Quashing of FIR for the offence of rape is quite rare in legal field as it is a heinious crime. As this is offence against society at large and that’s why it is very difficult to discharge the accused in such matters.

However, in some peculiar circumtances this FIR can be quashed when it is for the future development of the complainant and when complainant herself request for quashing of such FIR.

Nowadays, wives for the extortion of money and harassment of the husband and his relatives files cases of sexual offence against them. They use these sensitive FIRs as a trap for them as they are women oriented sections and accused are not very easily get discharge from these cases.

While this is very sensitive matter and thats why courts also take these matters very seriously but nowadays courts looking at these matters very actively and giving very formulative orders.

Few days back one of client came to me for quashing of FIR filed against him under section 376 of Indian Penal Code then I firstly I have suggested him to go for settlement and then the settlement is done between the parties.

After that the quashing petition is filed in Delhi High Court and we have argued the matter and presented some of the jugements of Supreme Court and High Court where court has quashed this FIR based on compromise between the parties.

Here, I have discussed the case which is from our firm and we have successfully able to give relief to our client and FIR is quashed by Delhi High Court.i.e.,

In Sumeert Rathore &ORS Vs. State, the Delhi High Court has recently quashed charges of 376/354/498a/406/34 IPC. In this case initially court was reluctant to quash charges of 376 IPC but we gave a supreme court judgement.. Kapil Gupta v. State of NCT of Delhi, 2022 SCC OnLine SC 1030, while quashing an FIR under Section 376 IPC, had observed as under: “…13. It can thus be seen that this Court has clearly held that though the Court should be slow in quashing the proceedings wherein heinous and serious offences are involved, the High Court is not foreclosed from examining as to whether there exists material for incorporation of such an offence or as to whether there is sufficient evidence which if proved would lead to proving the charge for the offence charged with. The Court has also to take into consideration as to whether the settlement between the parties is going to result into harmony between them which may

improve their mutual relationship. 14. The Court has further held that it is also relevant to consider as to what is stage of the proceedings. It has been observed that if an application is made at a belated stage wherein the evidence has been led and the matter is at the stage of arguments or judgment, the Court should be slow to exercise the power to quash the proceedings. However, if such an application is made at an initial stage before commencement of trial, the said factor will weigh with the court in exercising its power…”The case was quashed by the High Court on the ground that complainant do not want to proceed with the case

Here, are the other cases where court has quashed FIR filed under section 376 of IPC-

Arshad Ahmad & Ors v. State of NCT of Delhi (Criminal Writ Petition Case No. 1185 of 2022 & Criminal Miscellaneous Application Case No. 10056 of 2022)

FACTS OF THE CASE: Brief facts of the case are as follows; A petition was filed for quashing an FIR registered under Sections 376/377/498-A of the IPC. The charge sheet had been filed under Section 376 of the IPC, but, in her statement given under Section 164 of the Code of Criminal Procedure (CrPC), the complainant stated that her father-in-law had made only a rape attempt. The complainant told the Court that she had entered into a compromise out of her own free will and had no objection to quashing the FIR.

JUDGEMENT: After reviewing the submissions of both the sides, the Court observed that the practice of registering cases under Sections 376 (rape), 354 (assaulting a woman) and 498A (husband or relative of husband of a woman subjecting her to cruelty) of the Indian Penal Code (IPC), which are later brought to Court for quashing, needs to be curbed. The Court quashed a First Information Report (FIR) registered by the woman against her father-in-law after finding that the parties had reached a compromise. “The fact that nowadays Sections 376 and 354 of IPC are being used along with Section 498-A IPC, which later are compromised and are brought to the court for quashing, needs to be curbed,” read the Court’s order.

The Court said that cases under Section 376 IPC should not be quashed in ordinary circumstances and should be viewed as crimes against society at large. However, in the peculiar circumstances of the matrimonial dispute case, where the woman said that her future depends on the quashing of the FIR and that rape was not committed upon her, it will be in the interest of justice that if the FIR in its entirety is quashed, the Court ruled. While noting that the complainant had received a demand draft of ₹10 lakh towards the compromise, the Court saw it fit to quash the case, convinced that doing so would ensure a better future for all the parties. Because of the “overall facts and circumstances of the case. The Court appreciated the stand taken by the complainant and stated, “The complainant is a young lady who is looking for a bright future for herself, which depends on quashing of the present FIR according to a settlement which she states before this Court, she has entered out of her free will and without coercion, pressure or threat. She also stated that it was a family dispute, and she no longer wants the same to be tried in any Court of law.” The Court said that any case coming to an end was a welcome step as it decreased the pendency of the courts.

In case of VIKAS KUMAR &ORS. Vs. THE STATE & ANR., 2022 the Delhi High Court have quashed the FIR filed under section 376 IPC on basis of compromise which was filed against Father-in-law and Brother-in-law by the complainant.

In case of KAPIL GUPTA Vs. STATE OF NCT OF DELHI & ANR.,2022, SC has quashed the FIR filed under section 376 IPC as the matter was amicably settled and therefore, the petition for quashing the proceedings under section 482 of Cr. P.C. is allowed by the court. Court has considered that the main purpose of the court is provide justice to the complainant and where complainant herself settled the matter then court can allow quashing as this essential step toward development of her future.

Though ordinarily, cases under Section 376 IPC should not be quashed and should be taken as a crime against the society at large, however, in the peculiar circumstances of this matrimonial dispute case where the complainant states that her future depends on quashing of the FIR and states that rape was not committed upon her, it will be in the interest of justice that if the FIR in its entirety is quashed, in these matters.

Bonus Judgement–Our Firm Case…In Sumeert Rathore &ORS Vs. State the Delhi High Court has recently quashed charges of 376/354/498a/406/34 IPC. In this case initially court was reluctant to quash charges of 376 IPC but we gave a supreme court judgement.. Kapil Gupta v. State of NCT
of Delhi, 2022 SCC OnLine SC 1030, while quashing an FIR under Section
376 IPC, had observed as under:
“…13. It can thus be seen that this Court has clearly held that
though the Court should be slow in quashing the proceedings
wherein heinous and serious offences are involved, the High
Court is not foreclosed from examining as to whether there exists
material for incorporation of such an offence or as to whether
there is sufficient evidence which if proved would lead to proving
the charge for the offence charged with. The Court has also to
take into consideration as to whether the settlement between the
parties is going to result into harmony between them which may
improve their mutual relationship.

14. The Court has further held that it is also relevant to consider
as to what is stage of the proceedings. It has been observed that
if an application is made at a belated stage wherein the evidence
has been led and the matter is at the stage of arguments or
judgment, the Court should be slow to exercise the power to
quash the proceedings. However, if such an application is made
at an initial stage before commencement of trial, the said factor
will weigh with the court in exercising its power…”The case was quashed by the High Court on the ground that complainant do not want to proceed with the case

Maintenance is a amount that is paid to wife, children and parents who are not able to maintain themselves. In general, it is basically “support or subsistence.” It is typically pays for the costs of essentials or requirements for the stuff of life.

However, it is not just a right to the claimant’s survival but also the capacity to work of the husband or wife, their behavior and other considerations will all be taken into account by the court when deciding how much maintenance should be paid.

Many of matrimonial cases which I handle in day to day life are based on vague allegations and malicious intention. Most of the maintenance cases filed by wife are only for the extortion of money from the husband.

Here, I have researched on few judgments that are favor of husband that help them in there maintenance case-

1. In case of Abdulmunaf v. Salima: 1979, Wife is capable of earning in view of her being a nor mal healthy person and educated up to
2.  SSLC, but she has not taken care to earn anything for herself-That disentitles her to full amount that she has claimed, but contention of husband that her application for maintenance is liable to be rejected, cannot be accepted-Refusal to earning by such wife may be taken into consideration while considering quantum of maintenance.

3. In Kavita Prasad v. Ram Ashray Prasad 2009, Trial court granted maintenance of rupees four thousand per month then petition against observation of trial court that she was working somewhere and earning around rupees eight to ten thousand per month and maintenance granted by trial court was made subject to adjustment of maintenance being received by her under Section 125 of CrPC. Wife pleaded unemployed, despite being a qualified doctor. Court consider that as petitioner is receiving maintenance from her husband, she should be directed to work as a honorary Doctor in some public welfare institute or school free of charges where she can take care of health of poor people.

4. In case of Anil v. Sunita (2016), Non-applicant/wife resided in her matrimonial home for the first time for 7 days and second time for 12 days and it is alleged that in these 12 days she was harassed. It is practically impossible that she could have been so harassed that it is impossible for her to live in her matrimonial home. After 12 days she had voluntarily gone with her brother with a view to select a girl for marriage of her brother. Non-applicant-wife has not made any complaint to anybody or lodged a report to police station. It cannot be held that she was thrown with force from her matrimonial home or she was forced to leave her matrimonial home. Non-applicant-wife is residing separately without any reason, hence, she is not entitled for maintenance under Section 125 of CrPC and order granting maintenance to wife set aside. 

5. In case of Deb Narayan Halder v. Anushree Halder (Smt.): 2003 it was held that if demand of dowry and cruelty by husband is not supported by evidence on record and reasons given for her ill-treatment are not existed and if wife leaves the matrimonial home without any justifiable ground then she is not entitled for any maintenance.

6. In case of Shibani Roy v. Shambhu Nath Roy: 2007, it was held that torture and harassment to wife not established on the basis of evidence adduced Wife is not at all interested to live with her husband and she is staying in her mother’s house without any sufficient reason or just cause. Wife not entitled to claim any maintenance from her hus band as she herself left residence of the husband voluntarily.

Domestic violence is a very sensitive issue to address in the legal system due to numerous incidents of vague allegations and false cases implicating the Innocents in the Relationship.

Although on the one face of the coin, Number of women are facing Domestic violence and choose to be silent in the society for the sake of their relationship, but on the other side of the coin, many womens are using this as a tool to harass and falsely implicate the husband and his family in the false Domestic violence case on the vague allegations. 

I regularly witness various cases where a wife has made false and vague allegations against the husband and his family and despite being innocent they face huge difficulties to get themselves out from this pool of allegations against them. 

Being a defense lawyer in most such cases, the court too notices the fact that in many cases, the allegations made by wife is false and vague but because of the compliance of court procedures, the court cannot make it very clear on record without letting both the sides top present their evidences and statements to support their case. 

What can we consider ?

There is a Judgment passed by Hon’ble supreme court of India in case of Kamlesh Devi Vs. Jaipal & Ors, where the Hon’ble court found that the allegations made by the wife against the husband and his family members are vague. The Ingredients to support Domestic violence were absent in the present case as the Petitioner and the Respondents were not living in the shared household. You can also use this judgment to support your defense case against the false allegations. 

What are the basic allegations which a court can consider to be checked twice of its authenticity ?

1. Whether the wife was living with you and your family members in a shared household – In many cases, even if wife was not living with husband’s family members, she implicate them falsely in a false case of Domestic violence which is a major ingredient to frame a Domestic violence case that the accused’s should have lived with the complainant in a shared household after marriage. 

2. Whether the accused are even the family members of the husband or not –  In the above mentioned case, the supreme court found that the Respondents were not even family members but neighbors. There was not even a whisper of incidents mentioned by the complainant with the Accuseds ( Relatives). 

3. Whether the allegations are specific or not – In many cases, the complainant mentions the allegations which are not even directly related to incidents which proves that the allegation made is vague. 

Judgment PDF

The Hindu Marriage Act of 1955, which governs the law relating to Indian marriages between Hindus, and the Special Marriage Act of 1954, which governs the law relating to all Indian marriages regardless of religious denominations, contain an identical ground for divorce: “cruelty” after solemnization of the marriage.

Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by statute framed, keeping in view such norms and changing social order.

However cruelty is legally defined in law. Here are some of the judgments of courts related to mental cruelty on the basis of which divorce is granted in favor of the husband.

Impact of mental cruelty on matrimonial life

Prior to the 1976 amendment in the Hindu Marriage Act, 1955 cruelty was not a ground for claiming divorce under the Hindu Marriage Act. It was only a ground for claiming judicial separation under Section 10 of the Act. By 1976 Amendment, the Cruelty was made ground for divorce. The words, which have been incorporated, are “as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party”.

Legal provisions related to cruelty

The Hindu Marriage Act-1955 has given the legal provision for divorce on basis of cruelty under section – 13(1)(ia) as follows;

“Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has, after the solemnization of the marriage, treated the petitioner with cruelty”.

On basis of this section we can explain this legal basis for the divorce as anybody who is getting suffer from the other party in physical manner or a mental torture or any other type of harassment then the other can reach to the court with this base and claim for the divorce. And there are various cases where courts held that the intention to be cruel is not an essential element of cruelty as envisaged under this section.

Case laws in which divorce is granted in favor of husbands related to mental cruelty…..

In case of Samar Ghosh vs Jaya Ghosh (2007) (Supreme Court), which deals with a matrimonial dispute between two IAS officers. The husband alleged that his wife made a unilateral decision to not have a child and did not allow him to show affection to her daughter (from her first marriage). Further, she showed scant regard for his health, refused to cook for him and asked him to leave her flat, thereby humiliating him, and refused to cohabit with him. The court found that the wife’s conduct amounted to mental cruelty and restored the decision of the trial court which granted the husband divorce.

In case of Vishwanath vs. Sarla Vishwanath Agrawal, 2012  it was established that a sustained attitude of causing humiliation and calculated torture on part of wife to make life of husband miserable and husband felt humiliated both in private and public life with this mental pain, agony and suffering, Husband could not be asked to put up with conduct of wife and to continue to live with her. Therefore, he was entitled to a decree for divorce. Although, permanent alimony was to be granted taking into consideration social status, conduct of parties, way of living of spouse and such other ancillary aspected. Finally the appeal of the husband was allowed in this matter and divorce decree is granted in favor of the husband.

In case of Malathi Ravi vs. B.V. Ravi (30.06.2014 – SC)  High Court reversed decree for restitution of conjugal rights granted in favor of Wife and decreed dissolution of marriage by way of divorce allowing petition preferred by Husband. Hence, present appeal is filed whether impugned order rightly reversed the decree for restitution of conjugal rights by granting divorce. It was held that the wife failed to prove her allegation on account of conflicts with sister and brother-in-law. Wife herself has admitted that husband had given his consent for her higher education and, in fact, assisted her. Husband had been treated with mental cruelty by wife as he had faced ignominy. Moreover, despite the husband’s request to come to the house, the wife showed disinclination. Husband was likely to lament in every breath and the vibrancy of life melted to give way to the sad story of life. Hence, impugned order passing the decree for divorce had been affirmed in favor of husband.

Conclusion

By looking at the above judgements we can get an idea that a husband can get divorce by establishing  mental cruelty by wife wife by putting wrong grounds and filing false cases against husband and later on failed to prove that.

Here, are the 5 latest judgements of courts in which FIR registered under 498A got quashed due to presence of vague allegations and false charges against the husband and his family members.

In case of Kahkashan Kausar and Ors. vs. State of Bihar and Ors. (08.02.2022 – SC)  wife has  instituted a criminal complaint against her husband and his relatives alleging demand for dowry and harassment. Court took cognizance for the offense under Section 498A, 323 Indian Penal Code against the husband and issued summons. This dispute was eventually resolved and subsequently, a another written complaint for registration of FIR against her husband and the Appellants herein alleging Accused of pressurizing the Respondent wife to purchase a car as dowry, and threatened to forcibly terminate her pregnancy if the demands were not met.Aggrieved, the Husband and re;atives sought quashing of FIR which was dismissed vide impugned judgment by the High Court. Hence, the present appeal in Supreme Court of India.

Held, while allowing the Appeal SC stated that-

Court has at numerous instances expressed concern over the misuse of Section 498A Indian Penal Code and the increased tendency of implicating relatives of the husband in matrimonial disputes, without analysing the long term ramifications of a trial on the complainant as well as the Accused. Court by way of its judgments has been warned from proceeding against the relatives and in-laws of the husband when no prima facie case is made out against them.

Upon a perusal of the contents of the FIR, it is revealed that general allegations are leveled against the relatives.

Therefore, upon consideration of the relevant circumstances and in the absence of any specific role attributed to the Accused Appellants, it would be unjust if the Appellants are forced to go through the tribulations of a trial, i.e., general and omnibus allegations cannot manifest in a situation where the relatives of the complainant’s husband are forced to undergo trial. A criminal trial leading to an eventual acquittal also inflicts severe scars upon the Accused, and such an exercise must therefore be discouraged.

In view of the above facts and discussions, the impugned order is set aside and FIR quashed in this matter.

In case of Kamlesh Kalra and Ors. vs. Shilpika Kalra and Ors. (24.04.2020 – SC) court are of the opinion that the allegations of the complainant wife with regard to non-return of the Stridhan articles and the charges Under Section 406 against the husband and his relatives are not sustainable in law. It clearly appears that the filing of the criminal complaint is a pressure tactic, having been employed by the complainant wife against her husband, mother-in-law, brother-in-law and sister-in-law, which is clearly an abuse of the process of Court, and is liable to be quashed in toto.

In case of Ravinder Kumar and Ors. vs. State of Himachal Pradesh and Ors. (03.01.2020 – HPHC) petition seeks quashing of FIR registered against petitioner for offences under Sections 498A, 354, 406 and 34 of IPC – Whether FIR impugned herein need to be quashed. It was  held that inherent power with High Court to quash criminal proceedings and FIR. Quashing allowed even in cases which are not compoundable. Power to quash to be exercised with great caution and sparingly. If allegations made are absurd, quashing justified. Where criminal proceeding manifestly attended with mala fide it must be set aside. In present case, no iota of averments or allegations to attract offences as alleged. Continuation of proceedings would tantamount to abuse of process of law and FIR qua present petitioner quashed and set aside.

In case of Anupam Mahajan and Ors. vs. State of Himachal Pradesh and Ors. (02.01.2020 – HPHC) petition seeks quashing of FIR registered against petitioner for offences under Sections 498A, 354, 406 and 34 of IPC and this case as well FIR is quashed and set aside as If allegations made are absurd then quashing is justified Where criminal proceeding manifestly attended with mala fide it must be set aside. In present case, no iota of averments or allegations to attract offences as alleged and Continuation of proceedings would tantamount to abuse of process of law.

In case of RUBI & ORS. VS. STATE OF U.P. & ANR. On 16 March 2007 court established a opinion that summoning of younger members of family, unjustified. At stage of summoning it is not law that even younger members of family be also summoned to stand trial along with elders even though no specific allegation made against them and their complicity in crime prima facie mala fide and purposive-Levelling general allegations against all family members including unmarried younger girls and boys without specification is practice to be curbed because it will amount to great injustice to ask unmarried younger daughters and brothers to stand trial only because of their relationship with husband.

In this article I will cover 8 grounds with Judgments held 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
6. Woman who contracts Second Marriage
7. Woman against whom Decree of Restitution has been passed
8. Where divorce was granted against a woman on her fault

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 why she is living separately 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 the respondent. So, it is evident that petitioner No.1 is living separately from her husband-respondent, without any sufficient reason. Therefore, the learned trial court appreciates each and every fact in this regard so petitioner-application No.1 is not entitled to get any maintenance from her husband…”

In the Judgement of Anil Jain Vs. Smt Sunita it was observed.

Wife resided with the husband for 12 days and in these 12 days the wife was in constant touch with her brother. She had a mobile phone and in the entire period of stay she never complained to her brother regarding any cruelty. it is not possible that any cruelty was done to her. She left her home as per own will

Maintenance denied..

Wife living in Adultery

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

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

Mariyumma vs Mohammed Ibrahim on 28 June, 1978

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 negative. Sub-section (4) cannot hence logically apply to the case of a divorced woman.

Professionally qualified wife-Capable of earning

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

In a recent Judgment by Delhi Session court filed under appeal u/s. 29 of DV act the court ordered wife to find a suitable job and held that maintenance order is valid for 1 year only

Case link Rajan Parmar Vs Mamta Parmar

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, perhaps in the case of an employee of Reserve Bank of India at a somewhat higher rate. If the approximate salary of the husband is twice as much as that of the wife, they are bound to contribute for maintenance of their children in that proportion. The Family Court has already fixed a sum of Rs.. 250 per month for each of the children 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 continues 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.

About Income Affidavit

Separated by mutual consent

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

But what about cases in which maintenance 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 the 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.

Maintenance can be denied on the basis of Preliminary Issue of

1. Jurisdiction-If the case is not maintainable due to the fact that wife was not the resident at time of filing of the petition then the Maintenance case can be dismissed at preliminary stage.
2. If wife is is earning and capable of maintenance herself. maintenance cannot be granted in such a situation but these facts should be part of records.

Woman who contracts Second Marriage

: This seems logical corollary to the above, a woman who contracts second marriage forfeits her right to maintenance. If the woman contracts for second marriage then the husband from the first marriage can avoid the maintenance of her wife in India. The same can be considered continuous adultery if contracted while in the existence of the first marriage. And if the woman is educated then no alimony to educated wife as she can maintain herself.

Woman against whom Decree of Restitution has been passed

This is corollary to the above, a decree of restitution of conjugal rights is a proof of wife’s withdrawal without a reasonable excuse and would be considered willful refusal to live with the husband. However, courts are divided on the issue whether an ex- parte decree of Restitution of Conjugal Rights is enough. The courts then look at the conduct of the wife in such cases, whether she was served notice, has she challenged the decree or not. Husband’s conduct after passing of decree is also looked at by the courts. If the husband despite getting a decree in his favor, does not allow the wife to reside with him despite her efforts would still have to pay maintenance. The maintenance to wife needs to given.

Where divorce was granted against a woman on her fault

 Though a divorced wife is eligible to claim maintenance even where initially she lives apart from her husband without just cause, the guilt or fault of the woman hinges heavy on the quantum of maintenance which is granted by the courts. Under Section 25 of HMA, the conduct of the parties is one of the deciding factors while deciding permanent alimony in the courts. There are numerous decisions by High Courts where a woman was divorced on the grounds of Adultery, Cruelty and Desertion, where courts have either refused or granted minimal maintenance to wife.

Section 125 of the Code of Criminal Procedure, 1973 (CrPC) requires a husband to support his wife (who is otherwise unable to maintain herself).

Maintenance is the amount provided by the husband to the wife and child when they are unable to maintain themselve.

But nowadays, when wife is earning then aswell she files maintenance case against the husband to extort money…

Earlier most of the women are housewives and unable to maintain themselves and thats why this provision is added to safeguard the interest of women…

This provision has now became a part of wrong legal practices which are made to harass the  opposite party …

There are various aspects observed by the court while granting maintainance. Questions which are asked by court before granting maintainance are –

Q. what is the job of the husbanQ. How much husband earns?

Q. What is the job of the wife?

Q. How much wife earns ?

Q. what is the difference between income of husband and wife?

If husband earns less than wife and there is good difference between income of husband and wife then there is fare chances that court deny to grant maintainance to wife……

Even if wife is unable to establish the income of husband claimed by her then as well court may deny to granting of maintainance to wife…

Case laws where court denied maintenance to earning wife and wife who failed to establish income of husband claimed by her…

• Sameer Datta Kadam v. Supriya Sameer Kadam, 2019 (2) Hind LR 225: 2019 (2) DMC 33 (Bom)].

Wife failed to establish the income of the husband……

In this case husband seeking divorce under the provisions of Section 13 of the Act 1955 and wife claimed maintenance against him but court dismissed the petition holding that she was capable to earn to maintain herself. In the application wife alleged the income of the husband as Rs. 75,000/- and averred that she had no source of income. Admittedly she was being paid fellowship by the University Grants Commission, at the time of filing the application.Stand of the wife was false to her knowledge. There was no evidence on record to establish the alleged income of the husband. The applicant had not approached the Court with clean hands and could not establish the income of the respondent so as to justify the claim of maintenance. It was held that there was no error in rejecting the application of the wife by The Family Court. Appeal dismissed by the court.

If you want to get out of matrimonial cases fast then register for it…Get my research

• Gaurav Sharma v. Medha Vashishth, 2019 (5) RCR (Civ) 986: 2018 (S) Law Herald 2323 2018 (3) Hind LR 399 (P&H)].

Maintenance of the wife was denied who was running the business of garments, purses, accessories having staff of about 8 to 10 boys and girls-Not entitled.

In this case husband denied the claim of wife contending that her claim was based on false grounds-It was denied that she was dependent upon her parents and having no source of earning-Wife concealed the true facts that she was running beauty parlor where she was operating a unisex saloon and cloth house and also was running business of garments, purses, accessories, temporary and permanent tattoos and piercings etc-Husband also proved that she was having two mobile numbers, and had got a staff of about 8 to 10 boys and girls working in the parlor-As such she was having an earnings of about Rs. 50,000/- per month-She was not dependant and thus, the provisions of Section 24 would not be attracted. Application of wife rejected by the Court below affirmed and appeal  was dismissed.

CONCLUSION..

In marital conflicts, the maintenance idea aims to return the woman to the same level of comfort and lifestyle that she had before the marriage. In India, there is no set amount of maintenance that a husband must give his wife, and the amount of maintenance that the husband must pay, whether monthly or in one lump payment, is determined at the discretion of a family court. Wife maintenance is a tricky topic under the Hindu Marriage Act, 1955, and it has been regarded as a manner of taking advantage of the husband by asking for food for life. Thus, the judiciary is the only reliance in such matters and therefore the purpose behind this article is to highlight the view of the Supreme Court of India with respect to maintenance of the wife by their husbands.

Custody of the child is a issue that is to be decided by the court when two couples fight and get into legal tussle….

The children are the one who suffers….

If they stay with mother they will crave love and attention of the father and vice versa….

So there has to be a solution to this problem…..

Most importantly how court takes up such tough decisions?

I have done some research on the issue and found certain case laws which will clear all your doubts…

In a case of Jagdish vs Sunita the court considers following issues before granting custody to any party…

Q1. who would care the child better?

Q2. Where he is likely to be more happy?

Q3. By whom physical and mental development or comfort of the child be better looked after?

Q4. Who has capacity to provide better education and nursing of child?

Q5 Who would be available for love and affection of child?

Court has to due weightage to the child ordinary contentment, health, education, intellectual development and favorable surroundings but over and above physical comfort, moral and ethical value also to be noted. They are of equal importance..Mousmi Moitra Ganguli supreme court case…

How court decide custody in favor of father?

Now if the husband is able to satisfy all the questions as stated above the court will able to decide custody in favor of father…

Here are some case laws…

In Mamta Devi Vs. Dinesh Kumar…The court has held that the father is entitled for custody of the minor child as mother abandoned the child in her infancy and she did not even enquired about the health of the minor child who was suffering from epilipsy.

In Shaleen Kabra Vs. Shivani Kabra…Wife was not able to take care of the educational needs of the child and while her husband is an IAS officer and can very well take care of the educational needs of the minor child. The father also have the custody of the brother of the minor child and it would be better if both live together..

In case of Ravi Kumar Vs. Manju The child was living with father and grandmother and was happy with them…The custody to mother was denied in this case as child wishes are also taken into account while deciding custody related cases. .However visitation rights were granted…

Custody to father denied as he has taken ground of custody only his financial condition…

In Rajiv chouksy v Kriti chouksy The custody of minor child was denied to father as father only wanted custody on the ground that he has better financial capacity and will be able to maintain the child properly. However wife said that she is maintaining the child properly and giving education and she could also get maintenance under 125 crpc only on ground of financial condition of father the custody cannot be changed…

Here are the 5 latest judgements on 498A i am sharing with you which will
definitely help you in your case for Quashing of charges, criminal Trials etc. I have
researched these judgements specifically for 498A cases.

1. Anita Rai vs. The State of Madhya Pradesh (13.06.2022 – MPHC) :
   MANU/MP/1402/2022
   This case was filed in High Court of MP for quashing of FIR by the petitioner
   (mother-in-law) against the coimplainant. Here, the main allegations by the
   complainant are her husband i.e. son of petitioner who has allegedly not lived with
   her for even two months in a period of two years of marriage and has constantly
   raised demand of dowry from her. He is alleged not to have assisted her mentally
   or financially. He is also alleged not to have made any effort for him and
   complainant to live together as husband and wife. Allegations are mainly against
   husband of complainant but along with him, present petitioner who is
   mother-in-law of complainant has also been implicated but there is no specific
   allegations against her. Petitioner is an aged person and is shown to have been
   living at Jodhpur and her son is in Indo-Tibetan Border Police Force and is posted
   in Arunachal Pradesh. There is no allegation that petitioner and complainant have
   even lived in same house. Allegations levelled against petitioner are vague and
   omnibus and have been made solely for purpose of implicating her in a criminal
   case. There is no specific allegation against petitioner nor has any precise indecent
   been disclosed in FIR against her. Hence petition is allowed and FIR registered
   against petitioner for offence punishable under Sections 498-A, 323 of IPC and 3/4
   of DP Act, is hereby quash.
2. S. Ameer ahmed and Ors. vs. The State of Telangana and Ors.
   (13.06.2022 – TLHC) : MANU/TL/1094/2022
   This case was filed for quashing of FIR registered under Section 498A of Indian
   Penal Code, 1860 (IPC) and Sections 3 and 4 of Dowry Prohibition Act, 1961.
   Petitions were filed by petitioners to quash proceedings of criminal case pending
   before court below. Whether there was sufficient material to proceed against
   Petitioners for offences alleged against them, or whether same were liable to be
   quashed.
   Held, considering allegations leveled by complainant against these Petitioners in
   her complaint, they did not appear to be serious enough but were incorporated to
   harass entire family to settle her personal scores with them – Hence it was
   considered fit to quash charges against Petitioners no. 4 to 8 for offences under
   section 498A of IPC and sections 3 and 4 of Act, taken cognizance against them in
   CC no. 1027 of 2014 on file of court below – In result, criminal petition no. 8699 of
   2017 was allowed quashing proceedings against all Petitioners in CC no. 407 of
   2016 on file of court below and criminal petition no. 13595 of 2016 was
   allowed-in-part quashing proceedings against Petitioners nos. 4, 5, 6, 7 and 9 in CC
   no. 1027 of 2014 on file of court below – Criminal petition was dismissed against
   Petitioners/accused no. 1 to 3 and veracity of allegations made against them could
   be decided during course of trial.
3. Kahkashan Kausar and Ors. vs. State of Bihar and Ors. (08.02.2022 –
   SC) : MANU/SC/0163/2022
   The Complainant (R5) instituted criminal complaint against her husband and the
   Appellants alleging demand for dowry and harassment. Court took cognizance for
   the offence under Section 498A, 323 Indian Penal Code against the husband and
   issued summons. This dispute was eventually resolved and Respondent No. 5
   herein came back to the matrimonial home.Subsequently, R5 gave another written
   complaint for registration of FIR against her husband and the Appellants herein
   alleging Accused of pressurizing the Respondent wife to purchase a car as dowry,
   and threatened to forcibly terminate her pregnancy if the demands were not
   met.Aggrieved, the Husband and Appellant sough quashing of FIR which was
   dismissed vide impugned judgment. Hence, the present appeal.
   Court has at numerous instances expressed concern over the misuse of Section
   498A Indian Penal Code and the increased tendency of implicating relatives of the
   husband in matrimonial disputes, without analysing the long term ramifications of
   a trial on the complainant as well as the Accused. Court by way of its judgments
   has been warned from proceeding against the relatives and in-laws of the husband
   when no prima facie case is made out against them.[18]
   Upon a perusal of the contents of the FIR, it is revealed that general allegations are
   levelled against the Appellants.
   Therefore, upon consideration of the relevant circumstances and in the absence of
   any specific role attributed to the Accused Appellants, it would be unjust if the
   Appellants are forced to go through the tribulations of a trial, i.e., general and
   omnibus allegations cannot manifest in a situation where the relatives of the
   complainant’s husband are forced to undergo trial. A criminal trial leading to an
   eventual acquittal also inflicts severe scars upon the Accused, and such an exercise
   must therefore be discouraged. The impugned F.I.R. No. 248 of 2019 against the
   Appellants Under Sections 341, 323, 379, 354, 498A read with Section 34 Indian
   Penal Code stands quashed.
4. Meera vs. State by the Inspector of Police, Thiruvotriyur Police Station,
   Chennai (11.01.2022 – SC) : MANU/SC/0034/2022
   The mother-in-law/ Accused No. 2 has preferred present appeal against judgment
   upholding Trial Court’s judgment convicting her of the offence alleged. She
   alongwith others were alleged of harassing the deceased and subjecting her to
   torture/cruelty for want of jewels. The deceased allegedly had immolated herself as
   a result of which she died. By impugned judgment, High Court acquitted all the
   Accused for the offence under Section 306 IPC and also set aside conviction in
   respect of Accused Nos. 1 and 3 under Section 498A but maintained conviction
   and sentence in respect of Accused No. 2. hence , the appeal was filed in SC and It
   has been established and proved that the deceased was subjected to torture/cruelty
   by the Appellant – mother-in-law with regard to jewels. There are concurrent
   findings of facts recorded by both the Courts below on the harassment and/or
   torture and/or cruelty by the Appellant – Accused No. 2 with regard to jewelson
   appreciation of evidence. Appellant rightly held guilty for the offence under
   Section 498A Indian Penal Code.
   Merely because long time has passed in concluding the trial and/or deciding the
   appeal by the High Court, is no ground not to impose the punishment and/or to
   impose the sentence already undergone. It is to be noted that the Appellant –
   mother-in-law is held to be guilty for the offence under Section 498A of Indian
   Penal Code. However, considering the fact that Appellant reported to be
   approximately 80 years old, as a mitigating circumstance, sentence reduced from
   one year R.I. to three months R.I. with fine imposed by Trial Court.
5. Achin Phulre and Ors. vs. The State of M.P. and Ors. (16.02.2022 –
   MPHC) : MANU/MP/0308/2022
   This petition was filed for Quashing of FIR registered under Section 498A of
   Indian Penal Code, 1860 (IPC) and Section 3 and 4 of Dowry Prohibition Act,
   1986and Section 179 of Criminal Procedure Code, 1973 (CrPC)- Appeal sought to
   quash of FIR registered against them under Section 498A of IPC and Section 3 and
   4 of Act – Whether woman forced to leave her matrimonial home on account of
   acts and conducts that constitute cruelty can initiate and access legal process within
   jurisdiction of Courts where she is forced to take shelter with parents or other
   family members? – Held, object behind Protection of Women from Domestic
   Violence Act is to provide civil remedy to victims of domestic violence as against
   remedy in criminal law which is what is provided under Section 498A of IPC –
   Definition of Domestic Violence in Protection of Women from Domestic Violence
   Act, 2005 contemplates harm or injuries that endanger health, safety, life, limb or
   well-being – Said definition would certainly have close connection with
   Explanation A & B to Section 498A , IPC which defines cruelty -Provisions
   contained in Section 498A of IPC encompasses both mental as well as physical
   well-being of wife – Even silence of wife may have underlying element of
   emotional distress and mental agony – Her sufferings at parental home though may
   be directly attributable to commission of acts of cruelty by husband at matrimonial
   home would be consequences of acts committed at matrimonial home – Such
   consequences, by itself, would amount to distinct offences committed at parental
   home where she has taken shelter -Adverse effects on mental health in parental
   home though on account of acts committed in matrimonial home would amount to
   commission of cruelty – Consequences of cruelty committed at matrimonial home
   results in repeated offences being committed at parental home – This is kind of
   offences contemplated under Section 179 CrPC which would squarely be
   applicable to present case – Courts at place where wife takes shelter after leaving or
   driven away from matrimonial home on account of acts of cruelty committed by
   husband or his relatives, would, dependent on factual situation, also have
   jurisdiction to entertain complaint alleging commission of offences under Section
   498A of IPC – Appeal dismissed.
6. Bonus Judgement–Our Firm Case…In Sumeert Rathore &ORS Vs. State the Delhi High Court has recently quashed charges of 376/354/498a/406/34 IPC. In this case initially court was reluctant to quash charges of 376 IPC but we gave a supreme court judgement.. Kapil Gupta v. State of NCT
   of Delhi, 2022 SCC OnLine SC 1030, while quashing an FIR under Section
   376 IPC, had observed as under:
   “…13. It can thus be seen that this Court has clearly held that
   though the Court should be slow in quashing the proceedings
   wherein heinous and serious offences are involved, the High
   Court is not foreclosed from examining as to whether there exists
   material for incorporation of such an offence or as to whether
   there is sufficient evidence which if proved would lead to proving
   the charge for the offence charged with. The Court has also to
   take into consideration as to whether the settlement between the
   parties is going to result into harmony between them which may
   improve their mutual relationship.
   14. The Court has further held that it is also relevant to consider
   as to what is stage of the proceedings. It has been observed that
   if an application is made at a belated stage wherein the evidence
   has been led and the matter is at the stage of arguments or
   judgment, the Court should be slow to exercise the power to
   quash the proceedings. However, if such an application is made
   at an initial stage before commencement of trial, the said factor
   will weigh with the court in exercising its power…”The case was quashed by the High Court on the ground that complainant do not want to proceed with the case
   

Today I was thinking that whether we can send wife to jail if the execution of decree for restitution of conjugal rights against her and it is not obeyed by her or their are any other procedures in law by which we can take any strict action on wife as in most of matrimonial disputes wife files false cases on husband to extort money and for mental harassment?

Decree for restitution of conjugal rights is easily passed by the court as court believes in restitution of relationships rather than divorce and that’s why I have researched on topic for better clarification and here is what I have found-

A decree for restitution of conjugal rights is executed as per order 21 rule 32 and 33 of CPC and it can be executed if the opposite party is not ready and willing to obey the decree and restitute the conjugal rights as per the decree passes by the court.

According to the judgement in case of Vijendra B Singh v, Uma Vijendra Singh, 2010 Cj (Bom) 2341 :-

1. In case of wife – As per the rule 32 for execution of decree for restitution of conjugal rights against wife is only done by attachment of property of wife .i.e., if the wife is not willing to obey the decree then she cannot be sent to jail, only the property is attached. She cannot be arrested and dumped into civil prison if a wife is not willing to cohabit together then she cannot be forced by sending her to jail.
2. In case of husband- As per the rule 33 for execution of decree for restitution of conjugal rights against husband is done by attachment of property and then rule 33 makes a special provision in favor of wife and according it court can pass an order u/r. 32 of payment of money to wife which be periodical payment. But here also we cannot send husband into jail on this ground as if a husband don’t want to cohabit then no one can force him for it.

Conclusion

As per the order 21 rule 32 and 33 of CPC a wife cannot be sent to jail if the execution of decree for the restitution of conjugal rights is against her and she is not willing to obey this decree. The execution is only done by attachment of the property. This is because court cannot force anyone to cohabit together if they don’t want to do so by sending them to jail.