Sunil Kumar and Ors Vs Elizabeth on 07 Feb 2023

Posted on September 14, 2023 by ShadesOfKnife

The Kalaburigi bench of Karnataka High Court held that instead of accommodation in the shared household, money towards rent can be given to the aggrieved person.

From Paras 3-6,

3. As per Section 19(1)(f) of the Protection of Women from Domestic Violence Act, 2005 [in short ‘DV Act’], wherever the Court feels to convenient to order for monetary expenses in lieu of the shared house and also taking note of the relationship existing among the parties, a suitable order can be passed in terms of money.
4. In the impugned order, the learned Trial Magistrate after exercising discretionary power granted a sum of Rs.6,000/- as monthly maintenance and a room to be given by the Revision Petitioner in the shared house.
5. Admittedly, the Revision Petitioner No.1 is the husband of the Respondent. However, the Revision Petitioner is living with first wife. Taking note of these aspects of the matter directing the respondent to stay in the same house in a separate room would not be feasible practically and it may give rise to further displeasure among the parties resulting in civil/criminal litigation.
6. Accordingly, this Court exercising its power as is contemplated under Section 19(1)(f) of the DV Act, a sum of Rs.5,000/- be paid instead of the room be provided as the shared house. If a sum of Rs.5,000/- is being ordered, the respondent can find out a suitable alternate premises more than the room that would be provided in the shared house hold as ordered by the Trial Court, it would meet the ends of justice.

Sunil Kumar and Ors Vs Elizabeth on 07 Feb 2023

Index of DV cases here.

Bhawna Vs Bhay Ram and Ors on 17 Feb 2023

Posted on September 14, 2023 by ShadesOfKnife

A division bench of Apex Court declared the act of imposing cost of DV complainant to examine witnesses.

The appellant is the complainant in a case under the Protection of Women from Domestic Violence Act, 2005. In the trial, the right of the appellant to lead evidence was closed and the complaint was rejected. Therefore, the appellant had filed an appeal. The Appellate Court allowed the appeal directing the trial court to reopen the case and allow the appellant to lead evidence subject to her paying cost of Rs.20,000/- per witness. When the appellant moved the High Court against the said order, the High Court reduced the cost to Rs.10,000/- per witness. In addition, the Appellate Court as well as the High Court said that the appellant will not be entitled to maintenance during the said period.
In a complaint filed under the Protection of women from Domestic Violence Act, 2005, it is not open to the Court to impose such onerous conditions upon the appellant, who claims to be a victim of domestic violence. What the Appellate Court and the High Court have ordered are actually in the nature of penalty for the appellant not proceeding with the trial. In the first instance, it is impermissible in law.
Therefore, the appeal is allowed and that portion of the order of the Appellate Court and the High Court imposing the cost upon the appellant for examination of every witness and also depriving the appellant of interim maintenance is set aside.
The trial court shall permit the appellant to lead evidence without imposing the onerous conditions.
Physical presence of the parents-in-law of the appellant, who are also the respondents herein, shall be dispensed with by the trial court.

Bhawna Vs Bhay Ram and Ors on 17 Feb 2023

Index of DV cases is here.

Career Institute Educational Society Vs Om Shree Thakurji Educational Society on 24 Apr 2023

Posted on September 12, 2023 by ShadesOfKnife

A Division bench of Apex Court discussed the distinction between Ratio Decidendi and Obiter Dicta.

The distinction between obiter dicta and ratio decidendi in a judgment, as a proposition of law, has been examined by several judgments of this Court, but we would like to refer to two, namely, State of Gujarat & Ors. vs. Utility Users’ Welfare Association & Ors.8 and Jayant Verma & Ors. vs. Union of India & Ors.9

Testing for Ratio Decidendi:

The first judgment in State of Gujarat (supra) applies, what is called, “the inversion test” to identify what is ratio decidendi in a judgment. To test whether a particular proposition of law is to be treated as the ratio decidendi of the case, the proposition is to be inversed, i.e. to remove from the text of the judgment as if it did not exist. If the conclusion of the case would still have been the same even without examining the proposition, then it cannot be regarded as the ratio decidendi of the case.

What is vital for decision making?

In Jayant Verma (supra), this Court has referred to an earlier decision of this Court in Dalbir Singh & Ors. vs. State of Punjab10 to state that it is not the findings of material facts, direct and inferential, but the statements of the principles of law applicable to the legal problems disclosed by the facts, which is the vital element in the decision and operates as a precedent, albeit operates as res judicata. Even the conclusion does not operate as a precedent. Thus, it is not everything said by a Judge when giving judgment that constitutes a precedent. The only thing in a Judge’s decision binding as a legal precedent is the principle upon which the case is decided and, for this reason, it is important to analyse a decision and isolate from it the obiter dicta.

Career Institute Educational Society Vs Om Shree Thakurji Educational Society on 24 Apr 2023

CrPC 273 – Evidence to be taken in presence of accused

Posted on September 7, 2023 by ShadesOfKnife

Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader:
Provided that where the evidence of a woman below the age of eighteen years who is alleged to have been subjected to rape or any other sexual offence, is to be recorded, the court may take appropriate measures to ensure that such woman is not confronted by the accused while at the same time ensuring the right of cross-examination of the accused.
Explanation.—In this section, “accused” includes a person in relation to whom any proceeding under Chapter VIII has been commenced under this Code.

Rangesh Srinivasan Vs Madhulika Bawa on 07 Jun 2023

Posted on September 5, 2023 by ShadesOfKnife

A single bench of Delhi High Court held as follows,

From Paras 12-14,

12. Going a step deeper, there is another aspect. While exercising the revisional scrutiny of an interim maintenance order passed in proceedings under Section 125 CrPC, the revisional court for yet another reason cannot impose as a pre-condition to grant of stay on operation of the assailed interim maintenance order, such general rider of deposit of the entire amount of awarded maintenance ignoring the overall circumstances of the case. The provision under Section 397 CrPC confers suo motu powers on the Court of Sessions and the High Court. Wherever the statute confers suo motu powers on any judicial authority, such powers are always implicitly accompanied with attendant duty to invoke the powers in order to meet the ends of justice. Once an illegality, incorrectness or impropriety in a judicial order is brought to the notice of the revisional court under Section 397 CrPC, the Court cannot justifiably refuse to entertain the challenge on the grounds of non-compliance with the order impugned before it. From that angle also, in my view, there cannot be generalized direction not to stay the operation of the interim maintenance order solely on the ground that the revisionist did not deposit the entire amount of awarded maintenance. Of course, if otherwise the factual and legal matrix justifies, grant of stay can be denied as well.
13. It is clarified that in the present case this court has refrained itself from analysing as to whether operation of the interim maintenance order facing appellate challenge is otherwise liable to be stayed or not. This issue has to be considered by the learned Additional Sessions Judge on the facts and circumstances of the case in the backdrop of settled legal position.
14. In view of above discussion, the petition is allowed and accordingly the impugned order is set aside, consequently remanding the matter back to the learned Additional Sessions Judge to decide afresh as to whether the interim maintenance order passed by the magisterial court is liable to be stayed during pendency of the appeal.

Rangesh Srinivasan Vs Madhulika Bawa on 07 Jun 2023

Citations: [2023 Latest Caselaw 774 Del]

Other Sources:

https://indiankanoon.org/doc/185965631/

https://www.casemine.com/judgement/in/6481f4e9e2788a042a651529

https://www.latestlaws.com/judgements/delhi-hc/2023/june/2023-latest-caselaw-774-del

https://www.the-laws.com/Encyclopedia/browse/Case?CaseId=103202750100&Title=RANGESH-SRINIVASAN-Vs.-MADHULIKA-BAWA

https://legiteye.com/in-crl-mc-4349-of-2023-del-hc-once-an-illegality-or-impropriety-in-a-judicial-order-is-brought-to-notice-of-revisional-court-it-cannot-justifiably-refuse-to-entertain-the-challenge-on-grounds-of-non-compliance-with-the-order-impugned-before-it-delhi-high-court-justice-girish-kathpalia-07-06-2023/

Index of PWDV Act cases here. Index of Maintenance cases u/s 144 BNSS (125 Cr.P.C.) here.

Mamta Vs Pradeep Kumar on 05 Sep 2023

Posted on September 5, 2023 by ShadesOfKnife

A division bench of Delhi High Court held as follows,

From Para 12,

12. Marriages under old Hindu Law are considered as a sacrament and did not recognize the concept of divorce. Once this union of marriage was established, the ties were for the entire life of the spouses which could not be severed under any circumstances. Complete shift of paradigm from the social ethos happened with the enactment of the Act, 1955 which not only introduced the concept of ‘monogamy’ but also defined certain grounds on which alone divorce could be granted. Despite this phenomenal change in the social ethos, the Act, 1955 recognises the ground of divorce only on “Fault Theory”. Unless the opposite party was shown to be at fault, whether it was for ‘Adultery’, ‘Cruelty’, ‘Desertion’ or other grounds as specified under Section 13 of the Act, 1955, no divorce can be granted. With the passage of time, experience has shown that many a times, the marriages do not work because of incompatibility and temperamental differences, for which neither party can be blamed. However, since only Fault Theory prevails, these parties end up warring with each other for years to come only because they have no way of exiting this relationship. While many debates have been held to introduce “Irretrievable Breakdown of Marriage” as a ground, it has not met the approval and consent of the legislation. We are bound by limits as defined under the Act, 1955 and unless the fault of the other spouse is shown, the parties are left to suffer acrimonious relationship with no way to exit. In this backdrop, the facts of the present case may be considered.

From Para 30,

30. We conclude that in the present case the parties are living separately for 15 years now; there is no chance of reconciliation between the parties and such long separation peppered which false allegations, police reports and criminal trial has become a source of mental cruelty and any insistence either to continue this relationship or modifying the Family Court’s order would only be inflicting further cruelty upon both the parties. Living together in a marriage is not an irreversible act. But marriage is a tie between two parties and if this tie is not working under any circumstances, we see no purpose in postponing the inevitability of the situation.

Mamta Vs Pradeep Kumar on 05 Sep 2023

Citations: [2023 DHC 6384-DB]

Other Sources:

Index of Divorce judgments here.

Zahir Obdullah and Anr Vs Omar Abdullah on 31 Aug 2023

Posted on September 1, 2023 by ShadesOfKnife

From Para 33, (Perversity of a High Court!)

33. Both the Petitioners are majors and, therefore, under Section 125 Cr.P.C, they are not entitled to maintenance. However, this Court is of the opinion that the Respondent cannot abandon his children and ought not to abdicate his duties as a father. The Petitioner in CRL.REV.P. 605/2018 has been saddled with the responsibility of paying the entire fee for the education of both the children, however, it was the duty of the father to also contribute towards their education. Therefore, even though the Petitioners in CRL.REV.P 604/2018 are not entitled to any maintenance as per the law, this Court is of the opinion that the Respondent should compensate the Petitioner in CRL.REV.P. 605/2018 by sharing the burden of the amount spent by her towards the expenses and upkeep of the children.

Zahir Obdullah and Anr Vs Omar Abdullah on 31 Aug 2023

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

Shades of Knife

True Colors of a Vile Wife

Author: ShadesOfKnife

Sunil Kumar and Ors Vs Elizabeth on 07 Feb 2023

Bhawna Vs Bhay Ram and Ors on 17 Feb 2023

Career Institute Educational Society Vs Om Shree Thakurji Educational Society on 24 Apr 2023

CrPC 273 – Evidence to be taken in presence of accused

Rangesh Srinivasan Vs Madhulika Bawa on 07 Jun 2023

Mamta Vs Pradeep Kumar on 05 Sep 2023

Zahir Obdullah and Anr Vs Omar Abdullah on 31 Aug 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