Best Judgements in 498a

There are many Judgements in 498a but the most used judgements are mentioned Below:-

1. Arnesh Kumar Vs. State of Bihar..

This Judgement is most commonly used especially in bail arguments and best argument to secure bail is the non-compliance of 41A notice. If you have not got 41A notice in 498a you will definitely be eligible for bail and IO has to first comply with requirement of 41A notice if pursuant to compliance of 41A notice you will not be arrested.

2. Geeta Mehrotra Vs. State of UP.

This judgement is used in quashing 498a against your relatives who have been falsely implicated in the case. If there are vague and bald allegations this judgement is most widely recommended.

3. Narinder Kaur V/s State(NCT of Delhi) 2007(141)DLT 761

This judgement talks about the conditions which can be imposed while granting anticipatory bail. Court cannot grant maintenance as a condition for anticipatory bail.

4. Social Action Forum for Manav adhikar vs. UOI

This Judgement overuled Rajesh Sharma and Others vs. State of UP and talks about changes in law for proper framework for dealing with 498a court cannot design a framework.

5.In Vishal Arora V. state 

The return of stridhan articles are not the ground to reject bail

By Advocate Nitish Banka

9891549997

What to do if wife is threatening me to commit suicide?

Is the wife really threatened you?

In many matrimonial cases I have seen wife many time threatens husband to commit suicide or attempt one.

But why she do this?

The reason why she do this can be plenty most common are listed below..

She wants her wishes to come true…Here you need to realize her needs and address them.

Psychological issues-: you need to consult some profession and take report for own safety.

parental interference-Sometimes too much interference from her parents side is an issue

Other issue may be dowry demand which is illegal and I believe punishment should be given in such cases.

Legal process and procedure..

Whatever may be the real reason except the dowry demand, you have to stay alert and do some things.

Recording-: The reason why she is attempting suicide must be recorded. Because if she commits suicide and her parents put wrong dowry allegations on you then you will be prosecuted under 304B which puts reverse burden of proof and you have to explain why she commited suicide.

Medical Documents-: if she is attempting suicide due to medical stress then immediately counsellor needs to be consulted and the written opinion is to be kept for your safety.

Mediation-: You have to disclose this thing to her parents and other neutral persons needs to be involved. The real reason is kept before them also.

Judicial Separation-: If wife try to attempt suicide then it is better to apply for judicial separation/divorce immediately so that everything comes on record. Star staying separately.

Divorce-: Attempting to do suicide and keeping husband under stress is also a cause of mental cruelty and divorce. provided you have above 3 things that is recording, medical documents and mediation.

Complaint under 309 IPC You can simultaneously lodge a complaint under 309 IPC as attempt to commit suicide is also an offence.

Wife threatning to commit suicide is an unfortunate thing but if she commits a suicide then in recent Judgement of

Satbir Singh Vs. State of Haryana

The usage of rebuttable presumption of causality, under Section 113­B, Evidence Act, creates a greater responsibility on Judges, defense and prosecution. They need to be extra careful during conducting criminal trials relating to Section 304­B, IPC. In order to address this precarious situation, procedural law has some safeguards, which merits mentioning herein.

20. It is a matter of grave concern that, often, Trial Courts record the statement of an accused under Section 313CrPC in a very casual and cursory manner, without specifically questioning the accused as to his defense. It ought to be noted that the examination of an accused under Section 313CrPC cannot be treated as a mere procedural formality, as it is based on the fundamental principle of fairness. This provision incorporates the valuable principle of natural justice­ “audi alteram partem”, as it enables the accused to offer an explanation for the incriminatory material appearing against him. Therefore, it imposes an obligation on the part of the Court to question the accused fairly, with care and caution. The Court must put incriminating circumstances before the accused and seek his response. A duty is also cast on the counsel of the accused to prepare his defense, since the inception of the trial, with due caution, keeping in consideration the peculiarities of Section 304­B, IPC read with Section 113­B, Evidence Act.

21. Section 232CrPC assumes importance, which reads as, “If, after taking the evidence for the prosecution, examining the  accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal”. Once the Trial Court decides that the accused is not eligible to be acquitted as per the provisions of Section 232CrPC, it must move on and fix hearings specifically for ‘defence evidence’, calling upon the accused to present his defense as per the procedure provided under Section 233CrPC, which is also an invaluable right provided to the accused. Existence of such procedural right cohesively sits with the rebuttable presumption as provided under Section 113­B, Evidence Act.

22. The second contentious part relating to Section 304­B, IPC is that it does not take a pigeonhole approach in categorizing death as homicidal or suicidal or accidental, as was done earlier. The reason for such non categorization is due to the fact that death occurring “otherwise than under normal circumstances” can, in cases, be homicidal or suicidal or accidental. However, the Section 304­B, IPC endeavors to also  address those situations wherein murders or suicide are masqueraded as accidents.

What to do if you don’t get 41A notice in false 498a case?

One of my client staying abroad had got a call from police one day asking him to join the investigation in India. The police asked my client to come to India.

He recieved only call and called me that the police has asked me to come to India to join the investigation. But in my country rthere is a situation of lockdown therefore I cannot join the Investigation what to do?

I asked hin whether he is willing to come to India after the situation improves in his country? He said YES!!

I asked him whether the police has sent him proper notice of 41 A…He told me a clear NO!!…

He told me that the police has simply called him and asked him to join the investigation in India…he was scared

He was scared what if the police will issue the LOC against him or an arrest warrant.

I asked him to apply for the anticipatory bail…

I got the copy of FIR from court and police station and applied for anticipatory bail…

In court I argued that my client did not get a proper 41 A notice and there is the violation of High Court guidelines.

In the case of Amandeep Singh Johar vs State Of Nct Of Delhi  there are specific direction as to the

Prescribed format of 41A notice in which the IO has to mention

Offence

Place and time

Date

Acknowledgement slip..

The Io further has to maintain the record of the notice.

I asked the IO to place the copy of the notice with dispatch number

He failed to show and as a result I got the anticipatory bail in the case..

How court dismisses 406 IPC…

The essential ingredient of 406 IPC is entrustment of dowry articles with proof of possession.

The allegation of entrustment should be present in the FIR.

The wife should be able to produce the proof of ownership. I.e Bills and photographs.

As regards section 406 IPC, it be observed that in order to establish the commission of offence u/s 406 IPC the necessary ingredient of section 405 IPC are to be proved. Hence, it is necessary for the prosecution to prove the entrustment having been made in favour of accused, his dominion/control over the articles entrusted and subsequent misappropriation. The misappropriation tantamount to conversion of articles by the accused to their own use and consumption.

In Jaswant Lal Vs. State AIR 1968 SC 700, the Hon’ble Supreme Court laid down that entrustment is an essential ingredient of an offence u/s 406 IPC. In Reshan Lal Vs. State AIR 1983 SC 631, Hon’ble Supreme Court held that proof of entrustment is an essential ingredient of the offence. Similarly, in Ram Narayan Vs. CBI 2003 (3) SCC 641, Hon’ble Supreme Court, held that no constitute an offence of criminal breach of trust, there must be an entrustment. As such, entrustment is one of the essential ingredients for the offence u/s 406 IPC.

If complainant has stated that in the Women Cell, accused had submitted the admitted list of her dowry articles bearing signature of accused and her signatures . However, the admissions made by the accused in CAW Cell are not binding on him. The proceedings at CAW Cell are conciliatory in nature. Any views, suggestions and admissions made by either party in a CAW Cell cannot be relied upon as evidence.(see Vinod Sharma vs. State in Crl. R.EV.P. 720/2007 decided on 11th July, 2011).

he aforesaid, even the basic requirement of entrustment having been made in favour of the accused is not established. Moreover, the IO clearly stated in his cross examination that the complainant failed to accompany him to the house of the accused for recovery of Istridhan despite his repeated efforts to take her along with him for recovery of Istridhan. She was not available whenever he visited her for taking her for recovery of Istridhan. The prosecution has not explained the reluctance of complainant in identifying and recovering her Istridhan.

In judgment of Neera Singh Vs. State (Govt. of NCT of Delhi) and others, 138 (2007), DLT 152, the Hon’ble High Court of Delhi observed the mandate of for preparation of list of dowry articles at the time of marriage duly signed from bride side as well as from groom side, in terms of provision of 2 of Dowry Prohibition Act. Further, the increasing trend of making exaggerated claims by the complainant and his family regarding Istridhan given to the complainant was also noticed. To curb the same, it was held that the complainant and her family members, are bound to disclose the source of such expenditure on marriage.

Advocate Nitish Banka

Irretrievable Breakdown of Marriage How Supreme Court can grant Divorce…

Irretrievable breakdown of the marriage is not a ground by itself. But while scrutinizing the evidence on record to determine whether the ground(s) alleged is/are made out and in determining the relief to be granted, the said circumstance can certainly be borne in mind. The unusual step as the one taken by us herein can be resorted to only to clear up an insoluble mess, when the court finds it in the interest of both the parties.

Till date, the prevailing laws in India regarding the issue of divorce have not recognized a situation where the spouses are facing a situation that despite the fact that they live under the same roof, their marriage is equivalent to a separation.

That is, there is still no codified law for irretrievable breakdown of marriage. The Hindu Marriage Act recognize few grounds for dissolution of marriage in Section 13.But with the change in the social mores and in view of the changing nature of marriage in the society, the supreme court has shown special concern over the matter of making irretrievable breakdown of marriage as a ground for divorce.

The Supreme Court has with a view to do complete justice and shorten agony of the parties engaged in long drawn battle, directed dissolution of marriage. Indeed, these were exceptional cases, as the law does not specifically provides for the dissolution of marriage on the grounds other then those given in Hindu Marriage Act, 1955. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. Because of the change of circumstances and for covering a large number of cases where the marriages are virtually dead and unless this concept is pressed into services, the divorce cannot be granted.

In V Bhagat vs. D Bhagat

she has not chosen to say that on that account she cannot reasonably be expected to live with the petitioner-husband nor has she chosen to claim any relief on that ground. Even so, allegations of ‘paranoid disorder’, ,mental patient’, ‘needs psychological treatment to make him act a normal person’ etc. are there coupled with the statement that the petitioner and all the members of his family are lunatics and that a streak of insanity runs through his entire family. These assertions cannot but constitute mental cruelty of such a nature that the petitioner, situated as he is and in the context of the several relevant circumstances, cannot reasonably be asked to live with the respondent thereafter. The husband in the position of the petitioner herein would be justified in saying that it is not possible for him to live with the wife in view of the said allegations. Even otherwise the peculiar facts of this case show that the respondent is deliberately feigning a posture which is wholly unnatural and beyond the comprehension of a reasonable person. She has been dubbed as an incorrigible adulteress. She is fully aware that the marriage is long dead and over. It is her case that the petitioner is genetically insane. Despite all that, she says that she wants to live with the petitioner. The obvious conclusion is that she has resolved to live in agony only to make life a miserable hell for the petitioner as well. This type of callous attitude in the context of the facts of this case, leaves no manner of doubt in our mind that the respondent is bent upon treating the petitioner with mental cruelty. It is abundantly clear that the marriage between the parties has broken down irretrievably and there is no chance of their coming together, or living together again. Having regard to the peculiar features of this case, we are of the opinion that the marriage between the parties should be dissolved under Section 13(1)(i-a) of Hindu Marriage Act and we do so accordingly. Having regard to the peculiar facts and circumstances of this case and its progress over the last eight years detailed hereinbefore we are of the opinion that it is a fit case for cutting across the procedural objections to give a quietus to the matter.

Manish Kakkar and Nidhi Kakkar

 If parties agree, they can always go back to the trial court for a motion by mutual consent, or this Court has exercised jurisdiction at times to put the matter at rest quickly. But that has not been the only circumstance in which a decree of divorce has been granted by this Court. In numerous cases, where a marriage is found to be a dead letter, the Court has exercised its extraordinary power under Article 142 of the Constitution of India to bring an end to it.

20. We do believe that not only is the continuity of this marriage fruitless, but it is causing further emotional trauma and disturbance to both the parties. This is even reflected in the manner of responses of the parties in the Court. The sooner this comes to an end, the better it would be, for both the parties. Our only hope is that with the end of these proceedings, which culminate in divorce between the parties, the two sides would see the senselessness of continuing other legal proceedings and make an endeavour to even bring those to an end.

21. The provisions of Article 142 of the Constitution provide a unique power to the Supreme Court, to do “complete justice” between the  parties, i.e., where at times law or statute may not provide a remedy, the Court can extend itself to put a quietus to a dispute in a manner which would befit the facts of the case. It is with this objective that we find it appropriate to take recourse to this provision in the present case.

22. We are of the view that an end to this marriage would permit the parties to go their own way in life after having spent two decades battling each other, and there can always be hope, even at this age, for a better life, if not together, separately.

23. We, thus, exercising our jurisdiction under Article 142 of the Constitution of India, grant a decree of divorce and dissolve the marriage inter se the parties forthwith.

24. The respondent is a qualified lawyer; she claims to have not gone back to her family in Canada, but stayed in India only to battle this litigation. The respondent is being paid Rs.7,500 per month by the appellant. With a law degree she would be able to meet her needs better, though she claims that her sole concentration has been on the inter se  dispute. Be that as it may, we are of the view that the maintenance of Rs.7,500 per month should be continued to be paid by the appellant to the respondent, and it is open for the parties to move appropriate proceedings for either enhancement of this maintenance or reduction and cessation thereof. We only hope that this aspect can also be reconciled between the parties once a decree of divorce is granted.

Naveen Kohli (supra), a three Judge Bench of this Court has observed as under:

“74. ……Once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie  the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.

85. Undoubtedly, it is the obligation of the court and all concerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained, but when the marriage is totally dead, in that event, nothing is gained by trying to keep the parties tied forever to a marriage which in fact has ceased to exist….

86. In view of the fact that the parties have been living separately for more than 10 years and a very large number of aforementioned criminal and civil proceedings have been initiated by the respondent against the appellant and some proceedings have been initiated by the appellant against the respondent, the matrimonial bond between the parties is beyond repair.

A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, public interest and interest of all concerned lies in the recognition of he fact and to declare defunct de jure what is already defunct de facto….” [emphasis supplied] A similar view has been expressed in the case of Samar Ghosh (supra).

In the similar set of facts and circumstances of the case, this Court in the case of Sukhendu Das (supra) has directed to dissolve the marriage on the ground of irretrievable breakdown of marriage, in exercise of powers under Article 142 of the  Constitution of India. 6. Now so far as submission on behalf of the respondent­wife that unless there is a consent by both the parties, even in exercise of powers under Article 142 of the Constitution of India the marriage cannot be dissolved on the ground of irretrievable breakdown of marriage is concerned, the aforesaid has no substance. If both the parties to the marriage agree for separation permanently and/or consent for divorce, in that case, certainly both the parties can move the competent court for a decree of divorce by mutual consent. Only in a case where one of the parties do not agree and give consent, only then the powers under Article 142 of the Constitution of India are required to be invoked to do the substantial Justice between the parties, considering the facts and circumstances of the case. However, at the same time, the interest of the wife is also required to be protected financially so that she may not have to suffer financially in future and she may not have to depend upon others.

In R.Srinivas Kumar vs R.Shametha the application for divorce filed by the appellant­ husband for dissolution of marriage is hereby allowed. The marriage between the appellant ­husband and the respondent­wife is ordered to be dissolved in exercise of powers under Article 142 of the Constitution of India on the condition and as agreed by the learned Senior Advocate appearing on behalf of the appellant­ husband that the appellant­husband shall pay to the respondent­ wife a lump sum permanent alimony, quantified at  Rs.20,00,000/­ (Rupees Twenty Lakhs) to be paid directly to the respondent­wife by way of demand draft within a period of eight weeks from today. Till the permanent alimony as above is paid to the respondent­wife, the appellant­husband to continue to pay the maintenance as being paid to her.

This court in a series of judgments has exercised its inherent powers under Article 142 of the Constitution for dissolution of a marriage where the Court finds that the marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably, even if the facts of the case do not provide a ground in law on which the divorce could be granted [Manish Goel v. Rohini Goel2].Admittedly, the Appellant and the Respondent have been living separately for more than 17 years and it will not be possible for the parties to live together and there is no purpose in compelling the parties to live together in 1 (2007) 4 SCC 511 [para101 (xiv)] 2 (2010) 4 SCC 393 [para 11]  matrimony [Rishikesh Sharma v. Saroj Sharma3]. The daughter of the Appellant and the Respondent is aged about 24 years and her custody is not in issue before us. In the peculiar facts of this case and in order to do complete justice between the parties, we allow the Appeal in exercise of our power under Article 142 of the Constitution of India, 1950.

How the proceedings under 340 CrPC Takes Place?

How complaint is filed?

If the wife has committed perjury in court i.e. suppose she has stated in her examination in chief that she is not working at the time of the application and the husband brings in such record to show that she is actually working. Thus wife has committed perjury by deposing falsely before the court for instance.

Now the thing is what will you do?

Do not act hastely on examination in chief only.

You have to confront her the documents on which she is employed during the cross examination if she admits to the documents then only the case under section 193 will e made out then only a material will be generated. Otherwise you have to lead your defense evidence in which you have to prove the documents which she has denied i.e her employment related documents.

After which you can file an Application U?S. 340 Crpc

What is the stage of filing 340 CrPC application?

The appropriate stage of filing section 340 Crpc application is at the time of completion of PE if the wife has admitted to the documents you have confronted and material is generated.

The other stage is at the time of defence evidence that is after you have proved the document.

The judge will keep the application pending and can decide at the time of final arguments.

Is it at the time of filing the complaint wherein the complainant deposes falsely or at the time of evidence when complainant deposes falsely before oath.

Well the requirement of 340 CrPC is when there is an unimpreachable evidence on record and the complainant deposes falsely with respect to that evidence.

This is means that there has to be a true evidence and in comparison to that there must be falsely deposed statement.

The law under Section 340 on initiating proceedings has been laid down in several of our judgments. Thus in Chajoo Ram vs. Radhey Shyam, (1971) 1 SCC 774, this Court, in para 7, stated:

  1. No doubt giving of false evidence and filing false affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the charge.

Chandrapal Singh and Others vs. Maharaj Singh and Another, (1982) 1 SCC 466, this Court, in para 14, stated:

That leaves for our consideration the alleged offence under Section 199. Section 199 provides punishment for making a false statement in a declaration which is by law receivable in evidence. We will assume that the affidavits filed in a proceeding for allotment of premises before the Rent Control Officer are receivable as evidence. It is complained that certain averments in these affidavits are false though no specific averment is singled out for this purpose in the complaint. When it is alleged that a false statement has been made in a declaration which is receivable as evidence in any Court of Justice or before any public servant or other person, the statement alleged to be false has to be set out and its alleged falsity with reference to the truth found in some document has to be referred to pointing out that the two situations cannot co-exist, both being attributable to the same person and, therefore, one to his knowledge must be false.
Rival contentions set out in affidavits accepted or rejected by courts with reference to onus probandi do not furnish foundation for a charge under Section 199, I.P.C. To illustrate the point, appellant 1 Chandrapal Singh alleged that he was in possession of one room forming part of premises No. 385/2. The learned Additional District Judge after scrutinising all rival affidavits did not accept this contention. It thereby does not become false. The only inference is that the statement made by Chandrapal Singh did not inspire confidence looking to other relevant evidence in the case. Acceptance or rejection of evidence by itself is not a sufficient yardstick to dub the one rejected as false.

R.S. Sujatha vs. State of Karnataka and Others, (2011) 5 SCC 689 (at paras 15 & 16). This Court, after setting down the law laid down in these two judgments concluded:

Thus, from the above, it is evident that the inquiry/contempt proceedings should be initiated by the court in exceptional circumstances where the court is of the opinion that perjury has been committed by a party deliberately to have some beneficial order from the court. There must be grounds of a nature higher than mere surmise or suspicion for initiating such proceedings. There must be distinct evidence of the commission of an offence by such a person as mere suspicion cannot bring home the charge of perjury. More so, the court has also to determine as on facts, whether it is expedient in the interest of justice to inquire into the offence which appears to have been committed.

Do wife get a chance to argue on 340 CrPC application?

As per the judgement of supreme court Pritesh Vs. State of Maharashtra

Be it noted that the court at the stage envisaged in Section 340 of the Code is not deciding the guilt or innocence of the party against whom proceedings are to be taken before the magistrate. At that stage the court only considers whether it is expedient in the interest of justice that an inquiry should be made into any offence affecting administration of justice. In M.S. Sheriff and anr. vs. State of Madras and ors. (AIR 1954 SC 397) a Constitution Bench of this Court cautioned that no expression on the guilt or innocence of the persons should be made by the court while passing an order under Section 340 of the Code. An exercise of the court at that stage is not for finding whether any offence was committed or who committed the same. The scope is confined to see whether the court could then decide on the materials available that the matter requires inquiry by a criminal court and that it is expedient in the interest of justice to have it inquired into.

Difference between ‘Capable of working’ ‘Actually Working wife’

Many people think that if they are able to show that the wife is capable of working and have been working previously or employed with a good employer as well as having great qualification will not make them liable to pay anything to the wife?

Many clients are satisfied by the advise that your wife is financially capable of working and previously has also worked you are not liable to pay any thing.

That you are no earning and your wife is capable of earning much more than you then also you can save yourself from maintainance

Wrong!!

Why?

In this Judgement Amit Dhiman Vs. Boski Dhiman the Hon’ble Delhi High Court has differentiated between wife capable of working and actual working.

Manoj Kumar Ohri, J. dismissed a revision petition filed against the order of the Family Court whereby the petitioner-husband was directed to pay interim maintenance of Rs 33,005 per month to the respondent-wife and their minor child.

The above order was made by the Magistrate while deciding the application under Section 125 CrPC filed by the respondent wherein she alleged that she was thrown out of the matrimonial home and was living at her paternal home along with the minor child. She had stated that had no source of income and claimed Rs 80,000 per month as maintenance. The petitioner submitted that he was an Executive Chef in a hotel in Goa and his monthly salary was Rs 88,000. He stated that he was looking after his old-aged parents and had other liabilities towards loan and rent.

S.C. Vats, Advocate for the petitioner, referred to the bio data of the wife and submitted that she was professionally qualified, an LL.B graduate, and was earning well. Per contra, Rajesh Sharma, Advocate for the respondent, opposed the instant review petition. Source https://www.scconline.com/blog/post/2019/12/12/del-hc-capable-of-earning-different-from-actual-earning-capacity-to-earn-is-no-ground-to-reduce-maintenance-awarded-to-wife/

 Shailja v. Khobbana, (2018) 12 SCC 199, wherein the Supreme Court held that “capable earning” and “actual earning” are two different requirements. Merely because the wife is capable of earning was held not to be a sufficient reason to reduce the maintenance awarded by the Family Court.

It was noted that the petitioner’s contention, in absence of any supporting document, remains a disputed question to be tested in the trial. In the impugned order, the Family Court had recorded that any amount paid as maintenance in favour of the respondent would be liable to be adjusted.

In such view of the matter, the High Court found no illegality in the order passed by the Family Court. Resultantly, the instant revision petition was dismissed. [Arun Vats v. Pallavi Sharma, 2019 SCC OnLine Del 11817, decided on 06-12-2019]

Divorce on ground of Mental cruelty Strategy by Case Law

Divorce on the ground of mental cruelty demand both facts and evidence of a kind in which the evidence suggest that you and your spouse cannot live together in any circumstances.

In the Live case example of: Dharamveer singh Vs. Lajwanti Devi a recent judgement passed by the Hon’ble Uttarakhand High Court in which husband successfully got the divorce on the ground of cruel conduct of the wife but what are the facts?

FACTS:

  1. The wife started behaving rudely right from the second day of the marraige.
  2. She went to her parents house and did not return for 3 months
  3. The husband tried to bring her back but she abused and humiliated the husband.
  4. Later she came back stayed for 2 months and again gone back her behavior did not changed again she abused the husband.
  5. She even beat the mother of husband and abused, humiliated her in front of strangers.
  6. Late husband took her to another place there also she abused and humiliated husband.

In counter wife

  • Even during the pregnancy she was taunted for having given birth to girl child.
  • She claimed she was thrown out of the house.
  • Claimed dowry demand and harassments.

Evidence

On evidence the husband produced 2 independent witness to show the conduct of the wife and she did beat his mother and abused and humiliated him.

He paid hospital bills to refute the allegation that he and his family was not happy with girl child.

Even the father of husband was present during the birth of the girl child and the namkaran ceremony.

Conclusion

The court concluded that there is substantial evidence to show that mental cruelty by rude behavior was in fact inflicted on the husband and he is entitled for decree of divorce. the evidence produced by him corroborates the stand as well as the refuting the stand of wife that husband and father were not happy with girl child.

What court see at framing of charge?

 The law on the subject was reiterated by Supreme Court in Dipakbhai Jagdishchandra Patel vs. State of Gujarat and Ors. reported as 2019 SCC OnLine SC 588, where it was held as under:

“23. At the stage of framing the charge in accordance with the principles which have been laid down by this Court, what the Court is expected to do is, it does not act as a mere post office. The Court must indeed sift the material before it. The material to be sifted would be the material which is produced and relied upon by the prosecution. The sifting is not to be meticulous in the sense that the Court dons the mantle of the Trial Judge hearing arguments after the entire evidence has been adduced after a full-fledged trial and the question is not whether the prosecution has made out the case for the conviction of the accused. All that is required is, the Court must be satisfied that with the materials available, a case is made out for the accused to stand trial. A strong suspicion suffices. However, a strong suspicion must be founded on some material. The material must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that accused has committed the offence. Strong suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the accused has committed the offence.”

10. Recently, in Vikram Johar vs. State of Uttar Pradesh and Another reported as 2019 SCC OnLine SC 609 it was held:

“19. It is, thus, clear that while considering the discharge application, the Court is to exercise its judicial mind to determine whether a case for trial has been made out or not. It is true that in such proceedings, the Court is not to hold the mini trial by marshalling the evidence.”

wherein it is the duty of the court to apply its judicial mind to the material placed before it and to come to a clear
conclusion that a prima facie case has been made out against the accused. An order for framing of charges is of serious concern to the accused as it affects his liberty substantially. Courts must therefore be cautious that their decision at this stage causes no irreparable harm to the accused.

Coming to the aspect of quashing of the charges, it is well settled that such exercise needs to be undertaken by the High Court in exceptional cases. It is also well settled that the
framing of charges being initial stages in the trial process, the court therein cannot base the decision of quashing the charge on the basis of the quality or quantity of evidence rather the enquiry must be limited to a prima facie examination. [refer to
State of Bihar vs. Ramesh Singh, 1977 CriLJ 1606].

IN SATISHCHANDRA RATANLAL SHAH the Hon’ble supreme court has recently quashed the charge 406 and 409 IPC

How courts give Divorce?

By tanya Saraswat

We all know that marriage is one of the best moments of every individual’s life and we all some on the other part want to marry someone and wants to have our partner to be loyal and will stable to give us better company so that we will grow as an individual. As an individual we human always crave to have good or the best companionship with our partners and that partner will give us best of their guidance to run the battel of life along with our partner.

Marriage is not about having only one person as a partner in the life or to just enjoy the conjugal rights over one person. It is wedlock where two individuals’ come together to help each other or to make promises to help each other in every way. Marriage is the promise between husband and wife to stay together and live together in every thick and throw of the life.

Where there is happiness there is obviously the unhappiness that lies together but some time, they become that big which can easily spoil the beautiful relationship of the individuals and give them high grief and soreness. When a marriage exists, there is definite chances of the fights on different opinions, thoughts, perceptions and in the anger the couple forget to relay on the words of the other person and start the blame game that leads to anger, misconceptions, misbehavior on the weeded party.

Here in the Indian Society that is continuously trying to evolve but still because of the some or the other reason stopped themselves to adopt the modern thinking start blaming the individuals.

The family of the men starts blaming the girl and the family of girl start blaming the boy; but this is not always said to be incorrect that all the male are not same as well as all the females are not the same. The first Question that comes in our mind that says that “Is this correct that the Husband waived his hand on the Wife and try to beat her? Or Is it correct that the wife was having any extra marital affair with some body? Or Where is all the Gold Ornaments went? Is the Girl is like Looteri Dulhan?” all kind of assumptions we made irrespective of knowing the true and correct facts.

To clarify some of our doubts the various HIGH COURTS from all over the INDIA set some of the judgments that give relief to the society. Some of them are in favors of males and some will be in favors of females.

JUDGMENTS on Section 13 Of HMA

  1. Binod Vs. Sophy

That the said appeal was allowed by the Kerala High Court in favor of the appellant Husband. In the petition that has been field by the wife and she was adored with 51 sovereigns of gold ornaments at the time of marriage and 48 sovereign’s other gold belongings of her. While asking for gold ornaments entrustment it is said by the court in the another matter that BOP, “Burden of Prove” lies on the plaintiff in the matter of the entrustment of Gold Ornaments.

In the said matter the Apex court also quoted that another matter “Pankajakshan Nair Vs. Shulaja & Another (2017)” that at the time of filing the matter the wife made numerous of bogus allegations and as they are fake in nature, she fails to give any evidence that helps her to prove the demand for dowry and the court found that the wife voluntarily separated from her husband and her matrimonial family that itself leads to cruelty over the Appellant/Husband.

In the said matter the Apex Court again take reference from the another matter and quoted that “Separation itself amounts to cruelty” said by the three Judges bench of The Supreme Court India.

She/wife fails to explain the actual amount or the actual weight of the gold ornaments and at the time of cross-examination she fails to explain the court about her own words that leads to contradiction in her statements that has been submitted to different places. She also fails to explain about the entrustment of gold ornaments that in who’s possessions are they.

She also failed to explain about the letter in which she herself concluded that she is having the ornaments within her possession. The court observed that she failed to give appropriately right statement and make allegations that her ornaments were taken by her in-laws at next day of her marriage.

The High Court observed and found that the wife/respondent fails to prove entrustment and appropriation of gold ornaments.  The appeal is allowed and passed decree for divorce in favor of husband.

  • Lijmol Vs. K.B BIJU

That the said appeal was allowed by the Kerala High Court in favor of the appellant wife.

It is notifying that the marriage between both the parties was an arranged marriage. That during the marriage it was shown by the respondent and his family that before the marriage husband is having very reputed job and was earning good salary. It was also showcase by the family members of the husband that he was owning a very good l` avish house and having his own car, but after the f ew time later the wife got to know that the respondent got suspended from his job because of some of his job and the car which he said he was owning was actually rented and it was all done for the temporary purpose.

It is also stated by the wife that during the marriage the family of the appellant’s family    spent lot of money to make the wedding as perfect as the respondent’s expectations. It is also stated by the wife that she gave 349 grams old ornaments and 1 lakh in cash.

In the case all the ornaments as well as the objects were taken by the respondent and was alleged by the appellant that she was threaten for dowry demands of Rupees 10 Lakhs, but the respondent denied that the gold ornaments were not in the possession of the respondent and his family as the respondent himself failed to produce the evidence in his favor.

In the said appeal the apex court quoted another judgment “Mayadevi vs. Jagdish Prasad” the court observed that “Physical violence is not absolutely essential to constitute cruelty”  

Divorce was granted in favor of wife as the lady was harassed and on account of mental cruelty the divorce was granted in favor of appellant wife.  

  • D. Subramanyam Raju vs. d. Lakshmi Devi

In the present matter the husband wants to break the wedlock on the bases of cruelty and on the bases of desertion, he is also seeking for the divorce.

That after three months after the marriage they start living separately and the situation with the both become as worst as the families have to come together for the purpose of mediation.

Both the parties were imposing allegations on each other regarding the cruelty and desertion and on the account of respondent made allegation that the wife left the husband even after coming back from Kuwait to India and never tried to accompany the respondent and on the other hand the petitioner stated that she went to meet the respondent in India after returning back from Kuwait. She also said that the husband asked the respondent to share some of percentage of her salary with him. The appellant also alleged that his wife was deserted the marriage but after the finding of evidences the court observed even after not living together, they used to meet each other occasionally or once in a month. The court observed that the respondent not deserted the appellant but the appellant deserted the respondent and respondent had subjected the appellant to cruelty and court finds that there is lack of evidence on the grounds of the desertion and cruelty made by the wife, the court finds evidence that there is desertion on the part of the respondent that too without reasonable cause or against the wish of the petitioner and there are also steps taken by the wife to call the police for mediation. The court quoted” if the words of the respondent’s counsel that when the wife is denying him conjugal society, he should file the petition of RCR”. The court didn’t find the appropriate evidence on the ground of cruelty and dismissed the appeal field by the Appellant/Husband.

  •  Sunita Shrivas vs. Bhagwat Shrivas

              That the said appeal was dismissed by the Chattisgarh High Court filed by the wife alleging about the demand of dowry. In the said appeal the appellant failed to prove to clarify and to produce the appropriate evidence that helps the court to examine the correct fact demanding dowry. As the family members are also failed to support the specific allegations has not supported by them about the allegations. And as the wife failed the demanding of dowry has not been established in the criminal trial and the acquittal is on the lack of ground and the said appeal was dismissed on the ground of mental cruelty.

  • Rajesh Upadhyay vs. Usha Devi @ Usha Upadhyay     

That the said appeal was dismissed by the Jharkhand High Court filed by the Petitioner/Husband. The husband made allegation over the wife that she is unsound mind person and she used to talk alone and used to stair the stars for long time. The petitioner also stated that his wife used to talk about magic and Tantra. He made statement that the respondent asking for the partition but after examination of the witnesses it is concluded that the respondent never said anything about the partition. After examination by the court; the court didn’t find any evidence that shows the cruelty towards the husband. The Appellant also fails to prove the ground of desertion and the allegation of demanding partition from appellant’s brother. And all the allegation like the respondent is unsound mind these allegations were bogus and appellant cooked another new story in front of court which is totally a new case made out on his behalf. The Hon’ble High Court considered the submission of the parties and relevant material on record and also perused impugned judgment. Therefore, the Hon’ble High court any reasons to disturb the findings of Ld. Family court. Therefore, the appeal was dismissed by the High court. Decreed accordingly.       

  • Susen Bhandhari vs. Tumpa Bhandari

In the present matter the husband wants to break the wedlock on the bases of cruelty, adultery, Desertion, he is also seeking for the divorce. That the said appeal was dismissed by the Jharkhand High Court. Husband made allegation on the wife that she is having extra marital affair with another person, but at the timing of proving the allegations the husband was unable to justify his allegations and fails to submit his evidences in favor of his statements. The Hon’ble court give directions to both the petitioner and the respondent to try to live together and if possible, to reunite then try to live; but the efforts seem not good and both of them fails to live together. Then the husband files the petition for ground but on account of insufficient evidences the court dismissed the appeal for the desertion, as the husband fails to prove cruelty on the ground of desertion.  

  • Sanjeev P.R & ANR. Vs. Sreelatha C.K.

In the present matter husband is seeking for the divorce and the appeal was allowed by the Kerala High Court. It was alleged by the Husband/Petitioner that after the marriage the Husband/Petitioner and the Wife/Respondent they started living in a rented house but the respondent was very cruel in nature and they both purchased some property on their joint names. The petitioner made allegations regarding the cruel behavior he also alleged that the respondent tried to kill the petitioner by the knife. Petitioner/Husband specifically stated that she sent some Gundaa’s and sent the petitioner/Husband out from his own house and he is presently residing in a rented house. The respondent/wife was stated that she was given Rs. 50,000-/ and 20 sovereigns of gold ornaments as her share and the petitioner had taken away 15 sovereigns of gold ornaments but the petitioner denied on the same things as he is not having the gold ornaments as well as any amount. The wife has been alleging that the petitioner is having illicit relationships with other women. During the evidence the petitioner in his evidence has categorically stated the aforesaid facts. In the present matter the court finds that both the husband and wife broken irretrievably and there is no chance of re-union. The court observed and quoted “when allegations are made by the wife against her husband alleging illicit relationship, which is unsubstantiated, that itself amounts to mental cruelty”. The court observed the concern of the wife for her gold ornaments and sustain the decree directing return of gold ornaments and money, the divorce decree passed by the F.C was set-aside by the Hon’ble High Court.

  • R. Anil Kumar vs. S. Veena

   That the said appeal was allowed by the Karnataka High Court filed by the Petitioner/Husband. That the appellant/husband and respondent/wife lived together for 8-10 days after the marriage. The appellant is the only son and so they never demand any kind of dowery from the respondent and his family but the family members of the respondent always insisting the appellant to buy new house and to live separately along with the respondent. The family members of the respondent did not perform the nuptial ceremony when the appellant had gone to their house. Even they did not allow the appellant to have sexual intercourse with the respondent. After that the “Panchayaat” was held in the presence of the elder one’s but no settlement was happened between both the parties. After that the respondent field a frivolous petition on ground of bogus allegations, on the other side the appellant/husband filed counter on seeking claim on the ground of the restitution of conjugal rights. But after hearing both the parties the court passes a decree of divorce and reject the claim of Restitution of conjugal rights. The court finds that the family court failed to consider the oral and documentary evidence in proper perspective and the respondent wife has harassed the petitioner and his parents. The court observe the entire evidence do not make out a specific case of cruelty by the husband and there is no other witness in support of the evidence to prove the cruelty by the Husband. That the husband in his submission produced some of the documents that are relied on the purpose of proving the illicit intimacy of the respondent-wife. After looking at the matter the family court finds that the respondent wife has proved that the appellant has subjected her to cruelty and the appellant/husband is not entitled to restitution of conjugal rights. It is pertinent to mentioned that the wife is not willing to continue to the marriage and after the judgment passed by the court the wife on 43rd from the date of judgment pursued another marriage this clearly shows the respondent has the frivolous case. The family court fails to find out that the all allegations were made by the wife on base of cruelty and on based on the dowery demand were absolutely false and the court fails to consider the case of the appellant. Hence, the findings given by the family court are liable to be set aside. Counter claim made by the appellant therein is allowed.       

  •   AS Vs. SJ

That the said appeal was allowed by the Delhi High Court filed by the Petitioner/wife. That the petition is filed by the appellant wife is on the ground of the cruelty as she alleged that the husband and his family after the few days of marriage started demanding the dowery from her and the husband was this much cruel that he used to through statements like that he had done mercy over the wife to get married with her. The appellant was specifically alleged that the respondent forced the appellant to arrange the money from her grandfather and the same was paid to the respondent; that itself leads to broader means to cruelty. At the time when the appellant fails to manage the company of her husband and his family, she voluntarily left the matrimonial house; but even after knowing that she left the matrimonial place because of the ill treatment by the Respondent/husband and then husband again put the writ petition of the “Habeaus Corpus”. This is also leading to cruelty over the appellant wife. The court finds that whatever allegations made by the appellant over the husband none of them were rebutted and they all remains the unimpeached. That court finds that the this is the case where cruelty has been done under the means of section 13 of the HMA and the court passed an order in favor of Appellant by passing the decree of divorce.