The Domestic Incident Report or DIR is prescribed form for the magistrate and is filled by the protection officer for the purpose to assist the magistrate.
The DIR Performa is given in FORM-I of the schedule II of the rules. This performa is a detailed analytical foem wherein the details of each of the incident of domestic violence are to be entered with date, time and place and other details as mentioned in the complaint.
If summoning orders are passed without consideration of the DIR, remanding case back for consideration of DIR would be proper
Bhupender singh Mehra vs. State of NCT of Delhi.
Practical Problems with the DIR.
The exercise of obtaining an presenting DIR is a clerical job and magistrate can do it himself.
The qualification of protection officers and their training is again a questionmark.
For 3-4 dates they even do not submit the DIR and hence there is a serious issue and unreasonable delay in cases.
In 498a complaints there is a common issue that wife or relatives of the wife alleges that they have given dowry in the marriage.
Section 3 of Dowry prohibition act states as under
“3. Penalty for giving or taking dowry.- (1)] If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment for a term which shall not be less than [(Note: Subs. by Act 43 of 1986, Sec.3) five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more:] Provided that the Court may, for a adequate and special reasons to be recorded in he judgment, impose a sentence of imprisonment of a term of less than [(Note: Subs. by Act 43 of 1986, Sec.3) five years.] (2) [(Note: Ins. by Act 63 of 1984, sec.3) Nothing is sub section (1) shall apply to, or in relation to, –
Now if wife files a complaint and she admits to giving dowry why she and relatives be prosecuted for giving dowry as envisaged under the DP Act 1961.
But if we see section of 7 of the Dowry prohibition act which says
7. Cognizance of offences –
……………….
(3) Notwithstanding anything contained in any law for the time being in force, a statement made by the person aggrieved by the offence shall not subject such person to a prosecution under this Act.”
No doubt, as per Section 3 of the Dowry Prohibition Act, giving or abetting to give dowry is a punishable offence, but the petitioner does have protection of Section 7(3) of the Act. Section 7(3) provides that notwithstanding anything contained in any law for the time being in force, a statement made by the person aggrieved by the offence under the Act shall not subject him to prosecution under this Act. In the instant case, it is obvious that respondent No.2 has filed his petition under Section 156(3) Cr.P.C. only on the basis of the allegations made by the petitioner Pooja Saxena in her complaint made to CAW Cell which formed basis for the registration of FIR No.232/2009 under Section 498A/406/34 IPC against respondent No.2 and others as well as in her petition under Hindu Marriage Act and Domestic Violence Act. Thus, it is clear that FIR No.59/2010 registered against the petitioner under Section 3 of the Dowry Prohibition Act, 1961 is based upon the statements made by the petitioner in her complaint to CAW Cell and above noted petitions. Therefore, she is entitled to the protection of Section 7(3) of the Act, being the victim of demand of dowry.
Therefore Victim has the protection under the 7(3) of the act and no complaint can be lodged against her.
Types of Complaint which can be filed in HRERA Gurugram/ Gurgaon?
There are two type of complaints that can be filed in HRERA Gurgaon. You need to fill the CRA forms and submit your complaint. The Court fee is Rs. 1000 which can be paid online only.
Both online and offline process is set up and needs to be complied with.
The best about RRA is there is no evidence stage unlike consumer forum and straight away they hear the case
You need to file all the documents with the complaint on which you are relying because at later stage it is difficult.
A. Possession/Delay Possession Charges
B. Refund with interest.
A. Possession/Delay Possession Charges
In this kind of complaint the complainant wants to continue with the project however due to delay in the project he wishes to continue and wants compensation.
B. Refund with Interest
In this kind of complaint the complainant is seeking refund of his hard earned money along with interest.
Now in the recent judgement by Punjab and Haryana High Court both these complaints can be filed in HRERA Gurgaon.
Procedure for filing complaint Online
HRERA Gurgaon Offline filing Process
When the online process for registration is completed and fee is paid the complaint needs to be filed offline at the office of HRERA Gurugram
Important things
-> Proof of service along with service report
-> CD PDF with Doc file
-> Complaint with all annexure flagged.
-> 2 sets needs to be filed.
-> Complete form CRA filled.
-> An extra set for opposite party along with blank envelope
Procedure after filing of complaint
You should be receiving mail in few days regarding the hearing date update
About intimation of Date
You can check RERA portal also for the next date of hearing…
Process of hearing in HRERA Gurugram
These days Haryana RERA is hearing the matters both physically and through VC.
Complainant can engage an advocate and can choose any of the mode to present his case.
FIRST DATE
At the first date of hearing the opposite party is generally given time to reply to your complaint and after reply comes on the Second date the next date is fixed for arguments.
Arguments
At the stage of the arguments the case is presented by the each side.
You have to show the delay and deficiencies and make out a case in your favor then the opposite party will submit his/her reply after which the court reserves it Decision.
Final Decision
Sample Order
Compensation Ordered
A compensation in form of 8-10% is ordered
Recent Matter won by Advocate Nitish Banka
Emaar MGF
A compensation of 9.30% was ordered as there was a delay in delivery of the project
A settlement with good compensation awarded to another client
The standard of living assessment is the accurate measure of determining the amount of maintainance.
In the maintenance cases there is a tendency to cover up the income so that the maintenance of the husband can be reduced but by assessing the standard of living court can assess maintenance according to standard of living not by the income earned by the husband.
(ii) At present, the issue of interim maintenance is decided on the basis of pleadings, where some amount of guess-work or rough estimation takes place, so as to make a prima facie assessment of the amount to be awarded. It is often seen that both parties submit scanty material, do not disclose the correct details, and suppress vital information, which makes it difficult for the Family Courts to make an objective assessment for grant of interim maintenance. While there is a tendency on the part of the wife to exaggerate her needs, there is a corresponding tendency by the husband to conceal his actual income.
In Bhagwan Dutt v Kamla Devi 6 the Supreme Court held that under Section 125(1) Cr.P.C. only a wife who is “unable to maintain herself” is entitled to seek maintenance. The Court held :
“19. The object of these provisions being to prevent vagrancy and destitution, the Magistrate has to find out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family. The needs and requirements of the wife for such moderate living can be fairly determined, only if her separate income, also, is taken into account together with the earnings of the husband and his commitments.” (emphasis supplied) Prior to the amendment of Section 125 in 2001, there was a ceiling on the amount which could be awarded as maintenance, being Rs. 500 “in the whole”.
The monetary relief granted under this section under DV act shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.
Parties may lead oral and documentary evidence with respect to income, expenditure, standard of living, etc. before the concerned Court, for fixing the permanent alimony payable to the spouse.
The factors which would weigh with the Court inter alia are the status of the parties; reasonable needs of the wife and dependant children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a non-working wife.33 In Manish Jain v Akanksha Jain 34 this Court held that the financial position of the parents of the applicant-wife, would not be material while determining the quantum of maintenance. An order of interim maintenance is conditional on the circumstance that the wife or husband who makes a claim has no independent income, sufficient for her or his support. It is no answer to a claim of maintenance that the wife is educated and could support herself. The court must take into consideration the status of the parties and the capacity of the spouse to pay for her or his support. Maintenance is dependent upon factual situations; the Court should mould the claim for maintenance based on various factors brought before it.
On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependant family members whom he is obliged to maintain under the law, liabilities if any, would Refer to Jasbir Kaur Sehgal v District Judge, Dehradun & Ors. (1997) 7 SCC 7. Refer to Vinny Paramvir Parmar v Paramvir Parmar (2011) 13 SCC 112.
On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependant family members whom he is obliged to maintain under the law, liabilities if any, would Refer to Jasbir Kaur Sehgal v District Judge, Dehradun & Ors. (1997) 7 SCC 7. Refer to Vinny Paramvir Parmar v Paramvir Parmar (2011) 13 SCC 112.
(2017) 15 SCC 801.
be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. The Court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able bodied and has educational qualifications.35
(ii) A careful and just balance must be drawn between all relevant factors.
The test for determination of maintenance in matrimonial disputes depends on the financial status of the respondent, and the standard of living that the applicant was accustomed to in her matrimonial home.36 The maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort.
(iv) Section 20(2) of the D.V. Act provides that the monetary relief granted to the aggrieved woman and / or the children must be adequate, fair, reasonable, and consistent with the standard of living to which the aggrieved woman was accustomed to in her matrimonial home.
Reema Salkan v Sumer Singh Salkan (2019) 12 SCC 303.
The art and science of cross examination in 498a is the key for winning the case.
The right kind of questions will influence the judge in making a judgement regarding the credibility of the witness and to shake his/her credibility questions are to be crafted using the strategic values of these things..
Questions which shake the credibility of the witness.
Now if wife alleges some injury and there is no MLC related document on record then you have to ask if you have opted for MLC or done any formal complaint about incident. Here keep this thing in mind that you already know the answer will be a big “NO”. If somebody has done cruelty on wife oboviously the person would complain about the incident. beware you do not have to ask the question why she did not do the complaint rather give a suggestion that no incident happened that’s why you did not do complaint or told anybody. Now if she acts smarter and will try to add she did not do the complaint because she wanted to save the marraige if you ask why she did not do the complaint.
Questions which are directed to her in which you know there is no evidence on record
You know wife has no evidence of spending 25 lakh in a marriage you can ask questions like supporting bills or jewallary items like this
Have you attached any jwellary or marraige related bills? dont go to the question why you have not attached the bills.
Contradictory previous statement
You need to highlight the contradiction of 161 statement and examination in chief and content of complaint if there are material contradiction of date/place.
Confrontational questions
You need to put your defense to her you have to first identify her Facebook or WhatsApp number and then confront her with the messages exchanged
This is a new judgement of Hon’ble Supreme court n which the eviction of Daughter in law from the shared household is not possible.
Now there is a scenario when mother in law/father in law could file the proceedings under the senior citizens act in connivance with the son to evict the daughter in law
Now question which was answered in this new judgement of S Vanitha is that whether the daughter in law can be evicted when she is occupying shared household of old parents?
The answer to the question lies in the harmonious construction of both the DV act and the senior citizen act
There is a section 26 of the DV act which says the provisions of the DV act are in addition to any other act.
The Hon’ble supreme court held that
It would be appropriate for the Tribunal constituted under the Senior Citizens Act 2007 to appropriately mould reliefs, after noticing the competing claims of the parties claiming under the PWDV
Conclusion
Daughter in law cannot be evicted without keeping in mind the provisions of PWDV Act 2005 and Senior Citizens Act 2007.
The new Maintenance Judgement is against men or in favour of wife that has to be seen from a presepective.
The Maintenance laws are obviously considers right of wife to get maintainance we cannot say that law is in favour of women, when the law is already there.
But the new Judgement only clarify the procedure to decide maintainance case.
It is well settled that a wife can make a claim for maintenance under different statutes. For instance, there is no bar to seek maintenance both under the D.V. Act and Section 125 of the Cr.P.C., or under H.M.A. It would, however, be inequitable to direct the husband to pay maintenance under each of the proceedings, independent of the relief granted in a previous proceeding. If maintenance is awarded to the wife in a previously instituted proceeding, she is under a legal obligation to disclose the same in a subsequent proceeding for maintenance, which may be filed under another enactment. While deciding the quantum of maintenance in the subsequent proceeding, the civil court/family court shall take into account the maintenance awarded in any previously instituted proceeding, and determine the maintenance payable to the claimant.
To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, we direct that in a subsequent maintenance proceeding, the applicant shall disclose the previous maintenance proceeding, and the orders passed therein, so that the Court would take into consideration the maintenance already awarded in the previous proceeding, and grant an adjustment or set-off of the said amount. If the order passed in the previous proceeding requires any modification or variation, the party would be required to move the concerned court in the previous proceeding.
2. Income Affidavit
Keeping in mind the need for a uniform format of Affidavit of Disclosure of Assets and Liabilities to be filed in maintenance proceedings, this Court considers it necessary to frame guidelines in exercise of our powers under Article 136 read with Article 142 of the Constitution of India : (a) The Affidavit of Disclosure of Assets and Liabilities annexed at Enclosures I, II and III of this judgment, as may be applicable, shall be filed by the parties in all maintenance proceedings, including pending proceedings before the concerned Family Court / District Court / Magistrate’s Court, as the case may be, throughout the country; (b) The applicant making the claim for maintenance will be required to file a concise application accompanied with the Affidavit of Disclosure of Assets; (c) The respondent must submit the reply alongwith the Affidavit of Disclosure within a maximum period of four weeks. The Courts may not grant more than two opportunities for submission of the Affidavit of Disclosure of Assets and Liabilities to the respondent. If the respondent delays in filing the reply with the Affidavit, and seeks more than two adjournments for this purpose, the Court may consider exercising the power to strike off the defence of the respondent, if the conduct is found to be wilful and contumacious in delaying the proceedings.
On the failure to file the Affidavit within the prescribed time, the Family Court may proceed to decide the application for maintenance on basis of the Affidavit filed by the applicant and the pleadings on record;
The pleadings made in the applications for maintenance and replies filed should be responsible pleadings; if false statements and misrepresentations are made, the Court may consider initiation of proceeding u/S. 340 Cr.P.C., and for contempt of Court.
In contemporary society, where several marriages do not last for a reasonable length of time, it may be inequitable to direct the contesting spouse to pay permanent alimony to the applicant for the rest of her life. The duration of the marriage would be a relevant factor to be taken into consideration for determining the permanent alimony to be paid.
Criteria for quantum of Maintenance
A careful and just balance must be drawn between all relevant factors. The test for determination of maintenance in matrimonial disputes depends on the financial status of the respondent, and the standard of living that the applicant was accustomed to in her matrimonial home.
The maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort.
Enforcement of Maintenance Order
The order or decree of maintenance may be enforced like a decree of a civil court, through the provisions which are available for enforcing a money decree, including civil detention, attachment of property, etc. as provided by various provisions of the CPC, more particularly Sections 51, 55, 58, 60 read with Order XXI.
Striking off the defence of the respondent is an order which ought to be passed in the last resort, if the Courts find default to be wilful and contumacious, particularly to a dependant unemployed wife, and minor children. Contempt proceedings for wilful disobedience may be initiated before the appropriate Court
With so many ambiguities in deciding maintenance cases the Hon’ble supreme court has decided to frame guidelines throughout the country to decide maintenance cases.
Basically to give uniformity to the procedure to be followed throughout the country here are the key points and various judgements
(a) Issue of overlapping jurisdiction To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, it has become necessary to issue directions in this regard, so that there is uniformity in the practice followed by the Family Courts/District Courts/Magistrate Courts throughout the country. We direct that:
(i) where successive claims for maintenance are made by a party under different statutes, the Court would consider an adjustment or setoff, of the amount awarded in the previous proceeding/s, while determining whether any further amount is to be awarded in the subsequent proceeding; (ii) it is made mandatory for the applicant to disclose the previous proceeding and the orders passed therein, in the subsequent proceeding; (iii) if the order passed in the previous proceeding/s requires any modification or variation, it would be required to be done in the same proceeding.
(b) Payment of Interim Maintenance The Affidavit of Disclosure of Assets and Liabilities annexed as Enclosures I, II and III of this judgment, as may be applicable, shall be filed by both parties in all maintenance proceedings, including pending proceedings before the concerned Family Court / District Court / Magistrates Court, as the case may be, throughout the country.
(c) Criteria for determining the quantum of maintenance
For determining the quantum of maintenance payable to an applicant, the Court shall take into account the criteria enumerated in Part B – III of the judgment.
Criteria for determining quantum of maintenance (i) The objective of granting interim / permanent alimony is to ensure that the dependant spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded.
The factors which would weigh with the Court inter alia are the status of the parties; reasonable needs of the wife and dependant children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a non-working wife.
In Manish Jain v Akanksha Jain this Court held that the financial position of the parents of the applicant-wife, would not be material while determining the quantum of maintenance. An order of interim maintenance is conditional on the circumstance that the wife or husband who makes a claim has no independent income, sufficient for her or his support. It is no answer to a claim of maintenance that the wife is educated and could support herself. The court must take into consideration the status of the parties and the capacity of the spouse to pay for her or his support. Maintenance is dependent upon factual situations; the Court should mould the claim for maintenance based on various factors brought before it. On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependant family members whom he is obliged to maintain under the law, liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. The Court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able bodied and has educational qualifications.
(ii) A careful and just balance must be drawn between all relevant factors. The test for determination of maintenance in matrimonial disputes depends on the financial status of the respondent, and the standard of living that the applicant was accustomed to in her matrimonial home.
The maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort.
(iii) Section 23 of HAMA provides statutory guidance with respect to the criteria for determining the quantum of maintenance. Sub-section (2) of Section 23 of HAMA provides the following factors which may be taken into consideration : (i) position and status of the parties, (ii) reasonable wants of the claimant, (iii) if the petitioner/claimant is living separately, the justification for the same, (iv) value of the claimant’s property and any income derived from such property, (v) income from claimant’s own earning or from any other source. (iv) Section 20(2) of the D.V. Act provides that the monetary relief granted to the aggrieved woman and / or the children must be adequate, fair, reasonable, and consistent with the standard of living to which the aggrieved woman was accustomed to in her matrimonial home.
(v) The Delhi High Court in Bharat Hedge v Smt. Saroj Hegde37 laid down the following factors to be considered for determining maintenance : “1. Status of the parties.
Reasonable wants of the claimant. 3.The independent income and property of the claimant.
The number of persons, the non-applicant has to maintain.
The amount should aid the applicant to live in a similar lifestyle as he/she enjoyed in the matrimonial home.
Non-applicant’s liabilities, if any.
Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant.
Payment capacity of the non-applicant.
Some guess work is not ruled out while estimating the income of the non-applicant when all the sources or correct sources are not disclosed.
The non-applicant to defray the cost of litigation.
The amount awarded u/s 125 Cr.PC is adjustable against the amount awarded u/ 24 of the Act. 17.” (vi) Apart from the aforesaid factors enumerated hereinabove, certain additional factors would also be relevant for determining the quantum of maintenance payable. (a) Age and employment of parties In a marriage of long duration, where parties have endured the relationship for several years, it would be a relevant factor to be taken into consideration. On termination of the relationship, if the wife is educated and professionally qualified, but had to give up her employment opportunities to look after the needs of the family being the primary caregiver to the minor children, and the elder members of the family, this factor would be required to be given due importance. This is of particular relevance in contemporary society, given the highly competitive industry standards, the separated wife would be required to undergo fresh training to acquire marketable skills and re-train herself to secure a job in the paid workforce to rehabilitate herself. With advancement of age, it would be difficult for a dependant wife to get an easy entry into the work-force after a break of several years. 37 140 (2007) DLT 16. (b) Right to residence Section 17 of the D.V. Act grants an aggrieved woman the right to live in the “shared household”. Section 2(s) defines “shared household” to include the household where the aggrieved woman lived at any stage of the domestic relationship; or the household owned and rented jointly or singly by both, or singly by either of the spouses; or a joint family house, of which the respondent is a member. The right of a woman to reside in a “shared household” defined under Section 2(s) entitles the aggrieved woman for right of residence in the shared household, irrespective of her having any legal interest in the same. This Court in Satish Chander Ahuja v Sneha Ahuja38 (supra) held that “shared household” referred to in Section 2(s) is the shared household of the aggrieved person where she was living at the time when the application was filed, or at any stage lived in a domestic relationship. The living of the aggrieved woman in the shared household must have a degree of permanence. A mere fleeting or casual living at different places would not constitute a “shared household”. It is important to consider the intention of the parties, nature of living, and nature of the household, to determine whether the premises is a “shared household”. Section 2(s) read with Sections 17 and 19 of the D.V. Act entitles a woman to the right of residence in a shared household, irrespective of her having any legal interest in the same. There is no requirement of law that the husband should be a member of the joint family, or that the household must belong to the joint family, in which he or the aggrieved woman has any right, title or interest. The shared household may not necessarily be owned or tenanted by the husband singly or jointly. Section 19 (1)(f) of the D.V. Act provides that the Magistrate may pass a residence order inter alia directing the respondent to secure the same level of alternate accommodation for the aggrieved woman as enjoyed by her in the shared household. While passing such an order, the Magistrate may direct the Civil Appeal No. 2483 / 2020 decided vide Judgment dated 15.10.2020 respondent to pay the rent and other payments, having regard to the financial needs and resources of the parties. (c) Where wife is earning some income The Courts have held that if the wife is earning, it cannot operate as a bar from being awarded maintenance by the husband. The Courts have provided guidance on this issue in the following judgments. In Shailja & Anr. v Khobbanna, 39 this Court held that merely because the wife is capable of earning, it would not be a sufficient ground to reduce the maintenance awarded by the Family Court. The Court has to determine whether the income of the wife is sufficient to enable her to maintain herself, in accordance with the lifestyle of her husband in the matrimonial home. Sustenance does not mean, and cannot be allowed to mean mere survival.
In Sunita Kachwaha & Ors. v Anil Kachwaha 42 the wife had a postgraduate degree, and was employed as a teacher in Jabalpur. The husband raised a contention that since the wife had sufficient income, she would not require financial assistance from the husband. The Supreme Court repelled this contention, and held that merely because the wife was earning some income, it could not be a ground to reject her claim for maintenance. The Bombay High Court in Sanjay Damodar Kale v Kalyani Sanjay Kale43 while relying upon the judgment in Sunita Kachwaha (supra), held that neither the mere potential to earn, nor the actual earning of the wife, howsoever meagre, is sufficient to deny the claim of maintenance. An able-bodied husband must be presumed to be capable of earning sufficient money to maintain his wife and children, and cannot contend that he is not in a position to earn sufficiently to maintain his family, as held by the Delhi High Court in Chander Prakash Bodhraj v Shila Rani Chander 39 (2018) 12 SCC 199. See also Decision of the Karnataka High Court in P. Suresh v S. Deepa & Ors., 2016 Cri LJ 4794.
The onus is on the husband to establish with necessary material that there are sufficient grounds to show that he is unable to maintain the family, and discharge his legal obligations for reasons beyond his control. If the husband does not disclose the exact amount of his income, an adverse inference may be drawn by the Court. This Court in Shamima Farooqui v Shahid Khan45 cited the judgment in Chander Prakash (supra) with approval, and held that the obligation of the husband to provide maintenance stands on a higher pedestal than the wife. (d) Maintenance of minor children The living expenses of the child would include expenses for food, clothing, residence, medical expenses, education of children. Extra coaching classes or any other vocational training courses to complement the basic education must be factored in, while awarding child support. Albeit, it should be a reasonable amount to be awarded for extra-curricular / coaching classes, and not an overly extravagant amount which may be claimed. Education expenses of the children must be normally borne by the father. If the wife is working and earning sufficiently, the expenses may be shared proportionately between the parties. (e) Serious disability or ill health Serious disability or ill health of a spouse, child / children from the marriage / dependant relative who require constant care and recurrent expenditure, would also be a relevant consideration while quantifying maintenance.
The aforesaid factors are however not exhaustive, and the concerned Court may exercise its discretion to consider any other factor/s which may be necessary or of relevance in the facts and circumstances of a case.
(d) Date from which maintenance is to be awarded We make it clear that maintenance in all cases will be awarded from the date of filing the application for maintenance, as held in Part B – IV above. (e) Enforcement / Execution of orders of maintenance For enforcement / execution of orders of maintenance, it is directed that an order or decree of maintenance may be enforced under Section 28A of the Hindu Marriage Act, 1956; Section 20(6) of the D.V. Act; and Section 128 of Cr.P.C., as may be applicable. The order of maintenance may be enforced as a money decree of a civil court as per the provisions of the CPC, more particularly Sections 51, 55, 58, 60 r.w. Order XXI.
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.
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
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.
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.
