Anshu Gupta Vs Adwait Anand on 09 Aug 2023

Posted on August 31, 2023 by ShadesOfKnife

A single judge from High Court of Uttarakhand passed this Judgment declaring that mother is also liable to pay maintenance to minor child. Interesting…

From Paras 17-22,

17. The provisions of Section 125 (1) Cr.P.C. makes it clear that the liability to maintain a minor child is always on “any person”, if he has sufficient means neglects and refuses to maintain a minor child and such “person” is directed to give the monthly allowance as maintenance at the rate deemed fit to the Magistrate.
18. “The person” word denotes not only the male but a female gender and it cannot be said that such person can only qualify father and not the mother. Section 2 (y) of Cr.P.C. provides as under:- “(y) words and expressions used herein and not defined but defined in the Indian Penal Code (45 of 1860) have the meanings respectively assigned to them in that Code. ”
19. According to Section 2(y) of Cr.P.C., the words and expressions used in the Cr.P.C. but have not been defined in the Cr.P.C., shall have the same meanings assigned to them as defined in the Indian Penal Code. Section 8 of IPC is quoted hereunder:- “8. Gender.—The pronoun “he” and its derivatives are used of any person, whether male or female.”
20. This definition of gender gives an indication that “he” and its derivatives are used of any person whether male or female.
21. Under Section 11 of the IPC, the “person” has also been defined, which includes any company or Association or body of persons, whether incorporated or not.
22. From the meticulous examination of these words having been defined in the Indian Penal Code, it can safely be inferred that any “person” use in the provisions of section 125(1) Cr.P.C. includes both mother and father.

From Para 25,

25. It is clear from the aforesaid sub-Section (2) of Section 126 Cr.P.C. that there is no such word “father” or “husband” in the aforesaid sub-section, as it was there in the old Cr.P.C. Section 488 sub-Section (6). Now, in place of “father” or “husband”, “person” has been incorporated and it is provided that “all evidence to such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made……….” Thus, this case law is also of no help to the revisionist and the same is distinguished by this Court on the aforesaid reasons.

Finally from Para 28,

28. The provisions of Section 125 Cr.P.C. has already been changed, as discussed above and according to the language of the present Section 125 Cr.P.C., in the opinion of this Court “person” would include both male and female and in reference to a minor child whether legitimate or illegitimate mother or father having sufficient means if neglects and refuses to maintain such minor child would be held liable to pay the maintenance of such child.

Anshu Gupta Vs Adwait Anand on 09 Aug 2023

Citations:

Other Sources:

Bhanu Kiran Vs Rahul Khosla and Ors on 28 Feb 2023

Posted on August 22, 2023 by ShadesOfKnife

A single judge passed this Restricted Order (only downloadable for litigants/advocates on the case),

From Paras 20 and 21,

Under DV Act, Magistrate is competent to pass final as well as interim orders. Sessions Court is appointed as appellate authority to entertain appeal against order passed by Magistrate. As per petitioner, appellate Court is not specifically vested with power to grant interim relief, thus, appellate court cannot pass interim order staying operation of impugned order. If it is held that under Section 29 appellate court is not bestowed with power to pass interim order against interim order because there is no specific power under Section 29, the appellate court would be denuded from power to pass interim order even against final order because there is no such specific power qua final order. Existence of power and use of power are two different dimensions of legal jurisprudence.
Matter needs to be examined from one more angle. The appellate court may or may not exercise power to pass interim order, however, if it is held that appellate court in terms of Section 29 has no power to pass interim order, it would amount to curtailing the powers of appellate court. It seems to be contrary to settled canons of law that appellate authority or court unless specifically barred can exercise all those powers which are vested in subordinate authority. It cannot be approved that Magistrate has power to pass interim order, however, appellate court has no power to pass interim order. Due to overburden, more often than not, appellate courts are unable to finally adjudicate appeal against interim order and if it is held that appellate court has no power to pass interim order, Magistrate may finally decide the issue and appeal would become infructuous.
In view of above-cited judgments and settled principles of law, this court is of the considered opinion that appellate court while exercising powers under Section 29 of DV Act has power to pass interim order.
21. In view of above facts and findings, it is hereby held:
i) Appeal under Section 29 of the DV Act is maintainable against interim order passed under Section 23 of the DV Act.
ii) Appellate Court while exercising power under Section 29 of DV Act has power to pass interim order.

Bhanu Kiran Vs Rahul Khosla and Ors on 28 Feb 2023

Index of DV cases is here.

Swapan Kumar Das Vs State of West Bengal on 21 Aug 2023

Posted on August 22, 2023 by ShadesOfKnife

A single judge of Calcutta High Court quash vengeful litigation, terming the same as ‘Legal Terrorism‘.

The basic allegation of offence punishable u/s 498A of IPC has some specific ingredients they are:-
1. Married woman was subjected to cruelty.
2. Such cruelty consisted in
a) in lawful conduct as was likely to drive such women to commit suicide or to cause grave injury or danger to her life, limb or health whether mental or physical.
b) harm to such women with a view coercing her to me unlawful demand for property or valuable security or on account of failure of such woman or not of her relations to him the lawful demand.
c) the women was subjected to such cruelty by her husband or any relation of her husband.

And then…

The legislature has enacted the provision of Section 498A to strike out the dowry menace from the society. But it is observed in several cases that by misusing of said provision new legal terrorism is unleashed. Harassment and torture enumerated in the definition of security u/s 498A cannot be proved solely by the de-facto complainant. The criminal law is allowed, complainant to file a criminal complaint but the same has to be justified by adducing cogent evidences. The four corners of both the CDs recorded no such evidence by which prima facie offence against the present petitioners can be established. The direct allegation against the husband by the de-facto complainant is merely from the version of the de-facto complainant herself. It support no documentary or medical evidence. One neighbour has heard about the quarrel of Banashree her husband; the quarrel of two persons does not mean or prove who is in aggression or who is aggrieved.

Finally,

On perusing the observation of Hon’ble Supreme Court in Ch. Bhajanlal, I am of a view that the instant criminal proceedings initiated by the de-facto complainant against the husband and in-laws does not disclose prima facie offence against them as alleged. The proceeding are instituted only to fulfil personal grudge.
Considering the circumstances I think it necessary to invoke the inherent power of this court to quash the proceedings otherwise the continuation of the criminal proceedings would be tantamount to the abuse of process of court.

Swapan Kumar Das Vs State of West Bengal on 21 Aug 2023

Rajan and Anr Vs The State of Madhya Pradesh and Anr on 17 Aug 2023

Posted on August 20, 2023 by ShadesOfKnife

A single judge at Indore Bench of Madhya Pradesh High Court highlighted the Legal terrorism aspect of 498A IPC cases.

From Paras 10 to 12,

10. Nowadays the very purpose of the insertion of Section 498-A in the Penal Code, 1860 with the object to punish the husband or his relatives, has been defined. In most of the cases, this section is beingmisused as observed by several High Courts and the Hon’ble Supreme Court. The Hon’ble Supreme Court in Arnesh Kumar v. State of Bihar: [(2014) 8 SCC 273] has observed that the relatives are unnecessarily being made accused under section 498-A of the I.P.C.
11. The cases are lodged under Section 498-A of the Penal Code,1860 only to settle the matrimonial dispute. some times the FIR wife lodges the FIR immediately after receipt of the summons from theFamily courts. Nowadays there is a package of 5 cases against the husband and family members in family court and the criminal courtunder I.P.C., the Hindu Marriage Act and the Protection of Women from Domestic Violence Act, 2005.
12. The Courts have experienced that on the general and omnibusallegations the family members and distant relatives are being roped in a case arising out of Section 498-A of the Penal Code, 1860, which wasconsidered by the Hon’ble Supreme Court in Geeta Mehrotra v. State of UP : [(2012) 10 SCC 741]. The cases related to distant relativeswere further considered and deprecated by the Hon’ble Supreme Court in K. Subba Rao v. The State of Telangana : [(2018) 14 SCC 452]

Finally from Para 17,

17. At present, the husband and wife both have settled in Australia. The parents of the husband are being harassed by way of the criminal case in India. Applicant No.1 Rajan Mathur is aged about 67 years and his wife is also a senior citizen. General allegations have been levelled against ‘Jethani’ hence she has unnecessarily been dragged in the FIR. As per the contents of the FIR, the husband of respondent No.2 was not even in India at the time of so-called omission of crime. Respondent No.2 has given the Power of Attorney to her father to contest the case against these applicants. This is now a case of reverse cruelty upon them. There is no specific allegation that when her husband left India for Australia there was any demand for dowry, etc. Now a day it is very common for the husband and wife to reside or do jobs outside of India and their parents are made to suffer in India by way of criminal or matrimonial litigation.

Rajan and Anr Vs The State of Madhya Pradesh and Anr on 17 Aug 2023

Citations:

Other Sources:

The Index of Quash judgement is here.

Abhishek Agarwala and Anr Vs Smti Komal Poddar on 01 Mar 2023

Posted on August 20, 2023 by ShadesOfKnife

A single judge bench at Meghalaya HC held that, since a DVC is civil in nature, not to insist for personal appearance of respondents for each and every adjournment.

From Paras 30 to 32,

30. However, before parting, this Court is made to understand that the petitioner is willing to continue in the proceedings before the learned Magistrate provided that he is not made to appear personally before the court on each and every date the matter is fixed, but to cause appearance only through counsel and that steps like issuance of a warrant of arrest may not be taken against him. The learned counsel for the respondent has fairly conceded to this and has even submitted that though the manner in which the Magistrate proceeds is not in within the control of the respondent, time and again, the learned counsel has impressed upon such courts to take proper recourse in such cases.
31. Accordingly, the learned Magistrate(s) dealing with cases under the Protection of Women from Domestic Violence, Act, 2005 would take note that proceedings initiated under Section 12 seeking reliefs under Sections 18 to 23 are civil in nature.
32. When an application seeking one or more reliefs that are found under Sections 18 to 23 of the DV Act, upon service of notice as required under Section 13 of the said Act and upon making appearance by the respondent either in person or through his counsel is filed, the court shall not insist for their personal appearance for each and every adjournment.

Abhishek Agarwala and Anr Vs Smti Komal Poddar on 01 Mar 2023

Citations:

Other Sources:

The index of DV cases is here.

Ali Hamid Daruwala Vs Nahida Rishad Cooper and Anr on 28 Feb 2023

Posted on August 20, 2023 by ShadesOfKnife

With a Revision challenging decision of the District Court here, the single judge bench of Bombay High Court relying on Prabha Tyagi case here, held that removal of Respondents from DV case is unsustainable for lack of shared household requirement.

From Para 16, (such a blatant misinterpretation; only breach of Sec 18 Order is a punishable crime; nothing else)

16. The Apex Court, in the case of Kunapareddy Alias Nookala Shanka Balaji vs. Kunapareddy Swarna Kumari And Another5, has observed that the proceedings under D.V. Act are predominantly of civil nature. It is only when there is a breach of order passed under any of the Section from 18 to 23. Such breach is punishable offence.

From Para 22,

In view of the judgment of Hon’be Apex Court in case of Prabha Tyagi (supra), the contention of learned Advocate that the Applicant had never lived in a shared household or was never in domestic relationship with the complainant and, therefore, the application was not maintainable, is not sustainable in law. Moreover, such a question would only be decided on full fledged hearing of the matter, i.e. after parties adduce evidence in support of their respective case.

Ali Hamid Daruwala Vs Nahida Rishad Cooper and Anr on 28 Feb 2023

Citation:

Other Sources:

Index of DV Cases here.

Shilpashree J.M. Vs Gurumanjunatha .A.S. on 19 Jun 2023

Posted on August 14, 2023 by ShadesOfKnife

A single judge of Karnataka High Court at Bengaluru bench held as follows,

From Para 8,

Admittedly, the petitioner No.1 was working prior to her marriage and it is asserted that after marriage she resigned the said job. But, there is no explanation as to why she is incapable of working now. She is not supposed to sit idle and seek entire maintenance from her husband and she is also legally bound to make some efforts to meet her livelihood and she can seek only supportive maintenance from her husband.

Shilpashree J.M. Vs Gurumanjunatha .A.S. on 19 Jun 2023

Citations:

Other Sources:

Index of Domestic Violence Judgements is here.

Sindhu Janak Nagargoje Vs The State of Maharashtra and Ors on 08 Aug 2023

Posted on August 14, 2023 by ShadesOfKnife

Relying on the landmark decision in Lalita Kumari case here, a division bench of Apex Court held that when a complaint disclosed cognizable offence, a FIR has to be registered u/s 154(1) CrPC and proceeded with investigation.

In view of the decision rendered by the Constitution Bench in the case of “Lalita Kumari vs. State of Uttar Pradesh & Ors.,” reported in (2014) 2 SCC 1, we are of the opinion that the registration of FIR is mandatory under Section 154 of CrPC, if the information discloses commission of cognizable offence. We may reiterate summary of law stated therein: –
“120. In view of the aforesaid discussion, we hold:
120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
120.3 If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
120.4 The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
120.5 The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
120.6 As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/ family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without
satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
120.7 While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and, in any case, it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
120.8 Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information
relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.”

Sindhu Janak Nagargoje Vs The State of Maharashtra and Ors on 08 Aug 2023

Citations:

Other Sources:

S.P. Mani and Mohan Dairy Vs Dr Snehalatha Elangovan on 16 Sep 2022

Posted on August 12, 2023 by ShadesOfKnife

Om Prakash Sharma Vs State of MP on 25 Mar 2021

Posted on August 9, 2023 by ShadesOfKnife

A single judge bench at Gwalior of Madhra Pradesh High Court held as follows,

From Para 5,

5. The aforesaid decisions of the Apex Court in Suresh Chand Jain & Sakiri Vasu (supra) have held the field till date which is evident from perusal of following subsequent verdict of Apex Court rendered after relying upon Sakiri Vasu with approval.

6. In the instant case, as informed by learned counsel for petitioner, no offence has yet been registered by the police. It is also informed that the concerned police station has not yet given any report to the learned Magistrate despite repeated reminders. It is also not denied that the learned Magistrate has not proceeded to record statement of the complainant u/S.200 Cr.P.C. Therefore, in sum and substance, the entire matter hangs fire and is in a state of suspended animation leaving the petitioner-complainant high and dry with no hope of justice coming his way.

From Para 9.1

9.1 Thus, it is incumbent upon the Magistrate u/S.156(3) Cr.P.C. to not only direct for registration of cognizable offence wherever it is found to be not registered by the Police but also to ensure that theinvestigation conducted by the police is fair, expeditious and without any element of prejudice towards anyone, with the sole object ofreaching the truth. The role of the Magistrate u/S.156(3) Cr.P.C. is thus of great significance. Prompt and appropriate exercise of poweru/S.156(3) Cr.P.C. can, not only bring succor to the victim but also to the society at large by bringing the delinquent to the book and in theprocess instilling enough fear in the mind of the miscreant so as to dissuade him from indulging in delinquency again.

From Paras 15-20

Law laid down:
(1) The guidelines laid down for the Magistrates for adjudication of application u/S.156(3) Cr.P.C. complaining about delayed/improper investigation filed along with complaint u/S.200 Cr.P.C.
(2) The complaint u/S.200 Cr.P.C. filed along with 156(3) application need not be kept pending owing to bar contained in Sec.210 Cr.P.C. for more than 60/90 days or any other longer period statutorily provided on expiry of which the police fails to file the final report u/S.173(1) Cr.P.C.
(3) On failure of police to file final report u/S.173(1) Cr.P.C. within 60/90 days or any other longer period statutorily provided, the Magistrate to prevent the complaint u/S.200 Cr.P.C. from suffering a state of stalemate, should proceed by invoking powers contained in Chapter XV and XVI Cr.P.C.
If during pendency of proceedings under Chapter XV and XVI Cr.P.C., invoked as above, Police files the final report then the final report and the complaint case both should proceed as if both have arisen out of police report.

Om Prakash Sharma Vs State of MP on 25 Mar 2021

Citations:

Other Sources:

https://indiankanoon.org/doc/55499395/

https://www.indianemployees.com/judgments/details/om-prakash-sharma-vs-state-of-m-p-and-another

Shades of Knife

True Colors of a Vile Wife

Month: August 2023

Anshu Gupta Vs Adwait Anand on 09 Aug 2023

Bhanu Kiran Vs Rahul Khosla and Ors on 28 Feb 2023

Swapan Kumar Das Vs State of West Bengal on 21 Aug 2023

Rajan and Anr Vs The State of Madhya Pradesh and Anr on 17 Aug 2023

Abhishek Agarwala and Anr Vs Smti Komal Poddar on 01 Mar 2023

Ali Hamid Daruwala Vs Nahida Rishad Cooper and Anr on 28 Feb 2023

Shilpashree J.M. Vs Gurumanjunatha .A.S. on 19 Jun 2023

Sindhu Janak Nagargoje Vs The State of Maharashtra and Ors on 08 Aug 2023

S.P. Mani and Mohan Dairy Vs Dr Snehalatha Elangovan on 16 Sep 2022

Om Prakash Sharma Vs State of MP on 25 Mar 2021