Section 91 CrPC, How to use in Maintenance 125 CrPC case…How to find wife is working and what her salary?
According to the United Nations report titled- “Progress of the world’s women 2019-2020” divorce rates are doubled in the past two decades. In recent years there is an uptick in matrimonial disagreements across India, especially in urban areas. with the increasing disputes there is also an increase in false cases and frivolous allegations made by the parties against each other. Parties are finding new tactics to deal with the cases and to extract money from the opposite parties.
Generally, we have seen that wife for getting maintenance and extra financial support hides her income from the court and it is also often that husband hides his income so that he has to pay less maintenance amount to the wife or child. There is a tendency the Husband or Wife hides information about each other salary and it becomes difficult to prove the salary of the wife or Husband therefore correct maintenance amount is not assessed.
To assure that the correct maintenance amount is assessed we should find and present all required documents before the court and we need a proper strategy and planning for how can we get the opposite party to present all his/her income proofs if they are not present that before the court by themselves.
CrPC 91 is the tool along with the RTI act to get all the documents, Under RTI act it is difficult to get documents rather it is easier to get the documents U/s. 91 CrPC.
Now if the wife knows where her husband is working or the husband knows the wife’s place of work as well as her PAN Number if she files ITR, then it will be easier to get proof of income.
When we can file an application under section 91 of Cr.P.C.?
There are various stages in any case and there is a process for filing any application during the case and for filling out this application as well we have to keep two things in mind. i.e.,
1. An application under section 91 of the Code Of Criminal Procedure should be filed before the order for interim maintenance as this process we are following is only for accessing the right maintenance amount and there is no benefit of filing this application after granting the interim maintenance.
2. An application under section 91 of the Code of Criminal Procedure should be filed before the stage of evidence so that we can gather all the information related to the opposite party before this and able to defend our case in a better way and assure the right amount of maintenance for our client.
Related case laws-
Other than income documents other documents like conciliation statements or complaints can be accessed with the help of the 91CrPC if the wife is not disclosing the same as same can be used for contradiction like happened in the case below-
Section 91 of Cr.P.C. reads as under :Summons to produce document or other thing. (1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.
(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.
(3) Nothing in this section shall be deemed
(a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872 ), or the Bankers’ Books Evidence Act, 1891 (13 of 1891 ) or
(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority.
Bare perusal of the aforesaid provision makes it crystal clear that whenever the Court considers for production of document is necessary and desirable for the purpose of any trial, the Court may issue direction for its production before the Court in trial.
Taking into consideration that the application under Section 125 of Cr.P.C. filed by the respondent allegation of cruelty has been made. The application filed before Mahila Thana-Padav, statement of petitioner and respondent and conciliation proceedings appears to be relevant for the inquiry under Section 125 of Cr.P.C. Learned Family Court ought to have allowed the prayer of summoning the aforesaid document.
Next is another peculiar case is section 91 can be used for recovery of stridhan in 125 CrPC
The answer is NO as section 91 is used for production of documents or other thing, production of stridhan is another thing but production of stridhan is not necessary in deciding the 125 CrPC.
In the case before me, as stated earlier, no summons was issued u/s. 91 Cr.P.C. nor it was intended to be issued, nor it could be issued because for disposing of an application u/s. 125 Cr.P.C. search warrant was hardly required to be issued inasmuch as Stridhan property of the respondent No.1 was not at all necessary for disposal of such application u/s. 125 Cr.P.C
Section 91 allows only essential documents to be produced for determination of the questions and facts.
If upon satisfying itself that the document has no bearing, the trial Court is well within its powers to decline the prayer and the same can be deemed that it has exercised its discretion judiciously. It is also held that while exercising this power, the trial Court should not indulge in fishing or roving enquiry
Is under RTI act, wife is entitled to get the salary of the husband
The Answer is YES and in (Smt. Sunita Jain vs. Bharat Sanchar Nigam Limited and others)
It was held that- While dealing with the Section 8(1)(j) of the Act, we cannot lose sight of the fact that the appellant and the respondent No.1 are husband and wife and as a wife she is entitled to know what remuneration the respondent No.1 is getting.
Sometimes the trial court rejects 91 Cr PC application but same can be challanged in High Court and appropriate orders can be taken.
The petitioner filed application under Section 91 of Cr.P.C. seeking a direction to the respondent to produce the documents, such as the Bank Statements, Income-tax returns, Account Ledgers, etc. to establish the annual income of the respondent during the period when she was living with him and for the subsequent period, for the purpose of proper decision on the question of quantum of maintenance. The said application was opposed by the respondent. During the hearing of the said application, the respondent produced copes of few income-tax returns and bank statements. However, the learned Magistrate rejected the said application. Aggrieved by the said order, the petitioner filed Criminal Petition No.4405/2012. When the said petition was pending before this Court, the petitioner filed another application under Section 91 of Cr.P.C seeking summoning of the documents mentioned in the earlier application from the income-tax authorities as well as the bank authorities. The learned Magistrate after hearing both sides rejected the said application by the order impugned in this petition. Aggrieved by the said order, the petitioner has presented Criminal Petition No.460/2013.
4) During the course of the argument before this Court, learned counsel for the respondent submitted that respondent has no serious objections to summon the documents as sought in the application filed, which is the subject matter of Criminal Petition No.460/2013. 5) As held by the Apex Court in the case of Chaturbhuj Vs. Sita Bai [(2008) 1 SCC (Crl.) 356] in a
proceeding under Section 125 of Cr.P.C., the burden in the first place is on the wife to show the means of her husband are sufficient. Therefore, the burden is on the petitioner wife to establish the financial condition of the respondent- husband for the Court to come to the just conclusion while determining the question as to the quantum of maintenance. In order to discharge the said burden, the petitioner filed an application seeking summoning of the documents from the authority. However, the learned Magistrate without considering the question as to whether the documents sought to be summoned are just and necessary for the proper decision in the matter, has rejected the said prayer on the ground that the respondent has already produced some of the documents.
6) Having regard to the facts and circumstances of the case and in the light of the submission made by the learned counsel for the respondent, I am of the considered opinion that the order impugned in this petition is liable to be set aside and the application filed by the petitioner for summoning the documents requires to be allowed.
Section 340 after production of documents
How to prosecute Wife for giving false evidence in court?(340 Crpc)
Section 340 Crpc deals with the procedure adopted by the court to punish those person who leads false evidence on material facts.
In matrimonial cases generally it has been observed that wife gives false evidence to prosecute the husband and in cases such as 498a it is observed that wife generally use every means to harass the victims of 498a i.e the husband side.
So here are some of the successful cases which were initiated by husband side to prosecute their wives for giving false evidence in the court.
In her testimony, recorded on 12.02.04, Veena testified that she was not working anywhere after her marriage. She was not working till that day anywhere from the date, when she was kicked out of her matrimonial home. She entered the witness box on 07.04.04 for her cross examination, wherein she testified that since after coming to her parental home, she was not doing any job. She was having one bank account in Cooperative Bank. She denied the suggestion that she worked with 4 Tirath Ram Charitable Hospital, Rajpur Road, Delhi. She further denied the suggestion that she was holding bank account No. 4277991 in Punjab National Bank. She was further crossexamined on 06.05.04, wherein she denied that she was earning sufficiently to maintain herself. When respondent was given an opportunity to rebut facts, he could bring it over the record that she worked with Tirath Ram Hospital from 01.06.01 till 10.06.02. It was further proved that she was maintaining a bank account at Punjab National Bank, wherein her salary from the said hospital was being encashed. When these facts came over record, respondent moved an application under section 340 of the Code before the Trial Court to get her prosecuted. Trial Court had not conducted an inquiry, as contemplated by section 340 of the Code, but recorded findings against the appellant, vide order dated 09.09.05 detailing therein that she committed an offence punishable under section 193 of the Penal Code.
At the conclusion of inquiry, the Court has to give finding after application of its mind that it is expedient in the interest of justice to file a complaint under section 195 of the Code and only thereafter complaint would be legal. Opinion or satisfaction contemplated under section 340 of the Code is objective and not subjective one and should be reflected in findings recorded or order passed by the Court. Section 340 of the Code specifically enjoins that Court “shall record findings to that effect”, which means that it is expedient in the interest of justice that inquiry should be made. Provision is not merely peremptory, but mandatory and it is a condition precedent for preferring a complaint before the Magistrate. The phrase that “it is expedient in the interest of justice that an enquiry should be made” is the keynote of the section to initiate an action. Law to this effect was laid in Arul Raj (1996 Cr.L.J. 2712) and Nimmayankula Audi Narayannya (AIR 1970 AP 119).
In the recent case of Special Police Establishment vs. Umesh Tiwari it was held that the
The paramount object behind Section 91 is to ensure that no cogent material connected to the
offence/issue is left undiscovered and unconsidered in the pursuit of truth during investigation,
inquiry, trial or other proceedings.
In view of above discussion, what comes out loud and clear is that by the impugned order the trial
Court permitted the respondent accused to invoke Section 91 during pendency of investigation
which as per the discussion above is impermissible since the process of investigation is unilateral
and out of bounds for the accused.
9. Accordingly, the impugned order challenged herein cannot be sustained in the eyes of law.
However, looking to the ultimate object behind Section 91 which is to discover the truth, render
justice and prevent failure of justice, if the trial Court feels that the call details as directed to be
requisitioned by way of summon by the impugned order are necessary and desirable for the purpose
of investigation which is presently pending then the trial Court is free to direct the investigating
agency to take the said material into consideration so that the investigation is conducted and
concluded in a free and fair manner without any element of prejudice for or again any stakeholder
Advocate Nitish Banka