Modification of Maintenance under 25(2) DV ACT

Article on Section 25(2) of The Protection of Women from Domestic Violence Act, 2005

Section 25(2) of The Protection of Women from Domestic Violence Act, 2005 provides for alteration, modification or revocation of maintenance if there is a change in circumstances so warrant. Section 25(2) can be used if you are ordered to pay maintenance under the Domestic Violence Act.

The Section states:

“If the Magistrate, on receipt of an application from the aggrieved person or the respondent, is satisfied that there is a change in the circumstances requiring alteration, modification or revocation of any order made under this Act, he may, for reasons to be recorded in writing pass such order, as he may deem appropriate.”

This means that if there is a change of circumstances of the respondent, like you have lost your job, your income has been reduced, if you are a businessman you have faced huge losses due to exceptional situations like the most recent Covid-19 and you are unable to pay the pre-decided amount of maintenance, you can file an application in the concerned court for modification/ reduction or cancellation of maintenance.

The parties may move the application in the Apex court for alteration, modification or cancellation of the order passed by the lower court. The parties must have relevant grounds and evidence to take favourable orders under Section 25(2) of The DV Act i.e., to alter, modify and revoke the previous order of the lower court.

In K. Shiva kumar vs. K. Parvathi passed by High court of Karnataka in 2014, where the Hon’ble court gave directions to the Trial court to reconsider the application under Section 125 of CrPC and restore the matter under the Trial court.

There are several other judgments of the High court in which the Hon’ble High Court gave directions to the trial court to reconsider the facts and evidences and alter, modify and revoke the past order.

In Kamlesh Kumar Tiwari vs. Kamini Tiwari the application of petitioner seeking clarification got rejected by the Supreme court as it was evident from the memo of appeal of the first round of litigation and the order of appellate court, the petitioner has specifically taken a plea of ouster from residence and said plea was considered by the appellate court and rejected. Therefore, there are no grounds to review the petition so the petition has been dismissed.   

There are several other judgments as well which has been dismissed by the courts due to lack of relevant evidence from the side of the parties. For example Nisha Anna Saji vs. Anil Thomas, Amalraj Petitioner vs. Kanikkai Meri, etc.

Do not do this during Bail hearing in 498a?

The Bail is the discretionary relief and there is no prediction whether a bail is to be given or not.

With so much of un predictability there comes something from the Judge side.

Now in 498a bail case sometimes judge may ask you to settle the case and may ask for an offer from your end.

Now the issue is some clients may get offended as they do not wish to settle the matter so easily or does not wish to give anything to the wife side.

They don’t understand that the Judge is giving you a favor if he is offering this to you or even asking.

You have to understand as to why he is asking you the same.

He could have simply dismissed the bail application

Then you will run around for higher courts or face arrest.

At the stage of bail if judge is offering you this then you should not refuse and give some reasonable offer to settle the dispute.

There may be chances that the judge may ask you to deposit some amount or give wife maintenance, again it is a favor to you.

If you completely refuse then the judge may dismiss your application…

How to add Your evidence in investigation only in 498a

I see many number of clients who have evidence with them and waiting for the Defence evidence stage to use it. The problem with this is sometimes the best possible evidence cannot be produced by the husband to prove his innocence.

Now if the husband is saying that his relatives where not present at the time of the incidence as purported to be alleged in the investigation.

The husband can show CDR or through mobile location. Now if police is not collecting the details and doing one sided investigation then the only recourse husband has is to approach the court.

Obviously if police calls in pursuant to 41A notice the husband can circulate a letter to IO to summon the records and even after that the IO do not summon.

The husband can move concerned magistrate court with and application of monitoring investigation and section 91 application to preserve CDR or CCTV as the case may be.

If the magistrate court orders the the same can be record of chargesheet a glaring proof of your/family member innocence.

The same can be used to discharge or quashing also..at the time of filing chargesheet.

Now if the police do not do the needful and does not make the records as part of chargesheet.

The husband can demand after filing of the charge sheet under section 173(8) for further investigation.

 There is no good reason given by the Court in these decisions as to why a Magistrate’s powers to order further  investigation would suddenly cease upon process being issued, and an accused appearing before the Magistrate, while concomitantly, the power of the police to further investigate the offence continues right till the stage the trial commences. Such a view would not accord with the earlier judgments of this Court, in particular, Sakiri (supra), Samaj Parivartan Samudaya (supra), Vinay Tyagi (supra), and Hardeep Singh (supra); Hardeep Singh (supra) having clearly held that a criminal trial does not begin after cognizance is taken, but only after charges are framed. What is not given any importance at all in the recent judgments of this Court is Article 21 of the Constitution and the fact that the Article demands no less than a fair and just investigation. To say that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrate’s nod under Section 173(8) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases mid-

way through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left  out. There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to Section 156(3) read with Section 156(1)Section 2(h), and Section 173(8) of the CrPC, as has been noticed hereinabove, and would be available at all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law. If, for example, fresh facts come to light which would lead to inculpating or exculpating certain persons, arriving at the truth and doing substantial justice in a criminal case are more important than avoiding further delay being caused in concluding the criminal proceeding, as was held in Hasanbhai Valibhai Qureshi (supra). Therefore, to the extent that the judgments in Amrutbhai Shambubhai Patel (supra), Athul Rao (supra) and Bikash Ranjan Rout (supra) have held to the contrary, they stand overruled. Needless to add, Randhir Singh Rana v. State (Delhi Administration) (1997) 1 SCC 361  and Reeta Nag v. State of West Bengal and Ors. (2009) 9 SCC 129 also stand overruled.

Wife not entitled for Maintenance in these cases Some Case laws

When there are no evidence to show that the wife has deserted you with reasonable cause court can deny maintenance in such case

 In Bheekha Ram v. Goma Devi and Ors., it was held by the Rajasthan HC that, there is no maintenance to the deserting wife. Right to maintenance stems performance of marital duty. If there is no evidence of ill-treatment by husband and wife has no just cause to live separately, she is not entitled to the maintenance.

In Kalidas v. Parwatibai, it was held that if the wife has left the husband without any reasonable cause and left her husband against his wish, she is not entitled to the benefit of maintenance under section 125 of Cr.PC.

In Krishnabai v. Punamchand, the wife refused to live with her husband and deserted her on the ground that her father-in-law misbehaved with her. This was regarded to be unreasonable by the court.

What if Husband is living separately from parents?

If the husband is living separately from his parents and his wife residing with his parents at her matrimonial home and husband wants wife to leave his parents’ house and parents doing cruelty against the wife. Will husband get bail in that condition?

When husband is living separately from his wife and his parents and wife is residing at her matrimonial home with her in laws and the husband and his parents wants that the wife must leave her matrimonial home as the husband does not want to maintain the matrimonial relationship with his wife. The in laws do cruelty against the wife so that she will leave their house as the wife has put the matrimonial cases against the husband and in laws as she was facing cruelty from her husband and in laws as she is not meeting their growing dowry demands. If the in laws did physical assault and cruelty with her daughter in law and husband is residing separately from his parents and his wife, then the husband will not be eligible to grant the anticipatory bail from the court.

https://youtu.be/r_FuT9DuYfI

A per the latest judgement of the Hon’ble Supreme Court if husband is residing separately from his parents and wife, he will be equally liable for woman’s injuries in matrimonial home, says Supreme Court.

Earlier, the Punjab and Haryana High Court had refused anticipatory bail to the said petitioner and had extracted the woman’s complaint, which read, “On June 12, 2020 at about 9 pm, the petitioner (husband) and his father, armed with a cricket bat, gave the complainant merciless beatings in which the petitioner’s mother also participated. The petitioner attempted to strangulate the complainant and his father put a pillow on her face with an intention to kill her, after giving her merciless beatings…..”

In this case, as the husband’s counsel said the Apex Court that it was the husband’s father who had used the bat to assault her, the CJI-led bench said, “It does not matter whether it was you (husband) or your father who allegedly used the bat to assault her. When injuries are inflicted on a woman in a matrimonial home the primary liability is on the husband.”

Below is the link of Supreme Court notification:

https://timesofindia.indiatimes.com/india/hubby-liable-for-womans-injuries-in-matrimonial-home-says-supreme-court/articleshow/81401699.cms

LATEST JUDGEMENTS ON QUASHING BY VARIOUS HIGH COURTS IN 498A/DV

  1. Madras High Court

Arunkumar vs The State Rep By on 30 September, 2020    

                                              CRL.O.P.No.4373 of 2020

Therefore the entire proceedings is liable to be quashed and it cannot be sustained, since no offence is made out as against the petitioner as alleged by the prosecution. There is absolutely no ingredient to prove the charges for the offences punishable under Sections 498A and 406 of IPC, as against the petitioner. The allegations made in the final report as well as the http://www.judis.nic.in CRL.O.P.No.4373 of 2020 materials collected during the investigation, even if they are taken their face value, the acceptability of their entirety do not constitute the offences punishable under Sections 498A and 406 of IPC as against the petitioner herein. Therefore, there is absolutely no possibility of conviction to the petitioner for the offences under Sections 498A and 406 of IPC. Therefore, the petitioner need not go for ordeal of trial. As such the judgments cited by the learned counsel for the second respondent are not helpful to the case of the second respondent.

  1. Hemlatha A C vs State of Karnataka 09.09.2019 by Karnataka High Court.

The allegations made under section 498a and 506 IPC are concerned on going through the charge sheet papers, it is seen that the case of the prosecution is that two months after the marriage, wife was ill treated and harassed in the matrimonial home. the wife has not narrated any specific instance of cruelty meted out to her by the husband nor has the investigating agency collected any material to show that wife was ill treated by the husband and his family members. On the other hand material allegations are confined to the demand alleged to have been made by husband and his family were interested to get money from the wife for the purpose of expansion of business. It is highly improbable that they would subject her to cruelty. Thus, taking into consideration the facts and circumstances of the case the Hon’ble court viewed that the material on record is not sufficient to make out an offence under sections 498a and 506 IPC against the husband and the FIR has been quashed by the court. 

  1. Abdul Basheer vs State of Kerala 17.01.2020 by Kerala High Court

The Hon’ble court examined the materials on record. Hon’ble court unable to find any material to make out a case under section 498a and 406 IPC read with 34 against the husband and in laws. The allegation against the husband and in laws is vague and sketchy. The hon’ble court not referred to the final particulars of the matter as it is fairly conceded by the LD. Counsel for the de facto complainant (wife) that the allegations do not make out a case for offences punishable under section 498a and 406 read with 34 IPC against the husband and in laws. And the FIR was quashed by the court.  

  1. Mahipalsinh Nirmalsinh Bayal vs State of Gujarat 20.12.2017 by Gujarat High court

That the case was appeared once of the a serious maladjustment in the marital life. In a marital life oof about 4 yrs. No issue was born. As usual in a dispute between husband and wife the wife has thought fit to implicate the husband and in laws. Even the Hon’ble court accept the entire case put up by the first informant, in court’s view the same would not constitute cruelty within the meaning of section 498a of IPC. The allegaions are vague and general and the FIR has been quashed by the court. 

  1. Avinash Deshpande vs Madhuri Satish Deshpande 10.09.2018 by Bombay High Court

In light of the settled position of law and the fact that the application preferred by the husband and his family members do not contain any allegation as against the husband family members under the provisions of DV act, the issuance to the notice to the husband family members is totally unsustainable and it is liable to be quashed and set aside. This Hon’ble court is competent enough to invoke and apply its power under Section 482 Cr.P.C to prevent abuse process of law against the husband and his family members by the wife and in such circumstances application was allowed and the matter was quashed by the court. 

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

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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