All you need to know about Hindu Law & Property – Joint Hindu Family/Coparcenory/Ancestral & Self Acquired property.

This article explains and answers the following questions :-

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

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

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

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

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

vi) Who can seek a partition ?

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

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

 

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

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

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

A Coparcenory 

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

Ancestral & Self Acquired properties.

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

 

Partition

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

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

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

Can a Karta dispose of coparcenory property without consent of the family/coparcenory ?

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

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

* Author can be reached at : bharat.law06@gmail.com – 9810553252. 

Sample/Draft S.340 CrPC Application for perjury

IN THE COURT OF A.C.J Magistrate
__TH COURT AT Fatehpur, U.P.
C.C. NO. ______/2010

Mrs. Anuradha ..….Applicant
Versus
_________________ ….Respondent[ Present Applicant ]

RESPONDENT’S APPLICATION U/S 340(1) of Cr.P.C, 1973. FOR THE ACT OF PERJURY
COMITTED BY THE APPLICANT UNDER AFFIDAVIT AND SOLEMN AFFIRMATION UNDER OATH
SUBMITTED BY THE MAIN APPLICANT IN Fatehpur COURTS.

MAY IT PLEASE YOUR HONOUR:

I, Mr. _____________________, respondent above named, do hereby state on solemn
affirmation as under:-

1. Present petitioner is father in law of main applicant

2. Main applicant is well qualified lady, having completed B.A and currently doing M.A and registered with employment exchange, and is educated and literate, and knowingly and willfully has been filing multiple cases against respondent applicant, being a educated lady has armored self-same with tool and weapons of
criminal procedures to harass respondents by way of different ways.

3. It is most respectfully submitted by the Respondent that the couple stayed not more than __ days, i.e.______________.

4. The facts mentioned and maintained by applicant wife are contrary to applicant wife’s father in different litigations about same event on same date, i.e. on the date of marriage; The applicants self same submissions are contrary to her own self substantiate facts, made to mislead the Ld Court.

5. That present applicant respondent knew the complainant and her family members before marriage since more than 20 years and knowing about them the respondent without any demand of dowry directly/indirectly, without giving or taking any dowry of whatsoever nature married main applicant wife since both families knew
one another since long.

6. It is admitted fact that main applicant including 2 sisters have filed 498a matter against their respective families, and in trial main applicant wife also has accepted this very fact, the alleged facts of all complaints by all sisters
in their own 498a cases is same that they were assaulted and demand of 50,000 Rs was made and they were kicked out of the matrimonial home

7. That is it submitted on affidavit that the main applicants allegations are that she was assaulted and demand of 50,000 Rs and motorcycle was made. Affidavit filed 26-10-2010 states that she went to police station on 13th July
to kotwali Fatehpur, her complaint was not taken is alleged. Hence she forwarded the written complaint to SP Fatehpur by way of registry the same information was given, the same can be observed in ____/____ under affidavit and substantiated evidence, annexed as Annexure “A1″

8. That in witness box the self-same complainant has substantiated the fact, in the matter of 53/06, it is material on record and substantiated that on 12-07-2005, self-same applicant wife went to kotwali Fatehpur and 498a case was
registered in the kotwali and the final report of that matter has been reported by Kotwali Fatehpur.

9. In clear view and plain reading the applicant complainant is educated person and literate lady, and has willfully with clear oblique intentions to harass the present applicant and to mislead the court of law in different courts, in the
imaginary notion that one court of law cannot come to know what she has substantiated in another court of law, and there by misleading the court of law and playing pranks of judicial institution and false statements, from one court
to another court of law, and harassing innocents, and interfering in the administration of justice. And is using court of law as a tool. Heavy fine should be levied and stern action and punishment should be provided to restrain
other such litigants from making such false allegations and complaints against entire family, and this litigant has tried to break the family system, If such litigants are not punished others will gain confidence and the family system
will start to destroy in Indian Society.

10. It is admitted fact that father of complainant has also been tried for murder case; this fact is also admitted by the father of complainant and main applicant and is on material on record.

11. That Respondent stays in ________ since he was 17 years of age and continues to stay there, these above facts in paragraph 3 and paragraph 4 were not known and were kept hidden from the respondent and family, this amount to cruelty upon the present applicant respondent and his family members.

12. It is most respectfully submitted by the Respondent that the main applicant wife has filed for the reliefs u/s 498A, 406, 323, 504, and 506 of IPC by way of 156(3) on oath on 07.09.2005, which was received as 65/05 in the court of C.J.M Fatehpur; with allegations that she was assaulted and demand of 50,000 Rs and motorcycle were made by respondents and other members within 21 hours of marriage and she left thereafter.

13. Respondent had to move Honorable High court of Allahabad for relief u/s 482 Cr.P.C and Stay Arrest until filing of Charge sheet was granted by Honorable High Court of Allahabad.

14. Main Applicant wife filed one more private complaint dated 23.08.2006 with J.M Court Number 13 again u/s 498a, 323, 504, 506 and 34 of IPC and u/s ¾ of The Dowry Prohibition Act, on same grounds and same facts which should be null and void as per 300(1) Cr.P.C and to avoid double jeopardy.

15. Respondent again moved Honorable High court of Allahabad for relief u/s 482 Cr.P.C. and Honorable High Court of Allahabad directed for consolidation of both cases of 498a and directed to submit report under 173 Cr.P.C. in consolidation, the said Order from Honorable High Court of Allahabad is annexed as Annexure “A”.

16. Executive machinery police has filed a final “B Summary” report u/s 173 Cr.P.C on 14.02.2007. Main applicant wife has filed a protest application the order is passed, and upon which 1477/10 is initiated.

17. That Main applicant wife has filed false Maintenance Case u/s 125 Cr.P.C, Case No. ____/05 on __.__.2005, in J.M Court Fatehpur. Against husband who is otherwise a student, and is allegedly stated that he earns 20,000 Rs, which is false and imaginary to which no proof could be established and is unnecessary tactics used by applicant who is well aware of court procedures; And 125 Cr.P.C proceedings, relief to the wife were prohibited and application by applicant wife was dismissed at the outset.

18. The Maintenance case 125 Cr.P.C beyond doubt was dismissed by way of long and lengthy speaking order; as per Order Annexed as Annexure “B”.

19. Father of complainant wife , during Trial of 125 Cr.P.C, In the facts substantiated stated that he did not visit Respondents home until his daughter came back home when she was demanded dowry, only then he came to know about demand of dowry and assault on her. Annexure “C” green shaded region on page number 4 in ____/05 case. Adding that he was not even aware by any sorts of communication or by phone or by some person or by any other means, Shri Satyanarayan Awasthi was not at all aware that his daughter was demanded dowry or was assaulted by respondent/family members.

20. On the contrary, Main Applicant wife in her sworn affidavit and submissions in Case of u/s 9 of Hindu Marriage Act, Case Number __/06 in the J.M. Court Number 1 on page number 6 “dafa no. 8″ , states that she was being assaulted by respondent and family members during such time the servant who also worked in Main Applicants home also, saw this and went and informed family of Main applicant wife, and the same was communicated to family of main applicant by the applicant over telephone that there was nothing , But hearing this , since the
distance between Main Applicant and Respondent is very negligible and can be reached in less than 5 minutes by walk; Father, Mother, Brother and some relatives came to respondent home and after discussing the matter was resolved, but that continued and then thereafter main applicant was forced to leave
Matrimonial home and go to parental home.

21. These prima facie facts of the submissions of main applicants and her family members as per paragraph 13 and 14 of this application above, who have moved the court of law and initiated process that is otherwise, abuse the law, that is otherwise for destitute women application but is utilized for harassment making use of law as a weapon and tool to make innocent family members face criminal trial, which amounts to a very serious nature, The application moved by main applicant wife being not maintainable and she has suppressed the relevant facts and application being false , baseless, vexatious, imaginary. And hence do not make out any prima facie case against the respondents so as to summon the respondents to face trial and in this circumstances taking cognizance against
the respondents is bad in law and is untenable in the court of law, cannot be sustained, that it amounts to abuse of the process of Hon’ble court.

22. The facts mentioned and maintained by applicant wife are contrary to applicant wife’s father in different litigations about same event on same date ; The applicants self same submissions are contrary to her own self substantiate facts

23. That the application filed by main applicant wife during various times have changed the facts according to the need of context and sense of urgency and has manipulated facts with willful intention, while submitting information to the Ld Court, in various court of law, in cases filed by main applicant wife; the facts are imaginary and false, and this amounts to grave misuse of court of law and interference in the administration of justice and denying the liberty to the real victims, here respondent and family members.

24. The changing facts and misuse by main applicant wife, amount to disturbing the purity of law and damaging the serenity of the stream of justice and interferes in the administration of justice thereby performing acts of perjury
in every application in the notion of applicant wife that law is meant for harassment and since the applicant is a female will be exempted for her cruelty and using judicial system for her barbaric acts upon the respondent and his
family members and destroying image and reputation.

25. The persons who use the court of law for their private and personal vendetta should be punished severely so as to curb the menace of misusing and harassing the innocent families, such cases should become the highlight cases and
offenders should be sternly dealt with, without looking at the gender or caste or creed, which are not exempted from Article 15(3) of Constitution Of India.

26. The main applicant wife has willfully and with malafide intentions has filed the instant application, which is devoid of any merit and is interference in the administration of justice.

27. The Main Applicant wife has also filed Application u/s 12 of “The Protection of women from Domestic violence, Act”. U/s 18/19 of the said Act, On 30.05.2009, case number __/09, in the CJ.M Court Fatehpur.

28. The Main Applicant has filed the matter against Respondent, his ____________, ______________, also has roped and implicated brother Of respondent ______________________without any cause of action, again fabricating evidence that she was assaulted on false and fabricated grounds.

29. It is on material record that the Domestic Incident Report, In Domestic Violence Application, created as per procedure, by probation officer stated that no police officials are aware of the facts mentioned in the mentioned domestic violence application, where the incident allegedly had took place in domestic violence application, and that even after inquiry made by probation officers enquiry, and sequences of findings and observations made by probation officer  came to conclusion that such facts as claimed by applicant wife were found false in the knowledge of people at alleged scene and scenarios mentioned in domestic violence application, and hence the same were false, the probation officer during such probe also came to know that applicant wife has filed 498a two times
and that her 125 Cr.P.C and revision of 125 Cr.P.C were rejected by honorable court, when wide probe inquiries were made by the probation officer.

30. That clearly the domestic violence application was also moved with the willful intention to injure and harass the respondent and family members and using court of law as a weapon for harassment.

31. That the domestic violence application is also dismissed on the meritorious grounds by way of lengthy speaking order, by the magistrate.

32. The main applicant has also fabricated medical report in the domestic violence to prima facie prove Domestic Violence, and the incidents alleged. The facts mentioned by main applicant wife are absolutely ambiguous and imaginary has suppressed the relevant facts and application being false, baseless, vexatious, and imaginary. And hence do not make out any prima facie case against the respondents so as to summon the respondents to face trial and in this circumstances taking cognizance against the respondents is bad in law and cannot be sustained it amounts to abuse of the process of Hon’ble court if without prima case having being made out a person is summoned to face trial.

33. The application of main applicant’s wife under section 125 Cr.P.C that was rejected and dismissed by Ld Court. The order was challenged by wife and the same was again rejected in session’s court while under revision, Revision Order is annexed as Annexure “D”.

34. The Main Applicant wife has concealed and suppressed true facts, submitted under oath has false submissions under oath, and more so are contrary to the submissions to this honorable court, which are perjurious in nature.

35. The main applicant wife in her complaints / applications until year April 2011, made no whisper of any Bengali girl with whom _______________had any intimation relation, In Application under affidavit filed by applicant wife u/s 9 of Hindu Marriage Act it is alleged that photo of Bengali girl was with ___________________ displayed to applicant wife and he started kissing the photo in front of Applicant wife. That the facts are baseless and imaginary and are false and fabricated and such cruel acts are performed since year 2005 where she didn’t even spend more than 21 hours.

36. Such allegations were not present in any previous applications of 498a matter or 125 matter, or revision under 125 , even Domestic Violence application was filed and the reliefs are dismissed by way of wide speaking order, and such new facts have landed on the legal grounds, this clearly and loudly entails that applicant is a habitual litigant in fabricating evidences and infringing rights and injuring the rights of other people, without due consideration about the grave injury caused by willful intention with imaginary illusions, thereby causing grave hurt and character assassination and injecting mental agony in the hearts and soul of respondent and his family members. Thereby not only infringing rights of applicant but also willful interference in the administration of justice and disturbing the serenity of the stream of justice.

37. From above instances and admitted facts and arising facts after long and more than 5 years. That main applicant wife is a habitual offender and having two sisters who have filed 498a against upon their respective in-laws, and
father being tried for murder case, is continuously over the years since marriage of one single day, has filed application after application using courts as weapon to dominate the family of in-laws and to grab the land and money of  in-laws, to satisfy her needs and her individual principles, she has been attempting to interfere the administration of justice, it is imperative to punish such litigants, who are using heavy hands in the name of weaker section and destroying the very purpose of legislations provided to weaker sections of the society.

38. The applicant wife has filed an application , This new application that was meant to delay and prevent her substantiation of submissions, which stands rejected, In this application she demanded that she will not appear in the court of law until 40 Lakhs Bond was not filled, in matter of Restitution of conjugal rights u/s 9 Of Hindu Marriage Act.

39. There by denying early relief to respondents and interference in the interest of justice to innocent victims. Thereby interfering in the administration of justice.

40. In the Trial of 125 Cr.P.C, PW1 The complainant wife substantiated that my father is poor and she has two sisters and father cannot maintain her, In-laws are rich, And PW2, the father of complainant wife in his substantiating evidences, under oath stated that he is poor and he cannot fulfill the maintenance required to his daughter and his daughter also cannot maintain herself.

41. On the contrary, in the party witness 3, Sister of complainant wife, in the matter of __/06 u/s 9 of Hindu Marriage Act, under sworn affidavit, named Tilak, in her affidavit Tilak has maintained under oath that her father has ample amount of land of 50 to 60 Bighas of the agricultural land.

42. It is pertinent to note that, This is clear voice of fabrications and contrary statements which lead to the interference in the administration of justice and destroying the image of innocent victims respondents and his family
members who are undergoing mental agony, character assassination, loss of reputation, being defamed in application after application by family of all three daughters who have filed 498a cases against their in-laws and father who
has been also tried for murder case and also stands witness in cases.

43. Applicant being legally bound by oath in this Hon’ble Court to state truth in her affidavit but the applicant and her witness has with knowledge and willful intention have deposed false in their affidavit and substantiated
evidences. Applicant has being knowingly and intentionally given false statements in judicial proceedings.

44. From above facts and instances, it is clear and loud, that this main application by wife is false, fabricate, contrary to statements maintained in the honorable court by the self-same applicant wife, That it is proven on material record, the statements made under oath are contrary and injurious to respondents in the instant complaint made by applicant wife.

45. Respondent states that the applicant wife is a guilty of the Act of perjury by making false statements, on oath solemnly affirming, willfully and knowingly  that those Statements are false, in “AFFIDAVITs” on various dates submitted by her in this Hon’ble court with oblique motive to misguide and mislead this Hon’ble court with a view to extort money where as she is not entitled for any relief under the said Act.

46. The facts mentioned and maintained by applicant wife are contrary to applicant wife’s father in different litigations about same event on same date ; The applicants self same submissions are contrary to her own self substantiate facts

47. Respondent states that the material on record before this Hon’ble Court prima facie proves that the applicant has committed the act of perjury in her submission and the same has been described in detail.

48. It is most respectfully submitted that Orders by the Judiciary branch under proceedings have clearly and loudly mentioned that petitioner should come to the court in clean hands and Injunction Temporary as well as permanent Injunctions of petitioner was prohibited and rejected. As, her averment were not reliable based on documentary evidences presented by respondent, and It can be loudly and strongly observed that without strict proof petitioner applicants any averment is unsafe and unreliable, and are changing facts like air on earth.

49. It is most respectfully submitted that paragraphs and facts in instant application by applicant wife are self-submitted facts under oath by the main petitioner wife in more than two different courts having different legal stands
as pointed out above, thereby playing fraud with the court and prejudice the Ld. Court to allow relief and harassing the real innocent victims, and thereby committing the act of perjury under oath and solemn affirmation, and with
willful intention to injure, and to interfere administration of justice and harass the respondents.

{B} The petitioner has comitted an act of perjury in her following submissions

in view of her submission given above:

50. Respondent states that, the applicant has made the following willfully perjurious, intentionally deposed false and misleading statements on oath solemnly affirming, in her aforesaid “AFFIDAVITs” submitted by herself in this
Hon’ble court with oblique motives and are verified and Prohibitory Orders also have recognized as false by the respective Ld. Court. Which clearly proves that the main applicant wife is deposing false on affidavit in reply in this Hon’ble Court on her whims and fancies thereby committing the act of perjury by giving false evidence during the judicial proceedings in this Hon’ble court? Hence applicant wife is punishable for the act of perjury, which adversely affects the administration of justice.

51. Respondent states that, Applicant filed the Affidavit filed by main  applicant wife in applications submitted an Application under this instant Ld Court. are false, vexatious, concocted and misconceived to harass the Respondents and make him/them to run from pillar to post, Respondent states that applicant has not come with clean hands before this Hon’ble Court and suppressed material facts intentionally, creating new facts as delaying tactics and denying
early justice, thereby interfering in the administration of justice. It is pertinent to note that applicant is only  interested in making ambiguous and  vexatious allegation against the respondent without any iota of evidence in
support of her submissions and trying to mislead and misguide this Hon’ble court by making vague allegation against the respondent. Respondent states that petitioner has not come to the court in clean hands and this material fact have been intentionally suppressed and concealed or created on self-imaginations knowingly from this Hon’ble Court in the main application to mislead this Hon’ble Court, this is very clear and has been proved with substantial evidence by the respondent.

52. In order to appreciate the aforesaid aspect, I deem it necessary to reproduce the relevant provisions of the Cr.P.C.:

340. Procedure in cases mentioned in Section 195.

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

(a) Record a finding to that effect;

(b) Make a complaint thereof in writing;

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

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

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

195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.

(1) No court shall take cognizance-

(b) (i) Of any offence punishable under any of the following sections of  the Indian Penal Code (45 of 1860), namely, Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is
alleged to have been committed in, or in relation to, any proceeding in any court, or

(ii) Of any offence described in Section 463, or punishable under  Section 471, Section 475 or Section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in
evidence in a proceeding in any court, or
(iii) Of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), except on the complaint in writing of that court, or of some other court to which that
court is subordinate.

40. In the conspectus of the aforesaid provisions, if the relevant provisions of the Indian Penal Code, 1860 (hereinafter referred to as the IPC) are perused, it does appear that the provisions of Sections 193, 199, 200 and 209 are attracted. The said provisions read as under:

IPC Section 193. Punishment for false evidence

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

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

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

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

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

IPC Section 200. Using as true such declaration knowing it to be false

Whoever corruptly uses or attempts to use as true any such declaration, knowing the same to be false in any material point, shall be punished in the same manner as if he gave false evidence. Explanation-A declaration which is inadmissible merely upon the ground of some informality, is a declaration within the meaning of Sections 199 to 200….

IPC Section 209. Dishonestly making false claim in Court

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

53. 14. Respondent states that thus material on record before this Hon’ble court and perusual of detail aforesaid description in this application clearly proves that applicant has committed act of perjury by intentionally giving enormous false and fabricated evidence during judicial proceeding in this Hon’ble court by submitting false in her “AFFIDAVITs”. Thus filing false affidavit in the court of law, causes obstruction in the course of justice and also adversely affecting the administration of justice. Also applicant cannot be permitted to take liberty of spoiling purity of justice. In this facts and circumstances, the respondent has filed this present application in this Hon’ble Court in exercise of jurisdiction of this Hon’ble court u/s 340(1) of thr Cr.P.C, 1973. Against the main applicant wife and it is to expedient in the interest of justice to prosecute the applicant as prima facie evidences are adduced in that behalf.
Hence applicant is punishable for the act of perjury, adversely affecting the administration of justice.

54. Respondent further states that all adverse allegations and incidents mentioned/deposed by the applicant in this Hon’ble court had never happened and the same are false, baseless, malicious, vexatious, concocted, futile and
imaginary story made intentionally to harass respondent from court to court across Uttar Pradesh states and put respondents under pressure by misusing the provision of law conveniently and cunningly in attempt to extort money from the respondent. it goes to show that, the main applicant wife is only interested in making ambiguous and vexatious allegations against the respondent without any iota of evidence in support of her submissions and trying to misguide the Hon’ble court by making vague allegations against respondent and whatever allegations where sole testimony of main applicant. In fact there is no proper allegation against the respondent. Respondent states and submits that, the continuation of prosecution against the respondent is not only the abuse of process of law, but also defeats the ends of the justice. The Applicant ‘s application u/s 498a, 323, 504, 506, 34 of IPC and ¾ of The Dowry Prohibition Acts devoid of merits and deserves to be dismissed with exemplary costs and suitable punishment in the interest of justice.

55. I say that therefore, it is clear from the above Para that the petitioner is guilty of the act of perjury, as she has made the aforesaid false statements on oath with solemn affirmation providing false information to this Hon’ble court, willingly and knowingly that the same are false and the respondent has submitted the documentary evidences that those statements are false. In these circumstances, the respondent has filed this present application in this Hon’ble court in exercise of jurisdiction of this Hon’ble court u/s 340(1) of the cr.p.c, 1973. Against the petitioner and it is expedient in the interest of justice to prosecute the petitioner as Prima Facie evidences are adduced in that behalf.

56. Respondent adopt each and every statement, submission and averments made in this application, that all statements are from applicant wife’s applications and are brought forth to the notice of the instant Ld. Court.

57. Respondent craves leave of this Hon’ble court to add, to alter and amend this application. Respondent carves leave to add, alter and amend this application.

58. Respondent had not filed any other application for the act of perjury committed by the applicant in this Hon’ble court against the applicant in any other Hon’ble court.

59. Respondent has not filed any other application for the act of perjury against the petitioner, either in this Hon’ble court or any other Hon’ble court for the subject matter hereto.

60. It is therefore, most humbly prayed by the respondent that; a. By considering the aforesaid facts and circumstances, respondent most humbly pray that this Hon’ble court be pleased to kindly charge the petitioner and
commit the matter to the concerned Metropolitan Magistrate court to prosecute the petitioner for the act of perjury in her application to implicate falsely to innocent victims.

b. In the peculiar facts and circumstances of the case. Your Honor may Kindly dismiss the application filed by the applicant under 200 Cr.P.C be dismissed with exemplary costs to meet the ends of justice

c. Costs of the proceedings may kindly be awarded to the Respondent from the applicant.

d. Initiate the proceedings of perjury for infringement of rights and harassment, using the sections which are for destitute women, the same are misused and harassment of respondent and female party thereby playing pranks
with the modesty of women of the women party.

e. Kindly pass such other suitable orders as may deem fit and proper to meet the ends of justice in the peculiar facts and circumstances of the case.

AND FOR THIS ACT OF KINDNESS AND JUSTICE, THE ABOVENAMED RESPONDENT AS IN DUTY
BOUND SHALL EVER PRAY.
Solemnly affirmed at _________.
Dated; this ____day of December, 2010.
Respondent

V E R I F I C A T I O N

I, Mr. ____________________. ________Years of age, presently residing at
______________________________. The respondent above named do hereby state and
declare on solemn affirmation that whatever stated in the above Application is
true and correct as per my knowledge and belief; that no part of it is false and
nothing material has been concealed there from.

Solemnly affirmed at ____________.

Dated; this _____day of May, 2011. Respondent

 

Courtesy – 498agladiator. 

Delhi High Court on Affidavit to be filed in maintenance cases – Puneet Kaur v. Inderjit Singh Sawhney – 2011

 
Delhi High Court
Puneet Kaur vs Inderjit Singh Sawhney on 12 September, 2011

4

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CM(M) 79/2011

% Date of decision: 12th September, 2011

PUNEET KAUR ….. Petitioner Through : Mr. Ashok Chhabra with Mr. Sunjayjyoti Singh Paul,

Advs.

versus

INDERJIT SINGH SAWHNEY ….. Respondent Through : Respondent in person.

CORAM :-

THE HON’BLE MR. JUSTICE J.R. MIDHA

1. Whether Reporters of Local papers may YES be allowed to see the Judgment?

2. To be referred to the Reporter or not? YES

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

JUDGMENT (ORAL)

CM(M)No.79/2011 and CM No.1756/2011

1. The petitioner has challenged the order dated 26th

November, 2010 whereby her application for maintenance

under Section 24 of the Hindu Marriage Act was dismissed by

the learned Trial Court.

2. The petitioner claimed maintenance and litigation

expenses from her husband on the ground that she was unable

to maintain herself and her two children aged 13 and 16 years.

CM(M) No.79/2011 Page 1 of 12 The petitioner averred that she was not gainfully employed

and was receiving interest income of about `8,000/- to

`10,000/- per month from the investments whereas the

monthly expenses of the children were to the tune of `25,000/-

per month. The petitioner further averred that the respondent

was running the business of transport in the name of Bakshi

Transport Service and his income was more than `2,00,000/- to

`3,00,000/- per month.

3. The respondent contested the above application before

the learned Trial Court on the ground that the respondent was

unemployed and had no income. The respondent averred that

he was living like a pauper and had no money even for two

proper meals a day. He also stated that he had no shelter.

The respondent also alleged that the petitioner’s annual

income was `3,00,000/- per month from three sources, namely

`1,00,000/- to `2,00,000/- per month from business, `60,000/-

per month from salary and `20,000/- per month from interest.

4. The learned Trial Court believed the respondent and held

that there was no material record to show that the respondent

had any income and, therefore, the petitioner’s application was

dismissed.

CM(M) No.79/2011 Page 2 of 12

5. In Bharat Hegde v. Saroj Hegde, 140 (2007) DLT 16,

this Court laid down the following principles for fixing the

maintenance under Section 24 of the Hindu Marriage Act:-

“4. Right to maintenance is an incident of the status from an estate of matrimony. Interim maintenance has an element of alimony, which expression in its strict sense means allowance due to wife from husband on separation. It has its basis in social conditions in United Kingdoms under which a married woman was economically dependent and almost in a position of tutelage to the husband and was intended to secure justice to her.

5. Section 24 of the Hindu Marriage Act goes a step further inasmuch as it permits maintenance to be claimed by the husband even against the wife.

6. While considering a claim for interim maintenance, the court has to keep in mind the status of the parties, reasonable wants of the applicant, the income and property of the applicant. Conversely, requirements of the non applicant, the income and property of the non applicant and additionally the other family members to be maintained by the non applicant have to be taken into all. Whilst it is important to insure that the maintenance awarded to the applicant is sufficient to enable the applicant to live in somewhat the same degree of comfort as in the matrimonial home, but it should not be so exorbitant that the non applicant is unable to pay.

7. Maintenance awarded cannot be punitive. It should aid the applicant to live in a similar life style she/he enjoyed in the matrimonial home. It should not expose the non applicant to unjust contempt or other coercive proceedings. On the other hand, maintenance should not be so low so as to make the order meaningless.

CM(M) No.79/2011 Page 3 of 12

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

1. Status of the parties.

2. Reasonable wants of the claimant.

3. The independent income and property of the claimant.

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

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

6. Non-applicant’s liabilities, if any.

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

8. Payment capacity of the non applicant.

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

10. The non applicant to defray the cost of litigation.

11. The amount awarded under Section 125 Cr.PC is adjustable against the amount awarded under Section 24 of the Act.”

(Emphasis Supplied)

CM(M) No.79/2011 Page 4 of 12

6. In Jayant Bhargava v. Priya Bhargava, 181 (2011) DLT

602, this Court laid down the factors to be taken into

consideration for ascertaining the income of the spouse. The

relevant portion of the judgment is reproduced hereunder:-

“12. It is settled position of law that a wife is entitled to live in a similar status as was enjoyed by her in her matrimonial home. It is the duty of the courts to ensure that it should not be a case that one spouse lives in a life of comfort and luxury while the other spouse lives a life of deprivation, poverty. During the pendency of divorce proceedings the parties should be able to maintain themselves and should be sufficiently entitled to be represented in judicial proceedings. If in case the party is unable to do so on account of insufficient income, the other spouse shall be liable to pay the same. (See Jasbir Kaur Sehgal (Smt.) v. District Judge, Dehradun and Ors., reported at V (1998) SLT 551, III (1997) CLT 398 (SC), II (1997) DMC 338 (SC) and (1997) 7 SCC 7).

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

14. Further it has been noticed by the Courts that the tendency of the spouses in proceedings for maintenance is to not truthfully disclose their true income. However, in such cases some guess work on the part of Court is permissible.

15. The Supreme Court of India in the case of Jasbir Kaur (Smt.) (supra), has also recognized the fact that spouses in the proceedings for maintenance do not truthfully disclose their true income and therefore some guess work on the part of the Court is permissible. Further the CM(M) No.79/2011 Page 5 of 12 Supreme Court has also observed that “considering the diverse claims made by the parties one inflating the income and the other suppressing an element of conjecture and guess work does enter for arriving at the income of the husband. It cannot be done by any mathematical precision”.

16. Although there cannot be an exhaustive list of factors, which are to be considered in guessing the income of the spouses, but the order based on guess work cannot be arbitrary, whimsical or fanciful. While guessing the income of the spouse, when the sources of income are either not disclosed or not correctly disclosed, the Court can take into consideration amongst others the following factors:

(i) Life style of the spouse;

(ii) The amount spent at the time of marriage and the manner in which marriage was performed;

(iii) Destination of honeymoon;

(iv) Ownership of motor vehicles; (v) Household facilities;

(vi) Facility of driver, cook and other help; (vii) Credit cards;

(viii) Bank account details;

(ix) Club Membership;

(x) Amount of Insurance Premium paid; (xi) Property or properties purchased; (xii) Rental income;

(xiii) Amount of rent paid;

(xiv) Amount spent on travel/ holiday; (xv) Locality of residence;

(xvi) Number of mobile phones;

(xvii) Qualification of spouse;

(xviii) School(s) where the child or children are studying when parties were residing together;

(xix) Amount spent on fees and other expenses incurred;

(xx) Amount spend on extra-curricular activities of children when parties were residing together;

CM(M) No.79/2011 Page 6 of 12 (xxi) Capacity to repay loan.

17. These are some of the factors, which may be considered by any court in guesstimating or having a rough idea or to guess the income of a spouse. It has repeatedly been held by the Courts that one cannot ignore the fact that an Indian woman has been given an equal status under Articles 14 and 16 of the Constitution of India and she has a right to live in dignity and according to the status of her husband. In this case, the stand taken by the Respondent with respect to his earning is unbelievable.”

7. In the facts and circumstances of this case, both the

parties are directed to file their respective affidavits of assets,

income and expenditure from the date of the marriage up to

this date containing the following particulars:-

7.1 Personal Information

(i) Educational qualifications. (ii) Professional qualifications. (iii) Present occupation.

(iv) Particulars of past occupation. (v) Members of the family.

(a) Dependent.

(b) Independent.

7.2 Income

(i) Salary, if in service.

(ii) Income from business/profession, if self employed. (iii) Particulars of all earnings since marriage. (iv) Income from other sources:- (a) Rent.

(b) Interest on bank deposits and FDRs. (c) Other interest i.e. on loan, deposits, NSC, IVP, KVP, Post Office schemes, PPF etc.

(d) Dividends.

(e) Income from machinery, plant or furniture let on hire.

CM(M) No.79/2011 Page 7 of 12 (f) Gifts and Donations.

(g) Profit on sale of movable/immovable assets. (h) Any other income not covered above .

7.3 Assets

(i) Immovable properties:-

(a) Building in the name of self and its Fair Market Value (FMV):-

 Residential.

 Commercial.

 Mortgage.

 Given on rent.

 Others.

(b) Plot/land.

(c) Leasehold property.

(d) Intangible property e.g. patents, trademark, design, goodwill.

(e) Properties in the name of family members/HUF and their FMV.

(ii) Movable properties:-

(a) Furniture and fixtures.

(b) Plant and Machinery.

(c) Livestock.

(d) Vehicles i.e. car, scooter along with their brand and registration number.

(iii) Investments:-

(a) Bank Accounts – Current or Savings. (b) Demat Accounts.

(c) Cash.

(d) FDRs, NSC, IVP, KVP, Post Office schemes, PPF etc. (e) Stocks, shares, debentures, bonds, units and mutual funds.

(f) LIC policy.

(g) Deposits with Government and Non-Government entities.

(h) Loan given to friends, relatives and others. (i) Telephone, mobile phone and their numbers. (j) TV, Fridge, Air Conditioner, etc. (k) Other household appliances.

(l) Computer, Laptop.

(m) Other electronic gadgets including I-pad etc. (n) Gold, silver and diamond Jewellery. (o) Silver Utensils.

(p) Capital in partnership firm, sole proprietorship firm. CM(M) No.79/2011 Page 8 of 12 (q) Shares in the Company in which Director. (r) Undivided share in HUF property. (s) Booking of any plot, flat, membership in Co-op. Group Housing Society.

(t) Other investments not covered by above items. (iv) Any other assets not covered above.

7.4 Liabilities

(i) OD, CC, Term Loan from bank and other institutions. (ii) Personal/business loan

(a) Secured.

(b) Unsecured.

(iii) Home loan.

(iv) Income Tax, Wealth Tax and Property Tax.

7.5 Expenditure

(i) Rent and maintenance including electricity, water and gas.

(ii) Lease rental, if any asset taken on hire. (iii) Installment of any house loan, car loan, personal loan, business loan, etc.

(iv) Interest to bank or others. (v) Education of children including tuition fee. (vi) Conveyance including fuel, repair and maintenance of vehicle. Also give the average distance travelled every day.

(vii) Premium of LIC, Medi-claim, house and vehicle policy. (viii) Premium of ULIP, Mutual Fund. (ix) Contribution to PPF, EPF, approved superannuation fund. (x) Mobile/landline phone bills. (xi) Club subscription and usage, subscription to news papers, periodicals, magazines, etc. (xii) Internet charges/cable charges. (xiii) Household expenses including kitchen, clothing, etc. (xiv) Salary of servants, gardener, watchmen, etc. (xv) Medical/hospitalization expenses. (xvi) Legal/litigation expenses. (xvii) Expenditure on dependent family members. (xviii)Expenditure on entertainment. (xix) Expenditure on travel including outstation/foreign travel, business as well as personal. (xx) Expenditure on construction/renovation and furnishing of residence/office.

CM(M) No.79/2011 Page 9 of 12 (xxi) Any other expenditure not covered above.

7.6 General Information regarding Standard of Living and Lifestyle

(i) Status of family members. (ii) Credit/debit cards.

(iii) Expenditure on marriage including marriage of family members.

(iv) Expenditure on family functions including birthday of the children.

(v) Expenditure on festivals.

(vi) Expenditure on extra-curricular activities. (vii) Destination of honeymoon.

(viii) Frequency of travel including outstation/foreign travel, business as well as personal.

(ix) Mode of travel in city/outside city. (x) Mode of outstation/foreign travel including type of class. (xi) Category of hotels used for stay, official as well as personal, including type of rooms. (xii) Category of hospitals opted for medical treatment including type of rooms.

(xiii) Name of school(s) where the child or children are studying.

(xiv) Brand of vehicle, mobile and wrist watch. (xv) Value of jewellery worn.

(xvi) Details of residential accommodation. (xvii) Value of gifts received.

(xviii)Value of gifts given at family functions. (xix) Value of donations given.

(xx) Particulars of credit card/debit card, its limit and usage. (xxi) Average monthly withdrawal from bank. (xxii)Type of restaurant visited for dining out. (xxiii)Membership of clubs, societies and other associations. (xxiv)Brand of alcohol, if consumed. (xxv)Particulars of all pending as well as decided cases including civil, criminal, labour, income tax, excise, property tax, MACT, etc. with parties name.

8. Both the parties are also directed to file, along with

affidavit, copies of the documents relating to their assets,

income and expenditure from the date of the marriage up to

CM(M) No.79/2011 Page 10 of 12 this date and more particularly the following:-

(i) Relevant documents with respect to income including Salary certificate, Form 16A, Income Tax Returns, certificate from the employer regarding cost to the company, balance sheet, etc.

(ii) Audited accounts, if deponent is running business and otherwise, non-audited accounts i.e. balance sheets, profit and loss account and capital account. (iii) Statement of all bank accounts. (iv) Statement of Demat accounts. (v) Passport.

(vi) Credit cards.

(vii) Club membership cards.

(viii) Frequent Flyer cards.

(ix) PAN card.

(x) Applications seeking job, in case of unemployed person.

9. The affidavit and documents be filed within a period of

four weeks with an advance copy to opposite parties who shall

file their response within two weeks thereafter.

10. List for hearing on 9th November, 2011.

11. Both the parties are directed to remain present in Court

on the next date of hearing along with all original documents

relating to their assets, income and expenditure.

12. This Court appreciates the valuable assistance rendered

by Ms. Prem Lata Bansal, Senior Advocate.

13. Copy of this order be sent to the Principal District Judge

for being circulated to the concerned judges dealing with

matrimonial cases.

CM(M) No.79/2011 Page 11 of 12

14. Copy of this order be given dasti to learned counsels for

both the parties under signature of Court Master.

J.R. MIDHA, J

SEPTEMBER 12, 2011

mk

CM(M) No.79/2011 Page 12 of 12

Misuse of 498a – False 498A Legal Terrorism says Supreme Court in Sushil Kumar

IN THE SUPREME COURT OF INDIA

Civil appeal No. 4399 of 2005 (Arising out of SLP (C) no. 17656 of 2004

Decided On: 19.07.2005

Appellants: Sushil Kumar Sharma
Vs.
Respondent: Union of India (UOI) and Ors.

JUDGMENT:

By this petition purported to have been filed under Article 32 of the Constitution of India, 1950 (in short ‘the Constitution’) prayer is to declare Section 498A of Indian Penal Code, 1860 (in short ‘the IPC’) to be unconstitutional and ultra vires in the alternative

to FORMULATE GUIDELINES so that INNOCENT PERSONS ARE NOT VICTIMIZED by unscrupulous persons making false accusations

2. Further prayer is made that whenever, any court comes to the conclusion that the allegations made regarding commission of offence under Section 498A IPC are unfounded, stringent action should be taken against person making the allegations. This, according to the petitioner, would discourage persons from coming to courts with unclean hands and ulterior motives. Several instances have been highlighted to show as to how commission of offence punishable under Section 498A IPC has been made with oblique motives and with a view to harass the husband, in-laws and relatives.

 3. According to the petitioner there is no prosecution in these cases but persecution. Reliance was also placed on a decision rendered by a learned Single Judge of the Delhi High Court wherein concern was shown about the increase in number of false and frivolous allegations made. It was pointed out that accusers are more at fault than the accused. Persons try to take undue advantage of the sympathies exhibited by the courts in matters relating to alleged dowry torture.

 4. Section 498A appears in Chapter XXA of IPC.

 5. Substantive Section 498A IPC and presumptive Section 113B of the Indian Evidence Act, 1372 (in short ‘Evidence Act’) have been inserted in the respective statutes by Criminal Law ( Second Amendment) Act, 1983.

 6. Section 498A IPC and Section 113B of the Evidence Act include in their amplitude past events of cruelty. Period of operation of Section 113B of the Evidence Act is seven years, presumption arises when a woman committed suicide within a period of seven years from the date of marriage.

 7. Section 498A reads as follows: “498A: Husband or relative of husband of a woman subjecting her to cruelty- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation – For the purpose of this section ‘cruelty’ means -

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

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

 Section 113B reads as follows:-

 “113B: Presumption as to dowry death- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.

 Explanation – For the purposes of this section ‘dowry death’ shall have the same meaning as in Section 304B of the Indian Penal Code (45 of 1860).”

 8. Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman is required to be established in order to bring home the application of Section 498A IPC. Cruelty has been defined in the explanation for the purpose of Section 498A. It is to be noted that. Sections 304B and 498A, IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the Sections and that has to be proved. The explanation to Section 498A gives the meaning of ‘cruelty’. In Section 304B there is no such explanation about the meaning of ‘cruelty’. But having regard to common background to these offences it has to betaken that the meaning of ‘cruelty’ or ‘harassment’ is the same as prescribed in the Explanation to Section 498A under which ‘cruelty’ by itself amounts to an offence.

 9. The object for which Section 498A IPC was introduced is amply reflected in the Statement of Objects and Reasons while enacting Criminal Law (Second Amendment) Act No. 46 of 1983. As clearly stated therein the increase in number of dowry deaths is a matter of serious concern. The extent of the evil has been commented upon by the Joint Committee of the Houses to examine the work of the Dowry Prohibition Act, 1961. In some cases, cruelty of the husband and the relatives of the husband which culminate in suicide by or murder of the helpless woman concerned, which constitute only a small fraction involving such cruelty. Therefore, it was proposed to amend IPC, the Code of Criminal Procedure, 1973 (in short ‘the Cr.P.C.’) and the Evidence Act suitably to deal effectively not only with cases of dowry deaths but also cases of cruelty to married women by the husband, in-law and relatives. The avowed object is to combat the menace of dowry death and cruelty.

 10. One other provision which is relevant to be noted is Section 306 IPC. The basic difference between the two Sections i.e. Section 306 and Section 498A is that of intention. Under the latter, cruelty committed by the husband or his relations drag the women concerned to commit suicide,

 while under the former provision suicide is abetted and intended.

 11. It is well settled that mere possibility of abuse of a provision of law does not per se invalidate a legislation. It must be presumed, unless contrary is proved, that administration and application of a particular law would be done “not with an evil eye and unequal hand” (see: A. Thangal Kunju Musaliar v. M. Venkatachalam Potti, Authorised Official and Income-Tax Officer and Anr.)

 12. In Budhan Choudhry and Ors. v. State of Bihar a contention was raised that a provision of law may not be discriminatory but it may land itself to abuse bringing about discrimination between the persons similarly situated. This court repelled the contention holding that on the possibility of abuse of a provision by the authority, the legislation may not be held arbitrary or discriminatory and violative of Article 14 of the Constitution.

 13. From the decided cases in India as well as in United States of America, the principle appears to be well settled that if a statutory provision is otherwise intra-vires, constitutional and valid, mere possibility of abuse of power in a given case would not make it objectionable, ultra-vires or unconstitutional. In such cases, “action” and not the “section” may be vulnerable. If it is so, the court by upholding the provision of law, may still set aside the action, order or decision and grant appropriate relief to the person aggrieved.

 14. In Mafatlal Industries Ltd. and Ors. v. Union of India and Ors., a Bench of 9 Judges observed that mere possibility of abuse of a provision by those in charge of administering it cannot be a ground for holding a provision procedurally or substantively unreasonable. In Collector of Customs v. Nathella Sampathu Chetty (1962 (3) SCR 786) this Court observed:

 

 “The possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity.” It was said in State of Rajasthan v. Union of India “it must be remembered that merely because power may sometimes be abused, it is no ground for denying the existence of power. The wisdom of man has not yet been able to conceive of a Government with power sufficient to answer all its legitimate needs and at the same time incapable of mischief.” (Also see: Commissioner, H.R.E. v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Meth (1954 SCR 1005).

 

 15. As observed in Maulavi Hussein Haji Abraham Umarji v. State of Gujarat. Unique Butle Tube Industries (P) Ltd. v. U.P. Financial Corporation and Ors. and Padma Sundara Rao (dead) and Ors. v. State of Tamil and Ors., while interpreting a provision, the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of the process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary.

 

 16. The judgment of the Delhi High Court on which reliance was made was rendered in the case of Savitri Devi v. Ramesh Chand and Ors. In that case while holding that the allegations regarding commission of offence punishable under Section 498A IPC were not made out. Certain observations in general terms were made about the need for legislative changes. The complainant had moved this Court against the judgment on merits in SLP(Crl)……of 2003 entitled Savitri Devi v. Ramesh Chand and Ors. By order dated 28.11.2003 this Court observed, as follows:

  “Heard learned counsel for the petitioner. Delay condoned.

  We do not see any merit in the challenge made to the order of the High Court in Criminal Revision No. 462 of 2002, on the facts of the case. The special leave petition is, therefore, dismissed.

  At the same time, we express our disapproval of some of the generalized views expressed in paragraphs 23 to 32 of the judgment of the High Court by the learned Single Judge. The learned Judge ought to have seen that such observations, though may be appropriate for seminars or workshops, should have been avoided being incorporated as part of a court judgment. Some of the views also touch upon Legislative measures and wisdom of legislative policy in substance, which according to the learned Judge need to be taken into account. There was no scope for considering all such matters in the case which was before the learned Judge. It is, therefore, appropriate that such generalized observations or views should meticulously avoided by Courts in the judgments.”

  17. Above being the position we find no substance in the plea that Section 498A has no legal or constitutional foundation.

  18. The object of the provision is prevention of the dowry menace. But as has been rightly contented by the petitioner many instances have come to light where the complaints are not bonafide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what REMEDIAL MEASURES can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame work. As noted above the object is to strike at the roots of dowry menace. But by misuse of the provision a new

  LEGAL TERRORISM

 can be unleashed. The provision is intended to be used a shield and not an assassin’s weapon. If cry of “wolf” is made too often as a prank assistance and protection may not be available when the actual “wolf” appears. There is no question of investigating agency and Courts casually dealing with the allegations. They cannot follow any straitjacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that ultimate objective of every legal system is to ARRIVE AT TRUTH, PUNISH THE GUILTY AND PROTECT THE INNOCENT. There is no scope for any pre-conceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the courts start with the presumptions that the accused persons are guilty and that the complainant is speaking the truth. This is too wide available and generalized statement. Certain statutory presumptions are drawn which again are rebuttable. It is to be noted that the role of the investigating agencies and the courts is that of watch dog and not of a bloodhound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally undisputable that in many cases no direct evidence is available and the courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view.

 19. Prayer has been made to direct investigation by the Central Bureau of Investigation (in short the ‘CBI’) in certain matters where the petitioner is arrayed as an accused. We do not find any substance in this plea. If the petitioner wants to prove his innocence, he can do so in the trial, if held.

Held : The Writ Petition is accordingly disposed of.
 

Powers & Duties of a CAW Cell – J.S.N.Dhingra

IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT : INDIAN PENAL CODE

WP(Crl) No.134/2006 & CM No.545/2006

Date of Decision : July 27, 2006

Smt. Jasbir Kaur …… Petitioner
Through: Mr. Keshav Kaushik with
Ms. Chander Prabha and
Mr. Manish Biala, Advocates.

Versus

State (Govt. of NCT Delhi) …… Respondents
& Ors.

Through: Ms. Mukta Gupta, Advocate.
S.N. AGGARWAL, J.(ORAL)

1. The petitioner was married to Sardar Satinder Singh
according to Sikh rites on 28.11.2004. After marriage, there was a matrimonial
discord between the couple on account of which the petitioner left her matrimonial
home and filed a complaint of harassment and misappropriation of her dowry and istri
dhan articles by her husband and other members of her in-laws family. Learned
counsel for the petitioner says that the petitioner did not leave her matrimonial home
of her own and according to him she was turned out of from her matrimonial home
after giving beatings to her on 25.3.2005.

2. The grievance of the petitioner in this writ petition is that
despite her complaint the police did not register a case under Section 406/498A/34
IPC against her husband and other members of her in-laws family.

3. In response to the notice of this writ petition, a status report
has been filed by the respondents which reveals that a case under Section
406/498A/34 IPC has already been registered against the husband of the petitioner and
other members of her in-laws family.

4. This addresses the first prayer made by the petitioner in the
present writ petition.

5. The petitioner has also made other prayers in this writ
petition which are to the following effect that this Court should abolish CAW Cells
and direct that as soon as the police receives any complaint of a congnizable offence,
the same should be dealt with as per the provisions in the Code of Criminal Procedure
1973.

6. Learned counsel for the petitioner has relied upon the
provisions contained in Article 15 of the Constitution of India and on the strength of
the same, he has contended that there cannot be any discrimination in the matter of
investigation on the ground of religion, race, caste, sex, place of birth or any of them.

7. The creation of CAW Cells for investigation of crime pertaining to women, in my opinion, does not cause any discrimination on the basis of sex for the CAW Cells have been constituted with a social purpose so that the crimes relating to women are dealt with sensitivity. CAW Cell is like any other specialized wing of the Delhi Police like Special Cell, Crime Branch, etc., where firstly an attempt is made to bring about unity between the two spouses so as to make the marriage a success. On the failure of these reconciliation attempts, the law is allowed to take its course. Thus no fault can be found with the creation of CAW Cells.

8. In Mr. Raj Kumar Khanna v. The State (NCT of Delhi) and
Ors.; 2002 (1) JCC 327, the Division Bench of this Court has observed as under:-
âıoe….. 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 Manoj Kumar and respondent No.5 nor 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 reaches such a
pass that it cannot be restored back…….âıı

9. Upon consideration of all the facts and circumstances of the
case, I am of the view that the prayer of the petitioner insofar as it relates to abolition
of C.A.W. Cells is concerned, the same cannot be accepted.

10. In terms of the aforesaid order, this writ petition is disposed
of.
Sd/-
S.N. AGGARWAL
(JUDGE)

 

Allahabad High Court guidelines on arrests in 498A/406/Dowry Cases.

Allahabad High Court guidelines on arrests in 498A/406/Dowry Cases. 

HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. – 46
Case :- CRIMINAL MISC. WRIT PETITION No. – 3322 of 2010

Petitioner :- Re: In The Matter Of Matrimonial Disputes
Respondent :- State Of U.P. & Others
Petitioner Counsel :- P.N. Gangwar
Respondent Counsel :- Govt. Advocate,Abhay Raj Singh,Pankaj Naqvi

Hon’ble Amar Saran,J.
Hon’ble Shyam Shankar Tiwari,J.

On 8.8.2011, there was an extensive hearing in this case when Ms. Leena Jauhari,
Secretary (Home), Government of U.P. Lucknow, Smt. Poonam Sikand, Additional L.R
and Tanuja Srivastava, I.G.( Public Grievances), Ms. G. Sridevi, Secretary, U.P.
State Legal Services Authority, Sri Ashok Mehta, Organising Secretary, Allahabad
High Court, Mediation and Conciliation Centre, Sri Pankaj Naqvi, Sister Sheeba
Jose Advocates on behalf of the intervenor ‘Sahyog,’ Sri D.R. Chaudhary, learned
Government Advocate and Sri Bimlendu Tripathi, learned A.G.A appeared and were
heard at length.

An affidavit has also been filed on behalf of the Director General of Police on
10.8.2011. Another affidavit was also filed on behalf of Special Secretary
(Home), U.P. on 12.8.2011. An application was also moved by the intervenor
‘Sahyog.’

This Court appreciates the positive contributions and suggestions of all the
aforesaid advocates and other State officials and that this pro bono litigation
is being taken up in the right non-adversarial spirit, with the aim to ensure
that wherever allegations are not very grave, in order to save families, and
children and indeed the institution of marriage, an effort be first made for
reconciling matrimonial disputes by mediation before steps can be taken for
prosecuting offenders, if they are called for.

In Preeti Gupta v. State of
Jharkhand, AIR 2010 SC 3363 the learned members of the bar have been reminded of
their noble profession and their noble tradition and of their responsibility to
ensure that the social fibre of family life is preserved by desisting from
over-implicating all in-laws and their relations as accused persons in 498-A IPC
reports, and from filing exaggerated reports. They are also to make an endeavour
to bring about amicable settlements to this essentially human problem. It has
also been rightly pointed out in Sushil Kumar Sharma v Union of India, AIR 2005
SC 3100 (para 18) whilst upholding the vires of section 498-A IPC, that it
should be ensured that complaints are not filed with oblique motives by
unscrupulous litigants so that a “new legal terrorism” is not unleashed, and
that the well-intentioned provision is not misused.

In Kans Raj v State of Punjab, AIR 2000 SC 2324, it has been held that there is
a tendency in cases of 498-A IPC and 304 B IPC to rope in a large number of
in-laws of the victim wife, and not only the husband. In para 5 of the law
report it has been observed: “….In their over enthusiasm and anxiety to seek
conviction for maximum people, the parents of the deceased have been found to be
making efforts for involving other relations which ultimately weaken the case of
the prosecution even against the real accused as appears to have happened in the
instant case.”

Specifically as a result of the interaction and suggestions which emerged after
a dialogue with the Advocates and officials, this Court requires to formulate
its opinion on the following points:

1.Whether registration of an FIR is mandatory once an aggrieved woman or the
eligible family members as specified under section 198A Cr.P.C approaches the
police station giving information that an offence under section 498A IPC or
allied provisions such as under section � D.P. Act or under section 406
I.P.C have been committed by the husband or other in-laws and their relations.

2.Should the concerned police officers immediately proceed to arrest the husband
and other family members of the husband whenever such an FIR is lodged.

3.Can a distinction be made between the cases where arrest is immediately
necessary and other cases where arrest can be deferred and an attempt be first
made for bringing about mediation between the parties.

4.What is the appropriate place where mediation should be conducted.

5.Should a time frame be laid down for concluding the mediation proceedings.

6.Who should be the members of the mediation cell in the district.

7.What is the procedure to be followed by the police when a report of a
cognizable offence under section 498A IPC or allied provisions is disclosed.

8.Is training of mediators desirable and who should conduct the training?

9.Should the offence under Section 498A be made compoundable and what steps the State Government may take in this direction.

Discussions on the points requiring formulation by the Court.

1. Whether registration of an FIR is mandatory?

Section 154 of the Code of Criminal Procedure mandates that when any information
regarding information of a cognizable offence is given orally to the officer in
charge of the Police Station, he is required to reduce it in writing and to
enter it into the general diary. The said provision gives no option to the
concerned Police Officer to refuse to lodge the F.I.R. once information of a
cognizable offence is given to the police officer.

In paragraph No. 30 and 31 in State of Haryana and others Vs. Bhajan Lal, 1992
Cri. L.J. 527, it has been laid down that section 154 (1) of the Code provides
that whenever an information is given that a cognizable offence has been
committed, the Police Officer cannot embark upon an inquiry to ascertain as to
whether the information was reliable or genuine or refuse to register the case
on that ground. The officer in charge of the Police Station is statutorily
obliged to register the case and then to proceed with the investigation, if he
even has reason to suspect the commission of an offence.

(2) Whether arrest of husband and family members mandatory once FIR is lodged
It is noteworthy that section 154 Cr.P.C. which deals with the powers of
investigation and the necessity of lodging an FIR when a cognizable offence only
speaks of “information relating to the commission of a cognizable offence” given
to an officer. No pre-condition, as pointed out above, is placed under this
provision for first examining whether the information is credible or genuine. In
contrast section 41(1)((b) Cr.P.C dealing with the powers of the police to
arrest without a warrant from a Magistrate requires the existence of a
“reasonable complaint,” or “credible information” or “reasonable suspicion” of
the accused being involved in a cognizable offence as pre-conditions for
effecting his arrest.

The two provisos to section 157 also speak of two exceptions when investigation
(and consequent arrest) may not be necessary. These two situations are:
(a) when information as to the commission of any such offence is given against
any person by name and the case is not of a serious nature, the officer in
charge of a police station need not proceed in person or depute a subordinate
officer to make an investigation on the spot;
(b) if it appears to the officer in charge of a police station that there is no
sufficient ground for entering on an investigation, he shall not investigate the
case. However in such situations the police officer is to mention in his report
the reasons for not investigating the case. In the second case, where a police
officer is of the opinion that there is no sufficient ground for investigating a
matter, he is to also inform the informant of his decision.
The proviso (b) to section 157 (1) Cr. P. C. has been discussed in paragraphs
No. 53 and 54 in Bhajan Lal (supra). The law report clarifies that clause (b) of
the proviso permits a police officer to satisfy himself about the sufficiency of
the grounds even before entering on an investigation. However, at that stage,
the satisfaction that on the allegations, a cognizable offence warranting
investigation is disclosed, has only to be based on the F.I.R. and other
materials appended to it, which are placed before the Police Officer. Therefore,
if it appears to the Police Officer that the matrimonial dispute between the
spouses is either not of a grave nature or is the result of a conflict of egos
or contains an exaggerated version, or where the complainant wife has not
received any injury or has not been medically examined, he may even desist or
defer the investigation in such a case.

Recently by Act No. 5 of 2009, the newly introduced section 41 (1) (b), has been
given effect to from 1.11.2010. This sub-section provides that if some material
or credible information exists of an accused being involved in a cognizable
offence punishable with 7 years imprisonment or less with or without fine, the
Police Officer has only to make an arrest, if he is satisfied that such arrest
is necessary (i) to prevent such person from committing any further offence,
(ii) for proper investigation of the offence; (iii) to prevent such person from
causing the evidence of the offence to disappear or tampering with the evidence
in any manner; (iv) for preventing such person from making any inducement,
threat or promise to a witness to dissuade him from disclosing such facts to the
Court or the Police Officer (v) or unless such a person is arrested, he may not
appear in the Court when required. This new provision has forestalled any
routine arrests simply because a person is said to be involved in a cognizable
offence punishable with imprisonment up to 7 years. The arrest is only to be
effected if any or all of the five conditions abovementioned are fulfilled. For
making or for not making such arrest, the Police Officer has to record his
reasons. In contrast to this provision, under section 41 (1) (ba) such a
limitation has not been provided for those cases, where credible information has
been received that a person has committed an offence punishable with
imprisonment of over 7 years.

A new provision, section 41 A Cr.P.C has also been added by Act No. 5 of 2009
(with effect from 1.11.2010) which gives powers to a Police Officer to issue a
notice directing the person against whom a reasonable complainant has been made
or credible information or reasonable suspicion exists to appear before him or
at any place that he may specify in the notice where the police officer is of
the opinion that the arrest is not required under the provisions of section
41(1) Cr.P.C. but the accused is to comply with the notice and he would not be
arrested, if he continues to comply with the terms of the notice. However, where
the person fails to comply with the notice, the police has all powers to arrest
him, unless there is some order of the Court granting him bail or staying his
arrest.

Now an offence under section 498A IPC is punishable with imprisonment only up to
three years and fine. If there are no injuries on a victim, in our opinion, it
constitutes a fit case for the police officer to exercise powers conferred by
the newly introduced section 41(1)(b) read with section 41 (A), where instead of
straight away arresting the accused, it would be a better option at the initial
stage for the police officer to require the said person to appear before him or
before the Mediation Centre. As pointed out above section 41 A Cr.P.C. permits
calling the person concerned before the police officer himself or to any
specified place. Hence a notice can be given to the accused to appear before the
mediation centre. This restraint on arrest, and placing of conditions or terms
for arrest would also apply a fortiori to the accused family members of the
husband of the aggrieved wife.

It may be pointed out that if the FIR is immediately registered that will
placate the concerns of the aggrieved wife to some extent that action is being
taken on her complaint, and it has not been put on the back burner.

(3) Whether distinction possible between cases necessitating immediate arrest,
and cases where attempt for mediation should first be made

Arrest may be necessitated, if the husband or other in-laws have given a grave
beating to the wife endangering her life or where the wife has been subjected to
repeated violence or there are any other circumstances of exceptional cruelty
against the wife, where future recurrence of violence or cruelty seems likely,
or for preventing the husband and his accused family members from trying to
browbeat witnesses or to tamper with the course of justice, or for ensuring the
presence of the husband or his accused family members at the trial, or for
effective investigation. In all other cases, we are of the opinion that an
attempt should be first made for bringing about reconciliation between the
parties by directing the complainant wife and her natal family members and the
husband and other family members to appear before the Mediation Centre when the
wife or other eligible relations under section 198-A Cr.P.C. approaches the
police station for lodging the report.

The advantage of not immediately arresting the accused husband and his family
members in a trivial case where there appear to be no injuries on the aggrieved
wife, is that in sudden matrimonial disputes, because of clash of egos between
the wife and her natal family members and the husband and in-laws, the wife’s
side at the initial stage usually insists on effecting the arrests of the
husband and other in-laws. Once the husband or his family members are arrested,
and subsequently bailed out, little motivation remains for the parties to try
and resolve their disputes by mediation. This may prove disadvantageous for the
wife in the long run who may not have a source of independent livelihood for
running her life in the future.

4.Appropriate place where mediation should be conducted.
The officials as well as the learned Government Advocate and other lawyers
present unanimously recommended that the Mediation Cell should not be at the
police station. The I.G. (Public Grievances) pointed out that the police officer
before whom the report is lodged lack proper training for conducting mediations
sessions. Also if the police officer refrains from arresting the accused persons
pursuant to the wife’s FIR, by attempting to mediate in the dispute between the
parties, even if it is a case of no injury, and even where he is only acting in
accordance with the general directions of the Court, questions about his
integrity are unnecessarily raised.

Moreover it is pointed out by the Secretary of the Legal Services Authority that
now Mediation or Conciliation Centres have been established in all the District
Courts. We, therefore, think that the mediation proceedings should be carried
out in the said Mediation Centre.

5.Need for time frame for concluding the mediation proceedings.

The I.G. (Public Grievances) and others present rightly pointed out that a time
frame must be laid down for concluding the mediation proceedings as when an
aggrieved wife approaches the police for relief, because she has been subjected
to cruelty. If the matter is unduly prolonged in the mediation process, the
delay could act as a shield to protect the accused from facing the penalty of
law, causing frustration and bitterness for the aggrieved wife. Notice should as
far as possible be served personally on the accused and the parties should be
directed to appear before the Mediation Centre within a week or 10 days of the
lodging of the report by the aggrieved wife or family members. Thereafter we
think, that as far as possible, the mediation proceedings should be concluded
within two months of the first appearance of both the parties before the
Mediation Centre.

6.Who should be the members of the mediation cell in the district?

The Mediation Cell in the district should be headed by the Secretary of the
Legal Services Authority in the district, (at present, the Civil Judge, Senior
Division has been made the Secretary), other panel or retainer lawyers appointed
by the District Legal Services Authority, other lawyers, who volunteer for
giving free services before the Mediation centre, especially female lawyers
should also be made members of the Mediation Cell. It is also desirable to have
three or four social workers (especially female) in the Cell. A female police
officer of the rank of Dy. S.P. may also be appointed an ex-officio member of
the Mediation Cell.

7.Procedure to be followed by the police when a report of a cognizable offence
under section 498A IPC or allied provisions is reported

The report regarding commission of cognizable offence under section 498A IPC or
other allied sections may be lodged at the concerned police station where the
incident takes place or at the ‘Mahila Thana’ especially created in the district
for investigation of such cases. The police officer concerned will get the
aggrieved woman medically examined for injuries if the same are present. If the
report has been lodged at some police station other than the Mahila Thana, the
injury report and relevant police papers shall be forwarded to the Mahila Thana
for investigation of the case, and in appropriate cases the investigating police
officer at the Mahila Thana may refer the matter to the mediation centre in the
Civil Court, and direct the complainant to be present at the mediation centre on
a fixed date 7 to 10 days thereafter. The accused should as far as possible also
be personally given notice to appear before the mediation centre on the date
fixed. We would also like the presence of trained social workers (especially
female) or legal aid panel lawyers to be present at the Mahila Thana for
counselling the aggrieved woman and her family members for first trying to solve
their dispute by mediation, when the case is registered at the mahila thana. The
notice to the husband and other family members should mention that in cases the
husband or the family members of the aggrieved wife fail to appear on the date
fixed or on future dates, as directed by the Mediation Centre or fail to comply
with any condition that may be imposed by the police officer or Mediation
Centre, steps shall be taken for arresting the accused. The accused husband or
other in-laws should be directed to report before the police officer on a date
two months after the date of first appearance before the Mediation Centre and
inform the Police Officer about the progress in the mediation. The in-charge of
the mediation proceeding may also direct the husband or other family members to
appear before the Police Officer at an earlier date fixed in case mediation has
failed or it has been successfully concluded and the parties concerned shall
appear before the Police Officer on the said date. It would also be open to the
complainant wife to inform the police officer about the progress (or lack of it)
of the mediation process. The notice should also clarify that in case mediation
is pronounced as unsuccessful at an earlier date, and information is given by
either party or the Mediation centre to the Police Officer, he may require the
presence of the accused husband or his relations at an earlier date. If
mediation has been successfully concluded, it will be open to the Police Officer
to submit a final report in the matter. In cases, where it has not been
successfully concluded and the Police Officer is of the view that arrest may not
be necessary in a particular case, he may direct the accused persons to obtain
bail from the Competent Court. In case, he is of the opinion that the arrest is
necessitated at a subsequent stage, it will be open to the Police Officer to
take such accused persons in custody. He should of course record his reason for
making the said arrest as provided under section 41 (1) (b) (ii).

8.Necessity of training to mediators.

We endorse the opinion of the intervening lawyers, the learned Government
Advocate, Sri Ashok Mehta, Organizing Secretary of the Mediation Centre of the
Allahabad High Court and the Government officials present, including the
Secretary of the Legal Services Authority, that training for mediators is a sine
qua non for effective mediation. The Organizing Secretary of the Allahabad High
Court Mediation Centre (AHMC) and Secretary of the U.P. Legal Services Authority
(UPLSA) stated that the centre and authority are prepared to impart training to
the mediators. We welcome this offer and direct that there should be
co-ordianation between the AHMC and UPLSA for giving effect to this offer. By
and by as the State Government is able to create a cadre of trainers for
mediation, their services may also be utilised for training mediators in the
districts.

We think training is necessary because the responses to our queries from the
subordinate district courts reveal the poor success rate in the cases referred
by the High Court or where the concerned subordinate court has itself initiated
the process of mediation. By contrast the success rate at the Mediation Centre
in the Allahabad High Court, which has independent trained mediators (usually
lawyers) is much higher. The first requirement for successful mediation is the
patience on the part of the mediator, and his willingness to give sufficient
time to the contesting parties and especially to the wife to express her bottled
up grievances. Thereafter, in a disinterested manner, the mediator should
encourage the parties to come up with solutions, giving useful suggestions for
bringing about reconciliation, as the mediator cannot impose his solution on the
parties.
The guidelines hereinabove have been spelt out by the Court because of the
specific request of the officials and lawyers present to spell out the terms of
the same, as guidance for the State government (esp. the home department), the
Legal Services Authority and the police for issuing appropriate circulars or
government orders.

(9) Should offences under section 498-A IPC be made compoundable?

We have received considerable feedback from subordinate judicial authorities
that unless the offence under section 498-A IPC is made compoundable, much
benefit cannot be derived by trying to bring about mediation between the
parties. A dilemma then arises before the concerned Court, (which cannot close
the trial because the spouses have compromised their dispute) or even before the
aggrieved wife, if she decides to settle her dispute with her spouse and in-laws
either by agreeing to stay with them or to part amicably, usually after
receiving some compensation. Even if she is no more interested in repeatedly
visiting the court for prosecuting the accused, in the absence of provisions for
compounding the offence, she has willy nilly to perjure by making a false
statement that her initial report was untrue or lodged under influence of X or
Y. If on the basis of this statement the trial Court acquits the husband and his
family members, and the aggrieved wife returns to her matrimonial home, in the
cases where she is again maltreated, if she lodges a fresh report, its
reliability will be open to question.

The Apex Court in Ramgopal v. State of M.P., 2010 SCALE 711 observed that an
offence under section 498-A IPC is essentially private in nature, and it should
be made compoundable if the parties are willing to amicably settle their
dispute. Directions were given to the Law Commission of India to consider the
matter and to make appropriate recommendations to the Government to bring about
suitable amendments in the statute.

In Rajeev Verma v. State of U.P., 2004 Cri.L.J. 2956, which was a decision given
by a bench in which one of us (Amar Saran J) was a member, a similar suggestion
was made to the Law Commission of U.P. to recommend to the State government to
make the offence under section 498-A IPC compoundable with the permission of the
Court under section 320 Cr.P.C. The reasons for the suggestion were that such
FIRs are often lodged in the heat of the moment, without reflection after a
sudden quarrel, and sometimes as a result of wrong advice or influences. But the
complaining wife, who usually has no source of independent livelihood (as a key
problem in our society is the lack of economic and social empowerment of women)
and is unable to provide for herself in the future, may have to suffer later if
the relationship with her husband is irrevocably ruptured due to the hasty
filing of the criminal case, particularly in view of the fact that the offence
is non-compoundable. To meet this situation B.S. Joshi v State of Haryana, AIR
2003 SC 1386, Manoj Sharma v State, 2008 SC(Suppl) 1171, and Madan Mohan Abbot v
State of Punjab, AIR 2008 SC 1969 recommended quashing of the complaint in
proceedings under section 482 Cr.P.C or in the writ jurisdiction where the
aggrieved wife compounded the offence. In the latter case it was observed that
where the dispute is purely personal in nature, (i.e. the element of the offence
being a crime against society is secondary), and the wife decides to compound
the offence, as there would be little likelihood of conviction, quashing of the
offence should not be refused on the hyper-technical view that the offence was
non-compoundable “as keeping the matter alive with no possibility of a result in
favour of the prosecution is a luxury which the Courts, grossly overburdened as
they are, cannot afford and that the time so saved can be utilized in deciding
more effective and meaningful litigation”

The following passage in paragraph 12 in G.V. Rao v L.H.V. Prasad, AIR 2000 SC
2474 has been cited with approval in B.S. Joshi:
“There has been an outburst of matrimonial disputes in recent times. The
marriage is a sacred ceremony, the main purpose of which is to enable the young
couple to settle down in life and live peacefully. But little matrimonial
skirmishes suddenly erupt which often assume serious proportions resulting in
commission of heinous crimes in which elders of the family are also involved
with the result that those who could have counselled and brought about
rapprochement are rendered helpless on their being arrayed as accused in the
criminal case. There are many other reasons which need not be mentioned here for
not encouraging matrimonial litigation so that the parties may ponder over their
defaults and terminate their disputes amicably by mutual agreement instead of
fighting it out in a Court of law where it takes years and years to conclude and
in that process the parties lose their “young” days in chasing their “cases” in
different Courts.”

In Rajeev Verma however relying on B.S. Joshi it was mentioned that whilst the
trial could be quashed in an application under section 482 Cr.P.C or under
Article 226, being a fruitless prosecution where there was little likelihood of
conviction as the parties had settled their dispute, but the proper forum for
deciding the matter whether the compromise application was voluntary and bona
fide or whether it was coerced was the lower court which could decide whether it
was a fit case for granting permission to the wife to compound the offence under
section 320(2) Cr.P.C. This was only possible if the offence under s. 498-A IPC
was made compoundable with the permission of the Court.

A good option for providing recompense to the maltreated woman is “The
Protection of Women from Domestic Violence Act, 2005″ which provides for a gamut
of civil rights for the aggrieved woman who has entered into a domestic
relationship with a man, with or without marriage. Such civil rights include
“Protection orders” (section 18) prohibiting the respondent from committing any
act of violence, visiting the place of work, operating the common bank locker,
making telephonic contact etc. “Residence orders” (section 19), which restrain
the respondent from dispossessing a woman from the shared household, or from
alienating or renouncing his rights to the property or by directing him to
remove himself, or by providing alternate accommodation to the aggrieved woman
at the existing level. By providing “monetary reliefs” (sections 20 and 22) by
paying for loss of earnings or medical expenses, or loss due to destruction of
property by domestic violence, or for maintenance of the woman and her dependent
children, or by payment of compensation for causing injuries (including mental
torture). “Custody orders” (section 21) for custody of the child to the woman
(including visiting rights) for the respondent. Criminal proceedings under this
Act have been allowed only as a last resort, under section 31 when the
respondent commits a breach of a protection order, or where at the stage of
framing charges for breach of the protection order he finds that an offence
under section 498-A IPC has also been committed by the respondent.

The Act also provides under section 14 for the Magistrate to send a matter for
“counselling” before a registered “service provider,” who is qualified to
provide counselling in such matters to the contesting parties or to provide
shelter etc. to the aggrieved woman.

In the counter-affidavit dated 12.8.11 filed on behalf of the Home Secretary,
U.P., it has specifically been mentioned that the State government has given its
consent to the Union of India to make offences under section 498-A IPC
compoundable, and the letter of the Home (Police) Section-9 to the Union Home
Ministry dated 4.2.10 has been annexed. Whereas we appreciate this positive
attitude of the State government in not objecting to section 498-A IPC being
made a compoundable offence. However we find that Andhra Pradesh, by Act 11 of
2003 (w.e.f 1.8.03) has added section 498 A (wrongly described as 494 A) after
section 494 in the table in section 320(2) Cr.P.C. and has permitted the woman
subjected to cruelty to compound the offence with the permission of the Court,
but added a proviso that a minimum period of three months be allowed to elapse
from the date of application for compromise before a Court can accept the
request, provided any of the parties do not withdraw in the intervening period.

The U.P. government may consider bringing out a similar amendment, as it has
already expressed its opinion that the offence under section 498-A IPC be made
compoundable.

Before parting we must clarify that the Court is of the firm view that acts of
cruelty or violence against women have neither ceased, nor have they been
reduced, and the special provision for meeting this problem must be retained in
the statute book. We quote with approval the view expressed in paragraph 11 of
the recent Law Commission of India, Consultation Paper-cum-Questionaire
regarding section 498-A of Indian Penal Code:

“While the Commission is appreciative of the need to discourage unjustified and
frivolous complaints and the scourge of over-implication, it is not inclined to
take a view that dilutes the efficacy of s. 498-A to the extent of defeating its
purpose especially having regard to the fact that atrocities against women are
on the increase. A balanced and holistic view has to be taken on weighing the
pros and cons. There is no doubt a need to address the misuse situations and
arrive at a rational solution ? legislative or otherwise.”

List this case on 8.11.2011 before the regular bench to be headed by one of us
(Hon’ble Amar Saran J)

The State government through the Chief Secretary, U.P., the Principal Secretary,
(Home), U.P., Secretary Law/ L.R. U.P., Director General Police U.P., and
Member-Secretary, U.P. Legal Services Authority may issue appropriate guidelines
or circulars for laying down a system for proceeding in matters where reports
are lodged of commission of offences under section 498 A IPC where immediate
arrests may not be necessary, for laying down the appropriate criteria in this
regard, and for sending the matters for mediation before the mediation cells in
the Civil Courts, in accordance with the aforesaid directions of this Court. The
Principal Secretary, (Finance), U.P. may apprise the Court as to the provision
for finance for appointing social workers/panel lawyers at the Mahila Thanas,
for ensuring that appropriate training is given to the social workers, legal aid
lawyers, and concerned police officers for facilitating the mediation process,
for making available adequate infrastructure/ manpower at the mediation cells in
the Civil Courts, and for meeting expenses on other contingencies. Let the
aforesaid authorities submit their compliance reports within 4 weeks. We would
also like reports from all the Secretaries of the District Legal Services
Authorities to submit their compliance reports (through the District Judges) for
getting the aforementioned minor matters relating to offences under section 498
A IPC settled through mediation and the difficulties they encounter or forsee in
complying with the directions of this Court by the next listing. The State
government is also directed to submit its report on the next listing on the
suggestion of the Court to take steps for making the offence under section 498-A
IPC compoundable with the permission of Court by amending section 320 Cr.P.C in
U.P. as has been done in the case of Andhra Pradesh. Registrar-General is
directed to forward copies of this order within a week to the Chief Secretary,
Principal Secretary, (Home), Law Secretary/LR, U.P., Principal Secretary
(Finance), U.P., D.G.P., U.P., Member-Secretary, U.P., Legal Services Authority,
U.P., Secretaries/ Civil Judges (Senior Division) through District Judges in all
districts in U.P., Sri Ashok Mehta, Organizing Secretary, Allahabad High Court,
Mediation Centre, Sri Pankaj Naqvi, and Sister Sheeba Jose, Advocates for the
intervenors, Government Advocate, U.P. and other advocates and officials present
in the hearing on 8.8.11 for information and compliance.

Order Date :- 30.9.2011
HSM

 

Mamta Jaiswal v…

Mamta Jaiswal v. Rajesh Jaiswal – Wife who leaves job not entitled to maintenance
 
Madhya Pradesh High Court
Smt. Mamta Jaiswal vs Rajesh Jaiswal on 24 March, 2000
Equivalent citations: II (2000) DMC 170
Author: J Chitre
Bench: J Chitre

ORDER

   J.G. Chitre, J.

   1. The petitioner Mamta Jaiswal has acquired qualification as MSc. M.C.   M.Ed, and was working in Gulamnabi Azad. College of Education, Pusad,   Distt. Yeotmal (MHS). The husband Rajesh Jaiswal is sub-engineer   serving in Pimampur factory. The order which is under challenge by   itself shows that Mamta Jaiswal, the wife was earning Rs. 4,000/- as   salary when she was in service in the year 1994. The husband Rajesh   Jaiswal is getting salary of Rs. 5,852/-. The Matrimonial Court awarded   alimony of Rs. 800/- to Mamta Jaiswal per month as pendente lite   alimony, Rs. 400/- per month has been awarded to their daughter Ku,   Diksha Jaiswal. Expenses necessary for litigation has been awarded to   the tune of Rs. 1,500/-. The Matrimonial Court has directed Rajesh   Jaiswal to pay travelling expenses to Mamta Jaiswal whenever sheattends   Court for hearing of them matrimorial petition pending between them.   Matrimonial petition has been filed by husband Rajesh Jaiswal for   getting divorce from Mamta Jaiswal on the ground of cruelty. This   revision petition arises on account of rejection of the prayer made by   Mamta Jaiswal when she prayed that she be awarded the travelling   expenses of one adult attendant who is to come with her for attending   Matrimonial Court.

   2. Mr. S.K. Nigam, pointed out that the petition is mixed natured   because if at all it is touching provisions of Section 26 of Hindu   Marriage Act, 1955 (hereinafter referred to as Act for convenience)   then that has to be filed within a month. Mr. Mev clarified that it is   a revision petition mainly meant for challenging pendente lite alimony   payable by the husband in view of Section 24 of the Act. He pointed out   the calculations of days in obtaining the certified copies of the   impugned order. In view of that, it is hereby declared that this   revision petition is within limitation, entertainable, keeping in view   the spirit of the Act and Section 24 of it.

   3. A wife is entitled to get pendente lite alimony from the husband in   view of provisions of Section 24 of the Act if she happens to be a   person who has no independent income sufficient for her to support and   to make necessary expenses of the proceedings. The present petitioner,   the wife, Mamta Jaiswal has made a . prayer that she should be paid   travelling expenses of one adult member of her family who would be   coming to Matrimonial Court at Indore as her attendant. Therefore, the   question arises firstly, whether a woman having such qualifications and   once upon a time sufficient income is entitled to claim pendente lite   alimony from her husband in a matrimonial petition which has been filed   against her for divorce on the ground of cruelty. Secondly, whether   such a woman is entitled to get the expenses reimbursed from her   husband if she brings one adult attendant alongwith her for attending   the Matrimonial Court from the place where she resides or a distant   place.

   4. In the present case there has been debate between the spouses about   their respective income. The husband Rajesh has averred that Mamta is   still serving and earning a salary which is sufficient enough to allow   her to support herself. Wife Mamta is contending that she is not in   service presently. Wife Mamta is contending that Rajesh, the husband is   having salary of Rs. 5,852/- per month. Husband Rajesh is contending   that Rs. 2,067/- out his salary, are deducted towards instalment of   repayment of house loan. He has contended that Rs. 1,000/- are spent in   his to and fro transport from Indore to Pithampur. He has also detailed   by contending that Rs. 200/- are being spent for the medicines for his   ailing father. And, lastly, he has contended that by taking into   consideration these deductions as meagre amount remains available for   his expenditure.

   5. It has been submitted that Mamta Jaiswal was getting Rs. 2,000/- as   salary in the year 1994 and she has been removed from the job of   lecturer. No further details are available at this stage. Thus, the   point is in a arena of counter allegations of these fighting spouses   who are eager to peck each other.

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

   7. In the present case, wife Mamta Jaiswal, has been awarded Rs. 800/-   per month as pendente lite alimony and has been awarded the relief of   being reimbursed from husband whenever she makes a trip to Indore from   Pusad, Distt. Yeotmal for attending Matrimonial Court for date of   hearing. She is well qualified woman once upon time abviously serving   as lecturer in Education College. How she can be equated with a   gullible woman of village ? Needless to point out that a woman who is   educated herself with Master’s degree in Science, Masters Degree in   Education,. would not feel herself alone in travelling from Pusad to   Indore, when atleast a bus service is available as mode of transport.   The sumbission made on behalf of Mamta, the wife, is not palatable and   digestable. This smells of oblique intention of putting extra financial   burden on the husband. Such attempts are to be discouraged.

   8. In fact, well qualified spouses desirous of remaining idle, not   making efforts for the purpose of finding out a source of livelihood,   have to be discouraged, if the society wants to progress. The spouses   who are quarelling and coming to the Court in respect of matrimonial   disputes, have to be guided for the purpose of amicable settlement as   early as possible and, therefore, grant of luxurious, excessive   facilities by way of pendente lite alimony and extra expenditure has to   be discouraged. Even then, if the spouses do not think of amicable   settlement, the Matrimonial Courts should dispose of the matrimonial   petitiorisas early as possible. The Matrimonial Courts have to keep it   in mind that the quarells between the spouses create dangerous impact   on minds of their offsprings of such wedlocks. The offsprings do not   understand as to where they should see ? towards father or towards   mother ? By seeing them both fighting, making allegations against each   other, they get bewildered. Such bewilderedness and loss of affection   of parents is likely to create a trauma on their minds and brains. This   frustration amongst children of tender ages is likely to create   complications which would ruin their future. They cannot be exposed to   such danger on account of such fighting parents.

   9. In the present case the husband has not challenged the order.   Therefore, no variation or modification in it is necessary though this   revision petition stands dismissed. The Matrimonial Court is hereby   directed to decide the matrimonial petition which is pending amongst   these two spouses as early as possible. The Matrimonial Court is   directed to submit monthwise report about the progress of the said   matrimonial petition to this Court so as to secure a continuous,   unobstructed progress of matrimonial petition. No order as to costs.   The amount of pendente lite alimony payable to Mamta Jaiswal by husband   Rajesh Jaiswal should be deposited by him within a month by counting   the date from the date of order. The failure on this aspect would   result in dismissal of his matrimonial petition. He should continue   payment of Rs. 400/- per month to his daughter Ku. Diksha Jaiswal right   from the date of presentation of application of her maintenance i.e.   14.5.1998. That has to be also deposited within a month. He may take   out sufficient money for that from his savings or take a loan from some   good concern or loan granting agencies. Failure in this aspect also   would result in dismissal of his petition. C.C.