The allegations of 376 and 377 are put in 498A IPC are just put in to take the case out of Arnesh Kumar. As per Arnesh Kumar 7 Years offences are exempted for automatic arrests.
so to make it more lethal allegations of 376 and 377 are put in along with 498A IPC
But court do recognize the misuse..
This Bail I argued with surrounding background that wife first entered into a settlement and then she backed out to file these cases just to harass the husband and relatives.
The husband even transferred some money into the account of the wife but she again filed false cases against the Husband and the Family members.
This was the main ground I argued and on this only I got anticipatory bail to all the relatives as well as the Husband.
This thing i have done in single day only and no mediation or status report was called however state did filed the reply to oppose the Bail.
The Bail application came late at Night and next morning it was filed and next day bail was argued and order granted.
This is how fast you have to work when it comes to anticipatory bail…
Now the cases are settled between the Husband and wife and settlement terms are signed and you are ready to live a Free Life.
Now what happens is that you gave some money or streedhan articles at the first motion of divorce
But wife does not turn up for doing formality at the second motion of divorce.
What you can do?
Obviously. First you have to send her the legal notice and 2nd motion documents to show that you are ready and willing to do the 2nd motion process.
The other thing you need to do if she does not turns up even after the legal notice is to file the contempt case in the High Court.
The High court will also try to settle out the dispute. Even if she does not agree for the second motion making frivlous excuses then the contempt proceedings are to be initiated in such cases.
As she has breached the undertaking given to the court that
Here is the statement
“We were married to each other on 07.09.2013 in New Delhi at Ocean Pearl Chattarpur according to Hindu Rites and ceremonies. No child was born out of this wedlock. We have been living separately since 1st week of April 2014 on account of temperamental differences and mental incompatibility. We have not resumed cohabitation since then. With the intervention of well wishers and family friends we have decided to dissolve our marriage by divorce by mutual consent. We have settled all our claims and disputes amicably vide MOU dated 30.04.2015 which is Ex. P-1 and as per para 9 to 11 of the petition which is Ex. P-2 in a total settlement amount of Rs 34,00,000/- (Rupees Thirty Four Lacs) as full and final settlement towards all claims of petitioner no. 1/wife. Out of the total settled amount a sum of Rs.10,00,000/- (Rupees Ten Lacs) has already been transferred by petitioner no. 2 in the account of petitioner no. 1/wife. Out of the remaining amount of Rs 24,00,000/- (Rupees Twenty Four Lacs ) a sum of Rs 10,00,000/-
Respondent had clearly given an undertaking to the Court when the joint statement was recorded on 02.05.2015. It was stated that the claims and disputes were settled between the parties amicably. The modalities of settlement were drawn up in an MOU and the said MOU was exhibited during the joint statement. As a part of the undertaking, the Respondent had agreed to accept a sum of Rs. 34 Lakhs towards full and final settlement, though in three different tranches and undertook to file a petition for divorce by mutual consent (first motion and second motion). Admittedly the Respondent has accepted Rs. 20 Lakhs out of the sum of Rs. 34 Lakhs but has not come forward for the second motion and has neither returned the sum of Rs. 20 Lakhs which were payable as a part of the overall settlement.
Court has held that wife has undertaken that they had settled their dispute vide MOU and thereafter the court had passed an order of first motion.
Hari Har Raj Kalingarayar vs Aarti (Madras High Court)
This case starts from the petitioner being aggrieved by the order of the Ld. Family Court directing him to pay an amount of Rs. 55000 as monthly maintenance to his wife and 2 children. The Madras High Court looked into the fact that the respondent wife was drawing a salary of Rs. 35000/ month. The interim maintenance which was granted by the lower court was thus set aside by the High Court.
The primary question before the Court was whether sufficiently earning wife is entitled for a monthly maintenance as a matter of right.
After looking at the evidence on record, it was found by the Hon’ble Madras High Court that the respondent wife was not only earning well but was earning more than the husband. Thus the Madras High Court came to the conclusion that order of maintenance by the Trial Court was totally unsustainable.
Reliance was made to the case of Manokaran alias Ramamoorthy vs. M.Devaki AIR 2003 MADRAS 212 where it was held by the Madras High Court that Grant of maintenance to the wife working and earning more that her husband is improper and the same cannot be said that the wife was not having sufficient independent income.
Hence the court was not at all inclined to grant maintenance to the wife and held that provision of maintenance under section 125 CrPC was not a penal provision and has to be decided in the light of the financial capacity of the wife to maintain herself.
The Hon’ble Delhi High Court was again deciding on the issue of maintenance to a working wife in this case and came to the conclusion that the grant of maintenance will be denied on the ground that the appellant/wife was highly qualified and was working in a reputed MNC with a good salary.
Relying upon the Judgment of Rupali Gupta vs. Rajat Gupta, 234 (2016) DLT 693 the court declined interim maintenance to a wife who was a qualified Chartered Accountant and was in profession since 2003. Also in the case of Damanreet Kaur vs. Indermeet Juneja (2013) 1 JCC 306, Hon’ble Delhi High Court upheld the order of the trial court where the wife declined maintenance under the domestic Violence Act on the ground that she was well qualified and had capacity to work and had been actually working in the past.
The wife in this case was earning sufficient enough to maintain herself and give herself the required comforts of life and was also enjoying the same luxuries of life which she was enjoying while being married. The court was of the opinion that when a spouse is qualified and has the capacity to earn and maintain herself, then in that case maintenance cannot be granted.
The court thus came to the conclusion that as the husband and wife were both earning and had a good salary, merely because there is some salary difference among them, it cannot be a reason for seeking maintenance by the wife.
Biswajit Murmu & Anr vs The State of West Bengal (Calcutta High Court)
In this case maintenance was denied to wife as both the husband as well as wife were working as teachers in Government School and the wife was drawing a salary of Rs.22,358 per month. The Calcutta High Court came to the conclusion that seeking maintenance in such a case was an abuse of process of court.
Wife filed belated 498a complainant after 3 years of separation.
The police were disturbing the parents they approached Hon’ble High Court and High court had directed that the police must do preliminary enquiry and refer the matter to the family court in case there is matrimonial dispute.
But instead of doing that the police registered the FIR and taken statements of interested witnesses in a single day.
There is a lot of trouble which is faced by the NRI people that they amicably take divorce and everything just get ended or may be a divorce on merit in foreign country and wife has to come back to India.
This forceful exodus give rise to false cases in India.
In one such case by Karnataka High Court titled as
Husband has taken divorce in the USA and wife dependent visa was cancelled she has to come back to India.
When she came back to India she lodged false 498a case.
Husband challenged and filed Quashing Petition in Karnataka High Court.
The Karnataka High Court Quashed the FIR on below mentioned ground.
Grounds
reading of the complaint in general as contended by the learnt counsel for the petitioners, it could be gathered that it appears to be a case of normal wear and Tear as is experience in any marital life. Apparently even as per the complainant no life threatening or any injury.
No allegations of dowry demand.
lastly as contended by the learnt counsel for the petitioner the instant complaint is nothing but a counterblast to the divorce case instituted by third petitioner before the superior family court at Los Angels. It is a matter of Record that respondent had been served during her stay in the US at her aunt place, who immediately on arrival to India has proceeded to lodge a police complaint and certainly it could be termed as nothing else but counterblast.
Even if you get successful in divorce case on merits there is always when the wife is not working the court can grant a permanent alimony to the tune of 10 lakh-15 lakhs or may be more in a divorce case at the time of passing of the decree.
The ambit of alimony comes under the section 25 of The HMA.
The important point to keep in mind is to first analyse the order.
Whether the court has applied its mind while fixing the alimony.
The quantum of alimony must be as per the the financial status of the husband and proper explanation must be given by the court before fixing permanent alimony to the wife.
The problem with such an order will be Husband even if he wins the case goes bankrupt.
Therefore you must first analyse the order
In the Judgement of Jalendra Padhiary Vs. pragati chhotray
In our view, mere perusal of the order of the Family Court and the High Court quoted supra, would go to show that both the Courts failed to apply their judicial mind to the factual and legal controversy insofar as award of permanent alimony to the respondent(wife) is concerned. Both the Courts did not even mention the factual narration of the case set up by the parties on the question of award of permanent alimony and without there being any discussion, appreciation, reasoning and categorical findings on the material issues such as, financial earning capacity of husband to pay the alimony and also the financial earning capacity of wife, a direction to pay Rs.15,00,000/- by way of permanent alimony to the wife was given. In our opinion, such direction is wholly unsustainable in law.
The Hon’ble Supreme court in this judgement of Bhushan Kumar has reduced the maintenance on behalf of husband to 50% The husband was earning around Rs. 34000/-
He argued that only Rs. 9000/- is left for him and trial court has put up maintenance of Rs. 10000/-
The Hon’ble Supreme court reduced the maintenance to Rs. 5000/- citing husband has home loan emi to pay.
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.
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.
