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

Irretrievable Breakdown of Marriage How Supreme Court can grant Divorce…

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

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

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

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

In V Bhagat vs. D Bhagat

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

Manish Kakkar and Nidhi Kakkar

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How the proceedings under 340 CrPC Takes Place?

How complaint is filed?

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

Now the thing is what will you do?

Do not act hastely on examination in chief only.

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

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

What is the stage of filing 340 CrPC application?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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