Information has been defined under Section 2 (f) as any material in any form including, ‘records’, ‘documents’, ‘memos’, ‘logbooks’, ‘reports’, ‘papers’ etc. What is a case diary? A perusal of Section 172(1) of the Cr.P.C. makes it clear that a case diary or a zimni is merely a day by day record of investigation made by police officers. The investigating officer is required to mention proceedings of the investigation in a diary setting forth time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him and a statement of the circumstances ascertained through his investigation. From the description of case diary in Section 172(1) of the Cr.P.C, it is clear that a case diary is nothing but a record of the sequence of investigation and the various stages or steps of investigation reduced in writing on a sheet of paper/s. A case-diary therefore would be a paper and a document or a logbook well within the meaning of Section 2(f) of the RTI Act. It is also a memo, which is colloquial for memorandum. A case diary, I have no hesitation in holding, certainly falls well within the definition of word ‘information’ as defined in the RTI Act.

Coming to the second argument of the respondent that the information is exempt from disclosure under Section 8 of RTI Act, it is correct that the “information which would impede the process of investigation or apprehension or prosecution of offenders” can be withheld. Under Section 8(1) (h), there is no legal obligation to give such information to an information seeker.

In the present case, it is admitted that investigation has been completed and the challan was presented before judicial court long time back. It is also admitted that the evidence is going on. The question which needs to be determined is whether disclosure of a case diary or Zimni will impede prosecution of offenders? It would depend on the facts of each case and no general policy or principal could be laid.

In the present case, the respondent has taken, vide his letter dated 744/Spl.C dated 11.11.2009, a simple one line plea that information cannot be supplied because there is a bar against supply of this information under Section 8(h). The fact that a criminal case is pending in a court of law at the prosecution stage has been interpreted by the respondent as an automatic empowerment under Section 8 (h) to deny information. The District Attorney whose opinion was obtained by the respondent has relied on 1996(1) RCR 650 in support of this contention. In this case the Hon’ble Supreme Court had held that:

“Criminal Procedure Code, 1973, Sections 172(1) and 162 – Case diary – Case diary and statements recorded under section 161(3) are two different records – Case diary not to be used as evidence in the case.”

To my understanding, this authority of the Hon’ble Supreme Court is of little help to the respondent at it does not squarely address the issue involved in the present complaint case. It is true that under Section 8(h) exemption can be availed, if disclosure of the information would impede the process of prosecution. However, it is not an automatic exemption implying that in each and every case where investigation or prosecution is pending, information is not discloseable. For the respondent, it is not enough to merely plead that investigation or prosecution is pending; he has to plead and show that such a discloser of information would impede the process of investigation or prosecution etc. Without substantiating such a plea or without giving any cogent justification, the information cannot be withheld. The respondent should not only allege but also at least prima facie show that disclosure of information would impede the process of investigation / prosecution etc.

Hon’ble Supreme Court has held that access to information is a fundamental right. Its roots lie in Articles 19 and 21 of the Constitution of India; RTI Act has not conferred this right afresh; it merely provides a statutory recognition to the existing fundamental right and lays down the processes, procedures and statutory enforcement mechanism for actualizing the right.

Exemptions under Section 8 of the RTI Act are by way of reasonable restrictions on this fundamental right and therefore must be construed strictly. The exemption should not be interpreted so as to the shadow the right itself. The Hon’ble Delhi High Court, which dealt with this issue in W(PC) No. 3144 of 2007, has held that: -

“It is apparent that the mere existence of an investigation process cannot be a ground for refusal of the information; the authority withholding information must show satisfactory reasons as to why the release of such information would hamper the investigation process. Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some material. Sans this consideration, Section 8 (1) (h) and other such provisions would become the haven for dodging demand for information”

In the above mentioned case decided by the Hon’ble Delhi High Court, the matter was under investigation when information was sought by an information seeker and it was denied under Section 8 (h). What holds good for matters under investigation, would in fact apply with greater vigour to cases where investigation has been completed. In the present case, investigation has been completed and ‘challan’ has been presented. Trial is going on in the court. The respondent has not shown how and in what way discloser of the case diary at this stage, will impede the prosecution of the accused. No reason or justification has come forward from the respondent.

In conclusion, therefore, it must be held that the complainant has a right to access the information sought by him and the respondent is under a statutory obligation to supply attested copies of the case dairy to him. I direct the respondent to supply the copies within 20 days. I am intentionally allowing the period of 20 days to the complainant as he has a right to challenge this order, which he may like to exercise. Undoubtedly, this order has for reaching implications not only for the right of the information seekers, but the manner in which the investigating agencies conduct investigation and maintain its record. For this reason, I further direct that copies of this order be forwarded by the Deputy Registrar to both, the Principal Secretary, Home, Punjab and the Director General of Police, Punjab to bring the contents of this order to their pointed notice.

(R.I. Singh)

Chief Information Commissioner

16^th November, 2009 Punjab