Asha Devi and Anr Vs State of UP and 2 Ors on 1 Dec 2020

Posted on April 4, 2022 by ShadesOfKnife

A division bench at Allahabad High Court held as follows:

From Para 16,

16. According to own case of the petitioners, the petitioner no.1 is still a legally wedded wife of one Mahesh Chandra. As per own alleged application dated 17.09.2020 (as reproduced in para 6 above), the petitioners are living as husband and wife and they have sought protection from interference in their living together as husband and wife. Once the petitioner No.1 is a married woman being wife of one Mahesh Chandra, the act of petitioners particularly the petitioner No.2, may constitute an offence under Sections 494/495 I.P.C. Such a relationship does not fall within the phrase “live-in-relationship” or “relationship in the nature of marriage”. The writ petition has been filed by the petitioners for protection from interference by others in their living as husband and wife. If the protection as prayed is granted, it may amount to grant protection against commission of offences under Sections 494/495 I.P.C.

From Para 18,

18. It is settled law that writ of mandamus can be issued if the petitioner has a legal right to the performance of a legal duty by the party against whom the mandamus is sought and such right must be subsisting on the date of the petition. Similar view has also been taken by Hon’ble Supreme Court in Kalyan Singh vs. State of U.P. 13. Applying the principles of issuance of writ of mandamus on the facts of the present case, we find that the petitioners have no legal right for protection on the facts of the present case inasmuch as such the protection as being asked, may amount to protection against commission of offence under Section 494/495 I.P.C. It is well settled law that writ of mandamus can not be issued contrary to law or to defeat a statutory provision including penal provision. The petitioners do not have legally protected and judicially enforceable subsisting right to ask for mandamus.

Asha Devi and Anr Vs State of UP and 2 Ors on 1 Dec 2020

Bhagyashri Jagdish Jaiswal Vs Jagdish Sajjanlala Jaiswal and Anr on 26 Feb 2022

Posted on April 1, 2022 by ShadesOfKnife

A single judge bench held that Section 25 of HMA 1955 can be filed after passing of divorce decree.

From Para 14,

14. A conjoint reading of both the provisions, would reveal that both the sections in the Act of 1955 are enabling provisions and confer a right on the indigent spouse to claim maintenance either pendente lite or in the nature of permanent alimony and maintenance.

From Para 15,

15. The words applied in Section 25 of the Act of 1955 permit any court exercising jurisdiction under this Act, i.e. under Sections 9 to 13, at the time of passing any decree or at any time subsequent thereto, on an application made to it, by either of the spouse pay to the applicant for her/his maintenance, either gross sum or monthly or periodical sums for not exceeding the life of the applicant, having regard to the income and the other property, etc. The term used “at any time subsequent thereto” cannot be made redundant, by giving constricted meaning to the words “wife or husband”, applied in Section 25 of the Act of 1955 and this can be said so, in the wake of sub-sections (2) and (3) of Section 25, which empower the court to vary, modify or rescind the amount of permanent alimony and maintenance as awarded under sub-section (1) and, on existence of the circumstances set out in sub-section (3), order granting permanent alimony and maintenance can be varied and modified or rescinded as the court may deem just and proper.
Sub-sections (2) and (3) of Section 25 are thus indicative of the fact that if at the time of decree, an application is made or at any subsequent time of the passing of the decree, an application is made, claiming maintenance by either of the spouse, the court is empowered to grant the claim, which is just and proper and the payment can be secured if necessary, by creating charge on the immoveable property of the respondent. If sub-section (1) is given a restrictive meaning as attempted to be canvassed by Mr. Thombre, then the words used “at any time subsequent thereto” would become redundant, which cannot be the intention of the legislature. The legislature does not use the words in vacuum and when it specifically permits the exercise of power of granting permanent alimony and maintenance on the court exercising jurisdiction under the Act, at the time of passing of the order or at any time subsequent thereto, it is open for the court to grant such maintenance at the time of passing the decree or even subsequent to the decree being passed. The provision cannot be read to constrict it, if the relationship between the husband and the wife is severed and as per Mr. Thombre, on divorce, they no longer remain husband and wife. Section 25 is not only restricted to a decree of divorce, but the decree can also be for restitution of conjugal rights under Section 9, the decree can also be for judicial separation under Section 10 or the decree can also be for divorce under Section 13 or the decree can also be for a divorce by mutual consent under Section 13B. In the contingency other than the one covered by a decree of divorce, the parties are still husband and wife, when a decree for restitution of conjugal rights or judicial separation is passed. The scope of Section 25, therefore, cannot be restricted by holding that on divorce / dissolution of marriage, the wife or the husband cannot bring such proceedings.

Bhagyashri Jagdish Jaiswal Vs Jagdish Sajjanlala Jaiswal and Anr on 26 Feb 2022

Citations :

Other Sources :

S Vs J on 17 Apr 2018

Posted on April 1, 2022 by ShadesOfKnife

The Erudite Judge, Justice JR Midha has passed this decision on framing of issues in a DV Case.

2. The petitioner has challenged the order dated 28th March, 2017 whereby the Family Court dismissed the petitioner’s application under Order XIV Rule 5 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘C.P.C.’) for framing of additional issues.

From Para 9,

9. Summary of principles
9.1. D.V. Act provides a remedy in civil law for the protection of victims of the domestic violence as noted in the Statement of Object and Reasons.
9.2. The aggrieved person can file the application for the reliefs under the D.V. Act to the Magistrate under Section 12 of the D.V. Act.
9.3. If any suit or other legal proceedings affecting the aggrieved person are pending before a Civil Court, Family Court or Criminal Court, Section 26 gives an option to the aggrieved person to approach such Court for reliefs under the D.V. Act. However, no independent application is maintainable before the Civil Court or Family Court, if no proceedings are pending before them affecting the aggrieved person and the respondent.
9.4. The Civil Court, Family Court or Criminal Court dealing with the application under Sections 18 to 22 of the D.V. Act can formulate its own procedure under Section 28(2) of the D.V. Act. The word ‘Court’ in Section 28(2) of the D.V. Act includes Civil Court, Family Court as well as the Criminal Court.
9.5. The Court shall formulate the procedure after completion of pleadings in an application under Section 26 of the D.V. Act.
9.6. After completion of pleadings, the concerned Court shall consider whether evidence is necessary to adjudicate the application under the D.V. Act and if so, the Court shall frame the issues and record the evidence. However, if no evidence is considered necessary, the Court shall list the application for hearing.

From Para 10,

10. Findings
10.1. In the present case, the Family Court is dealing with the petition for dissolution of marriage filed by the petitioner under Section 13(1)(ia) of the Hindu Marriage Act, 1955 and therefore, the petitioner’s application under Section 26 of the D.V. Act seeking reliefs under Section 18, 19, 20, 21 and 22 of the D.V. Act is maintainable before the Family Court.
10.2. The Family Court is empowered to formulate its own procedure for disposal of the petitioner’s application under D.V. Act. In that view of the matter, it is not mandatory for the Family Court to follow Cr.P.C.
10.3. The proper procedure for disposal of the petitioner’s application under Section 26 of the D.V. Act after completion of pleadings is to consider whether evidence is necessary to adjudicate the petitioner’s application under Section 26 of the D.V. Act.
10.4. If the Court finds that the evidence is not necessary, the Court shall list the application for hearing. However, if the evidence is considered necessary, the Court shall frame the issues and record the evidence along with the evidence in the divorce petition.
10.5. The respondent’s defence before the Family Court as well as this Court that the Family Court has no jurisdiction to entertain the petitioner’s application under Section 26 of the D.V. Act, is frivolous and is rejected.
10.6. The respondent attempted to mislead this Court by raising a frivolous defence with respect to the nature of proceedings under Section 26 of the D.V. Act whereas the law is clear and well settled that the Civil Court, Family Court and Criminal Court have jurisdiction to entertain and try an application under Section 26 in pending proceedings affecting the parties and the Court can formulate its own procedure to conduct the proceedings.
10.7. xxxxx

S Vs J on 17 Apr 2018

Citations : [2018 SCC ONLINE DEL 8421], [2018 DLT 248 511], [2018 HLR 2 238], [2019 HLR 1 784]

Other Sources :

https://indiankanoon.org/doc/72057276/

https://www.casemine.com/judgement/in/5ad842949eff430def4a5a08

https://vlex.in/vid/s-vs-j-709886493

Jovita Olga Ignesia Mascarenhase Coutinho Vs Rajan Maria Coutinho and Anr on 24 Aug 2010

Posted on April 1, 2022 by ShadesOfKnife

A Bench at Goa of Bombay High Court, held that, Issues may be framed after Hearing Both Parties in a DVC.

From Para 13,

13. In civil proceedings after perusing the claim and the reply or written statement, issues are framed. Issues are framed when a material proposition of fact or law is affirmed by one party and denied by the other. The object of framing issues plays a distinguished role in a civil proceeding and the whole object is to direct the attention of the parties to the principal questions on which they are at variance and they are required to be framed for the purpose of having the material points in controversy rightly decided, and to bring a finality in the litigation. Unless proper issues are framed, a party who suffers a Judgment on the basis of findings not based on proper issues may have a legitimate grievance to contend that because of such non framing of issues he has been denied the opportunity of leading proper evidence for rebutting relevant facts. Issues can be of fact or of law and the duty is that of the Court to frame the issues. An issue can also be framed on the basis of the reliefs. Although in cases of this nature where there are no pleadings as such and the applications are filed in the prescribed form by ticking the reliefs sought, it would be desirable that the Court after hearing both the parties frames issues on the basis of the reliefs sought by the Petitioner so that each can meet the case of the other and avoid such orders of remand. If this procedure is followed there is no question of any of the reliefs going unnoticed and undecided, like the case at hand. This can also reduce the controversy between the parties, in case the columns in the application, were ticked earlier without much application of mind.

Jovita Olga Ignesia Mascarenhase Coutinho Vs Rajan Maria Coutinho and Anr on 24 Aug 2010

Citations :

Other Sources :

https://www.casemine.com/judgement/in/5b683c3b4a932645d86ec147

POCSO Act Sec 4 – Punishment for Penetrative Sexual Assault

Posted on April 1, 2022 by ShadesOfKnife

(1) Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.
(2) Whoever commits penetrative sexual assault on a child below sixteen years of age shall be punished with imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine.
(3) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.

POCSO Act Sec 3 – Penetrative sexual assault

Posted on April 1, 2022 by ShadesOfKnife

A person is said to commit “penetrative sexual assault” if—
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or
(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or
(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.

State of Maharashtra Vs Abdulrehman Shahjadhussain Shaikh and Anr on 28 Mar 2022

Posted on March 31, 2022 by ShadesOfKnife

A Special Court dealing with POCSO cases, held as follows and acquitted a father who is accused of raping his daughter.

From Para 7,

7. Settled position of law that sole testimony of the victim alone if found reliable is sufficient to convict the accused.

From Para 13,

It is also settled position that the child can be easily tutored.

State of Maharashtra Vs Abdulrehman Shahjadhussain Shaikh and Anr on 28 Mar 2022

Jagdish Shrivastava Vs State of Maharashtra on 11 Mar 2022

Posted on March 21, 2022 by ShadesOfKnife

Supreme Court deprecated such practice of the Police Officer in taking the petitioners into custody without compliance of Section 41(A) Cr.P.C.

Counsel for the petitioners submits that no notice under Section 41(A) Cr.P.C was ever served and after this fact came to the notice of the Investigating officer that SLPs have been preferred by the petitioners for seeking pre-arrest bail, he approached them and took the petitioners into custody on 8th March, 2022.
Since the petitioners have now been in custody, it may not be appropriate for this Court to pass further orders but at the same time, we grant them liberty to file regular bail application.
If such an application is filed, it is expected from the Trial Court to take note of non-compliance of Section 41(A) Cr.P.C and dispose of the application for post-arrest bail, if any, filed by the petitioners within a reasonable time as expeditiously as possible.
We deprecate such practice of the Police Officer in overstepping after the matter being instituted in this Court and taking the petitioners into custody without compliance of Section 41(A) Cr.P.C. and keeping in view the judgment of this Court in Arnesh Kumar vs. State of Bihar & Anr. (2014) 8 SCC 273.

Jagdish Shrivastava Vs State of Maharashtra on 11 Mar 2022

CrPC 200 – Examination of complainant

Posted on March 21, 2022 by ShadesOfKnife

A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses—
(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192:
Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.

Suresh Chand Jain Vs State of Madhya Pradesh and Anr on 10 Jan 2001

Posted on March 21, 2022 by ShadesOfKnife

A division bench of the Apex Court held that, there is no authority for the magistrate to examine the complainant in a 156(3) CrPC proceeding since this is a pre-cognizance stage.

From Para 7,

7. In our opinion, the aforesaid direction given by the learned Single Judge of the Punjab and Haryana High Court in Suresh Kumar v. State of Haryana is contrary to law and cannot be approved. Chapter XII of the Code contains provisions relating to “information to the police and their powers to investigate”, whereas Chapter XV, which contains Section 202, deals with provisions relating to the steps which a Magistrate has to adopt while and after taking cognizance of any offence on a complaint. Provisions of the above two chapters deal with two different facets altogether, though there could be a common factor i.e complaint filed by a person. Section 156, falling within Chapter XII, deals with powers of the police officers to investigate cognizable offences. True, Section 202 which falls under Chapter XV, also refers to the power of a Magistrate to “direct an investigation by a police officer”. But the investigation envisaged in Section 202 is different from the investigation contemplated in section 156 of the code.

From Paras 8 and 9,

8. The investigation referred to therein is the same investigation, the various steps to be adopted for it have been elaborated in Chapter XII of the Code. Such investigation would start with making the entry in a book to be kept by the officer in charge of a police station, of the substance of the information relating to the commission of a cognizable offence. The investigation started thereafter can end up only with the report filed by the police as indicated in Section 173 of the Code. The investigation contemplated in that chapter can be commenced by the police even without the order of a Magistrate. But that does not mean that when a Magistrate orders an investigation under Section 156(3) it would be a different kind of investigation. Such investigation must also end up only with the report contemplated in Section 173 of the Code. But the significant point to be noticed is, when a Magistrate orders investigation under Chapter XII he does so before he takes cognizance of the offence.3
9. But a Magistrate need not order any such investigation if he proposes to take cognizance of the offence. Once he takes cognizance of the offence he has to follow the procedure envisaged in Chapter XV of the Code. A reading of Section 202(1) of the Code would convince that the investigation referred to therein is of a limited nature. The Magistrate can direct such an investigation to be made either by a police officer or by any other person. Such investigation is only for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further. This can be discerned from the culminating words in Section 202(1). This is because he has already taken cognizance of the offence disclosed in the complaint, and the domain of the case would thereafter vest with him.

And finally from Para 10,

10. The position is thus clear. Any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in section 154 of the code. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter.

Suresh Chand Jain Vs State of Madhya Pradesh and Anr on 10 Jan 2001

Citations : [2001 ACR SC 1 586], [2001 AIR SC 571], [2001 ALD CRI 1 367], [2001 ALT CRI 1 284], [2001 CGLJ 1 451], [2001 GLH 1 594], [2001 JLJ SC 1 395], [2001 JT SC 2 81], [2001 KLT SC 1 623], [2001 OLR 1 470], [2001 RCR CRIMINAL 1 335], [2001 RLW SC 2 317], [2001 SCALE 1 93], [2001 SCC 2 628], [2001 SCR 1 257], [2001 UC 1 202], [2001 SCC CRI 377], [2001 CCR 1 54], , [2001 AIR SC 189], [2001 CRIMES SC 1 171], [2001 SUPREME 1 129], [2001 CLJ 3 78], [2001 SLT 1 364], [2001 SCJ 1 605], [2001 SRJ 2 100], [2001 JCC 1 78], [2001 CTC 1 500], [2001 AD SC 1 109], [2001 CRLJ SC 954], [2001 AIR SCW 189], [2001 ALLMR CRI SC 775], [2001 UJ SC 1 420]

Other Sources :

https://indiankanoon.org/doc/1373794/

https://www.casemine.com/judgement/in/5609ada0e4b0149711411e8a

Shades of Knife

True Colors of a Vile Wife

Author: ShadesOfKnife

Asha Devi and Anr Vs State of UP and 2 Ors on 1 Dec 2020

Bhagyashri Jagdish Jaiswal Vs Jagdish Sajjanlala Jaiswal and Anr on 26 Feb 2022

S Vs J on 17 Apr 2018

Jovita Olga Ignesia Mascarenhase Coutinho Vs Rajan Maria Coutinho and Anr on 24 Aug 2010

POCSO Act Sec 4 – Punishment for Penetrative Sexual Assault

POCSO Act Sec 3 – Penetrative sexual assault

State of Maharashtra Vs Abdulrehman Shahjadhussain Shaikh and Anr on 28 Mar 2022

Jagdish Shrivastava Vs State of Maharashtra on 11 Mar 2022

CrPC 200 – Examination of complainant

Suresh Chand Jain Vs State of Madhya Pradesh and Anr on 10 Jan 2001