On what ground you should file divorce Adultery or Cruelty when wife/husband has extramarital affair?

There is a big confusion among people regarding ground on which the divorce can be filed in court when wife or husband has extra martial affair.

There are two grounds on which the situation can be address one is Adultery and other is cruelty.

Now depending on the evidence the above question can be answered.

Now on the ground of adultery the evidence required is bit strong and her are some case laws

Divorce on Adultery

Under the Hindu Marraige Act, 1955 adultery word is not used in the Section 13 1(i) of the HMA 1955

13. Divorce- (1) Any marriage solemnized, whether before or after the
commencement of the Act, may, on a petition presented by either the husband or
the wife, be dissolved by a decree of divorce on the ground that the other party-
(i) has, after the solemnization of the marriage had voluntary sexual intercourse
with any person other than his or her spouse;

Divorce on Adultery

Now How to prove Adultery in Indian Courts?

The courts in India puts heavy burden on the person who is saying that his estranged spouse and invoked the provision of section 13 1(i) of the HMA 1955. Anything short may come under the crueltyground and petition of divorce can be dismissed, therefore it very important to consider whether constitute adultery or not.

Though direct evidence of adultery is rarely adduced but largely the evidence is circumstantial.

What are the  facts that can prove adultery?

Since circumstantial evidence is the basis of proving adultery, the circumstance like wife and her paramour lived in a Hotel for 1 night and no explanation is given by the wife to this effect then adultery is presumed for this entry in Hotel register, CCTV footage with certificate under section 65B of IT act. It is important to make paramour also a party to the suit though no decree can be sought against the paramour. it is important the evidence of witnesses in are of equal weight age like A Husband brings his girlfriend to house in absence of wife and take her into bedroom. the witnesses can be grown up children, neighbors, maid etc. These are the circumstances where adultery can be presumed.

But a mere suspicion that wife was not home whole night is not enough to prove adultery. There should be voluntary sexual intercourse and if husband tries to create a situation wherein a wife is left alone with male person not his husband under such circumstances it is not adultery. A rape on wife is not adultery.

Even if the paramour of the wife writes filthy letter that too also does not come into an ambit of adultery. what adultery is in the eyes of a reasonable man?  that circumstances are such that a reasonable man would think its adultery. like wife is living with paramour for more than 7 months . Another thing is merely having flirtatious conversation with a person not his/her husband/wife does not mean adultery, though it can come under mental cruelty. Wife conceiving a child and husband was away for 365 days is a conclusive proof.

Conclusion

The ingredients for proving adultery are like the facts in which the intimacy is such that in the eyes of the reasonable man, such intimacy is there, credible evidence needs to be produced before the court to prove adultery merely on the basis of whims fancies suspicion the same cannot be proved. The court also  put the heavy burden of proof on the person alleging. Divorce on adultery is difficult.

In case of Extra Martial affair

In the case of extra martial affair the burden of proof is not that strong the main difference is here you do not have to show physical intimacy proof.

In H Vs. W it is held that the trial court had made a mistake in assesment with regards to evidence the petitioner had infact filed the divorce on the ground of cruelty and not adultery and evidence is different. The court admitted greeting cards and other material like letter and granted divorce on ground of cruelty. Now this judgement is not available online I am publishing extract.

Now another good judgement holding in this field is Barnali sen Vs. Debashish Sen

 From the evidence adduced on behalf of the respective parties it is quite clear, as observed by the learned trial Court, that the appellant was not leading an unblemished life. Even if the evidence of P.Ws. 1, 2 and 3 is treated with circumspection, there is no reason to disbelieve P.W.4, an elderly lady, who quite candidly stated that at the time of her oral testimony she had no sympathy for her daughter-in-law. She too deposed of how Burki Saha’s mother and sister came to her house and threatened her and other members of her family about the appellant’s relationship with Burki Sana which compelled them to shift to the respondent’s unfinished flat at Manicktala. She also stated that even after the family shifted to Manicktala from Paikpara, the appellant did not change her ways and continued to roam outside the house.

57. The evidence of P.W.4 completely supports the case of the respondent, and, on the other hand, it is highly significant that none of the appellant’s family members came to depose or support the appellant’s case. Such conduct is hardly expected from the family members of an Individual whose married life was at stake in the suit, unless they had wilfully chosen to stay aloof which casts a shadow over the simplistic defence taken on behalf of the appellant that the respondent had filed the suit for divorce as she was unable to satisfy his sexual appetite after her repeated operations, including removal of her uterus, which left her in continuous pain.

58. The general view adopted by the Supreme Court and the High Courts is that cruelty against a spouse must be specifically pleaded and such acts of cruelty should be discernible from the evidence adduced, the standard of proof being of a lesser degree than a criminal trial.

59. In our view, the preponderance of events which appears from the evidence adduced by the parties clearly supports the case of mental cruelty made on behalf of the respondent husband who appears to have been compelled to file the suit for divorce after a series of incidents where the marital fidelity of the appellant came to be questioned and the marital ties came under severe strain. In our view, the circumstances were sufficient to establish mental cruelty suffered by the respondent on account of the actions of the appellant.

Conclusion-: In Adultery if you have an absolute proof of physical intimacy then only it is the best way to go on this ground otherwise do not do any mistake to go on ground of adultery if there is only an affair.

How Much Jail time I have to spend if I do not pay maintenance to wife under section 125 Crpc

Default of 125 Cr PC order is viewed seriously by the courts and the amount of coercive action in case of default varies from case to case.

Under section 125(4) the court can take coercive action for enforcing execution of the maintenance order.

The maintenance order can be enforced in two ways by warrant of attachment wherein the assets of the petitioner are attached and amount of arrears are recovered and another way is by warrant of arrest where real jail time the husband has to suffer in case of default.

Now how much jail time he has to go?

The answer to this is maximum of 30 days per application

In Judgement of Ramdhani Sah vs The State Of Jharkhand on 22 June, 2016

It therefore appears that the maximum period for which a person against whom the realisation of arrears of maintenance amount is due, has been taken into custody can be for a period of one month and not beyond that and it can be less than one month if the payment is made prior to the completion of one month in custody. In the case of “Laljee Yadav” (supra) while considering Sub-section 3 of Section 125 of Cr.P.C., it has been held as follows:

31. “Here, we may like to point out another aspect of the matter. As seen above, the maintenance is to be fixed on monthly basis. The sentence has, accordingly, been limited to a month maximum for each breach. Thus, as noticed by the Apex Court in the abovereferred to cases, there has to be separate sentencing upon separate and fresh application after considering the matter for each month or part thereof for which maintenance remains unpaid. Thus, by no stretch of imagination, can there be a continuous mechanical remand as in the present case.”

Maintenance denied to wife because she was not able to prove Cruelty

There are instances where the wife leaves the house and do police complaint on account of dowry demand and harassment and she also files 125 CrPC for claim of maintenance.

In a Judgement of Hon’ble Supreme Court it was decided that when wife is alleging cruelty as a ground for living separately and claiming maintenance, then she has to show that the evidence related to cruelty and dowry demand and when there is no such evidence the maintenance can be denied in such cases.

Deb Narayan Halder vs Smt. Anushree Halder 

The only police report brought on record is one lodged after the respondent left her matrimonial home. We do not attach much importance to this
report. There is no contemporaneous document in the form of letters which may have been written by the respondent to her friends or relatives mentioning about her being subjected to torture or harassment by the appellant. The respondent being an educated lady, it is difficult to believe that she would not have written letters to her friends and relatives during the twelve years that she lived with the appellant as husband and wife. Apart from her mother, the respondent has produced no
evidence of prove that she was tortured and harassed by the appellant.

The Maintenance was denied in this case.

Adv. Nitish Banka

No need to pay maintenance to wife if you get divorce on the grounds of desertion

No without any reason the wife leaves you and after 2 years of efforts to call her back she do not join you thereafter you file a divorce on the grounds of desertion.

Divorce on the ground of desertion is granted when the wife without any reasonable cause leave the matrimonial home and do not come back.

One of the condition of 125 Crpc also is this that the without any sufficient cause wife leaves you then she is not entitled to get maintenance.

Here is the judgement of Hon’ble supreme court which says

In Rohtash Singh Vs, Ramendri case

Under this provision, a wife is not entitled to any Maintenance Allowance from her husband if she is living in adultery or if she has refused to live with her husband without any sufficient reason or if they are living separately by mutual consent. Thus, all the circumstances contemplated by Sub-section (4) of Section 125 Cr. P.C. presuppose the existence of matri- monial relations. The provision would be applicable where the marriage between the parties subsists and not where it has come to an end. Taking the three circumstances individually, it will be noticed that the first circum-stance on account of which a wife is not entitled to claim Maintenance Allowance from her husband is that she is living in adultery. Now, adultery is the sexual intercourse of two persons, either of whom is married to a third person. This clearly supposes the subsistence of marriage between the husband and wife and if during the subsistence of marriage, the wife lives in adultery, she cannot claim Maintenance Allowance under Section 125 of the Code of Criminal Procedure.

The second ground on which she would not be entitled to Maintenance Allowance is the ground of her refusal to live with her husband without any sufficient reason. This also presupposes the subsistence of marital relations between the parties. If the marriage subsists, the wife is under a legal and moral obligation to live with her husband and to fulfil the marital obligations. She cannot, without any sufficient reason, refuse to live with her husband. “Sufficient reasons” have been interpreted differently by the High Courts having regard to the facts of indivisual cases. We are not required to go into that question in the present case as admittedly the marriage between the parties came to an end on account of a decree for divorce having been passed by the Family Court. Existence of sufficient cause on the basis of which the respondent could legitimately refuse to live with the petitioner is not relevant for the present case. In this situation, the only question which survives for consideration is whether a wife against whom a decree for divorce has been passed on account of her deserting the husband can claim Maintenance Allowance under Section 125 Cr. P.C. and how far can the plea of desertion be treated to be an effective plea in support of the husband’s refusal to pay her the Maintenance Allowance.

Admittedly, in the instant case, the respondent is a divorced wife. The marriage ties between the parties do not subsist. The decree for divorce was passed on 15th of July, 1995 and since then, she is under no obligation to live with the petitioner. But though the marital relations came to an end by the divorce granted by the Family Court under Section 13 of the Hindu Marriage Act, the respondent continues to be “wife” within the meaning of Section 125 Cr.P.C. on account of Explanation (b) to Sub-section (1) which provides as under :-

“Explanation. – For the purposes of this Chapter –

(a) ………………………………………………………….

(b) “wife” includes woman who has been divorced by, or has obtained a divorce from her husband and has not remarried.”

On account of the Explanation quoted above, a woman who has been divorced by her husband on account of a decree passed by the Family Court under the Hindu Marriage Act, continues to enjoy the status of a wife for the limited purpose of claiming Maintenance Allowance from her ex-husband. This Court in Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Others, AIR (1978) SC 1807, observed as under :-

“9. This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Art. 39. We have no doubt that, sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause-the cause of the derelicts.”

Claim for maintenance under the first part of Section 125 Cr.P.C. is based on the subsistence of marriage while claim for maintenance of a divorced wife is based on the foundation provided by Explanation (b) to Sub-section (1) of Section 125 Cr. P.C. If the divorced wife is unable to maintain herself and if she has not remarried, she will be entitled to Maintenance Allowance. The Calcutta High Court had an occasion to consider an identical situation where the husband had obtained divorce on the ground of desertion by wife but she was held entitled to Maintenance Allowance as a divorced wife under Section 125 Cr.P.C. and the fact that she had deserted her husband and on that basis a decree for divorce was passed against her was not treated as a bar to her claim for maintenance as a divorced wife. See : Sukumar Dhibar v. Smt. Anjali Dasi, (1983) Crl. L.J. 36. The Allahabad High Court also, in the instant case, has taken a similar view. We approve these decisions as they represent the correct legal position.

You will surely Get Divorce if you have this thing in Divorce Case

In Divorce cases allegations and counter allegations are quite common if counter allegations are scandalous then surely you will get divorce

In Malar Vijy Vs. Kanthan and another13Wherein it has been
observed as follows;
―22. In Manisha Sandeep Gade v. Sandeep Vinayak Gade14 a Division
Bench of the Bombay High Court, while considering the question as to
whether the unsubstantiated and unproved allegation of adultery leveled
against the husband by the wife would amount to mental cruelty, has
held that it will amount to mental cruelty. It was a case where the
husband has sought for divorce on the ground of cruelty and while
defending the petition, the wife in her written statement, apart from
defending her and refuting the allegations made against her, had made
several allegations against her husband and one such allegation was
that he had illicit relationship with one Leena, wife of Vivek and in fact
he wanted to marry her. While considering the legal effect of such an
allegation, the Division Bench has held as follows:-
“30. What we have to note is that when one party to the petition has
sought divorce on some ground and the respondent to that petition
does not merely defend it to get it defeated, but makes further serious
allegations against the petitioner, it becomes a clear step towards the
dissolution of the marriage. In the present matter, the petitioner has
approached the Court seeking dissolution of his marriage. It is his case
that there is a failure of the marriage and he seeks to point it out by


invoking a ground available under the law. At that point of time, if the
respondent makes a counter allegation in the written statement, that by
itself shows a prima facie failure of the marriage. ….

  1. …. In a matrimonial matter, one cannot apply the standard of stricter
    evidence. Nothing prevented her from establishing her allegations. The
    respondent could not have established the negative by leading any
    further evidence that the allegations made by the wife were false. The
    appellant had made the allegations. The burden was on her. She had
    failed to prove those allegations. Once she fails to prove those
    allegations and if those allegations are not in consonance with
    matrimonial relationship, and the husband complains that they have
    caused him agony, the inference that they constitute cruelty has to
    follow.
  2. In the circumstances we are satisfied that the learned Judge was
    right in coming to the conclusion that the allegations made by the
    appellant wife were baseless and false and constituted a cruelty. He
    was, therefore, right in granting the decree of divorce on that ground. …”
  3. In Kiran Mandal v. Mohini Mandal15 a Division Bench of that Court,
    has held as follows:-
    “14. … She made false allegations against her husband that he had illicit
    relations with his brother’s wife. These false allegations did have an
    injurious effect on the husband.

15 AIR 1989 PUNJAB AND HARYANA 310
Page 30 of 39

  1. Cruelty within the meaning of S. 13 of the Hindu Marriage Act is not
    confined to physical violence but includes mental torture caused by one
    spouse to the other. The wife had made it insufferable for the husband
    to live with her. Any man with reasonable self respect and power of
    endurance will find it difficult to live with a taunting wife, when such
    taunts are in fact insult and indignities. Human nature being what it is, a
    reasonable man’s reaction to the conduct of the offending spouse is the
    test and unending accusations and imputations can cause more pain
    and misery than physical beating. ….”
  2. In Smt. Chanderkala Trivedi v. Dr. S.P.Trivedi16
    , the husband sued for
    divorce on the ground of cruelty by wife. The wife filed a written
    statement wherein she attributed adultery to the husband. In reply
    thereto the husband put forward another allegation against the wife that
    she was having undesirable association with young boys. Considering
    the mutual allegations, His Lordship, R.M.Sahai, J., speaking for
    Division Bench, observed:
    “Whether the allegation of the husband that she was in the habit of
    associating with young boys and the findings recorded by the three
    Courts are correct or not but what is certain is that once such
    allegations are made by the husband and wife as have been made in this
    case then it is obvious that the marriage of the two cannot in any

16 1993 (3) Scale 541
Page 31 of 39
circumstance be continued any further. The marriage appears to be
practically dead as from cruelty alleged by the husband it has turned out
to be at least intimacy of the husband with a lady doctor and
unbecoming conduct of a Hindu wife.”

  1. In the light of the law laid down in the aforesaid decisions, if the
    facts of the present case are considered, it could be seen that when
    serious allegations of adultery is made by the wife against the husband
    and the same stands unsubstantiated that will definitely amount to
    mental cruelty as far as the husband is concerned. The unfounded
    allegations made by the wife against her husband by itself shows the
    prima facie failure of the marriage.
  2. As far as the contentions of the learned counsel for the appellant
    that unless and until the 1st respondent substantiates his allegations
    contained in the petition, he is not entitled for decree for divorce and
    merely on the ground that when the wife has made serious allegations,
    he is not entitled to get decree is concerned, it has to be pointed out that
    making unsubstantiated allegations about the character of the husband
    and accusing him of illicit intimacy would itself amount to mental
    cruelty. Therefore, the said contention of the learned counsel for the
    appellant cannot be countenanced when the very allegations made
    against the 1st respondent will amount to mental cruelty.
  3. Under the above circumstances, it is immaterial that the 1st
    respondent should establish the allegations of cruelty pleaded in the
    petition. Therefore, the said contention of the learned counsel is
    rejected.
    Page 32 of 39
  4. We do not find any other valid reason to interfere with the reasoning
    of the Court below. Hence the appeal fails and the same is dismissed.
    No order as to costs.‖
    The above position is reiterated in a recent Judgement of the Division
    Bench of Honourable High Court of Madras in R. Frederick Vs. H. Malini17
    ,
    wherein it has been held as follows:
    ―19. Even though mental cruelty cannot be defined preciously, yet, it can
    be inferred on the basis of the attendant facts and circumstances of the
    case. In this context, useful reference could be made to the decision of
    the Hon’ble Supreme Court in K.Srinivas Rao Vs. D.A.Deepa18, wherein it
    was held as follows:
    ―10. Cruelty can never be defined with exactitude. What is cruelty, will
    depend upon the facts and circumstances of each case. In the present
    case, from the facts narrated above, it is apparent that the wife made
    reckless, defamatory and false accusations against her husband, his
    Family Members and colleagues, which would definitely have the effect
    of lowering his reputation in the eyes of his peers. Mere filing of
    complaints is not cruelty, if there are justifiable reasons to file the
    complaints. Merely because no action is taken on the complaint or after
    trial the Accused is acquitted may not be a grounds to treat such
    accusations of the wife as cruelty within the meaning of the Hindu
    Marriage Act. However, if it is found that the allegations are patently
    false, then there can be no manner of doubt that the said conduct of a
    spouse, leveling false accusations against the other spouse would be an
    act of cruelty……‖
  5. Thus, the plea of Mental Cruelty cannot be precisely defined, yet,
    making unfounded, indecent, defamatory allegations against the spouse


or his or her relatives which may have adverse impact on the business
prospect or the job of the spouse would itself amount to cruelty. In the
present case, the respondent has harped upon by contending that the
Appellant led an adulterous life with one Shubha, Bharathi and other
women, but such allegations are largely not substantiated either by
examining the aforesaid persons or by any other proof to show that the
Appellant was in fact having illicit intimacy with them. Further, it was
proved from the oral evidence as well as pleadings of the respondent
that she has informed the sister, brother and mother of the Appellant as
though the Appellant was living an adulterous relationship with other
woman. When the respondent, without any substance, has informed the
sister, brother and mother of the Appellant as though the Appellant is
leading an adulterous life, definitely, it would be difficult, rather the
Appellant would be ashamed, to even interact or meet his own sister,
brother and mother in the wake of such scandalous and disparaging
remarks made against him by the Respondent. Moreover, we are also of
the opinion that if a suspicious nature of one of the spouse doubting the
fidelity of the husband or wife as the case may be, becomes a perennial
feature without any basis, leading to discord in the matrimonial life, it is
only a reflection of cruelty inflicted by one of the spouse against the
other. In such circumstances, we feel that the accusations made
by the Respondent against the Appellant, which remain largely
unsubstantiated, with respect to adulterous living, would have definitely
caused him a scar, mental disturbance and mental cruelty to him.
Therefore, we hold that the Appellant has proved that he was inflicted
with and subjected to matrimonial cruelty at the hands of the
Respondent.‖
Hence a Lawyer should be very cautious while making the cross
examination and shall ensure that the allegations leveled against the other
spouse should not become fatal to his own case.

Can court see my evidence/Defence at stage of Discharge in False 498a?

In false 498a you have an evidence of your innocence it can be the evidence related to plea of alibi that means you are not present at the time of incidence.

It can be watsapp messages, witness statement, documents or photos to prove your innocence, these are very important evidence can lead you to become free in 498a.

Now at the stage of discharge you put all these evidence with your discharge application.

Now there are two problems with this one is you disclose the defense and prosecution will get an opportunity to manipulate its case and add their stories. The element of surprise is important in criminal trial so as to get the guilt out. The other problem with this approach is that the accused evidence is not even considered at this stage.So it is useless to put evidence at this stage.

Even you cannot call documents at stage of discharge which will be used as a defence under section 91

State of Orissa versus Debendra Nath Padhi (2005) 1 SCC 568 and reiterated in the subsequent decisions. The defence could not be considered at the stage of framing of charge so as to avoid a mini trial.

legal Affairs, West Bengal v. Anil Kumar Bhunja and Others [ (1979) 4 SCC 274 ] and State of Bihar v. Ramesh Singh [ (1977) 4 SCC 39 ] it was observed that at the time of framing a charge the trial court can consider only the material placed before it by the investigating agency, there being no requirement in law for the court to grant at that stage either an opportunity to the accused to produce evidence in defence or consider such evidence the defence may produce at that stage. 

Now there may be a case in which the investigation is concluded and evidence is suppressed which is in the favour of accused. Now in such circumstances in which

Thus, it is clear that while ordinarily the Court has to proceed on the basis of material produced with the charge sheet for dealing with the issue of charge but if the court is satisfied that there is material of sterling quality which has been withheld by the investigator/prosecutor, the court is not debarred from summoning or relying upon the same even if such document is not a part of the charge sheet. It does not mean that the defence has a right to invoke Section 91 Cr.P.C. de hors the satisfaction of the court, at the stage of charge.

It is clear from Nitya case only documents or evidence of sterling quality can be presented at time of discharge

Advocate Nitish Banka

9891549997

The Admissibility of video and audio recording evidence in Matrimonial Cases. Can breach of privacy admissible

The Admissibility of video and audio recording evidence in Matrimonial Cases. Can breach of privacy admissible

These days in matrimonial cases audio and video evidence are important evidence in deciding matrimonial cases these days.

Now what if you put a software in the mobile phone of your wife and record all the calls?

What if you record conversation between wife and husband?

What if you do video recording in your own house?

All these questions answer to breach of privacy.

Now the main question is whether the evidence collected in breach of privacy is admissible?

In matrimonial other party may object that audio or video recording collected in the course of trial is in admissible if it is in the breach of the privacy.

The Answer to this is the recent Delhi High Court Judgement ofDeepti Puri Vs. Kunal Julka

The petitioner/wife is the respondent in the aforesaid divorce petition
which was filed on 26.09.2012 by the respondent/husband seeking



dissolution of their marriage on the ground of cruelty available under section
13(1)(ia) of the Hindu Marriage Act, 1955. In the divorce proceedings, the
husband filed a Compact Disc (CD) purporting to contain an audio-video
recording of the wife supposedly speaking with her lady friend, by name
Sugandha, on phone and talking about the husband and his family in a
manner, which the husband claims was derogatory, defamatory and
constituted cruelty to him. In the written statement filed by the wife in the
divorce proceedings, she opposed the taking on record of the CD and the
purported transcript of conversation contained therein. The wife opposed the
CD being brought on record on the ground, firstly, that the contents of the
CD were tampered with and were therefore not authentic ; and secondly, that
the contents of the CD were not admissible in evidence since they were a
recording of a ‘private’ conversation that the wife had had with a friend,
which had been secretly recorded by the husband, without the knowledge or
consent of the wife, in breach of her fundamental right to privacy.

In response to the wife’s objections, the husband moved an
application before the Family Court, in which he in effect sought
appointment of an expert to prove the genuineness of the CD with the
purpose of bringing the CD on record. Agreeing with the husband’s
contentions, by way of impugned order dated 24.12.2018, the Family Court
allowed the husband to bring on record the evidence comprised in the CD,
while directing that the contents of the CD be examined by the Forensic
Science Laboratory (FSL) to assess the genuineness of the recording. By
way of the impugned order, the Family Court has directed the FSL to render
its opinion on the following aspects :



“The FSL shall report :(l) (sic) Whether the contents of CD
and the original recording in the recording device are at
variance? (2) Whether the original recording has been
tempered (sic) with? (3)Whether the transcript relied upon
by the petitioner is correct, as per the original recording?”While the prayer made in the application on which the Family Court has made the impugned order is somewhat ambiguous, the essential question
raised in the present proceeding is as regards the admissibility of the
contents of the CD, since according to the wife, the conversation comprised
in the CD has been recorded in breach of her fundamental right to privacy;
and is therefore inadmissible in evidence.

In this Judgement a Supreme Court judgement was referred

Now, if the Evidence Act, 1872 which is a law consolidating,
defining and amending the law of evidence, no provision of
which is challenged as violating the Constitution — permits
relevancy as the only test of admissibility of evidence (See
Section 5 of the Act) and, secondly, that Act or any other
similar law in force does not exclude relevant evidence on the
ground that it was obtained under an illegal search or seizure,
it will be wrong to invoke the supposed spirit of our
Constitution for excluding such evidence. Nor is it open to us
to strain the language of the Constitution, because some
American Judges of the American Supreme Court have spelt
out certain constitutional protections from the provisions of the
American Constitution. In M.P. Sharma v. Satish Chander
already referred to, a search and seizure made under the
Criminal Procedure Code was challenged as illegal on the
ground of violation of the fundamental right under Article
20(3), the argument being that the evidence was no better than
illegally compelled evidence. In support of that contention
reference was made to the Fourth and Fifth Amendments of the
American Constitution and also to some American cases which
seemed to hold that the obtaining of incriminating evidence by
illegal seizure and search tantamounts to the violation of the
Fifth Amendment. The Fourth Amendment does not place any
embargo on reasonable searches and seizures. It provides that
the right of the people to be secure in their persons, papers and
effects against unreasonable searches and seizures shall not be
violated. Thus the privacy of a citizen’s home was specifically
safeguarded under the Constitution, although reasonable


searches and seizures were not taboo. R
submission, this Court observed at p. 1096:


“A power of search and seizure is in any system of
jurisprudence an overriding power of the State for the
protection of social security and that power is necessarily
regulated by law. When the Constitution makers have
thought fit not to subject such regulation to
constitutional limitations by recognition of a
fundamental right to privacy, analogous to the American
Fourth Amendment, we have no justification to import it,
into a totally different fundamental right, by some process
of strained construction. Nor is it legitimate to assume that
the constitutional protection under Article 20(3) would be
defeated by the statutory provisions for searches.”

It must be borne in mind that
Family Courts have been established to deal with what are essentially
sensitive, personal disputes relating to dissolution of marriage, restitution of conjugal rights, legitimacy of children, guardianship, custody, and access to minors; which matters, by the very nature of the relationship from which
they arise, involve issues that are private, personal and involve intimacies. It is easily foreseeable therefore, that in most cases that come before the
Family Court, the evidence sought to be marshalled would relate to the
private affairs of the litigating parties. If section 14 is held not to apply in its
full expanse to evidence that impinges on a person’s right to privacy, then
section 14 may as well be effaced from the statute. And yet, falling back
upon the general rule of evidence, the test of admissibility would only be
relevance ; and accordingly, even ignoring section 14, fundamental
considerations of fair trial and public justice would warrant that evidence be received if it is relevant, regardless of how it is collected. No purpose would therefore be served by emasculating the salutary provisions of section 14 of the Family Courts Act by citing breach of privacy. Looking at it
dispassionately, even assuming evidence is collected in breach of privacy, at
best and at worst, it is the process of collection of evidence that would be
tainted not the evidence itself.

That being said however, considering the breadth of the power
conferred upon it under section 14 of the Family Courts Act, some
safeguards are required to be considered by the Family Court while
exercising its power to receive evidence under that provision. Firstly, even
though a given piece of evidence may have been admitted on the record, the
Family Court must be extremely circumspect in what evidence it chooses to
rely upon in deciding the dispute, particularly the authenticity and
genuineness of the evidence, for which stringent standards must be applied.
Secondly, if in its opinion the nature of the evidence sought to be adduced is
inappropriate, embarrassing or otherwise sensitive in nature for any of the
litigating parties, or for that matter for some other person not directly
connected with the litigation, the court may restrict the parties who are
present in court at the time of considering such evidence ; or may anonymise
or redact the evidence ; or may conduct in-camera proceedings so as not to
cause distress to any person or party, while at the same time not hesitating to
receive evidence that the Family Court considers necessary for effectively
deciding the dispute. All proceedings must be conducted strictly within the
bounds of decency and propriety; and no opportunity should be given to any
party to create a spectacle in the guise of producing evidence. Thirdly, in
egregious cases, the Family Court may initiate or direct initiation of legal
action against a litigating party or other person, who may appear guilty of
procuring evidence by illegal means. Any party aggrieved by the production
of such evidence would also be at liberty to initiate appropriate proceedings,
whether in civil or criminal law, against concerned parties for procuring
evidence illegally, although the initiation or pendency of such proceedings.

Adv. Nitish Banka

9891549997

Best Judgement to use keep your family members out of 498a

I am sharing best judgments you can use to keep out relatives of husband out of false 498a…

Remember that I have made lots of videos of quashing 498a fir in case of relatives of the husband like his mother father, sister or brother.

Wife generally implicate relatives of the husband who are mother, father etc. just to kick more pressure on husband to fulfill all the demands which are exhobirant.

Here are the best judgements you should always use in quashing or discharge or in final arguments in 498a case.

  1. Geeta Mehrotra & Anr vs State Of U.P. & Anr 

Best Judgement in this field this is a best judgement you should use in arguments

It was still left to be decided whether it was a fit case to send the appellants for trial when the FIR failed to make out a prima facie case against them regarding the allegation of inflicting physical and mental torture to the complainant demanding dowry from the complainant. Since the High Court has failed to consider all these aspects, this Court as already stated hereinbefore, could have remitted the matter to the High Court to consider whether a case was made out against the appellants to proceed against them. But as the contents of the FIR does not disclose specific allegation against the brother and sister of the complainant’s husband except casual reference of their names, it would not be just to direct them to go through protracted procedure by remanding for consideration of the matter all over again by the High Court and make the unmarried sister of the main accused and his elder brother to suffer the ordeal of a criminal case pending against them specially when the FIR does not disclose ingredients of offence under Sections 498A/323/504/506IPC and Sections 3/4 of the Dowry Prohibition Act.

. We, therefore, deem it just and legally appropriate to quash the proceedings initiated against the appellants Geeta Mehrotra and Ramji Mehrotra as the FIR does not disclose any material which could be held to be constituting any offence against these two appellants. Merely by making a general allegation that they were also involved in physical and mental torture of the complainant-respondent No.2 without mentioning even a single incident against them as also the fact as to how they could be motivated to demand dowry when they are only related as brother and sister of the complainant’s husband, we are pleased to quash and set aside the criminal proceedings in so far as these appellants are concerned and consequently the order passed by the High Court shall stand overruled. The appeal accordingly is allowed.

2. AIR 2003 SC 1386 in the matter of B.S. Joshi & Ors. vs. State of Haryana & Anr. it was observed that there is no doubt that the object of introducing Chapter XXA containing Section 498A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view to punish the husband and his relatives who harass or torture the wife to coerce her relatives to satisfy unlawful demands of dowry. But if the proceedings are initiated by the wife under Section 498A against the husband and his relatives and subsequently she has settled her disputes with her husband and his relatives and the wife and husband agreed for mutual divorce, refusal to exercise inherent powers by the High Court would not be proper as it would prevent woman from settling earlier. Thus for the purpose of securing the ends of justice quashing of FIR becomes necessary, Section 320 Cr.P.C. would not be a bar to the exercise of power of quashing. It would however be a different matter depending upon the facts and circumstances of each case whether to exercise or not to exercise such a power.

3. Ramesh vs. State of Tamil Nadureported in (2005) SCC (Crl.) 735 at 738

. The High Court by the impugned order dismissed the petition observing that the grounds raised by the petitioners were all subject matters to be heard by the trial court for better appreciation after conducting full trial as the High Court was of the view that it was only desirable to dismiss the criminal original petition and the same was also dismissed. However, the High Court had directed the Magistrate to dispense with the personal attendance of the appellants.

Their Lordships of the Supreme Court in this matter had been pleased to hold that the bald allegations made against the sister in law by the complainant appeared to suggest the anxiety of the informant to rope in as many of the husband’s relatives as possible. It was held that neither the FIR nor the charge sheet furnished the legal basis for the magistrate to take cognizance of the offences alleged against the appellants. The learned Judges were pleased to hold that looking to the allegations in the FIR and the contents of the charge sheet, none of the alleged offences under Section 498 A, 406 and Section 4 of the Dowry Prohibition Act were made against the married sister of the complainant’s husband who was undisputedly not living with the family of the complainant’s husband. Their Lordships of the Supreme Court were pleased to hold that the High Court ought not to have relegated the sister in law to the ordeal of trial. Accordingly, the proceedings against the appellants were quashed and the appeal was allowed.

4. Preeti Gupta & Anr vs State Of Jharkhand & Anr on 13 August, 2010

Admittedly, appellant no.1 is a permanent resident of Navasari, Surat, Gujarat and has been living with her husband for more than seven years. Similarly, appellant no.2 is a permanent resident of Goregaon, Maharasthra. They have never visited the place where the alleged incident had taken place. They had never lived with respondent no.2 and her husband. Their implication in the complaint is meant to harass and humiliate the husband’s relatives. This seems to be the only basis to file this complaint against the appellants. Permitting the complainant to pursue this complaint would be an abuse of the process of law.

28. It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. All the courts in our country including this court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society.

29. The courts are receiving a large number of cases emanating from section 498-A of the Indian Penal Code which reads as under:-

“498-A. 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 purposes 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.”

It is a matter of common experience that most of these complaints under section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.

The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fiber of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under section 498-A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fiber, peace and tranquility of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases.

Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.

The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband’s close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband’s relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful.

Before parting with this case, we would like to observe that a serious relook of the entire provision is warranted by the legislation. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases.

The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting peace, harmony and happiness of the society. It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law. It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law. We direct the Registry to send a copy of this judgment to the Law Commission and to the Union Law Secretary, Government of India who may place it before the Hon’ble Minister for Law & Justice to take appropriate steps in the larger interest of the society.

5. Ruchi Agarwal vs Amit Kumar Agrawal & Ors on 5 November, 2004

Learned counsel appearing for the appellant, however, contended that though the appellant had signed the compromise deed with the above-mentioned terms in it, the same was obtained by the respondent-husband and his family under threat and coercion and in fact she did not receive lump sum maintenance and her Stridhan properties, we find it extremely difficult to accept this argument in the background of the fact that pursuant to the compromise deed the respondent-husband has given her a consent divorce which she wanted thus had performed his part of the obligation under the compromise deed. Even the appellant partially performed her part of the obligations by withdrawing her criminal complaint filed under Section 125. It is true that she had made a complaint in writing to the Family Court where Section 125 Cr.P.C. proceedings were pending that the compromise deed was filed under coercion but she withdrew the same and gave a statement before the said court affirming the terms of the compromise which statement was recorded by the Family Court and the proceedings were dropped and a divorce was obtained. Therefore, we are of the opinion that the appellant having received the relief she wanted without contest on the basis of the terms of the compromise, we cannot now accept the argument of the learned counsel for the appellant. In our opinion, the conduct of the appellant indicates that the criminal complaint from which this appeal arises was filed by the wife only to harass the respondents.

In view of the above said subsequent events and the conduct of the appellant, it would be an abuse of the process of the court if the criminal proceedings from which this appeal arises is allowed to continue. Therefore, we are of the considered opinion to do complete justice, we should while dismissing this appeal also quash proceedings arising from the Criminal Case No.Cr.No.224/2003 registered in Police Station, Bilaspur, (Distt.Rampur) filed under Sections 498A323 and 506 IPC and under Sections 3 and 4 of the Dowry Prohibition Act against the respondents herein. It is ordered accordingly. The appeal is disposed of.

By Advocate Nitish Banka

9891549997

Can the report of Mediation be used as evidence? What if wife admits she has done a false case.

The question is if wife admits that she has done a false case to implicate other people in mediation can I use this as a evidence can mediator can be a witness?

The Answer of this question is clearly no.

Mediation proceedings are the confidential proceedings in which the party can do conversations without being threatned that the conversation can be used against the party themselves.

So even if wife admits that she has filed false cases against the husband and other inlaws then also the same cannot be used as an evidence.

See the Judgement Smriti Madan Kanagra.,

There can, be no quarrel with the proposition that the mediation proceedings are confidential and anything disclosed, discussed or proposed before the mediator need not be recorded, much less divulged and that if it is done there would always be an apprehension that the discussion may be used against the parties and it would hamper the entire process. The atmosphere of mutual trust warrants complete confidentiality and the same is in fact noted in the main judgment. The petitioner is aggrieved by its later part which notes “but where the scope of the mediation is resolution of child parentage issue, the report concerning the behaviour and attitude of the child would not fall within the bar of confidentiality”. To our mind, this is against the principle of mediation and charts the course of a slippery slope, as this judgment would hereafter discuss.

23. In this context, it is useful to recollect that an earlier decision of the Supreme Court had mandated proceedings before Family Courts could be held by using video-conference technology. The order referring the correctness of that decision in Santini I (supra) perceptively stated as follows:

―17. Unfortunately, it seems, none of these mandatory procedures as laid down by the Parliament have been brought to the notice of the Court while considering the case of Krishna Veni Nagam (supra). The principal thrust of the law in family matters is to make an attempt for reconciliation before processing the disputes in the legal framework. Reconciliation is not mediation. Neither is it conciliation. No doubt, there is conciliation in reconciliation. But the concepts are totally different. Similarly, there is mediation in conciliation but there is no conciliation in mediation. In mediation, the role of the mediator is only to evolve solutions whereas in reconciliation, the duty-holders have to take a proactive role to assist the parties to reach an amicable solution. In conciliation, the conciliator persuades the parties to arrive at a solution as suggested by him in the course of the discussions. In reconciliation, as already noted above, the duty-holders remind the parties of the essential family values, the need to maintain a cordial relationship, both in the interest of the husband and wife or the children, as the case may be, and also make a persuasive effort to make the parties reconcile to the reality and restore the relationship, if possible. TheFamily Courts Act expects the duty-holders like the court, counsellors, welfare experts and any other collaborators to make efforts for reconciliation. However, reconciliation is not always the restoration of status quo ante; it can as well be a solution as acceptable to both parties. In all these matters, the approaches are different.

18. The role of a counsellor in Family Court is basically to find out what is the area of incompatibility between the spouses, whether the parties are under the influence of anybody or for that matter addicted to anything which affects the normal family life, whether they are taking free and independent decisions, whether the incompatibility can be rectified by any psychological or psychiatric assistance etc. The counsellor also assists the parties to resume free communication. In custody matters also the counsellor assists the child, if he/she is of such age, to accept the reality of incompatibility between the parents and yet make the child understand that the child is of both parents and the child has a right to get the love and affection of both the parents and also has a duty to love and respect both the parents etc. Essentially, the counsellor assists the parents to shed their ego and take a decision in the best interest of the child.

The entire process of Mediation will be confidential and whatever is submitted to the Mediator will not be divulged or produced or be admissible in any Court proceedings. The Mediator will not be compelled to appear as a witness in any Court of law.‖

Advocate Nitish Banka

9891549997

19. To what extent the confidence and confidentiality will be safeguarded and protected in video conferencing, particularly when efforts are taken by the counsellors, welfare experts, and for that matter, the court itself for reconciliation, restitution of conjugal rights or dissolution of marriage, ascertainment of the wishes of the child in custody matters, etc., is a serious issue to be considered. It is certainly difficult in video conferencing, if not impossible, to maintain confidentiality. It has also to be noted that the footage in video conferencing becomes part of the record whereas the reconciliatory efforts taken by the duty- holders referred to above are not meant to be part of the record. All that apart, in reconciliatory efforts, physical presence of the parties would make a significant difference. Having regard to the very object behind the establishment of Family Courts Act 1984, to Order XXXIIA of the Code of Civil Procedure and to the special provisions introduced in the Hindu Marriage Act under Sections 2223, and 26 , we are of the view that the directions issued by this Court in Krishna Veni Nagam (supra) need reconsideration on the aspect of video conferencing in matrimonial disputes.‖

24. Later, in the main majority judgment (Santini-II) in a three judge bench, the role of the Family Court was explained as follows:

―The reconciliation requires presence of both the parties at the same place and the same time so as to be effectively conducted. The spatial distance will distant the possibility of reconciliation because the Family Court Judge would not be in a position to interact with the parties in the manner as the law commands. By virtue of the nature of the controversy, it has its inherent sensitivity. The Judge is expected to deal with care, caution and with immense sense of worldly experience absolutely being conscious of social sensibility. Needless to emphasise, this commands a sense of trust and maintaining an atmosphere of confidence and also requirement of assurance that the confidentiality is in no way averted or done away with. There can be no denial of this fact. It is sanguinely private.

********** ********* The Family Court Judge is only meant to deal with the controversies and disputes as provided under the 1984 Act. He is not to be given any other assignment by the High Court. The in camera proceedings stand in contradistinction to a proceeding which is tried in court. When a case is tried or heard in court, there is absolute transparency. Having regard to the nature of the controversy and the sensitivity of the matter, it is desirable to hear in court various types of issues that crop up in these types of litigations. The Act commands that there has to be an effort for settlement. The legislative intendment is for speedy settlement. The counsellors can be assigned the responsibility by the court to counsel the parties. That is the schematic purpose of the law. The confidentiality of the proceedings is imperative for these proceedings.‖

Independent witnesses in 498a

You are saying that your wife has done a false case on you very well but do you know that if wife brings independant witnesses in court in her favour then it will be come case of conviction.

Independent witnesses are the key for 498a trial. Independent witnesses adds credibility of the case and courts start believing the statements of interested witnesses also.

Now ho are independant witnesses who can come and give statement against you.

These can be neighbors, family friends, common friends, far off relative, security guard, panchayat members.

If any one of these come as an eyewitness to the fact that you have demanded dowry infront of them then the court view on the case will change and can lead to conviction.

I have done some research on this

In the case of: Vithal Mhasuji Gadhe vs The State Of Maharashtra on 17 June, 2011

 Moreover, the testimony of Nandu Kale (PW 5), who is posed to be independent witness, loses its weightage since there is criminal background to the said witness which has been revealed in his cross examination. Moreover, even so called independent witness Nandu Kale (PW 5) nowhere spells out about alleged demand and harassment by the accused to victim Surekha due to non-fulfillment thereof and hence, his testimony cannot be of any aid and assistance to the case of the prosecution in respect of the said charge. Besides, there is variance between version of the said independent witness Nandu Kale (PW 5) and Laxman (PW 2), the complainant, regarding the said charge under Section 498A of IPC. Thus, the evidence adduced and produced by the prosecution is inconsistent and there are infirmities and discrepancies in the evidence adduced and produced by the prosecution and hence, considering the said deformities and also considering the other circumstances of the case, presumption under Section 113A of the Evidence Act cannot be raised against accused no.1 i.e. appellant herein, and conviction inflicted upon the appellant herein under Section 498A of IPC shall not sustasin since there is no basis and foundation of legal evidence therefor.

In Gujrat High Court Judgement

Evidence of one independent witness, friend of the deceased is a sufficient and material to prove ingredient of Sections- 498A and 306 of IPC and Dowry Act. I have minutely perused the evidence of PW-12-Nurhat Parvin, friend of the deceased, who disclosed reality of the allegations made against the present appellant-accused. After perusing genuineness of the evidence of the prosecution case in detail, learned trial Judge has rightly observed that prosecution has proved its case beyond reasonable doubt. As per the observations in the case of Ramilaben Hasmukhbhai Khristi w/o Hasmukhbhai Ashabhai (supra), Statements made under Section-174 of the Code of Criminal Procedure, cannot be considered as substantive evidence. As per Section-113 of Indian Evidence Act, presumption is required to be drawn against the present appellant-accused. I am of the opinion that learned trial learned trial Judge has rightly convicted the appellant- accused for the alleged offences

independent witness-PW-12-Nurhat Parvin, who is a friend of the victim, there was mental and physical torture given by the appellant to the deceased and due to such conduct, deceased committed suicide. Mr.Soni, further submitted that this witness is a star witness of the prosecution case and through cross-examination of this witness, defence could not establish any negative conduct of this witness.

Advocate Nitish Banka

9891549997