How you will not get Divorce if you fight case like this.

If you are contesting divorce on the grounds of cruelty and desertion then these points you have to keep in mind if you want to get Divorce

All the allegations in the plaint..

You need to mention all the allegations in the plaint so that the other party may get an opportunity to counter them. In many cases after receiving reply from the opposite party new allegations comes to your mind. Remember that new allegations cannot be introduced easily you need to amend your plaint and sometimes it can be denied by the Judge.

Retaining Documents

Sometimes the parties keep their documents to be used in future…Remember order 13 and order 7 rule 14. After issues are decided you will not be allowed to produce the documents and in such cases they will not accepted as evidence..If you are still at stage of getting documents then you have to be clear of this stage.

Not Corroborating evidence

90% of divorce cases are lot because there is no corraborating evidence to support your case. Merely filing affidavit which is a copy paste of the plaint will not give you divorce you need also present independent evidence. see this article

Not cross examining properly the evidence produce by opposite party

You need to cross examine the opposite party at length if he/she is alleging allegations like extramarital affair, cheating or any of the serious allegations like impotency.

Not highlighting the response of opposite party in failure to lead evidence.

Gene really lawyers only argue and point out that the evidence produced by their party but fail to point out the evidence produced by opposite party and if there is no evidence then serious allegations are also ground for divorce.

Fighting Case with no Evidence..

Maximum cases are lost because there is no evidence if you do not have evidence then don’t file a case…Do this instead—->Get divorce when you have no evidence

Quashing of 498a Vague allegation against relatives some important Judgments

The irony of 498a is that there is a tendency of the wife to rope in as many people as she can in false 498a case.

When as many relatives are involved in false 498a they forsee that it will put pressure on the husband family to surrender to wife demand by misusing the entire system.

This is un acceptable and why should husband be bound to be put under pressure to have a favorable settlement when there is genuinely no case.

Even the Hon’ble Supreme Court is aware of this issue and is regularly giving judgements in favour of husband.

In Geeta Mehrotra & Anr vs State Of U.P. & Anr on 17 October, 2012

Coming to the facts of this case, when the contents of the FIR is perused, it is apparent that there are no allegations against Kumari Geeta Mehrotra and Ramji Mehrotra except casual reference of their names who have been included in the FIR but mere casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute specially if it happens soon after the wedding.

However, we deem it appropriate to add by way of caution that we may not be misunderstood so as to infer that even if there are allegation of overt act indicating the complicity of the members of the family named in the FIR in a given case, cognizance would be unjustified but what we wish to emphasize by highlighting is that, if the FIR as it stands does not disclose specific allegation against accused more so against the co-accused specially in a matter arising out of matrimonial bickering, it would be clear abuse of the legal and judicial process to mechanically send the named accused in the FIR to undergo the trial unless of course the FIR discloses specific allegations which would persuade the court to take cognisance of the offence alleged against the relatives of the main accused who are prima facie not found to have indulged in physical and mental torture of the complainant-wife. It is the well settled principle laid down in cases too numerous to mention, that if the FIR did not disclose the commission of an offence, the court would be justified in quashing the proceedings preventing the abuse of the process of law. Simultaneously, the courts are expected to adopt a cautious approach in matters of quashing specially in cases of matrimonial dispute whether the FIR in fact discloses commission of an offence by the relatives of the principal accused or the FIR prima facie discloses a case of over-implication by involving the entire family of the accused at the instance of the complainant, who is out to settle her scores arising out of the teething problem or skirmish of domestic bickering while settling down in her new matrimonial surrounding.

In Brijesh Das Vs. State of Bihar

It would be manifest from the aforesaid judgments that the Supreme Court has repeatedly expressed its concern with regard to false implication of relatives of husband in cases under Section 498A of the IPC and other releated offences. The Supreme Court has also taken judicial notice of the fact that there is a growing tendency of even implication in cases of matrimonial dispute.

Looking to the facts of the present case, from any angle, the summoning order as far as petitioner nos.2 to 6 are concerned, on the basis of omnibus, vague and general allegation, cannot be sustained. Allowing the prosecution to continue against them would amount to an abuse of process of the court.

independent witnesses, namely, Shail Patna High Court Cr.M isc. No.57681 of 2015 dt.21-03-2018 Kumari Devi and Kameshwar Mahto have clearly stated that it is wrong to allege that relatives of the husband ever subjected the victim to cruelty for non-fulfillment of demand of dowry. They have stated that they are not aware of any such demand or torture. They have stated that the victim left the matrimonial home after living there for a few months. Though, there is specific allegation against the husband of opposite party no.2, namely, Brijesh Das @ Brijesh Kumar Das (petitioner no.1) in the statements of the witnesses recorded in course of investigation, no specific allegation has been made against the petitioner nos.2 to 6. The allegations made, if any, against the petitioner nos.2 to 6 are vague and omnibus. In order to prosecute the relatives of the husband, there has to be some specific allegation against them. A general, vague and omnibus allegation made against the relatives of the husband would not be sufficient to put them on trial in a case under Section 498A of the IPC or Sections 3 and 4 of the D.P.Act.

In the case Preeti Gupta Vs. state of Jharkhand

According to the appellants, there was no specific allegation against both the appellants in the complaint. Appellant no.1 had been permanently residing with her husband at Navasari, Surat (Gujarat) for the last more than seven years. She had never visited Mumbai during the year 2007 and never stayed with respondent no.2 or her husband. Similarly, appellant no.2, unmarried brother-in-law of the complainant has also been permanently residing at Goregaon, Maharashtra.

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

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

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

“498-A. Husband or relative of husband of a woman subjecting her to cruelty.–Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.–For the purposes of this section, `cruelty’ means:-

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

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

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

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

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

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

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

. When the facts and circumstances of the case  are considered in the background of legal principles set out in preceding paragraphs, then it would be unfair to compel the appellants to undergo the rigmarole of a criminal trial. In the interest of justice, we deem it appropriate to quash the complaint against the appellants. As a result, the impugned judgment of the High Court is set aside. Consequently, this appeal is allowed.

Adv Nitish Banka

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When can Maintenance can be denied to wife?

In this article I will cover 5 grounds with Judgments holding in the field on the grounds how maintenance can be denied to the wife.

The Five Ground are

  1. Wife Living separately without sufficient cause.
  2. Wife living in Adultery
  3. Professionally qualified wife-Capable of earning
  4. Separated by mutual consent
  5. Earning wife

Wife Living separately without sufficient cause.

This ground is very simple but needs effective cross examination in this ground the onus is on the wife to explain that why she is living seperately with the husband.

In the Judgement of Smt Teja Bai Vs. Chiddu Armo Jabalpur High Court it was observed

High Court observed “It is evident that petitioner applicant No.1 is wife of respondent. Petitioner-applicant No.1 admitted in her cross-examination that respondent does not do any work due to illness, so she left his house and she is living in her paternal home with her child. She is not ready to live with respondent. So, it is evident that petitioner No.1 is living separately from her husband-respondent, without any sufficient reason. Therefore, learned trial court appreciate each and every fact in this regard so petitioner-application No.1 is not entitled to get any maintenance from her husband…”

Wife living in Adultery

Now it is very interesting, the Husband has onus to prove that the wife living in adultery is not entitled to maintainance.

But the interesting thing about this ground is that it is not applicable to divorce wife.

Mariyumma vs Mohammed Ibrahim on 28 June, 1978

It is held Though there is no requirement of joint residence in the case of a divorced wife with her divorced husband the learned Judges seem to assume that the Idea behind Sub-section (4) of Section 1’25 is to promote a process of reconciliation between the divorced spouses. We see no justification to assume so. On the other hand, the question is whether there is an obligation on any of the parties to the divorce to live with the other and whether any one of the parties can insist upon the exercise of right to live with the other even where the other is not willing. We are afraid, the answer can only be in the negative. Sub-section (4) cannot hence logically apply to the case of a divorced woman.

Professionally qualified wife-Capable of earning

If wife is capable of earning and is well qualified she is not entitled for maintenance now Three judgments are in this field.

In Padmja Sharma vs Ratan Lal Sharma on 28 March, 2000

In the present case both the parents are employed. If we refer to the first application filed under Section 26 of the Act by the wife she mentions that she is getting a salary of Rs. 3,100 per month and husband is getting a salary of Rs. 5,850 per month. She is, therefore, also obliged to contribute in the maintenance of the children. Salaries of both the parents have since increased with the course of time. We believe that in the same proportion, may be perhaps in the case of an employee of Reserve Bank of India at somewhat higher rate. If we take approximate salary of husband is twice as much as that of the wife, they are bound to contribute for maintenance of their children in that proportion. Family Court has already fixed a sum of Rs.. 250 per month for each of the child under Section 125 of the Code. That amount we need not touch.

In Sri R Ravindra vs Smt N Anitha on 10 April, 2018 it was held

Moreover, considering the fact that the respondent No.1 may have some capacity to earn, the learned Family Court has not imposed the complete, and sole responsibility of having to pay the educational expenses of the child, on the petitioner’s shoulders. In its wisdom, the learned Family Court has directed the petitioner to pay merely 75% of the educational expenses, thereby indicating that 25% of the educational expenses have to be borne by the respondent No.1.

In Dr. E. Shanthi vs Dr. H.K. Vasudev on 22 August, 2005 it was held

Admittedly, petitioner is residing with her parents at Chennai and whose brother is also a doctor. When the petitioner was practicing prior to marriage, when her name continuous on the board of the clinic, the Trial Court is justified in rejecting the application of the petitioner. There is no difficulty for the petitioner to work as a Doctor. Even if the petitioner is not working as a doctor in the clinic of her brother, since there are no impediments for her to work along with her brother as a doctor and when she is capable of earning, this Court is of the opinion that the Trial Court is justified in rejecting the application of the petitioner. When the petitioner is capable of earning and having required qualification and that when she was working as a doctor prior to marriage, there cannot be any difficulty for her to continue the same profession. Therefore, Section 24 of the Hindu Marriage Act cannot come to the aid of such persons. Accordingly, this petition has to be rejected.

Separated by mutual consent

Now if there is an agreement that both spouses are living seperately and will not claim maintainance then this can be a ground to deny maintainence.

But what about cases in which maintainence is granted after mutual consent divorce

The Judgement of Rohtash Singh vs Smt. Ramendri And Ors on 2 March, 2000

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

Earning wife

In the Judgement of Chaturbhuj vs Sita Bai on 27 November, 2007

In an illustrative case where wife was surviving by begging, would not amount to her ability to maintain herself. It can also be not said that the wife has been capable of earning but she was not making an effort to earn. Whether the deserted wife was unable to maintain herself, has to be decided on the basis of the material placed on record. Where the personal income of the wife is insufficient she can claim maintenance under Section 125 Cr.P.C. The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband. In Bhagwan v. Kamla Devi(AIR 1975 SC 83) it was observed that the wife should be in a position to maintain standard of living which is neither luxurious nor penurious but what is consistent with status of a family. The expression “unable to maintain herself” does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125 Cr.P.C.

Some Videos

Interested Witness in 498a and how to deal?

In most of the 498a case the interested witnesses are the core of the criminal trial.

The witnesses of wife like father mother, brother do come to court and reiterate the version of complaint.

But the question here is

Do conviction happen on just there testimony?

The Answer to this depends on the case in hand… I had earlier also made a video on interested witness you first have to watch this to get an idea…

You see, the thing is that the conviction only on basis of interested witnesses is not possible.

But what if there are other circumstances which can happen in your case, depends on facts.

Then conviction can happen…

Like in the case of Liyakuddin the wife commited suicide and husband was convicted under 498/306 why?

The case did have all the interested witnesses…

Still the husband was convicted.

The reason for the conviction was the rule. The rule was that the testimony of the interested witnesses cannot be disregarded completely.

Well here are the all Supreme court Judgments about the law.

The Supreme Court in the case of Mahavir Singh vs. State of M.P. reported in (2016) 10 SCC 220 has held as under:-

” The High Court has attached a lot of weight to the evidence of the said Madho Singh (PW 9) as he is an independent witness. On perusal of the record, it appears that the said person already had deposed for the victim family on a number of previous occasions, that too against the same accused. This being the fact, it is important to analyse the jurisprudence on interested witness. It is a settled principle that the evidence of interested witness needs to be scrutinised with utmost care. It can only be relied upon if the evidence has a ring of truth to it, is cogent, credible and trustworthy. Here we may refer to chance witness also. It is to be seen that although the evidence of a chance witness is acceptable in India, yet the chance witness has to reasonably explain the presence at that particular point more so when his deposition is being assailed as being tainted.

A contradicted testimony of an interested witness cannot be usually treated as conclusive.”

The Supreme Court in the case of Harbeer Singh vs. Sheeshpal reported in (2016) 16 SCC 418 has held as under:

. Further, the High Court has also concluded that these witnesses were interested witnesses and their testimony was not corroborated by independent witnesses. We are fully in agreement with the reasons recorded by the High Court in coming to this conclusion.

 In Darya Singh v. State of Punjab, this Court was of the opinion that a related or interested witness may not be hostile to the assailant, but if he is, then his evidence must be examined very carefully and all the infirmities must be taken into account. This is what this Court said: (AIR p. 331, para 6) “6. There can be no doubt that in a murder case when evidence is given by near relatives of the victim and the murder is alleged to have been committed by the enemy of the family, criminal courts must examine the evidence of the interested witnesses, like the relatives of the victim, very carefully. … But where the witness is a close relation of the victim and is shown to share the victim’s hostility to his assailant, that naturally makes it necessary for the criminal courts to examine the evidence given by such witness very carefully and scrutinise all the infirmities in that evidence before deciding to act upon it. In dealing with such evidence, courts naturally begin with the enquiry as to whether the said witnesses were chance witnesses or whether they were really present on the scene of the offence. … If the criminal court is satisfied that the witness who is related to the victim was not a chance witness, then his evidence has to be examined from the point of view of probabilities and the account given by him as to the assault has to be carefully scrutinised.”

However, we do not wish to emphasise that the corroboration by independent witnesses is an indispensable rule in cases where the prosecution is primarily based on the evidence of seemingly interested witnesses. It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the court to place credence on the statement.

Further, in Raghubir Singh v. State of U.P., it has been held that: (SCC p. 84, para 10) “10. … the prosecution is not bound to produce all the witnesses said to have seen the occurrence. Material witnesses considered necessary by the prosecution for unfolding the prosecution story alone need to be produced without unnecessary and redundant multiplication of witnesses. … In this connection general reluctance of an average villager to appear as a witness and get himself involved in cases of rival village factions when spirits on both sides are running high has to be borne in mind.”

The Supreme Court in the case of Vijendra Singh vs. State of U.P. reported in (2017) 11 SCC 129 has held as under:

“31. In this regard reference to a passage from Hari Obula Reddy v. State of A.P. would be fruitful. In the said case, a three-Judge Bench has ruled that: (SCC pp. 683-84, para 13) “[it cannot] be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of the interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon.” It is worthy to note that there is a distinction between a witness who is related and an interested witness. A relative is a natural witness. The Court in Kartik Malhar v. State of Bihar has opined that a close relative who is a natural witness cannot be regarded as an interested witness, for the term “interested” postulates that the witness must have some interest in having the accused, somehow or the other, convicted for some animus or for some other reason.”

The Supreme Court in the case of Raju vs. State of T.N., reported in (2012) 12 SCC 701 has held as under:

The first contention relates to the credibility of PW 5 Srinivasan. It was said in this regard that he was a related witness being the elder brother of Veerappan and the son of Marudayi, both of whom were victims of the homicidal attack. It was also said that he was an interested witness since Veerappan (and therefore PW 5 Srinivasan) had some enmity with the appellants. It was said that for both reasons, his testimony lacks credibility.

What is the difference between a related witness and an interested witness? This has been brought out in State of Rajasthan v. Kalki. It was held that: (SCC p. 754, para 7) “7. … True, it is, she is the wife of the deceased; but she cannot be called an ‘interested’ witness. She is related to the deceased. ‘Related’ is not equivalent to ‘interested’. A witness may be called ‘interested’ only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be ‘interested’.”

In light of the Constitution Bench decision in State of Bihar v. Basawan Singh, the view that a “natural witness” or “the only possible eyewitness” cannot be an interested witness may not be, with respect, correct. In Basawan Singh, a trap witness (who would be a natural eyewitness) was considered an interested witness since he was “concerned in the success of the trap”. The Constitution Bench held: (AIR p. 506, para 15) “15. … The correct rule is this: if any of the witnesses are accomplices who are particeps criminis in respect of the actual crime charged, their evidence must be treated as the evidence of accomplices is treated; if they are not accomplices but are partisan or interested witnesses, who are concerned in the success of the trap, their evidence must be tested in the same way as other interested evidence is tested by the application of diverse considerations which must vary from case to case, and in a proper case, the court may even look for independent corroboration before convicting the accused person.”

Now the interested witness testimony cannot be disregarded if there is an independent witness

Now what happened in he case of Liyakuddin there was an independent evidence an agreement

The appellant went to the parental home of the deceased and tendered his unconditional apology and also assured the security of the deceased in future and also executed an agreement on a stamp paper of Rs.5/- in front of the Panchas and thereafter, the appellant brought the deceased to her matrimonial house. However, even thereafter the behaviour of the appellant as well as other co-accused persons did not improve and consequently the deceased Mumtaz Bee committed suicide on 16.10.1996 by ablazing herself after pouring kerosene oil.

The prosecution has also relied upon an agreement executed between the appellant and the deceased which has been marked as Ex.P/4. In the said agreement, although there is no specific allegation against the appellant to the effect that he had maltreated or treated the deceased with cruelty because of non-fulfillment of demand of dowry, but it is specifically mentioned that their relations had become strained because of some family dispute and the appellant had also mentioned in the said agreement that now he would keep the deceased properly as his wife and would not fight with her on any issue and he would behave properly with his wife (deceased) and the children, and would not harass her without any reason and he would provide her meals properly and would look after his wife and children. It is also mentioned in the said agreement that the appellant would keep the deceased as his wife and would provide all facilities for which a wife is entitled. He has also undertaken to provide food and clothes regularly and would not restrain the deceased from visiting her family members. Thus, although the agreement Ex.P/4 does not contain the exact allegations of cruelty committed by the appellant, but in view of the undertakings given by the appellant, it is clear that the appellant was treating the deceased with cruelty, as a result of which, she had come to her parental home and ultimately the appellant tendered his unconditional apology and assured the family members of the deceased that he would treat her properly and by way of an evidence to the said assurance, the agreement Ex.P/4 was executed. Although, the appellant in his statement recorded under Section 313of Cr.P.C. has given an evasive reply to the execution of agreement Ex.P/4, but he has not disputed his signatures on the said agreement Ex.P/4.

Conclusion

 is well established principle of law that when a person creates a situation before the deceased where he/she is left with no other option but to put an end to his/her life, it would amount to abetment as defined under Section 107 of IPC. In the present case, at the first instance, the deceased was maltreated and harassed as well as beaten by the appellant and, therefore, the deceased came back to her parental home and lodged a report against the appellant and, accordingly, the appellant along with the other family members was being tried for an offence under Section 498-A of IPC. It appears that thereafter, the appellant came to the parental home of the deceased, tendered his unconditional apology and assured the family members of the deceased that the mistakes which he had committed in the past will never be committed in future and the deceased would be given the respect for which she is entitled and he had also assured by giving it in writing by executing an agreement Ex.P/4 that all facilities including the food, clothing etc. would be provided to the deceased, but after relying upon the assurances given by the appellant, when the deceased went back to her matrimonial house, then again the behaviour of the appellant did not improve and under these circumstances, if the deceased was of the view that now there is no possibility of any improvement in the behaviour of the appellant and a situation has been created by the appellant where the deceased had lost all hopes of happy married life and when she got an impression that now she has no option but to put an end to her life, then it can be safely said that the appellant had committed an offence for abetment of suicide. Accordingly, this Court is of the considered opinion that the appellant is guilty of offence under Sections 498-A and 306 of IPC.

What is Criminal intimidation under Section 506 IPC? What if Husband threatens the wife will he get punished?

In husband wife disputes a lot of heated arguments takes place and sometimes Husband threats to wife that he will kill her or will harm her and wife lodges a case of Section 506 IPC.

What you can do?

The Answer to this question lies in the ingredients of Section 506 IPC. The ingredients of S. 506.

Section 506 IPC prescribes punishment for the offence of criminal intimidation. “Criminal intimidation” as defined in Section 503 IPC is as under:-

“503. Criminal Intimidation.- Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.

Explanation.- A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section.”

A reading of the definition of “Criminal intimidation” would indicate that there must be an act of threatening to another person, of causing an injury to the person, reputation, or property of the person threatened, or to the person in whom the threatened person is interested and the threat must be with the intent to cause alarm to the person threatened or it must be to do any act which he is not legally bound to do or omit to do an act which he is legally entitled to do.

In the Case of Manik Taneja & Anr. Vs, State : In the instant case, the allegation is that the appellants have abused the complainant and obstructed the second respondent from discharging his public duties and spoiled the integrity of the second respondent. It is the intention of the accused that has to be considered in deciding as to whether what he has stated comes within the meaning of “Criminal intimidation”. The threat must be with intention to cause alarm to the complainant to cause that person to do or omit to do any work. Mere expression of any words without any intention to cause alarm would not be sufficient to bring in the application of this section. But material has to be placed on record to show that the intention is to cause alarm to the complainant. From the facts and circumstances of the case, it appears that there was no intention on the part of the appellants to cause alarm in the minds of the second respondent causing obstruction in discharge of his duty. As far as the comments posted on the Facebook are concerned, it appears that it is a public forum meant for helping the public and the act of appellants posting a comment on the Facebook may not attract ingredients of criminal intimidation in Section 503 IPC.

In the case State Vs. Naresh Chawdhary

For making an offence under section 506 IPC , it is essential that the requirements of section 503IPC are fulfilled. The requirements of section 503 are as follows:-

(a) A person threatens another with injury.

(b) The injury is to-

(i) his person, reputation or property, or

(ii) to the person or reputation of any one in whom that person isinterested.

(c) The intention is_

(i) to cause harm to that person, or

(ii)to cause that person to do any act which he is not legally bound to do, as means of avoiding, execution of such threats, or

(iii)to cause that person to omit to do any act which that person is legally entitled to do, as the means of avoiding execution of such threat.

Besides the above stated three requirements as stated in section itself, to make out an offence under section 506 IPC, it is also required that the alleged threats also caused alarm to the complainant. Mere threats in itself is not an offence. If the person advancing such threats, is unable of executing them, and if the person to whom the such threats are advanced, do not get alarmed by raising of such threats alone, no offence is made out. The court would like to refer to certain judgments.

In judgment titled Amitabh Vs. NCT of Delhi 2000 CRI. L.J.4772 the Hon’ble Delhi High Court observed in para 6 as follows:-

“The averments made in the FIR and in the case diary statement of the complainant against the petitioners also do not satisfy the essential ingredients of the offences punishable under section 506/509 IPC. The threats alleged to have been given to the complainant Ms. Bharti by the petitioners do not fall within the definition of criminal intimidation in as much as the complainant has nowhere stated that the threats given by the petitioners caused an alarm to her. It is well settled that mere threat is no offence”.

In Kanshi Ram Vs. State

So far as the offence under Section 506 IPC is concerned, the complainant Isran Ahmed stated in his case diary statement that at the relevant time the petitioner had exhorted his security personnel to thrash the journalists. According to Isran Ahmed, the exact words used by the petitioner were “Maro Salon Ko”.Strangely enough, Isran Ahmed has nowhere stated in his statement that the alleged threat had caused an alarm to him. On the contrary the circumstances of the case clearly go to show that even after the alleged threat, the complainant or other media persons did not retrace their steps. It is well settled that more threat is no offence. That being so the threat alleged to have been given by the petitioner does not fall within the mischief of Section 506 IPC. Consequently, no charge under Section 506 IPC can be framed against the petitioner on the basis of the said evidence.

In S Ramesh Vs. State

Going to the third offence of criminal intimidation under Section 506(ii) IPC. The only allegation that has been made against the petitioner is an oral threat and nothing more. Section 503 IPC defines the criminal intimidation. The intention must be to cause alarm to the victim and materials have to be brought on record to show that the intention was to cause alarm to the person. A mere threat is not sufficient to attract the charge of criminal intimidation. In other words, the threat should be a real one and not just a mere word.

In the judgment in G.Paramasivam and Another V. Dy. Commissioner of Police and Others, reported in 2016 (1) TNLR 489 (MAD),It is has been held as follows:

?9. Coming to the alleged offence under Section 506(ii) I.P.C., is concerned, as rightly submitted by the learned Senior Counsel, a mere threat per se would not attract the said provision. The allegation is that the petitioners went to the house of the fourth respondent and threatened orally by showing their hands. A mere outburst would not attract Section 506(ii)IPC.?\

Conviction Judgement

Now here are the facts of conviction Judgement

In the case of State Vs. Baba Sakia

There is no doubt when PW1 &
PW2 were chased with bricks and lathi there will be danger to their lives and this itself causes alarm to the mind of a person and in this case it was PW1 & PW2 who had expected and presumed that there is danger to their life and because of it they entered into their house to save their lives. The intention of the accused persons can be presumed in this case when they chased with bricks and lathi.

Conclusion Example of Criminal Intimidation

  1. Use of lethal weapon by threatening.
  2. Doing some overt act like twisting hand or throat squeezing while threatening.
  3. Showing mobile phone which has defamatory material and threatening to share.

Mere threatening is not criminal intimidation it has to be clubbed with some overt act.

Police has removed the names of my family members in false 498a but court can put their names back read How?

The power of court under 319 Crpc

If you are facing false 498a and your family members are also implicated in the case.

Sometimes police assures you that the name of some of the family members will be removed and they will place the family members in the column 12 of the charge sheet in lieu of course you give illegal favor to the police.

But what is the risk?

Well court can use it powers under 319 Crpc and can put the members back into the case here is How?

Section 319 CrPC deals with court’s power to summon the additional accused.

If investigative agency failed to array someone as accused the section 319 is an enabling provision. this section empowers accused to be arrayed. The provision empowers the court for calling such persons to face trial. The section stipulated that court can summon any additional accused. If it appears from the evidence during course of inquiry or trial, that such a person is an accused. Held in Sukhpal singh Kher Vs. state of punjab.

The power of section 319 is extraordinary and discretionary is to be excercized sparingly held in Sugreev Kumar V. state of punjab.

The court must be satisfied that there exist a prima facie case which is held in the landmark case of Hardeep Singh Vs. State of Punjab

This power (under Section 319(1)), it seems clear to us, can be exercised only if it so appears from the evidence at the trial and not otherwise. Therefore, this sub-section contemplates existence of some evidence appearing in the course of trial wherefrom the court can prima facie conclude that the person not arraigned before it is also involved in the commission of the crime for which he can be tried with those already named by the police. Even a person who has earlier been discharged would fall within the sweep of the power conferred by S. 319 of the Code. 

If at an earlier point of time supplementary chargesheet was ignored and accused was discharged but at a later stage supplementary chargesheet was filed with 319 CrPC application the trial court can proceed if there is material. held in Deepu Vs. State of MP

The court has to keep in mind the statement of the witness is not that to take revenge. held in Rajesh Vs State of Haryana

Summoning of accused niether named in FIR or 161 is not allowed

Periyasamy vs S. Nallasamy

So in 498a cases what you have to do is either go through the formal procedure of quashing or discharge if you want to be sure about keeping relatives safe.

By Adv. Nitish Banka

9891549997

Can I get divorce if I am acquitted in 498a?

These days filing 498a and divorce are becoming an ordeal in a Matrimonial cases in the country.

Once a wife files 498a which is without any evidence of course and as a result of which husband files divorce petition under section 13(1)(i-a) i.e divorce on the grounds of cruelty.

If any party does not have evidence they fail..

But what will happen when if wife fails and husband gets acquittal in false 498a will he get divorce?

In Rani Narasimha Sastry v. Rani Suneela Rani this the recent Judgement of apex court in which a detailed discussion of the issue of acquittal in 498a and consequent divorce taken place.

In this case wife had filed a false 498a against the husband and relatives and husband has filed divorce on ground of cruelty and mental disorder.

The Husband case was dismissed at Family court as well as the High Court and reached Supreme court.

Now the important thing was that his 498a case was not decided at the stage of family court and High court has held


14…..Merely because the respondent has sought for maintenance or has filed a complaint against the petitioner for the offence punishable under Section 498-A of IPC, they cannot be said to be valid grounds for holding that such a recourse adopted by the respondent amounts to cruelty.”

But Hon’ble Supreme court has made a different observations

The above observation of the High Court cannot be approved. It is true that it is open for anyone to file complaint or lodge prosecution for redressal for his or her grievances and lodge a first information report for an offence also and mere lodging of complaint or FIR cannot  ipso facto be treated as cruelty. But when a person undergoes a trial in which he is acquitted of the allegation of offence under Section 498-A of IPC, levelled by the wife against the husband, it cannot be accepted that no cruelty has meted on the husband. As per pleadings before us, after parties having been married on 14.08.2005, they lived together only 18 months and thereafter they are separately living for more than a decade now.

The Hon’ble Supreme Court granted divorce on this alone.

In a recent case in Kolkata High Court in the case

A division bench of the Calcutta High Court has ruled in March 2020, that falsely implicating one’s husband/ his family in a criminal case, which leads to their arrest and subsistence in jail, amounts to cruelty.

The Appellant/husband had moved the high court against an order of the Additional District Judge, who had declined the Appellant’s divorce petition.

Case:

  • Couple had got married in February 2002
  • According to the husband, within 2-3 years of marriage, wife under the influence of her family started misbehaving with her in-laws
  • The wife was accused of not doing any domestic work in the joint family and after constant fights on a daily basis, in February 2004, the husband’s parents shifted to a separate home, while his brother and his family moved into a rented apartment
  • Even when the couple was now living as a nuclear family, the husband alleged of being constantly harassed physically and mentally since his wife was an active member of one Mahila Samity
  • In 2007, the couple argued on the admission of their son to a particular school, which is when the wife attacked husband with a sickle
  • This is when the man filed for a juridicial separation, post which the wife slapped him and his family with a series of criminal charges

In his appeal to the High Court, the husband argued that his wife had lodged a false complaint against him and his family under Sections 498A, 406 and 313 of IPC for cruelty and causing miscarriage without her consent. It was further pointed out that on her filing the false complaint, he and his father were arrested and put under nine days police custody for investigation. Later on however, the trial court found that the claim of the respondent/wife was not supported by medical evidence or other material placed on record, and all of them were acquitted.

While allowing an appeal for divorce preferred by an aggrieved husband, Justices Samapti Chatterjee and Manojit Mandal observed,

The respondent/wife, in our opinion, had no intention of living with the husband as would appear from the facts and circumstances of the case and respondent/wife deliberately made wild allegations against the husband and his relatives. Inference can be drawn that the wife had no intention to reside with the husband and her intention was to terminate the matrimonial relationship.

Hence such acts of the respondent/wife, specially filing a criminal case and for which her husband and father-in-law languished in the custody amounts to cruelty so as to create an apprehension about life and, thus, it amounts to ground of divorce.

The Appellant/husband had moved the high court against an order of the Additional District Judge, who had declined the Appellant’s divorce petition.

He argued that his wife had lodged a false complaint against him and his family under Sections 498A, 406 and 313 of IPC for cruelty and causing miscarriage without her consent. It was further pointed out that on her filing the false complaint, he and his father were arrested and put under nine days police custody for investigation. Later on however, the trial court found that the claim of the respondent/wife was not supported by medical evidence or other material placed on record, and all of them were acquitted.

April, 2007, following a dispute regarding admission of his son in the village school, she assaulted him with a sickle and lastly petitioner/husband was forced to file a suit for a decree of judicial separation, which was registered as MAT Suit No. 125 of 2007 and which was subsequently compromised on 12th June, 2007. Thereafter, they lived peacefully for some days. Further case of the petitioner/husband is that to prevent birth of further issue, they used to use contraceptive pills but since the respondent/wife had forgotten to use the same, she was conceived again and on 17th June, 2007, the respondent/wife got aborted in one Nursing Home out of her own volition and even going against the intention of him.

It is the further case of the petitioner/husband that on 21st June, 2007, when the petitioner/husband got back at home after having bath in a nearby pond, the respondent/wife did not allow him to enter into the room and kept him standing with wet wearing apparels for at least 11⁄2 hours and in spite of being requested on numerous times, respondent/wife did not open the door and hence petitioner/husband was forced to take shelter in another house, where his parents used to reside and on the very same day in the evening when he had been to the former house, he was abused and was not allowed to stay in that house. Thereafter, on 23rd June, 2007, the respondent/wife lodged a false complaint against him, his parents, his brother and sisters-in-law and treating the compliant as FIR being No. 152, one case under Sections 498A, 406 and 313 of the Indian Penal Code was started against them. Further case of the petitioner/husband is that respondent/wife had been inflicting tortures upon them since long back.

Adv. Nitish Banka

9891549997

Discharge In 498a with case law example.

Discharge in 498a is quite rare and normally at the level of magistrate court it is not granted . However in exceptional circumstances it can be granted.

Now one of the exceptional case circumstances is discussed in the case of Madhu Pamnani vs . Hanish Pamnani And Anr. on 31 May, 2014

In this case wife has as usual leveled dowry harassment against various family members of the Husband.

But what was unique in this case was wife had implicated Brother in laws of the husband.

Now these facts were peculiar with respect to two brother in law

A. Brother in Law lived seperately from the husband and wife since 2003.

B. Vague allegation of entrustment of dowry articles in case of brother in law

C. No medical evidence of beating.

Court relied on the Supreme Court Principle

iii)Dilawar Balu Kurane Vs. State of Maharashtra(2002) 2 SCC

(a) The court while considering the question of framing the charge under the Criminal procedure Code has undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case.

(b) Where the materials placed before the court discloses grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial.

(c) The court can not act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities etc. However, at this stage, there can not be a roving enquiry into the pros and cons of the matter and weigh the evidence as if court was conducting a trial.

(d) The Court is required to be evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value discloses the existence of all the ingredients constituting the alleged offence.

(e) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial 

The court also held that whatever harassment brother in laws given to the wife do not come under the ambit of 498a.

Discharge can be opportunity to get family members out of the soup of false 498a

Adv. Nitish Banka

9891549997

What Questions you should ask wife in false 498a part-II

Now another aspect in false 498a case is the case of 406IPC which is related to the streedhan of the wife.

The main ingredients of 406 IPC

Entrustment of dowry Articles

Non return of dowry articles

Misappropriation

I have already made a detailed video with regards to 406

In this wife has to first prove ownership of the streedhan articles, now the ownership of the Jewelry can be proved by producing GST bills of purchased goods. A lot of jewelry can be gift from her mother for this bills may not be available and next she has to prove entrustment of dowry article to the family members. Normally in other cases an acknowledgement or receipt is a proof of entrustment but not in the cases of matrimonial cases.

Now there is one law under which during marraige a list is to be prepared at the time of marraige which is

  1. Rules in accordance with which lists of presents are to be maintained:
  2. shall be prepared at the time of the marriage or as soon as possible after the marriage:
  3. shall be in writing;
  4. shall contain,-
    1. a brief description of each present;
    2. the approximate value of the present;
    3. the name of the person who has given the present; and
    4. where the person giving the present is related to the bride or bridegroom, a description of such relationship;
  5. shall be signed by both the bride and the bridegroom.

Now if there is no record it will very difficult to prove 406 IPC

Still following questions can be asked:

If no bills are produced

Q. You have produced no bills of stridhan articles enumerated in the list?

If only few bills are there and that too no GST

Q. You can ask that the bill no are not valid bills as they have no GST payment by jeweler? The wife has to examine jeweler in such case.

If no date of entrustment is given in FIR

Q You have not mentioned in yourcomplaint when did you entrusted the said streedhan articles?

Q. There is no list prepared during marriage that says list of streedhan articles entrusted to bridegroom ?

If large number of items are part of stridhan by father which she claims heavy items

Q. you can ask for way bill or transportation reciept?

If she has not mentioned to whom she has given the articles in FIR

Q. To whom you have given the entrusted articles?

When there is no demand back of entrusted article

Q you have never demanded back the articles?

Q No mention of date of demand?

Suggestions:You have never brought the streedhan articles, niether entrusted them and never demanded articles from the accused person.

To IO.

Q During interogation of the accused you have not recovered any of the streedhan articles?

Q. There is no disclosure by the accused during interrogation that they have hidden the stridhan articles and misappropriation?

Suggestion there is no streedhan article in existence.

This is a really short strategy in tackling 406, rest again it depends on case to case basis.

Protest petition and 498a

What is protest petition?

There is no mention of protest petition in CrPC and no defination of protest petition is there.

Now a protest petition is a say of the informant or complainant in a police investigation. Now if there is some fault in the police investigation the complainant/ informant can file protest petition.

Now in criminal case when police file a False Report despite there is evidence which was overlooked by the investigating officer the complainant can tell the magistrate by way of protest petition that the IO has overlooked a part of evidence which can goes against the accused.

The scenarios like

A. Non examination of vital eye witness under 161 CrPC

B. Non recovery of weapon or theft material from accused.

C. Non arresting of accused and interrogation of accused.

D. Overlooking co-accused despite allegations

Now these are the scenarios of claiming protest petition before magistrate.

But what about offences under 498a/406

A wife can file protest petition when there is faulty investigation and generally she can file protest petition when one of the accused is left out a FR is filed against one or all the accused in this case Husband and the family members.

What after filing protest petition?

Thse protest petition is like a complaint a magistrate has 3 options.

  1. Accept the report of police and reject the protest petition.
  2. Accept the report of police and accept protest petition in which he can order for inquiry as per complaint case procedure.
  3. Reject police report and treat case as complaint case.

In Vikas Sawlani vs State Of Rajasthan And Anr on 31 May, 2013

In this case even after compromise with wife, the police closed the case and later dispute arose between husband and wife the wife after filing protest petition the wife reopened the case and magistrate directed further investigation under 173(8) CrPC.

In Ramavtar & Anr vs State & Anr on 23 January, 2013

In this case FIR was registered on wife application under 156(3) and police closed the case as no case was made out. The magistrate treated the protest petition as complaint case and started procedure as per 200 CrPC

In Kailash vs State Of Rajasthan on 24 October, 2018

The magistrate on its own do not have any power to re-investigate the 498a case on his own. It is only on protest petition the magistrate can order further investigation if required.

Now in 498a and 406 the police generally keep at bay the parents of the husband at the time of charge sheet and this has become a business solution of the police. Now by way of protest petition the wife may agitate the same and magistrate can order further investigation or treat the protest petition as separate complaint a supplementary charge sheet can be filed by the police in such cases.

Advocate Nitish Banka

9891549997