Do I have to pay rent to the Landlord during the Lock down period?

In this Lockdown period there are many cases in which tenants are making an excuse to not to pay the rent due to lockdown as they are not able to use the property.

Many businesses are shut down especially the hospitality industry and there is default in payment of rent to the landlord.

The arguments on behalf of the tenants is legitimate and excuse is also legitimate.

But what about the landlords, why do they suffer if tenants are suffering. Tenants are still occupying the property then they have to pay the rent.

Now this is not the case where the property has become unusable.

This debate is now quite common and these issues needed detailed adjudication and the Delhi High Court in order to resolve the dispute passed a Judgement

Ramanand & Ors. v. Dr. Girish Soni & Anr

In this case the Hon’ble high court discussed the questions regarding payment of rent and Covid 19 situation.

If an agreement contains force majeure clause and the tenant wants to vacate the premises then only the question of waiver can be considered otherwise the tenant has to pay the rent.

As tenant landlord relationship is governed by section 108 case in this case

The Tenants’ application for suspension of rent is thus liable to be rejected inasmuch as while invoking the doctrine of suspension of rent on the basis of a force majeure event, it is clear from the submissions made that the Tenants do not intend to surrender the tenanted premises. While holding that suspension of rent is not permissible in these facts, some postponement or relaxation in the schedule of payment can be granted owing to the lockdown.

But landlord also cannot evict the tenant without due process of law.

Conclusion

Some time can be granted for payment of rent.

Advocate Nitish Banka

What is not a Dowry?

Gifts Given in Marraige or other Cermony

In Indian culture we have many festivities during the marraige and after the marraige.

Now gifts are exchanged in all these festivities and sometimes they are termed as dowry or dowry articles as per the complaint filed by the wife.

Now with the help of certain judgements we will analyse the status of these gifts as dowry or not.

In the recent Judgement of Satvir Singh And Ors vs State Of Punjab And Anr

Some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of dowry.

Taunting for Dowry Demand

I have seen in many cases wherein there are allegations which are in the way of taunting. Mere taunting about dowry is insignificant and do not constitute an offence under section 498a of the IPC

 is well settled principle of criminal law that “mere taunting for bringing insufficient dowry is distinct from demand of dowry. Though taunting for bringing insufficient dowry is also an uncivilized act but does not come within the purview of section 498A IPC and hence not sufficient to constitute the offence U/s 498A IPC. Thus, mere allegations of taunting for bringing insufficient or less dowry will not be sufficient enough for framing of charge against the accused persons. In this regard, I am relying upon the judgment reported at AIR 1996 Supreme Court 67, wherein it has been held that­ Mere tauntings for bringing insufficient dowry is distinct from demand of dowry. Though tauntings for bringing insufficient dowry is also an uncivilized act but does not come within the purview of section 498A IPC and hence, not sufficient to constitute the offence under section 498A IPC.

It is held in Neera Singh Vs. State There might have been one or two instances of taunting for not bringing sufficient dowry but they are not sufficient enough to attract Section 498A. There are not specific allegations with respect to entrustment of dowry items to the accused persons. Since, the complainant stayed with her husband at Rewari, Haryana, the entrustment of dowry articles can be presumed to be to the husband. 

Financial help to Husband in day today finances

Sometimes being husband and wife there is a dire need to manage finances the husband takes help from wife or parents of the wife in day today finances. Does it constitutes dowry?

In Appasaheb Supreme Court Case

demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure could not be termed as a ‘demand for dowry’, as the said word was normally understood. The Supreme Court in the facts of that case took the view that the evidence adduced by the prosecution did not show that any demand for “dowry” as defined in Section 2 of the Dowry Prohibition Act was made by the accused persons of that case as, what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure. 

Some Acquittal Judgement in 498A.

The Aquittal in 498A depends on certain principles of law which may be common in the cases however the facts of the case may change as per the circumstances but the principles remain the same.

Now what are these principles. Through this article I will test those principles and show you one or two principles are there in false 498a. Therefore the acquittal is important.

The First Principal is contradiction in 161 Statement.

Wife may give some statement in 161 statement and can give another improved statement before the court. The contradiction in 161 statement as compared to complaint as to the statement given the court can form the grounds of aquittal

In State vs . Pawan Yadav Etc. Fir 285/12 … on 29 January, 2018 The   arguments   before   me   are   full   of   factual   narrations   and advanced   in   a   manner  to   show   that   the   drastic  Improvements   and material contradictions are such that go to the root of the Prosecution case thereby rendering them so improbable that the defence seems to be more probable rather than the attack.

Of course, there has been development of case from stage to stage by PW­4, PW­5 and PW­18 as is evident from bare readings of their first statements to the SDM  and subsequently on 16.11.2012 to the   case   IO.     Even   retraction   from   earlier   statement   by  PW­5  is present in this case regarding amount of Rs.6 lacs given as dowry for purchase of a Car at the time of Marriage.  I shall touch upon these improvements  in  succeeding  Paragraphs  of  this  Judgment.    Before that, it is very important to point out that a specific question was put by the defence to PW­5 during his cross­examination recorded in the Court on 03.05.2016 and as per him the specific dates of ill treatment to his sister by accused persons  are 10.04.2012 and 06.11.2012. 

Interested witnesses

If there is no independent corroboration of alleged facts in the case then the case of the prosecution is weak and the accused can be acquitted on this alone.

In State vs . Anil Kumar on 23 January, 2015

PW2 and PW3 are only interested witnesses being brother and bhabhi of complainant. Further even from the testimony on record of PW2 and PW3 the allegations of offence under section 498A IPC against accused are not proved. Even PW2 has admitted that his sister has remarried. In view of the aforesaid I hold that prosecution has failed to establish the kind of cruelty as prescribed under section 498 A IPC, and thus accused deserves acquittal.

No entrustment of Dowry Article to specific person

In State Vs. Gajender Singh

The bare perusal of complaint Ex. PW1/B and evidence of complainant PW-1, there is no specific statement qua entrustment of any articles in favour of any accused. Moreover, the complainant nowhere states as to whom those articles were entrusted and at what time and under what circumstances. In her testimony in the court, the complainant only made a sweeping statement that all her jewellery articles have not been returned and they are still in possession of accused Dhanno Devi. From the aforesaid piece of evidence even the basic requirement of entrustment having been made in favour of any of the accused is not established. The complainant has also not stated that on what date, time, year or occasion she demanded her jewellery articles from whom and at what place.

Vague and no Specific allegation

In Shivendra Raizada & Others vs State Of U.P. & Another on 6 December, 2018

Secondly, so far as allegation against the applicants are concenred, that is also absolutely in the teeth of law laid down by the Apex Court and it is very much clear that there is no specific allegation against any of the applicants and allegations are also levelled upon the applicants, who are even not residing along with applicant No. 1. In fact, it is necessarily required to make specific allegation against each and evey applicants whose names are mentioned in the complaint or FIR in the matrimonial cases which is absolutely missing in this case.

These principles are perfect examples whatever the facts are however these principles are not a complete list there can be more principles.

Cross Examination in Cheque Bounce Cases NI 138

If you are accused in a cheque bounce case and reading this article then i hope this article may be helpful to you. I will try to explain you in a very simple language as to how the cross examination in cheque bounce cases takes place.

If you are looking for a fixed strategy then I would say that there is no fix strategy to defend NI 138 it changes as per scenario. So we will be discussing different scenarios as mentioned below.

The strategy of cross examination depends on the defense you will be take. The court only expects at first why your signed cheque is in the hands of complainant who is claiming to be that you owe him money.

So you first have to convince yourself and then convince the Judge. So before cross examination one should ask this question “what is your signed cheque doing in the hands of the complainant?”

Now if you can’t answer this question then you don’t have a case try to settle the dispute else read further…

Scenario-1 Cheque issued towards friendly loan…Defense That your friend misused your trust and misused cheque.

Again here first you have to give an explanation about cheque given to the complainant on what condition and then cross examine…

Q1. What was the mode of payment of loan?

Q2. If it is cash can he show bank withdrawal?

Q3. If cash amount is huge then what was the source?

Q4. Has he filed ITR?

Q5. Has he mentioned amount in the Balance Sheet?

Q6. Is Balance sheet is with voucher or acknowledgement?

Q7. Is balance sheet audited?

Suggestion: You have not extended any loan and you have misused the cheques.

Scenario-2 Security cheque not given in lieu of debt..Defence Security Cheque

Q1. How many years are you dealing with the complainant?

Q2. How do you settle the accounts?

Q3. Do you take security cheques?

Q4. Do you maintain statement of accounts?

Q5. Can you show us the statement of account?

Q6. Where in the statement of account accused owe the cheque amount on that given day?

Accused did not owe you anything you have misused his security cheques

SO these are the two scenarios which are common in 80% cases.

When is the best time to file 340 CrPC

Section 340 CrPc is a way to get a relief in the cases of perjury. Now if witness deposes falsely in court then only 340 comes into picture.

When is the right time to apply in court?

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

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

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

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

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

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

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

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

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

What if wife did not disclose her income and give false statement regarding her income?

In Jagdish Prashad Vs. State the court emphasized on twin requirements of 340 Crpc at first the court has to form an opinion based on an enquiry so enquiry and forming opinion is the basic requirement in 340 Crpc.

So for inquiry this example and judgement hold good now what happened in the above judgement

On 12th February 2004, Respondent No.2 was examined in chief in the maintenance petition. She stated: “I was not working anywhere after my marriage, I was not working till today anywhere from the date when I was kicked out from my matrimonial home.” She was cross examined on 7th April 2004 and was asked whether she was doing any job during the pendency of the petition. She replied that “since after coming to my parental home, I am not doing any job. I have one bank account in Co- operative Bank. It is incorrect to suggest that after coming to my parental home, I have worked with Tirath Ram Shah Charitable Hospital, Rajpur Road, Delhi.” In response to another specific question whether she was holding a bank account at Punjab National Bank, Civil Lines she stated as under:

“It is wrong to suggest that I am holding an account which is 427791 in the above said bank i.e., PNB”

5. Consequent upon the above replies in cross examination, the Petitioner filed an application under Section 340 CrPC seeking the prosecution of the Petitioner for committing perjury punishable underSection 193 CrPC.

6. It appears that a reply was filed to the said petition by Respondent No.2. Even evidence appears to have been led by examining the officials from both the Punjab National Bank as well as the Tirath Ram Shah Charitable Hospital.

7. RW-2 D.S. Bandari, Senior Manager, Punjab National Bank, Civil Lines, Delhi was examined on 28th September 2004. He confirmed that an account had been open by Respondent No.2 with the bank with the addresses “C/o Tirathram Shah Hospital, 2 Battery Lane, Rajpur Road, Delhi -54.” He stated:

“On 20.07.01 Smt. Veena Bhatt opened her account in Punjab National Bank, Civil Lines, Delhi. The account was introduced by Sh.B.Arora, SF account No.11908 with the address C/o Tirathram Shah Hospital, 2 Battery Lain(sic Lane), Rajpur Road, Delhi-54 with a initial amount of Rs.500/-. She was allotted account No.427791. Statement of the account since opening of the account till today is exhibited as Ex.RW2/A, Ex.RW2/B, Ex.RW2/C, Ex.RW2/D. At the time of opening of account Smt. Veena Bhatt stated her occupation “service” which has been written in point A over Ex.RW2/D.

8. RW-3 Manoj Nair, AAO, Tirath Ram Shah Hospital in his examination in chief stated as under:-

“The authority letter given by Dr.A.K.Dubey, Director is Ex.RW3/A. That from 06.06.01 to 10.06.02 Mrs.Veena served in Tirath Ram Shah Hospital. She was working as a receptionist on fixed term contract basis. The gross salary of Mrs.Veena was Rs.3,572/- only. Her employment no. was 1225. I identify Mrs. Veena who is present in the court. There was break in service for one day. Smt. Veena Bhatt was working as a receptionist and not as a trainee as per the record. In my hospital no receptionist trainee are engaged. She has not applied for the renewal of her further contract after 10.06.02. I can submit a copy of the application form and record of salary if required. The original is before this hon’ble court. Application for employment form is Ex.RW3/B (four pages) and the copy of salary register for the month of June, 2001 to June, 2002 are collectively Ex.RW3/C (12 pages).”

9. The cross examination only elicited the following clarification by Respondent No.2:-

“It is correct that Smt. Veena had not worked in the hospital as a permanent hospital (sic) or on ad hoc basis or on temporary basis she had worked only on contract basis.

10. The learned MM in the order dated 9th September 2005 came to the following conclusion:-

“I have gone through the record of the present application as well as the petition underSection 125 Cr.P.C., which is pending in the present court. Smt. Veena may have had a genuine cause for having worked as proved against her in her case and also admitted by her in the present proceedings. Nevertheless her pressing requirements for income does not exonerate her from the offence of having given false testimony in the court.

I am, therefore, of the opinion that Smt. Veena has committed an offence under Section 193IPC and she ought to be prosecuted for the same.”


Therefore it is important to lead evidence in defence before moving application under 340 CrPC.

Adv. Nitish Banka

9891549997

Can I get divorce if husband or wife put insulting allegations against me in Court.

The battle of matrimonial disputes between husband and wife becomes really bad when a lot of unsubstantiated allegations are put against each other in the proceedings.

For example what if wife puts an allegation that her husband has extramarital affair with his own sister in court in the written statement that is the reason she is not living with him.

Now this type of allegation is insulting, stigmatic and grave. The husband should get a divorce on this allegation alone if wife alleges the same and puts such allegations without any evidence.

Now efforts from the husband side should be to make a issue of this allegation and mark it as OPD. Means onus to prove this issue will be on the wife.

The Judgement of Smt. Sadhana Srivastava Wife Of … vs Sri Arvind Kumar Srivastava will be of much useful in this context.

 The appellant-wife in her written statement denied the allegations of cruelty made by the husband in the petition for divorce. However, the fact of various litigation both civil and criminal between the parties and the compromise was admitted in the written statement.. In the additional pleas it was pleaded that behaviour of the respondent-husband was utterly dissatisfactory and against the pious relationship of the husband and wife and she was made target of shots of torture mentally, physically by all possible means by the husband, his parents, his elder brother and elder brother’s wife. Allegations of having an illicit and extra marital relation with one Km. Nitu Mehta @ Shalini, the sister of his elder brother’s wife were also made. It was also pleaded that; husband wanted to give elder son in adoption to his brother who’ was issueless. However, because of unwillingness and resistance put by wife, the husband could not succeed. It was further pleaded that husband found the presence of the wife and children as a hurdle in free access to Km Nitu @ Shalini and as such his behaviour became very undesirable to the extent that several times the wife and minor children were assaulted and beaten for no fault and without justification. On 9th June, the wife and children were abused and beaten and thrown out of the house and since then the husband never cared to maintain them. It was further alleged that on 18.1.1991 the husband with the help of softie undesirable elements forcibly took away the elder son. The wife also made allegation in the written statement that the husband himself was responsible for the murder of the younger son.

Issue no.(7) was framed by the Family court about the alleged illicit and extra marital relationship of the husband. However, the appellant-wife herself moved an application dated 22.1.1997 stating that she did not want to press the said issue. She also did not led any evidence and accordingly, the said issue was decided in negative.

Nevertheless, the allegations were made, were serious in nature and merely by not pressing the issue on the point would not loose their impact and were there on the record of the case. Unfounded allegations of adultery made against the wife though not pressed during the proceedings have been held by the Hon’ble Apex Court to be cruel conduct by the husband entailing the wife to seek relief of divorce. In the case of R. Balasubramanian v. Vijayalakshmi Balasubramanian, it has been observed by the Apex Court as follows :

“Learned counsel appearing for the husband submitted that as far us the allegation of adultery against respondent-wife is concerned he is not going to press, That may be good of him but the fact remains that the allegation that the wife had sexual intercourse with a person other than (he husband is a serious allegation against the wife and shows the cruel conduct of the husband entitling the wife to seek relief against him under the Act or otherwise”.

In yet another decision in the case of Vijaykumar Rumchandra Bhate v. Neela Vijaykumar Bhate, , the Apex Court has held that allegation of extra marital relationship constitutes grave assaultion the character, honour and reputation of wife. Such allegations though withdrawn by seeking amendment in written statement which may have been allowed amounts to cruelty entitling the petitioner to a decree of divorce. Following observations made by the Court may be relevant to quote :

“That apart, even the fact that the application for amendment seeking deletion of the accusations made in the written statement was ordered and amendments carried out subsequently does not absolve the husband in this case, from being held liable for having treated the wife with cruelty by making earlier such injurious reproaches and statements, due to their impact when made and continued to remain on record. To satisfy the requirement of Clause (I-a) of Sub-section (I) of Section 13 of the Act, it is not as though the cruel treatment for any particular duration or period has been statutorily stipulated to be necessary. As to what constitutes the required mental cruelty for purposes of the said provision, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct, but really goes by the intensity, gravity and stigmatic impact of it when meted 6ut even once and the deleterious effect of it on the mental attitude necessary for maintaining a conducive matrimonial home If the taunts, complaints and reproaches are of ordinary nature only, the courts perhaps need to consider the further Question as to whether their continuance or persistence over a period of time render, what normally would, otherwise, not he so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer A conscious and deliberate statement leveled with pungency and that too placed on record, through the written statement, cannot so lightly be ignored or brushed aside, to he of no conseauence merely because it came to be removed from the record only. The allegations leveled and the incidents enumerated in the case oh hand, apart from they being per se cruel in nature, on their own also constitute an admission of the fact that for quite some time in the past the husband had been persistently indulging in them, unrelented and unmindful of their impact. That the husband in this case has treated the wife with intense cruelty is a fact, which became a fait accompli the day they were made in the Written statement. They continued on record at any rate till the carrying of the amendment of the written statement and the indelible impact and scar they initially would have created, cannot be said to have got ipso factor dissolved, with (he amendments ordered. Therefore, no exception could be taken to the courts below placing reliance on the said conduct of the appellant, in this regard, to record a finding against him.”

What has been observed by the Apex Court in the case of wife will stand true and with equal force in the case of a husband as well. The allegation of having illicit relationship and extra marital affair made by the appellant wife against the respondent husband in her written statement, in our view, cannot but constitute mental cruelty of such a nature that respondent husband cannot be reasonably asked to live with the wife. Thus we see no illegality in the finding recorded by the trial Judge that the allegations of having illicit relationship and extra marital affair made by the wife against the husband amounted to cruelty.

Thus court granted divorce on this ground alone that wife was not able to prove extramartial affair.

Adv. Nitish Banka

9891549997

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

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

All the allegations in the plaint..

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

Retaining Documents

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

Not Corroborating evidence

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

Not cross examining properly the evidence produce by opposite party

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

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

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

Fighting Case with no Evidence..

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

Quashing of 498a Vague allegation against relatives some important Judgments

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

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

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

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

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

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

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

In Brijesh Das Vs. State of Bihar

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

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

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

In the case Preeti Gupta Vs. state of Jharkhand

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Adv Nitish Banka

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When can Maintenance can be denied to wife?

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

The Five Ground are

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

Wife Living separately without sufficient cause.

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

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

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

Wife living in Adultery

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

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

Mariyumma vs Mohammed Ibrahim on 28 June, 1978

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

Professionally qualified wife-Capable of earning

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

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

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

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

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

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

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

Separated by mutual consent

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

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

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

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

Earning wife

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

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

Some Videos

Interested Witness in 498a and how to deal?

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

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

But the question here is

Do conviction happen on just there testimony?

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

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

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

Then conviction can happen…

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

The case did have all the interested witnesses…

Still the husband was convicted.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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