Criminal Case of Defamation after Acquittal in 498a

The question is can you put a case of defamation on wife after you get acquittal in 498a.

The issue has complicated answer and has mixed set of judgments some are in favor of husband and some are against.

Before proceeding let us analyse what is section 499 of IPC is

Section 499. Defamation – Whoever, by words
either spoken or intended to be read, or by signs or by
visible representations, makes or publishes any
imputation concerning any person intending to harm, or
knowing or having reason to believe that such
imputation will harm, the reputation of such person, is
said, except in the cases hereinafter expected, to
defame that person.
Explanation 1.- It may amount to defamation to
impute anything to a deceased person, if the
imputation would harm the reputation of that person if
living, and is intended to be hurtful to the feelings of
his family or other near relatives.
Explanation 2.- It may amount to defamation to
make an imputation concerning a company or an
association or collection of persons as such.
Explanation 3.- An imputation in the form of an
alternative or expressed ironically, may amount to
defamation.
Explanation 4.- No imputation is said to harm a
person’s reputation, unless that imputation directly or
indirectly, in the estimation of others, lowers the moral
or intellectual character of that person, or lowers the
character of that person in respect of his caste or of his
calling, or lowers the credit

public servant in the discharge of his public functions,
or respecting his character, so far as his character
appears in that conduct, and no further.

First Exception.- Imputation of truth which
public good requires to be made or published.- It
is not defamation to impute anything which is true
concerning any person, if it be for the public good that
the imputation should be made or published. Whether
or not it is for the public good is a question of fact.


Ninth Exception.- Imputation made in good
faith by person for protection of his or other’s
interests.- It is not defamation to make an imputation


Gen-really two exceptions are taken when imputation is made in pleadings

But do pleadings in court amount to publication?

Now there are conflicting decisions…

J. Gnana Kumar
Vs. Joy Kanmani reported in LAWS (MAD)-2007-11-
513, wherein the respondent wife had instituted a
private complaint against her husband for the alleged
offence punishable under Section 500 of IPC. The
Madras High Court was pleased to observe that, one of
the basic legal requirements of Section 499 of IPC is
that, the imputation should be either made directly to
the knowledge of third parties, or the same should be
published to the knowledge of the third parties.
However, in the case before it, even as per the
allegations made in the complaint, it observed that, the
imputations cannot be considered as published either
directly or indirectly since they were pleadings filed

before the Court of Law which are not public documents
to which anybody can have free access. The Madras
High Court, however, opined in the same case that,
though the pleadings are handled by the Court staff and
copy is furnished to the respondent therein, which can
be made public even by the respondent, but those
things would not amount to publication by the accused.
Learned counsel for the accused also relied upon a
judgment by a co-ordinate bench of this Court in the
case of S. Nagaraj Vs. K. Nanda Kumar reported in
LAWS(KAR)-2014-10-20, wherein this Court was
pleased to observe that, the complainant alleging
defamation is required to establish that the defamatory
matter was published or that it was communicated to
some person other than the person about whom it is
addressed. It was further observed that, mere
communication of the defamatory matter to the person
defamed is not ‘publication’ and that the ‘publication’

should be made to others with an intention to defame
the concerned person – publication to person defamed
may amount to an insult and not ‘defamation’.
Learned counsel for the accused also relied upon
the judgment of another co-ordinate bench of this Court
in the case of Chirashree Das Gupta Vs. Amitabh Das
S/o. Late Punyanand Das reported in LAWS(KAR)-
2018-8-304, wherein this Court was pleased to observe
that making a defamatory matter known after it has
been written to some person other than the person for
whom it is written is a ‘publication’ in its legal sense. A
defamatory matter must, therefore, be communicated to
some person other than the person concerning whom it
is written. Communicating a defamatory matter to the
person concerned only cannot be said to be a
publication.

In the case of Smt. Madhuri Mukund Chitnis Vs.
Mukund Martand Chitnis and another reported in 1990
CRL.L.J. 2084, the Bombay High Court was pleased to
observe that, the imputations made in a proceeding
which is filed in a Court is clearly a publication. It
further observed that even a publication to an authority
over the person against whom the imputations are made
must be held to be sufficient publication which falls
within the purview of the said Section 499 of IPC.
In the case of M.K. Prabhakaran and another
Vs.T.E. Gangadharan and another reported in 2006
CRI.L.J. 1872, the Kerala High Court, in a matter where
it is alleged that defamatory statements against

complainant were made in a written statement filed
before the Court held that, once a statement has been
filed in a Court of Law, that statement can be taken as
published. If such a statement amounts to per se
defamatory, then it is the duty of the accused to
establish that, they are justified in making such a
statement under any of the exceptions to Section 499 of
IPC.
In the case of Sanjay Mishra Vs. Government of
NCT of Delhi & another, the Delhi High Court in
paragraphs 11 and 12 of its judgment was pleased to
observe as below:-
“11. In Sandyal V.Bhaba Sundari Debi 7
Ind.Cas.803:15 C.W.N.
995:14 C.L.J.31 the learned Judges, following the
case of Augada Ram Shaha V. Nemai Chand Shaha
23 C.867;12 Ind.Dec.(n.s.)576, held that defamatory
statements made in the written statement of a party
in a judicial proceedings are not absolutely privileged
in this country, and that a qualified privilege in this

regard cannot be claimed in respect of such
statements, unless they fall within the Exceptions to
Section 499 of the Indian Penal Code. Undisputedly,
the case of the petitioner was not in any of these
Exceptions.

  1. For criminal purposes “publication” has a
    wider meaning than it has in civil law, since it
    includes a communication to the person defamed
    alone. The prosecution for defamation in criminal
    cases can be brought although the only publication is
    to the person defamed as it is very likely to provoke
    a breach between the persons involved….”
    In the case of Thangavelu Chettiar Vs.
    Ponnammal reported in AIR 1966 Mad 363, the Madras
    High Court was pleased to observe that, there can be no
    doubt that the defamation contained in the plaint was
    published by the plaint being filed in the Court.

Conclusion

In the case of Sushma Rani the court has held that the putting false allegations

Adv. Nitish Banka

Whether wife can withdraw from the mutual consent divorce after taking money?

Generally, when mutual consent divorce is filed from Husband as well as from the wife side at the time of first motion some money is handed over to the wife side to the husband side and at the second motion next installment is to be paid.

No wife or husband can come under influence of many elements and do not turn up for 2nd motion petition.

So the question is whether the consent can be withdrawn in case the wife or husband withdraw to get into second motion.

The answer to this is negative as per the Hon’ble P&H high court Nachhattar Singh Vs. Harcharan Kaur

On the motion of both the parties made not earlier than six months after the date of presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.’ A reading of this sub-section would show that the scheme of S. 13Bof the Act does not envisage withdrawal of consent by one party. The petition can be dismissed as withdrawn only if both the parties who had filed the petition together agree to withdraw the same. Six months after the date of the presentation of the petition and not later than eighteen months after the said date, if the petition is not withdrawn by both the parties, the Court has to satisfy itself, after haring the parties and after making such inquiries as it thinks fit, that the petition was in fact presented by both the parties to the marriage, that they have been living separately for a period of one year or more and that they have mutually agreed that the marriage should be dissolved. If both the parties had voluntarily consented to file the petition for dissolving the marriage by mutual constant and all the other conditions mentioned in sub-section (1) of S. 13B of the Act are fulfilled, it will not be open to a party to withdraw the consent. In. the present case, without making an inquiry under sub-sea (2) the trial court had dismissed the petition as withdrawn which could not be done merely on the asking of one party.”

The main reason to withdraw the consent can be undue influence, force coercion etc.

Otherwise court can grant divorce.

What to do when investigating Officer harasses you in 498a case?

The 498a case is filed by wife side is clearly for the harassment .

In one of my case my clients were living outside the state where the 498a case was lodged and considering today’s lockdown conditions the police is insisting that the accused with family should travel and join investigation.

Nothing is wrong in joining the investigation part but the issue with the police calls accused party unnecessary for obvious reasons.

Now here are the two things which you can do..

Apply for Anticipatory Bail

In such situations it is recommended to apply for the anticipatory bail so that possibility of arrest is negated if you are unable to join the investigation on a specified date.

It will protect you throughout the trial see my article .

Second option is:

Apply for Monitoring of investigation

Under 156(3) the magistrate has the power to montor the probe as delay in lodging fir infringes the right of accused as well as victims.

In Union of India v. Prakash P. Hinduja and
another, 2003(3) RCR(Criminal) 556 : 2004(1) Apex
Criminal 325 : 2003(6) SCC 195 (vide para 13), it has been
observed by this Court that a Magistrate cannot interfere
with the investigation by the police. However, in our
opinion, the ratio of this decision would only apply when a
proper investigation is being done by the police. If the
Magistrate on an application under Section 156(3)
Criminal Procedure Code is satisfied that proper
investigation has not been done, or is not being done by
the officer-in-charge of the concerned police station, he
can certainly direct the officer in charge of the police
station to make a proper investigation and can further
monitor the same (though he should not himself
investigate).

  1. It may be further mentioned that in view of
    Section 36 Criminal Procedure Code if a person is
    aggrieved that a proper investigation has not been made by
    the officer-in-charge of the concerned police station, such
    aggrieved person can approach the Superintendent of
    Police or other police officer superior in rank to the
    officer-in-charge of the police station and such superior
    officer can, if he so wishes, do the investigation vide CBI
    v. State of Rajasthan and another, 2001(1) RCR(Criminal)
    574 : 2001(3) SCC 333 (vide para 11), R.P. Kapur v. S.P.
    Singh, AIR 1961 Supreme Court 1117 etc. Also, the State
    Government is competent to direct the Inspector General,
    Vigilance to take over the investigation of a cognizable
    offence registered at a police station vide State of Bihar v.
    A.C. Saldanna (supra).”

These are the legal solutions to avoid harassment by police officials..

On what ground you should file divorce Adultery or Cruelty when wife/husband has extramarital affair?

There is a big confusion among people regarding ground on which the divorce can be filed in court when wife or husband has extra martial affair.

There are two grounds on which the situation can be address one is Adultery and other is cruelty.

Now depending on the evidence the above question can be answered.

Now on the ground of adultery the evidence required is bit strong and her are some case laws

Divorce on Adultery

Under the Hindu Marraige Act, 1955 adultery word is not used in the Section 13 1(i) of the HMA 1955

13. Divorce- (1) Any marriage solemnized, whether before or after the
commencement of the 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-
(i) has, after the solemnization of the marriage had voluntary sexual intercourse
with any person other than his or her spouse;

Divorce on Adultery

Now How to prove Adultery in Indian Courts?

The courts in India puts heavy burden on the person who is saying that his estranged spouse and invoked the provision of section 13 1(i) of the HMA 1955. Anything short may come under the crueltyground and petition of divorce can be dismissed, therefore it very important to consider whether constitute adultery or not.

Though direct evidence of adultery is rarely adduced but largely the evidence is circumstantial.

What are the  facts that can prove adultery?

Since circumstantial evidence is the basis of proving adultery, the circumstance like wife and her paramour lived in a Hotel for 1 night and no explanation is given by the wife to this effect then adultery is presumed for this entry in Hotel register, CCTV footage with certificate under section 65B of IT act. It is important to make paramour also a party to the suit though no decree can be sought against the paramour. it is important the evidence of witnesses in are of equal weight age like A Husband brings his girlfriend to house in absence of wife and take her into bedroom. the witnesses can be grown up children, neighbors, maid etc. These are the circumstances where adultery can be presumed.

But a mere suspicion that wife was not home whole night is not enough to prove adultery. There should be voluntary sexual intercourse and if husband tries to create a situation wherein a wife is left alone with male person not his husband under such circumstances it is not adultery. A rape on wife is not adultery.

Even if the paramour of the wife writes filthy letter that too also does not come into an ambit of adultery. what adultery is in the eyes of a reasonable man?  that circumstances are such that a reasonable man would think its adultery. like wife is living with paramour for more than 7 months . Another thing is merely having flirtatious conversation with a person not his/her husband/wife does not mean adultery, though it can come under mental cruelty. Wife conceiving a child and husband was away for 365 days is a conclusive proof.

Conclusion

The ingredients for proving adultery are like the facts in which the intimacy is such that in the eyes of the reasonable man, such intimacy is there, credible evidence needs to be produced before the court to prove adultery merely on the basis of whims fancies suspicion the same cannot be proved. The court also  put the heavy burden of proof on the person alleging. Divorce on adultery is difficult.

In case of Extra Martial affair

In the case of extra martial affair the burden of proof is not that strong the main difference is here you do not have to show physical intimacy proof.

In H Vs. W it is held that the trial court had made a mistake in assesment with regards to evidence the petitioner had infact filed the divorce on the ground of cruelty and not adultery and evidence is different. The court admitted greeting cards and other material like letter and granted divorce on ground of cruelty. Now this judgement is not available online I am publishing extract.

Now another good judgement holding in this field is Barnali sen Vs. Debashish Sen

 From the evidence adduced on behalf of the respective parties it is quite clear, as observed by the learned trial Court, that the appellant was not leading an unblemished life. Even if the evidence of P.Ws. 1, 2 and 3 is treated with circumspection, there is no reason to disbelieve P.W.4, an elderly lady, who quite candidly stated that at the time of her oral testimony she had no sympathy for her daughter-in-law. She too deposed of how Burki Saha’s mother and sister came to her house and threatened her and other members of her family about the appellant’s relationship with Burki Sana which compelled them to shift to the respondent’s unfinished flat at Manicktala. She also stated that even after the family shifted to Manicktala from Paikpara, the appellant did not change her ways and continued to roam outside the house.

57. The evidence of P.W.4 completely supports the case of the respondent, and, on the other hand, it is highly significant that none of the appellant’s family members came to depose or support the appellant’s case. Such conduct is hardly expected from the family members of an Individual whose married life was at stake in the suit, unless they had wilfully chosen to stay aloof which casts a shadow over the simplistic defence taken on behalf of the appellant that the respondent had filed the suit for divorce as she was unable to satisfy his sexual appetite after her repeated operations, including removal of her uterus, which left her in continuous pain.

58. The general view adopted by the Supreme Court and the High Courts is that cruelty against a spouse must be specifically pleaded and such acts of cruelty should be discernible from the evidence adduced, the standard of proof being of a lesser degree than a criminal trial.

59. In our view, the preponderance of events which appears from the evidence adduced by the parties clearly supports the case of mental cruelty made on behalf of the respondent husband who appears to have been compelled to file the suit for divorce after a series of incidents where the marital fidelity of the appellant came to be questioned and the marital ties came under severe strain. In our view, the circumstances were sufficient to establish mental cruelty suffered by the respondent on account of the actions of the appellant.

In P.V. Prakash v/s R. Bindu & Another

As far as the ground of cruelty urged by the husband is concerned, the Family Court has referred to the evidence adduced and found that maintaining a relationship with another person during the subsistence of the marriage with the husband has caused mental cruelty to the husband. In so far as this case is concerned, Exts.A2 and A3 and the oral evidence of PW1 and PW2 proved the subsistence of an illicit relationship between the wife and the 2nd respondent or else she would not have made calls to him for long durations and at odd hours and he would not have come to know the details of the sexual acts between the husband and the wife.

14. As far as the case of selfishness of the husband pleaded by the wife is concerned, his evidence amply demonstrated his concern for the wife and children. As far as the allegation that after obtaining lakhs and lakhs of rupees, husband has now fabricated a case for getting divorce is concerned, there again, the evidence of wife herself disproves this case. She has admitted before the Family Court that the husband used to send money to her account in SBI, Kannur from which she and her father used to withdraw substantial amounts. The husband had deposited Rs.3,00,000/- in the Post Office, Pazhayangadi in her name from which she was getting Rs.3,000/- per month. She also admitted that in Madayi Co-operative Bank, there is a Fixed Deposit of Rs.5,00,000/- in her name made by the husband. She has also admitted that her children’s birthday used to be celebrated in an extravagant manner. She has confessed that her mother-in-law and the sister-in-law were cordial to her. Her evidence also showed that the husband had given her 14 sovereigns of gold and that the children were given chains weighing 1 sovereigns each at the time of their birthday. This therefore showed that the husband was a generous man and a loving and affectionate father.

15. It is true that the counsel for the wife referred to the observations of the Family Court that “from a totality of the evidence of RW1, it can be seen that it was PW1 who has foisted such allegations against her in order to have a divorce”. He also referred to the sentence “a totality of the evidence of RWs 1 and 2 proved that they have no acquaintance with the 2nd respondent.”

16. According to him, in view of these findings, the Family Court could not have granted any relief to the husband. However, if these findings are read in the context in which these observations are made, it can very well be seen that all that the Family Court was trying to convey was that this was the version of RWs 1 and 2 and were not findings arrived at by the Family Court.

17. This is a case where mental cruelty is pleaded and found by the Family Court. Concept of mental cruelty and the standard of proof that is required has come up for consideration of the Apex Court in Jayachandra v. Aneel Kaur (2005(1) KLT 26) and in para 10 to 13 of the judgment, the Apex Court has held thus;

10. The expression “cruelty” has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is aground for dissolution of marriage may be defined as willful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelly, as noted above, includes mental cruelly, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of his spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, a proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes.

11. The expression Rs.cruelty’ has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or conduct of one, which is adversely affecting the other.

The cruelty may be menial or physical, intentional or unintentional. If it is physical, the Court will have no problem in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the enquiry must begin as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted {See Sobh Rani v. Madhukar Reddi (AIR 1988 SC 121)).

12. To constitute cruelty, the conduct complained of should be “grave and weighty” so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse, It must be something more serious than “ordinary wear and tear of married life”. The conduct, taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of S. 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.

13. The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse’s conduct have to be borne in mind before disposing of the petition for divorce. However, insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity

Conclusion-: In Adultery if you have an absolute proof of physical intimacy then only it is the best way to go on this ground otherwise do not do any mistake to go on ground of adultery if there is only an affair.

How Much Jail time I have to spend if I do not pay maintenance to wife under section 125 Crpc

Default of 125 Cr PC order is viewed seriously by the courts and the amount of coercive action in case of default varies from case to case.

Under section 125(4) the court can take coercive action for enforcing execution of the maintenance order.

The maintenance order can be enforced in two ways by warrant of attachment wherein the assets of the petitioner are attached and amount of arrears are recovered and another way is by warrant of arrest where real jail time the husband has to suffer in case of default.

Now how much jail time he has to go?

The answer to this is maximum of 30 days per application

In Judgement of Ramdhani Sah vs The State Of Jharkhand on 22 June, 2016

It therefore appears that the maximum period for which a person against whom the realisation of arrears of maintenance amount is due, has been taken into custody can be for a period of one month and not beyond that and it can be less than one month if the payment is made prior to the completion of one month in custody. In the case of “Laljee Yadav” (supra) while considering Sub-section 3 of Section 125 of Cr.P.C., it has been held as follows:

31. “Here, we may like to point out another aspect of the matter. As seen above, the maintenance is to be fixed on monthly basis. The sentence has, accordingly, been limited to a month maximum for each breach. Thus, as noticed by the Apex Court in the abovereferred to cases, there has to be separate sentencing upon separate and fresh application after considering the matter for each month or part thereof for which maintenance remains unpaid. Thus, by no stretch of imagination, can there be a continuous mechanical remand as in the present case.”

Maintenance denied to wife because she was not able to prove Cruelty

There are instances where the wife leaves the house and do police complaint on account of dowry demand and harassment and she also files 125 CrPC for claim of maintenance.

In a Judgement of Hon’ble Supreme Court it was decided that when wife is alleging cruelty as a ground for living separately and claiming maintenance, then she has to show that the evidence related to cruelty and dowry demand and when there is no such evidence the maintenance can be denied in such cases.

Deb Narayan Halder vs Smt. Anushree Halder 

The only police report brought on record is one lodged after the respondent left her matrimonial home. We do not attach much importance to this
report. There is no contemporaneous document in the form of letters which may have been written by the respondent to her friends or relatives mentioning about her being subjected to torture or harassment by the appellant. The respondent being an educated lady, it is difficult to believe that she would not have written letters to her friends and relatives during the twelve years that she lived with the appellant as husband and wife. Apart from her mother, the respondent has produced no
evidence of prove that she was tortured and harassed by the appellant.

The Maintenance was denied in this case.

Adv. Nitish Banka

No need to pay maintenance to wife if you get divorce on the grounds of desertion

No without any reason the wife leaves you and after 2 years of efforts to call her back she do not join you thereafter you file a divorce on the grounds of desertion.

Divorce on the ground of desertion is granted when the wife without any reasonable cause leave the matrimonial home and do not come back.

One of the condition of 125 Crpc also is this that the without any sufficient cause wife leaves you then she is not entitled to get maintenance.

Here is the judgement of Hon’ble supreme court which says

In Rohtash Singh Vs, Ramendri case

Under this provision, a wife is not entitled to any Maintenance Allowance from her husband if she is living in adultery or if she has refused to live with her husband without any sufficient reason or if they are living separately by mutual consent. Thus, all the circumstances contemplated by Sub-section (4) of Section 125 Cr. P.C. presuppose the existence of matri- monial relations. The provision would be applicable where the marriage between the parties subsists and not where it has come to an end. Taking the three circumstances individually, it will be noticed that the first circum-stance on account of which a wife is not entitled to claim Maintenance Allowance from her husband is that she is living in adultery. Now, adultery is the sexual intercourse of two persons, either of whom is married to a third person. This clearly supposes the subsistence of marriage between the husband and wife and if during the subsistence of marriage, the wife lives in adultery, she cannot claim Maintenance Allowance under Section 125 of the Code of Criminal Procedure.

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.

Admittedly, in the instant case, the respondent is a divorced wife. The marriage ties between the parties do not subsist. The decree for divorce was passed on 15th of July, 1995 and since then, she is under no obligation to live with the petitioner. But though the marital relations came to an end by the divorce granted by the Family Court under Section 13 of the Hindu Marriage Act, the respondent continues to be “wife” within the meaning of Section 125 Cr.P.C. on account of Explanation (b) to Sub-section (1) which provides as under :-

“Explanation. – For the purposes of this Chapter –

(a) ………………………………………………………….

(b) “wife” includes woman who has been divorced by, or has obtained a divorce from her husband and has not remarried.”

On account of the Explanation quoted above, a woman who has been divorced by her husband on account of a decree passed by the Family Court under the Hindu Marriage Act, continues to enjoy the status of a wife for the limited purpose of claiming Maintenance Allowance from her ex-husband. This Court in Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Others, AIR (1978) SC 1807, observed as under :-

“9. This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Art. 39. We have no doubt that, sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause-the cause of the derelicts.”

Claim for maintenance under the first part of Section 125 Cr.P.C. is based on the subsistence of marriage while claim for maintenance of a divorced wife is based on the foundation provided by Explanation (b) to Sub-section (1) of Section 125 Cr. P.C. If the divorced wife is unable to maintain herself and if she has not remarried, she will be entitled to Maintenance Allowance. The Calcutta High Court had an occasion to consider an identical situation where the husband had obtained divorce on the ground of desertion by wife but she was held entitled to Maintenance Allowance as a divorced wife under Section 125 Cr.P.C. and the fact that she had deserted her husband and on that basis a decree for divorce was passed against her was not treated as a bar to her claim for maintenance as a divorced wife. See : Sukumar Dhibar v. Smt. Anjali Dasi, (1983) Crl. L.J. 36. The Allahabad High Court also, in the instant case, has taken a similar view. We approve these decisions as they represent the correct legal position.

You will surely Get Divorce if you have this thing in Divorce Case

In Divorce cases allegations and counter allegations are quite common if counter allegations are scandalous then surely you will get divorce

In Malar Vijy Vs. Kanthan and another13Wherein it has been
observed as follows;
―22. In Manisha Sandeep Gade v. Sandeep Vinayak Gade14 a Division
Bench of the Bombay High Court, while considering the question as to
whether the unsubstantiated and unproved allegation of adultery leveled
against the husband by the wife would amount to mental cruelty, has
held that it will amount to mental cruelty. It was a case where the
husband has sought for divorce on the ground of cruelty and while
defending the petition, the wife in her written statement, apart from
defending her and refuting the allegations made against her, had made
several allegations against her husband and one such allegation was
that he had illicit relationship with one Leena, wife of Vivek and in fact
he wanted to marry her. While considering the legal effect of such an
allegation, the Division Bench has held as follows:-
“30. What we have to note is that when one party to the petition has
sought divorce on some ground and the respondent to that petition
does not merely defend it to get it defeated, but makes further serious
allegations against the petitioner, it becomes a clear step towards the
dissolution of the marriage. In the present matter, the petitioner has
approached the Court seeking dissolution of his marriage. It is his case
that there is a failure of the marriage and he seeks to point it out by


invoking a ground available under the law. At that point of time, if the
respondent makes a counter allegation in the written statement, that by
itself shows a prima facie failure of the marriage. ….

  1. …. In a matrimonial matter, one cannot apply the standard of stricter
    evidence. Nothing prevented her from establishing her allegations. The
    respondent could not have established the negative by leading any
    further evidence that the allegations made by the wife were false. The
    appellant had made the allegations. The burden was on her. She had
    failed to prove those allegations. Once she fails to prove those
    allegations and if those allegations are not in consonance with
    matrimonial relationship, and the husband complains that they have
    caused him agony, the inference that they constitute cruelty has to
    follow.
  2. In the circumstances we are satisfied that the learned Judge was
    right in coming to the conclusion that the allegations made by the
    appellant wife were baseless and false and constituted a cruelty. He
    was, therefore, right in granting the decree of divorce on that ground. …”
  3. In Kiran Mandal v. Mohini Mandal15 a Division Bench of that Court,
    has held as follows:-
    “14. … She made false allegations against her husband that he had illicit
    relations with his brother’s wife. These false allegations did have an
    injurious effect on the husband.

15 AIR 1989 PUNJAB AND HARYANA 310
Page 30 of 39

  1. Cruelty within the meaning of S. 13 of the Hindu Marriage Act is not
    confined to physical violence but includes mental torture caused by one
    spouse to the other. The wife had made it insufferable for the husband
    to live with her. Any man with reasonable self respect and power of
    endurance will find it difficult to live with a taunting wife, when such
    taunts are in fact insult and indignities. Human nature being what it is, a
    reasonable man’s reaction to the conduct of the offending spouse is the
    test and unending accusations and imputations can cause more pain
    and misery than physical beating. ….”
  2. In Smt. Chanderkala Trivedi v. Dr. S.P.Trivedi16
    , the husband sued for
    divorce on the ground of cruelty by wife. The wife filed a written
    statement wherein she attributed adultery to the husband. In reply
    thereto the husband put forward another allegation against the wife that
    she was having undesirable association with young boys. Considering
    the mutual allegations, His Lordship, R.M.Sahai, J., speaking for
    Division Bench, observed:
    “Whether the allegation of the husband that she was in the habit of
    associating with young boys and the findings recorded by the three
    Courts are correct or not but what is certain is that once such
    allegations are made by the husband and wife as have been made in this
    case then it is obvious that the marriage of the two cannot in any

16 1993 (3) Scale 541
Page 31 of 39
circumstance be continued any further. The marriage appears to be
practically dead as from cruelty alleged by the husband it has turned out
to be at least intimacy of the husband with a lady doctor and
unbecoming conduct of a Hindu wife.”

  1. In the light of the law laid down in the aforesaid decisions, if the
    facts of the present case are considered, it could be seen that when
    serious allegations of adultery is made by the wife against the husband
    and the same stands unsubstantiated that will definitely amount to
    mental cruelty as far as the husband is concerned. The unfounded
    allegations made by the wife against her husband by itself shows the
    prima facie failure of the marriage.
  2. As far as the contentions of the learned counsel for the appellant
    that unless and until the 1st respondent substantiates his allegations
    contained in the petition, he is not entitled for decree for divorce and
    merely on the ground that when the wife has made serious allegations,
    he is not entitled to get decree is concerned, it has to be pointed out that
    making unsubstantiated allegations about the character of the husband
    and accusing him of illicit intimacy would itself amount to mental
    cruelty. Therefore, the said contention of the learned counsel for the
    appellant cannot be countenanced when the very allegations made
    against the 1st respondent will amount to mental cruelty.
  3. Under the above circumstances, it is immaterial that the 1st
    respondent should establish the allegations of cruelty pleaded in the
    petition. Therefore, the said contention of the learned counsel is
    rejected.
    Page 32 of 39
  4. We do not find any other valid reason to interfere with the reasoning
    of the Court below. Hence the appeal fails and the same is dismissed.
    No order as to costs.‖
    The above position is reiterated in a recent Judgement of the Division
    Bench of Honourable High Court of Madras in R. Frederick Vs. H. Malini17
    ,
    wherein it has been held as follows:
    ―19. Even though mental cruelty cannot be defined preciously, yet, it can
    be inferred on the basis of the attendant facts and circumstances of the
    case. In this context, useful reference could be made to the decision of
    the Hon’ble Supreme Court in K.Srinivas Rao Vs. D.A.Deepa18, wherein it
    was held as follows:
    ―10. Cruelty can never be defined with exactitude. What is cruelty, will
    depend upon the facts and circumstances of each case. In the present
    case, from the facts narrated above, it is apparent that the wife made
    reckless, defamatory and false accusations against her husband, his
    Family Members and colleagues, which would definitely have the effect
    of lowering his reputation in the eyes of his peers. Mere filing of
    complaints is not cruelty, if there are justifiable reasons to file the
    complaints. Merely because no action is taken on the complaint or after
    trial the Accused is acquitted may not be a grounds to treat such
    accusations of the wife as cruelty within the meaning of the Hindu
    Marriage Act. However, if it is found that the allegations are patently
    false, then there can be no manner of doubt that the said conduct of a
    spouse, leveling false accusations against the other spouse would be an
    act of cruelty……‖
  5. Thus, the plea of Mental Cruelty cannot be precisely defined, yet,
    making unfounded, indecent, defamatory allegations against the spouse


or his or her relatives which may have adverse impact on the business
prospect or the job of the spouse would itself amount to cruelty. In the
present case, the respondent has harped upon by contending that the
Appellant led an adulterous life with one Shubha, Bharathi and other
women, but such allegations are largely not substantiated either by
examining the aforesaid persons or by any other proof to show that the
Appellant was in fact having illicit intimacy with them. Further, it was
proved from the oral evidence as well as pleadings of the respondent
that she has informed the sister, brother and mother of the Appellant as
though the Appellant was living an adulterous relationship with other
woman. When the respondent, without any substance, has informed the
sister, brother and mother of the Appellant as though the Appellant is
leading an adulterous life, definitely, it would be difficult, rather the
Appellant would be ashamed, to even interact or meet his own sister,
brother and mother in the wake of such scandalous and disparaging
remarks made against him by the Respondent. Moreover, we are also of
the opinion that if a suspicious nature of one of the spouse doubting the
fidelity of the husband or wife as the case may be, becomes a perennial
feature without any basis, leading to discord in the matrimonial life, it is
only a reflection of cruelty inflicted by one of the spouse against the
other. In such circumstances, we feel that the accusations made
by the Respondent against the Appellant, which remain largely
unsubstantiated, with respect to adulterous living, would have definitely
caused him a scar, mental disturbance and mental cruelty to him.
Therefore, we hold that the Appellant has proved that he was inflicted
with and subjected to matrimonial cruelty at the hands of the
Respondent.‖
Hence a Lawyer should be very cautious while making the cross
examination and shall ensure that the allegations leveled against the other
spouse should not become fatal to his own case.

Can court see my evidence/Defence at stage of Discharge in False 498a?

In false 498a you have an evidence of your innocence it can be the evidence related to plea of alibi that means you are not present at the time of incidence.

It can be watsapp messages, witness statement, documents or photos to prove your innocence, these are very important evidence can lead you to become free in 498a.

Now at the stage of discharge you put all these evidence with your discharge application.

Now there are two problems with this one is you disclose the defense and prosecution will get an opportunity to manipulate its case and add their stories. The element of surprise is important in criminal trial so as to get the guilt out. The other problem with this approach is that the accused evidence is not even considered at this stage.So it is useless to put evidence at this stage.

Even you cannot call documents at stage of discharge which will be used as a defence under section 91

State of Orissa versus Debendra Nath Padhi (2005) 1 SCC 568 and reiterated in the subsequent decisions. The defence could not be considered at the stage of framing of charge so as to avoid a mini trial.

legal Affairs, West Bengal v. Anil Kumar Bhunja and Others [ (1979) 4 SCC 274 ] and State of Bihar v. Ramesh Singh [ (1977) 4 SCC 39 ] it was observed that at the time of framing a charge the trial court can consider only the material placed before it by the investigating agency, there being no requirement in law for the court to grant at that stage either an opportunity to the accused to produce evidence in defence or consider such evidence the defence may produce at that stage. 

Now there may be a case in which the investigation is concluded and evidence is suppressed which is in the favour of accused. Now in such circumstances in which

Thus, it is clear that while ordinarily the Court has to proceed on the basis of material produced with the charge sheet for dealing with the issue of charge but if the court is satisfied that there is material of sterling quality which has been withheld by the investigator/prosecutor, the court is not debarred from summoning or relying upon the same even if such document is not a part of the charge sheet. It does not mean that the defence has a right to invoke Section 91 Cr.P.C. de hors the satisfaction of the court, at the stage of charge.

It is clear from Nitya case only documents or evidence of sterling quality can be presented at time of discharge

Advocate Nitish Banka

9891549997

The Admissibility of video and audio recording evidence in Matrimonial Cases. Can breach of privacy admissible

The Admissibility of video and audio recording evidence in Matrimonial Cases. Can breach of privacy admissible

These days in matrimonial cases audio and video evidence are important evidence in deciding matrimonial cases these days.

Now what if you put a software in the mobile phone of your wife and record all the calls?

What if you record conversation between wife and husband?

What if you do video recording in your own house?

All these questions answer to breach of privacy.

Now the main question is whether the evidence collected in breach of privacy is admissible?

In matrimonial other party may object that audio or video recording collected in the course of trial is in admissible if it is in the breach of the privacy.

The Answer to this is the recent Delhi High Court Judgement ofDeepti Puri Vs. Kunal Julka

The petitioner/wife is the respondent in the aforesaid divorce petition
which was filed on 26.09.2012 by the respondent/husband seeking



dissolution of their marriage on the ground of cruelty available under section
13(1)(ia) of the Hindu Marriage Act, 1955. In the divorce proceedings, the
husband filed a Compact Disc (CD) purporting to contain an audio-video
recording of the wife supposedly speaking with her lady friend, by name
Sugandha, on phone and talking about the husband and his family in a
manner, which the husband claims was derogatory, defamatory and
constituted cruelty to him. In the written statement filed by the wife in the
divorce proceedings, she opposed the taking on record of the CD and the
purported transcript of conversation contained therein. The wife opposed the
CD being brought on record on the ground, firstly, that the contents of the
CD were tampered with and were therefore not authentic ; and secondly, that
the contents of the CD were not admissible in evidence since they were a
recording of a ‘private’ conversation that the wife had had with a friend,
which had been secretly recorded by the husband, without the knowledge or
consent of the wife, in breach of her fundamental right to privacy.

In response to the wife’s objections, the husband moved an
application before the Family Court, in which he in effect sought
appointment of an expert to prove the genuineness of the CD with the
purpose of bringing the CD on record. Agreeing with the husband’s
contentions, by way of impugned order dated 24.12.2018, the Family Court
allowed the husband to bring on record the evidence comprised in the CD,
while directing that the contents of the CD be examined by the Forensic
Science Laboratory (FSL) to assess the genuineness of the recording. By
way of the impugned order, the Family Court has directed the FSL to render
its opinion on the following aspects :



“The FSL shall report :(l) (sic) Whether the contents of CD
and the original recording in the recording device are at
variance? (2) Whether the original recording has been
tempered (sic) with? (3)Whether the transcript relied upon
by the petitioner is correct, as per the original recording?”While the prayer made in the application on which the Family Court has made the impugned order is somewhat ambiguous, the essential question
raised in the present proceeding is as regards the admissibility of the
contents of the CD, since according to the wife, the conversation comprised
in the CD has been recorded in breach of her fundamental right to privacy;
and is therefore inadmissible in evidence.

In this Judgement a Supreme Court judgement was referred

Now, if the Evidence Act, 1872 which is a law consolidating,
defining and amending the law of evidence, no provision of
which is challenged as violating the Constitution — permits
relevancy as the only test of admissibility of evidence (See
Section 5 of the Act) and, secondly, that Act or any other
similar law in force does not exclude relevant evidence on the
ground that it was obtained under an illegal search or seizure,
it will be wrong to invoke the supposed spirit of our
Constitution for excluding such evidence. Nor is it open to us
to strain the language of the Constitution, because some
American Judges of the American Supreme Court have spelt
out certain constitutional protections from the provisions of the
American Constitution. In M.P. Sharma v. Satish Chander
already referred to, a search and seizure made under the
Criminal Procedure Code was challenged as illegal on the
ground of violation of the fundamental right under Article
20(3), the argument being that the evidence was no better than
illegally compelled evidence. In support of that contention
reference was made to the Fourth and Fifth Amendments of the
American Constitution and also to some American cases which
seemed to hold that the obtaining of incriminating evidence by
illegal seizure and search tantamounts to the violation of the
Fifth Amendment. The Fourth Amendment does not place any
embargo on reasonable searches and seizures. It provides that
the right of the people to be secure in their persons, papers and
effects against unreasonable searches and seizures shall not be
violated. Thus the privacy of a citizen’s home was specifically
safeguarded under the Constitution, although reasonable


searches and seizures were not taboo. R
submission, this Court observed at p. 1096:


“A power of search and seizure is in any system of
jurisprudence an overriding power of the State for the
protection of social security and that power is necessarily
regulated by law. When the Constitution makers have
thought fit not to subject such regulation to
constitutional limitations by recognition of a
fundamental right to privacy, analogous to the American
Fourth Amendment, we have no justification to import it,
into a totally different fundamental right, by some process
of strained construction. Nor is it legitimate to assume that
the constitutional protection under Article 20(3) would be
defeated by the statutory provisions for searches.”

It must be borne in mind that
Family Courts have been established to deal with what are essentially
sensitive, personal disputes relating to dissolution of marriage, restitution of conjugal rights, legitimacy of children, guardianship, custody, and access to minors; which matters, by the very nature of the relationship from which
they arise, involve issues that are private, personal and involve intimacies. It is easily foreseeable therefore, that in most cases that come before the
Family Court, the evidence sought to be marshalled would relate to the
private affairs of the litigating parties. If section 14 is held not to apply in its
full expanse to evidence that impinges on a person’s right to privacy, then
section 14 may as well be effaced from the statute. And yet, falling back
upon the general rule of evidence, the test of admissibility would only be
relevance ; and accordingly, even ignoring section 14, fundamental
considerations of fair trial and public justice would warrant that evidence be received if it is relevant, regardless of how it is collected. No purpose would therefore be served by emasculating the salutary provisions of section 14 of the Family Courts Act by citing breach of privacy. Looking at it
dispassionately, even assuming evidence is collected in breach of privacy, at
best and at worst, it is the process of collection of evidence that would be
tainted not the evidence itself.

That being said however, considering the breadth of the power
conferred upon it under section 14 of the Family Courts Act, some
safeguards are required to be considered by the Family Court while
exercising its power to receive evidence under that provision. Firstly, even
though a given piece of evidence may have been admitted on the record, the
Family Court must be extremely circumspect in what evidence it chooses to
rely upon in deciding the dispute, particularly the authenticity and
genuineness of the evidence, for which stringent standards must be applied.
Secondly, if in its opinion the nature of the evidence sought to be adduced is
inappropriate, embarrassing or otherwise sensitive in nature for any of the
litigating parties, or for that matter for some other person not directly
connected with the litigation, the court may restrict the parties who are
present in court at the time of considering such evidence ; or may anonymise
or redact the evidence ; or may conduct in-camera proceedings so as not to
cause distress to any person or party, while at the same time not hesitating to
receive evidence that the Family Court considers necessary for effectively
deciding the dispute. All proceedings must be conducted strictly within the
bounds of decency and propriety; and no opportunity should be given to any
party to create a spectacle in the guise of producing evidence. Thirdly, in
egregious cases, the Family Court may initiate or direct initiation of legal
action against a litigating party or other person, who may appear guilty of
procuring evidence by illegal means. Any party aggrieved by the production
of such evidence would also be at liberty to initiate appropriate proceedings,
whether in civil or criminal law, against concerned parties for procuring
evidence illegally, although the initiation or pendency of such proceedings.

Adv. Nitish Banka

9891549997