Ankit Singh and 3 Ors Vs State of U.P. and Anr

Posted on May 16, 2024 by ShadesOfKnife

A single bench judge at Allahabad High Court held as follows,

On 16 Jul 2024

From Paras ,

On 23 May 2024

From Paras 18-24,

18. This Court is witnessing that in cases where allegations of dowry is being made, same is being investigated by police and not by Dowry Prohibition Officer. The police in case diary are not recording whether procedure under the Rules of 1999 are being followed more particularly whether the principle provided under Rule 6 (4) and Rule 7 (9) of Rules of 1999 are being implemented in letter and spirit. It is to be noted that Dowry Prohibition Officer under Rule 6(4) of Rules of 1999 is empowered to take preventive and remedial measures (to save the marriage) and can pass orders in this respect, which the police is not empowered under law. Once the mandate as to whether the parties to marriage is required to be prosecuted for an offence under the Dowry Prohibition Act is to be decided by the Dowry Prohibition Officer then how the police authority is bypassing the aforesaid special procedure and jurisdiction of Dowry Prohibition Officer and are submitting chargesheet against the groom and his family members.
19. This Court is observing that in many cases the allegations are being levelled against groom and his family members with regard to dowry and other offences. The chargesheet is been submitted by police in a mechanical manner just by recording the statement of bride or their family members. In order to take away jurisdiction of Dowry Prohibition Officer, along with offence under Dowry Prohibition Act, allegations are also being levelled with regard to provisions of Indian Penal Code. In respect of offence under Dowry Prohibition Act, authority to collect evidence and prosecute is vested with Dowry Prohibition Officer and when other offences are also involved then the State Government can always resort to Section 8B (3) of Dowry Prohibition Act. However, in the garb of allegations with regard to offence under the Indian penal code being levelled by the informant, the jurisdiction of the Dowry Prohibition Officer cannot be taken away in respect of offence under the Dowry Prohibition Act.
20. A unique situation has arisen on account of the enactment of the Dowry Prohibition Act, 1961 and the Rules of 1999. The offences under the Dowry Prohibition Act would be examined and prosecuted by the Dowry Probation Officer while keeping into account the principles laid down under Rule 6 (4) of the Rules of 1999. However, when the offence under the Dowry Prohibition Act is investigated along with other offences under the Indian Penal Code then the principal of saving the marriage being resorted to at the first instance (as per Rule 6 (4) of the Rules of 1999), is ignored and the chargesheet and criminal prosecution is being resorted to by police. Prima facie, this Court is of the opinion that once an offence is arising out of marriage and allegations with regard to dowry is made then the Dowry Prohibition Officer is required to examine the dispute at the first instance by resorting to the principal laid down in Rule 6 (4) of Rules of 1999 and upon being satisfied that all of the measures to save the marriage are not effective then Dowry Prohibition Officer can recommend for prosecution or himself prosecute. Any other interpretation of law would mean that bride or her family members may resort to allegations under the Indian penal code along with allegations under the Dowry Prohibition Act and thereby take away the jurisdiction of Dowry Prohibition Officer and straight away expose the groom and their family members to the rigour of criminal law and deprived them of liberty although dispute may be a matrimonial dispute between parties. Even otherwise, the State government is required to examine the necessity of exercising the power under Section 8B (3) of Dowry Prohibition Act to remove such an anomaly.
21. It is further to be noted that Rule 6 (12) of Uttar Pradesh Dowry Prohibition Rules, 1999 (as amended by Uttar Pradesh Dowry Prohibition (First Amendment) Rules, 2004) provides that Dowry Prohibition Officer shall render assistance to police investigating complaint filed under the Dowry Prohibition Act or to the court in the trial of the case. In none of cases coming up before this Court, where the police are investigating, it is found that any assistance is being rendered to police by Dowry Prohibition Officer. The purpose of Rule 6 (12) of the Rules of 1999 is to involve the Dowry Prohibition Officer at the stage of investigation so that he can pass orders for remedial and preventive nature in terms of Rule 6(4) of the Rules of 1999. The involvement of an officer who is a person outside the police department is to initiate remedial measures and collect evidence. The case diaries of investigation are not revealing that Dowry Prohibition Officer has rendered assistance in investigation. Such an approach when the matter is being investigated by police is not desirable.
22. It is further to be noted that in first information report, bride or her family members are stating that they have given dowry at time of marriage. In many cases, dowry is alleged to have been given in cash being huge amount. As per Section 3 of Dowry Prohibition Act, 1961, giving of dowry or betting to giving dowry is also an offence. The bride and her family members are blatantly stating in First Information Report and in their statement under Section 161 Cr.P.C that they have given dowry of huge amount at time of marriage to groom and his family members. The bride and her family members in defiance of the law, which prohibits giving dowry, are indulging in giving dowry as per their own admission. Although, bride or her family members who are giving dowry are offenders as per Section 3 of Dowry Prohibition Act, however they are not being prosecuted in view of Section 7 (3) of Dowry Prohibition Act, 1961. The effect of Section 7 (3) of Dowry Prohibition Act, 1961 is that bride or her family members, who indulge in giving dowry although being an offender under Section 3 of the Dowry Prohibition Act, cannot be proceeded with for prosecution under the Dowry Prohibition Act. The situation can be summarised that a person who is giving dowry will not be prosecuted as per the bar under law, however receiver of dowry is being prosecuted. The situation is alarming as some citizens (bride or her family members) are openly giving in writing to authorities that they have given dowry, which is indicative of fact that they have no respect to law laid down by Parliament. It is for the executive to take effective measures so that the situation does not arise where the citizens openly disrespect the law laid down by the Parliament or State Legislature, otherwise, the law with regard to prohibition in giving dowry would be a dead letter.
23. It is also being observed by this Court that in first information report or in the statement, it is being alleged that huge amount of cash is paid at the time of marriage to the groom or his family members, as dowry. Section 269ST of Income Tax Act prohibits cash transaction beyond Rupees two lakhs, however bride and her family members are openly giving statement in the first information report or during investigation that they have paid dowry in cash beyond Rupees two Lakhs to groom or his family members. Even, when the amount is being paid in cash as dowry, is beyond the limit prescribed by law, neither any investigation is being carried out as to source of aforesaid amount nor any investigation with regard to utilisation aspect by groom side is being made by police or investigating officer. Even the amount given as dowry in cash is not being recovered during investigation by police authorities. Only on the basis of statement of person who has given dowry, the chargesheet is being filed against groom and his family members.
24. A person who has given dowry is also an offender under Dowry Prohibition Act and solely relying on the statement of such a person who defies the law and is an offender, the groom side is being proceed with, which is not permissible nor desirable. The investigating officer is required to look at corroborative evidence in this respect. The source of huge cash (beyond permissible limit) alleged to be given in dowry is required to be investigated and whether such huge cash was given by known sources of income is also required to be investigated. Even otherwise, amount given in dowry are crime proceeds (being amount from illegal activity) as such the same are also required to be recovered during investigation.

From Paras 28-29,

28. If source of dowry/cash is not found during investigation nor the dowry amount is recovered from accused-person then solely relying upon the statement of person who has given dowry (who is also an offender under the Dowry Prohibition Act) will be unjust, unfair and unreasonable. It is to be seen that the person giving dowry is an offender under Section 3 of the Dowry Prohibition Act however such a person cannot be prosecuted in view of the bar provided under Section 7 (3) of the Dowry Prohibition Act. The bar of prosecution of person giving dowry does not remove his status as an offender under Dowry Prohibition Act however only effect of such a bar is that he cannot be criminally proceeded with or prosecuted. In these circumstances, solely relying on statement of offender (person giving dowry) for prosecution of groom or his family members under Section 3 of Dowry Prohibition Act, 1961 is not fair, just or reasonable. Some other evidence to corroborate the allegations is required to be looked into including source of dowry amount and whether the individual has given dowry from known sources of income more particularly when allegation of dowry is beyond the limit of cash transaction prescribed under the Income Tax Act.
29. There is another aspect of matter, under Section 4 of Dowry Prohibition Act, the punishment for demand of dowry may extend to 2 years and punishment under Section 498A of Indian Penal Code is a term which extend to three years however the punishment for receiving dowry under Section 3 of the Dowry Prohibition Act is not less than five years. Where except for the allegation of giving huge amount in dowry there is no other corroborative evidence (as discussed hereinabove or where the dowry amount which are the proceeds of the crime are not recovered during investigation), it may be that the allegations under section 3 have been made so that the groom and his family members are prosecuted for bigger punishment in order to take vengeance in a matrimonial dispute.

From Para 31,

31. It is therefore, imperative that investigation in dowry matters should examine whether the presents that are being alleged as dowry are customary in nature and whether the same is within the financial status of the person who is giving dowry. A person who does not have financial status/means to give the dowry and is also not able to substantiate the source of dowry given, may be indicative of fact that the allegations are incorrect or that there is use of undisclosed income or back money or there is tax evasion. Use of black money or tax evasion is required to be reported to authorities under the Income Tax Act as the same does not stand protected under Section 7(3) of Dowry Prohibition Act, 1961. Where there is no substantive evidence with regard to giving or receiving dowry then only on the basis of the statement of an offender, criminal prosecution under Section 3 of the Dowry Prohibition Act should not be permitted. In such matters either further investigation is required to be carried out or provisions of Section 3 of Dowry Prohibition Act may have to be eliminated from prosecution on account of lack of substantive evidence. Such aspect of matters is required to be examined by the appropriate authority.

Ankit Singh and 3 Ors Vs State of U.P. and Anr on 23 May 2024

On 08 May 2024

From Paras 4-11,

4. The legislature in its wisdom carved out an exception by providing that the presents which are given to the bride or the bridegroom at the time of marriage are not construed as dowry attracting Section 3 of the Dowry Prohibition Act. In order that the aforesaid exception is available to an individual, it is necessary that the aforesaid presents are entered in a list maintained in accordance with the Rules made under the Dowry Prohibition Act. The Dowry Prohibition (Maintenance of Lists of Presents to the Bride and Bridegroom) Rules, 1985 have been framed in this respect by the Central Government in the Indian marriage system gifts and presents act as a token of celebration and honouring the important event. The legislature was aware of the Indian tradition and as such the above mentioned exception was carved out. The above mentioned list would also act as a measure to thrash out the allegations of dowry which are subsequently levelled in matrimonial dispute. The maintenance of the list is also important so that both the parties to the marriage and their family members may not level false allegation of taking dowry or giving dowry in a marriage subsequently. The arrangement made by the Dowry Prohibition Act may also assist in subsequent litigation between the parties to arrive at a conclusion whether the allegations with regard to the taking or giving of dowry is covered by the exception carved out under section 3(2) of the Dowry Prohibition Act, 1961.
5. Before this Court the parties to the marriage are filing cases with allegations of dowry, however, no list in terms of Section 3(2) of the Dowry Prohibition Act and Rules of 1985 are being filed by the husband or the wife or their family members. It may be a case where no list is being prepared by the parties to the marriage. It has not been brought to the notice of this Court that the aforesaid provision is in any manner being monitored or implemented by any responsible officer of the State Government. Section 3(2) of the Dowry Prohibition Act, 1961 is required to be implemented in its letter and spirit so that citizens are not subject matter of frivolous litigation.
6. As per the aforesaid provision of law, list of presents which are required to be entered in a list and the aforesaid list is required to be signed by both bride and bridegroom. Under section 8B of the Dowry Prohibition Act, Dowry Prohibition Officers are required to be appointed for the purpose to see that the provisions of the Dowry Prohibition Act are complied with.
7. The Chief Secretary, U.P. or any other officer authorised by him shall file an affidavit as to whether in terms of Section 8B of the Act, Dowry Prohibition Officers have been appointed by the State Government.
8. In the event, Dowry Prohibition Officers have not been appointed till date, the State Government shall explain as to why the Dowry Prohibition Officers have not been appointed when the dispute of dowry is rising.
9. In the event, the State Government has appointed Dowry Prohibition Officers, it is then imperative that the steps taken by such Dowry Prohibition officers towards implementation of the provisions of the Dowry Prohibition Act is shown in respect of preparation of list of presents given in the marriage as per section 3(2) of the Dowry Prohibition Act. The State Government shall also disclose the orders issued for implementation of the Dowry Prohibition (Maintenance of Lists of Presents to the Bride and Bridegroom) Rules, 1985. The Dowry Prohibition Officers are enjoined with the duty to ensure compliance of the Dowry Prohibition Act and the Rules framed thereunder. The affidavit shall also disclose how many Dowry Prohibition Officers have been appointed throughout the State and at what level.
10. The State Government shall also file an affidavit to the effect whether at the time of registration of marriage, list of presents as required by the Dowry Prohibition (Maintenance of Lists of Presents to the Bride and Bridegroom) Rules, 1985 are being taken by the officers and being maintained so that subsequently in the event there is dispute between the parties to marriage with regard to the presents being given in marriage being designated as dowry, the same can be verified.
11. The State Government shall also file an affidavit whether any rules (for carrying out the purpose of the Dowry Prohibition Act) in terms of Section 10 of the Dowry Prohibition Act has been enacted by the State Government. A copy of the same shall also be placed before this Court on the next date.

Ankit Singh and 3 Ors Vs State of U.P. and Anr on 08 May 2024

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M.Chinna Karuppasamy Vs Kanimozhi on 16 Jul 2015

Posted on May 11, 2024 by ShadesOfKnife

A single judge of Madras High Court at Madurai Bench, held as follows,

From Paras 22 and 23,

22. In view of Section 41 of the Indian Evidence Act, 1872, if once the decree for divorce is granted on the ground of adultery, such finding is relevant for deciding the issue of adultery in the present case. This Court cannot sit in an appeal over the said decree for divorce granted by the Civil court, when the same has not been challenged by the aggrieved party. There can be no difference between a decree on contest and an ex-parte decree, since, like a decree on contest, an ex-parte decree is also a decree passed on proof of the claim made by means of sufficient evidence. It is well known that though simply because the defendant has remained ex-parte, the Court shall not grant decree, unless the claim made in the plaint is proved, by means of evidence either oral or documentary or both. In the case on hand, therefore, there can be no doubt that the decree for divorce granted by the Civil court in favour of the petitioner is sufficient proof that the respondent was living in adultery. When once such a decree is in force, it is not possible for this Court to take a different view contrary to the decree granted by the Civil court. Therefore, I hold that besides, oral evidence let in, in this case, the decree granted by the Family Court clearly goes to prove that the respondent is living in adultery and thus, she suffers from the disqualification to claim maintenance from the petitioner.
23. In view of the foregoing discussion, I hold that the learned Principal Sessions Judge was not right in reversing the order of the Trial Court and therefore, the order of the learned Principal Sessions Judge impugned in this Criminal Revision Case is liable to be set aside.

M.Chinna Karuppasamy Vs Kanimozhi on 16 Jul 2015

Index of Maintenance judgements u/s 125 CrPC is here.

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Shrikrishna Vs Sunita Bai on 02 May 2024

Posted on May 11, 2024 by ShadesOfKnife

A single judge of MP High Court at Indore bench held as follows,

From Para 13,

13. From the record, it is evident that learned JMFC has passed the order by dismissing the application under Section 125 of Cr.P.C. on the ground that
since the respondent did not get divorce from her earlier husband and without getting divorce she entered into second marriage. Hence, she cannot be
ascertained as a legally wedded wife of the petitioner and she is not entitled for the claim of maintenance.

From Paras 15-18,

15. It is unearthed from the aforesaid provision that an illegitimate child is entitled to get maintenance but an illegitimate wife is not entitled to get maintenance. The intention of legislature is obvious that maintenance can only be granted in favour of legally wedded wife. On this issue the law laid down by the full Bench in the case of Savitaben Somabhai Bhatia vs. State of Gujarat and Ors. reported as 2005 Lawsuit (SC) 466, is also poignant to be pointed out here:
“There may be substance in the plea of learned counsel for the appellant that law operates harshly against the woman who unwittingly gets into relationship with a married man and Section 125 of the Code does not give protection to such woman. This may be an inadequacy in law, which only the legislature can undo. But as the position in law stands presently there is no escape from the conclusion that the expression ‘wife’ as per Section 125 of the Code refers to only legally married wife.“
16. In view of aforesaid settled propositions and provisions of law, it is crystal clear that the wife should be a “legally wedded wife” for claiming maintenance from her husband. A woman, having solemnized second marriage to another person is only entitled to get maintenance from that person, when the first marriage has been declared either null and void or she has obtained a divorce decree from her first husband. The aforesaid view has recently been endorsed by this Court in the cases of Sangeeta Rathore W/o Naresh Rathore Vs. Naresh Rathore, 2023 LawSuit (MP) 470 and Kewal Singh Vs. Durgabai, 2024 LawSuit (MP) 179.
17. In conspectus of the aforesaid settled proposition, in this petition filed under Section 125 Cr.P.C., the term “wife” under Section 125 Cr.P.C. envisages a situation wherein she, having a living spouse, cannot seek maintenance from her second husband without getting divorce from her earlier husband. Nevertheless, this Court finds it unfortunate that many women, specially those belonging to the poorer strata of society, are routinely exploited in this manner, and that legal loopholes allow the offending parties to slip away unscathed and unquestioned. In spite of the social justice factor embedded in Section 125 Cr.P.C., the objective of the provision is frustrated as it fails to arrest the exploitation which it seeks to curb. In the instant case, while the Court sympathizes with the position of the Respondent, it is constrained to deny her maintenance as per the law of the land which stands as of today. However, the Respondent has the liberty to avail other remedies that may be better suited to the facts and circumstances of this case, such as seeking of compensation under Section 22 of the D.V. Act.
18. In the result thereof, the order of the learned Revisional Court awarding the maintenance to the respondent is found against the law and is also suffering from infirmity and illegality. Accordingly, the impugned order of the learned Revisional Court is set aside and the order of learned trial Court dated 06.09.2021 is hereby affirmed.

Shrikrishna Vs Sunita Bai on 02 May 2024

Index of Maintenance cases u/s 125 CrPC is here.

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Kunal Choudhary Vs State of Jharkhand and Anr on 05 Dec 2023

Posted on May 4, 2024 by ShadesOfKnife

A division of the Apex Court set aside a weird condition in an Anticipatory Bail petition in a Sec 498A IPC case.

From Para 5,

5. The High Court vide the impugned order has dismissed the Cr.M.P. No.2419 of 2021 filed by the appellant observing that in view of the adamant attitude of the appellant in not resuming the conjugal life with the opposite party No.2 in the house of the appellant, where the opposite party No.2 was staying, his petition could not be considered. In our opinion, neither such condition should have been imposed by the High Court while granting an anticipatory bail, nor such could be a ground for rejection of the petition filed by the appellant.

Kunal Choudhary Vs State of Jharkhand and Anr on 05 Dec 2023

Modification on the following order was dismissed.

Kunal Choudhary Vs State of Jharkhand and Anr on 17 Jun 2022

Anticipatory Bail was granted with this condition…

Considering the submissions of learned counsels and the facts and circumstances stated above, I am inclined to grant privileges of anticipatory bail to the petitioner. Accordingly, the petitioner is directed to surrender in the Court within six weeks from today and in the event of his arrest or surrendering, he will be enlarged on bail on satisfying the trial court that the petitioner has taken the opposite party no.2 to his house at Pandra locality of Ranchi and keeping and maintaining her with full dignity and honour as his lawful wife and on furnishing bail bond of Rs.25,000/- (Twenty five thousand) with two sureties of the like amount each to the satisfaction of learned CJM, Ranchi in connection with Complain Case No. 3004 of 2018 with the condition that he will co-operate with the trial of the case with condition that he will take the opposite party no.2 to his house at Pandra in the locality of Ranchi and keeping and maintaining her with full dignity and honour as his lawful wife and subject to the conditions as laid down under Section 438(2) of the Code of Criminal Procedure.

Kunal Choudhary Vs State of Jharkhand and Anr on 10 Aug 2021

Index of Anticipatory Bail Judgments is here.

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Achin Gupta Vs State of Haryana and Anr on 03 May 2024

Posted on May 4, 2024 by ShadesOfKnife

A division bench of the Apex Court held as follows,

From Para 31-32,

31. We are of the view that the category 7 referred to above should be taken into consideration and applied in a case like the one on hand a bit liberally. If the Court is convinced by the fact that the involvement by the complainant of her husband and his close relatives is with an oblique motive then even if the FIR and the chargesheet disclose the commission of a cognizable offence the Court with a view to doing substantial justice should read in between the lines the oblique motive of the complainant and take a pragmatic view of the matter. If the submission canvassed by the counsel appearing for the Respondent No. 2 and the State is to be accepted mechanically then in our opinion the very conferment of the inherent power by the Cr.P.C. upon the High Court would be rendered otiose. We are saying so for the simple reason that if the wife on account of matrimonial disputes decides to harass her husband and his family members then the first thing, she would ensure is to see that proper allegations are levelled in the First Information Report. Many times the services of professionals are availed for the same and once the complaint is drafted by a legal mind, it would be very difficult thereafter to weed out any loopholes or other deficiencies in the same. However, that does not mean that the Court should shut its eyes and raise its hands in helplessness, saying that whether true or false, there are allegations in the First Information Report and the chargesheet papers disclose the commission of a cognizable offence. If the allegations alone as levelled, more particularly in the case like the one on hand, are to be looked into or considered then why the investigating agency thought fit to file a closure report against the other co-accused? There is no answer to this at the end of the learned counsel appearing for the State. We say so, because allegations have been levelled not only against the Appellant herein but even against his parents, brother & sister. If that be so, then why the police did not deem fit to file chargesheet against the other co-accused? It appears that even the investigating agency was convinced that the FIR was nothing but an outburst arising from a matrimonial dispute.
32. Many times, the parents including the close relatives of the wife make a mountain out of a mole. Instead of salvaging the situation and making all possible endeavours to save the marriage, their action either due to ignorance or on account of sheer hatred towards the husband and his family members, brings about complete destruction of marriage on trivial issues. The first thing that comes in the mind of the wife, her parents and her relatives is the Police, as if the Police is the panacea of all evil. No sooner the matter reaches up to the Police, then even if there are fair chances of reconciliation between the spouses, they would get destroyed. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences are mundane matters and should not be exaggerated and blown out of proportion to destroy what is said to have been made in the heaven. The Court must appreciate that all quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case, always keeping in view the physical and mental conditions of the parties, their character and social status. A very technical and hyper sensitive approach would prove to be disastrous for the very institution of the marriage. In matrimonial disputes the main sufferers are the children. The spouses fight with such venom in their heart that they do not think even for a second that if the marriage would come to an end, then what will be the effect on their children. Divorce plays a very dubious role so far as the upbringing of the children is concerned. The only reason why we are saying so is that instead of handling the whole issue delicately, the initiation of criminal proceedings would bring about nothing but hatred for each other. There may be cases of genuine ill-treatment and harassment by the husband and his family members towards the wife. The degree of such ill-treatment or harassment may vary. However, the Police machinery should be resorted to as a measure of last resort and that too in a very genuine case of cruelty and harassment. The Police machinery cannot be utilised for the purpose of holding the husband at ransom so that he could be squeezed by the wife at the instigation of her parents or relatives or friends. In all cases, where wife complains of harassment or ill-treatment, Section 498A of the IPC cannot be applied mechanically. No FIR is complete without Sections 506(2) and 323 of the IPC. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty.

From Para 35,

35. In one of the recent pronouncements of this Court in Mahmood Ali & Ors. v. State of U.P & Ors., 2023 SCC OnLine SC 950, authored by one of us (J.B. Pardiwala, J.), the legal principle applicable apropos Section 482 of the CrPC was examined. Therein, it was observed that when an accused comes before the High Court, invoking either the inherent power under Section 482 CrPC or the extraordinary jurisdiction under Article 226 of the Constitution, to get the FIR or the criminal proceedings quashed, essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive of wreaking vengeance, then in such circumstances, the High Court owes a duty to look into the FIR with care and a little more closely. It was further observed that it will not be enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not as, in frivolous or vexatious proceedings, the court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection, to try and read between the lines.

Achin Gupta Vs State of Haryana and Anr on 03 May 2024

Index of Quash judgments is here.

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K Sreekanth Naik Vs P Nalini and Anr on 25 Apr 2024

Posted on May 3, 2024 by ShadesOfKnife

A single judge bench of Andhra Pradesh High Court held that an Order for Maintenance passed without adhering to the guidelines issued by Apex Court in Rajnesh Vs Neha is liable to be set aside.

From Para 5,

5. During the hearing, it is brought to the notice of the Court that both parties have not complied with the directions of the Hon’ble Apex Court enunciated in the judgment of Rajnesh V. Neha & Anr.,1 concerning the filing of affidavits disclosing the assets and liabilities. Considering the submissions made, I have gone through the observations in Rajnesh V. Neha (cited supra) case. The said judgment has brought revolutionary change in the procedure to be followed by the Courts in dealing with the applications filed under Chapter IX of the Cr.P.C. The Hon’ble Supreme Court has issued comprehensive procedural and normative directions streamlining the maintenance laws, inter alia, directing that the parties in a maintenance application have to file affidavits of disclosure of their assets and liabilities, which must be considered by Courts while deciding the application. It is also held that, in case of a dispute on the declaration made in the affidavits of disclosure, the aggrieved person can seek leave of the Court to serve interrogatories on the opposite side and seek production of relevant documents as provided under Order 9 of the Code of Civil Procedure, and in case a false statement or misrepresentation is made, the Court can initiate proceedings under section 340 of the Cr.P.C., or for Contempt of Court.

From Paras 7-14,

7. The aforesaid Judgment in the case of Rajnesh (cited supra) has been recently reiterated by the Hon’ble Supreme Court in the case of Aditi alias Mithi V. Jitesh Sharma 2 and expressing anguish over noncompliance/ improper compliance of the directions laid down in case of Rajnesh (supra) and directed re-circulation of the judgment for compliance thereof.
8. It is acknowledged that both parties have failed to submit the affidavits disclosing their assets and liabilities. Learned counsel for the Petitioner has relied on the decision of High Court of Patna in between Gitanjali Devi @ Gitanjali Kumari V. State of Bihar and another3, wherein, it is observed that the impugned order of granting maintenance amount is liable to be set aside for the reason that it has not followed the procedure prescribed by the Hon’ble Apex Court.
9. By following the principles laid down in the Aditi alias Mithi’s case cited supra, the High Court of Madras in Balram Dixit V. Smt. Kiran Dixit and another (Criminal Revision No.1255 of 2023, dated 17.01.2024) also set aside the maintenance awarded by the learned Principal Judge, Family Court,Gwalior and further directed the both parties to submit fresh affidavits of disclosure of assets and liabilities with complete particulars in compliance with the directions of the Hon’ble Supreme Court laid down in the case of Rajnesh’s case cited supra.
10. Learned counsels representing both sides submit that because of lack of proper instructions, both parties could not comply with the directions of the Hon’ble Apex Court and at present, they are ready to comply with the observations made in the judgments referred to supra, by filing the affidavits and both parties submits that the Respondent-husband is paying interim maintenance amount @ Rs.8,000/- per month vide orders dated 26.09.2019 in Crl.M.P.No.39 of 2019 in F.C.O.P.No.183 of 2018 and he is ready to pay such maintenance amount during the pendency of FCOPs and after its restoration.
11. In view of the same, this Court refrains from delving into the merits of the case at this juncture, as the impugned order passed in F.C.O.P.No.183 of 2018 is liable to be set aside for the reason that it has not followed the procedures prescribed by the Hon’ble Apex Court.
12. The impugned order passed in F.C.O.P.No.183 of 2018, is accordingly, set aside and the matter is remitted back to the learned Judge, Family Court – cum – VII Additional District Judge, Ananthapuramu for fresh consideration and by following the procedures which are laid down in the judgment of the Hon’ble Supreme Court.
13. This Court further directs the both parties to submit affidavits disclosing their assets and liabilities, giving complete particulars, in accordance with the directives of the Hon’ble Apex Court as laid down in the case of Rajnesh (supra) before the Family Court. The Family Court must ensure strict adherence to these guidelines. If any of the affidavits are found to be lacking in necessary particulars, the learned Judge shall direct to produce the relevant information from the respective party.
14. The Family Court shall dispose of the F.C.O.P.No.183 of 2018 afresh after giving reasonable opportunity to both parties to let in further evidence, if any. In the meantime, the Respondent-husband is directed to pay maintenance amount of Rs.8,000/- per month to the Petitioner-wife till the disposal of the FCOP. Both parties are directed to bear their own costs.

K Sreekanth Naik Vs P Nalini and Anr on 25 Apr 2024

Disclaimer: This is a case that I handled myself for the husband. This is my first reportable judgment.

Citations: [2024 Latest Caselaw 3581 AP]

Other Sources:

https://indiankanoon.org/doc/7473550/

https://www.casemine.com/judgement/in/671c878cafb795648bb5985d

https://mynation.net/docs/1098-2023/

https://latestlaws.com/judgements/andhra-high-court/2024/april/2024-latest-caselaw-3581-ap

Index of Maintenance cases under section 125 CrPC is here.

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Jelakara Chandra Sekhar Vs Nil on 16 Jun 2022

Posted on April 29, 2024 by ShadesOfKnife

A single judge bench of Andhra Pradesh High Court held that, a divorce petition is maintainable within 1 year from date of marriage, if there are Pleadings about Exceptional Hardship.

From Paras 16 and 17,

16. Applying the above stated legal position to the facts of the case on hand, this Court finds merit in the submissions made by the learned counsel for the petitioners. The statement of the petitioners on oath that they are living separately since 3 days after the marriage, that the same was not consummated and that they had no mental stress in arriving at a conclusion to separate and on the contrary, continuing their relationship causes mental trauma and agony are the factors which weigh to exercise discretion in their favour for waiving the period of one year and the case on hand fall in the category of exceptional hardship as continuance of marriage would be more traumatic than dissolution of the same.
17. Further, the learned Trial Judge instead of examining the specific case of the petitioners herein with reference to the averments made in the affidavit in I.A.No.20 of 2022, based its Order on Savanam Giridhar Reddy‟s case referred to supra arising in a different fact situation and the reasoning in the decisions relied on by the learned counsel aptly applies to the instant case.

Jelakara Chandra Sekhar Vs Nil on 16 Jun 2022

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Vishnudas H. and Anr Vs Nil on 27 Jul 2020

Posted on April 29, 2024 by ShadesOfKnife

A division bench of Kerala High Court held that, a divorce petition is maintainable within 1 year from date of marriage, if there are Pleadings about Exceptional Hardship.

From Paras 8, 9 and 10

8. A reading of Section 14(1) of The Act, will show that, though the substantial provision provides a restriction in entertaining an application for dissolution of a marriage before the lapse of one year from the date of marriage, the proviso permits the court to grant leave to present the petition before the lapse of one year from the date of marriage, if the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent. The proviso to the section creates two instances where the court can grant leave to excuse time limit i.e., exceptional hardship to the petitioner or exceptional depravity to the respondent.
9. It is common knowledge that none enters into a marriage for the purpose of dissolving it. Certainly, at the time when the marriage vow is taken or the knot is tied, the intention is to create a permanent bond. However, human nature being a complex one, the error in judgment could be realized instantly or belatedly. When that error in judgment is realized, instantly, as it has happened in the present case, a window is provided by law, through the proviso, against the bar under Section 14(1) of The Act, for persons like the petitioners, to shorten their mental trauma by seeking permission to waive the one year period, of course, on satisfying the conditions stipulated.
10. What is an exceptional hardship to the petitioner and what would be the exceptional depravity for the respondent, are matters which the court will have to identify, based on the factual situation that arise in each individual case. These two terms cannot be defined or explained in a straight-jacket formula, but will depend upon the circumstances of each case. Allegations that may be sufficient to grant a decree of divorce may not, in all cases, constitute the ‘exceptional hardship’ contemplated under the section. The factors that shall be weighed by the court while deciding a petition for grant of leave to present a petition for divorce are inter alia, reasonable probability of a reconciliation between the parties, interests of children in the marriage, as is indicated in Section 14(2) of The Act. With the above factors in mind, the terms exceptional hardship and exceptional depravity ought to be appreciated by the court by stepping into the shoes of the petitioner or the respondent, as the case may be. In our system of adversarial jurisprudence, when, parties who are discrepant in all aspects, are in accord that continuance of the relationship causes more hardship to them, in the absence of materials to the contrary, Court need not and cannot disbelieve their affirmations, especially at the initial stage of granting permission to present a petition for divorce. The power conferred under the latter part of the proviso to Section 14 of The Act is sufficient safeguard against misrepresentations or concealment in obtaining the above referred permissions.

From Paras 16 and 17,

16. A reading of the petition seeking permission in the instant case, as has been narrated earlier, shows that within few hours of the marriage, the petitioners separated from their companionship. It is jointly stated that neither had they lived together as husband and wife nor did they have any physical relationship. All attempts for mediation failed and their relationship has irretrievably broken down. The very fact that they have jointly stated that continuance of their relationship would cause more stress and trauma and that there is absolutely no trace of any stress or trauma in dissolving the marriage, speaks volumes about the exceptional hardship that will be caused to the parties to the marriage, if they are statutorily compelled to wait for a further period of time so as to merely satisfy the legal prescription of expiry of one year from the date of marriage. Both of them have also stated, together, that further delaying the dissolution of marriage has a propensity to cause damage to their career as well as their future prospects of marriage. They have also affirmed that their views are irreconcilable. When, in unison they state that continuance of marriage is more traumatic than dissolution of marriage, and that they lived together as husband and wife only for few hours, it satisfies the test of exceptional hardship contemplated under the proviso to Section 14(1) of The Act, to be granted the benefit of waiver of the period of one year.
17. A reading of the impugned order of the Family Court indicates that the court was moved more by general principles of morality rather than the specific case of the parties to the marriage. We cannot agree to the reasons stated in the impugned order.

Vishnudas H. and Anr Vs Nil on 27 Jul 2020

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Layak Singh Vs Ekta Kumari on 21 Mar 2024

Posted on April 29, 2024 by ShadesOfKnife

A single judge bench of Allahabad High Court held that, a divorce petition is maintainable within 1 year from date of marriage, if there are Pleadings about Exceptional Hardship.

From Para 19, 20 and 21,

19. Where there is a chance of reconciliation, however slight, the cooling period of six months from the date of filing of the divorce petition should be enforced. However, if there is no possibility of reconciliation, it would be meaningless to prolong the agony of the parties to the marriage. Thus, if the marriage has broken down irretrievably, the spouses have been living apart for a long time, but not been able to reconcile their differences and have mutually decided to part, it is better to end the marriage, to enable both the spouses to move on with the life.
20. In the present case, the petitioner (husband) is aged about 34years and the opposite party (wife) is aged about 32 years. They got married on 29.06.2020 and are living separately since 28.10.2020. It is the case of the parties that every effort to resolve their difference failed despite best efforts being made by their family members and other persons of the society. It is further admitted that since both the parties failed to reconcile their dispute they agreed for divorce by mutual consent and entered into a settlement according to which the husband had to pay a sum of Rs. 6,00,000/- to the wife. In the application which was jointly made by both the parties for waiving of the cooling period, it was stated that the husband was in lookout for a job outside of State of Uttar Pradesh and because of pendency of this proceeding, he was not able to join his new job and further the wife also wanted to restart her life after the divorce. In this case marriage was a non starter. Admittedly, the parties lived together only for few months. After which they have separated on account of irreconcilable differences. It is jointly stated by the parties that the efforts at reconciliation have failed. The parties are unwilling to live together as husband and wife.Even after over three years of separation, the parties still wants to go ahead with divorce. As the parties are living separately for more than three years soon after their marriage and they have entered into a compromise to settle their dispute amicably and has agreed for divorce, specially considering the age of the parties, no useful purpose would be served by making the parties wait except to prolong their agony rather it will be useful that both the parties may be given a chance to restart their life afresh after the divorce. It is also admitted, in the present case, that there are no issues out of the wedlock of the parties.
21. The order passed by the Principal Judge, Family Court, Agra is not consistent with the judgment of Supreme Court in case of Amardeep Singh v. Harveen Kaur (Supra) and Amit Kumar v.Suman Beniwal (Supra).

Layak Singh Vs Ekta Kumari on 21 Mar 2024

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Dandamudi Phani Krishna Vs Boyapati Lakshmi Aparna on 22 Mar 2024

Posted on April 29, 2024 by ShadesOfKnife

A single judge bench of Telangana High Court held that, a divorce petition is maintainable within 1 year from date of marriage, if there are Pleadings about Exceptional Hardship.

From Para 5,

5. The petitioners have claimed that the Court below erred in dismissing their application and failed to understand the hardship faced by the petitioners that is the personal health issues and impotency, which they had explicitly stated. Their petition under Section 14(1) of H.M. Act was dismissed mechanically, without appropriate examination of the content. They have also pleaded that the Court below dismissed their petition without considering their arguments and the precedents they cited, thus exceeding the scope of the matter.

From Para 7,

7. The petitioner No.2 is forty (40) years old and who appeared personally through video conferencing submitted that she has received a marriage proposal which is at the final stage of settlement. However, things cannot materialise unless the divorce is obtained so far as the present marriage is concerned. She wishes to remarry due to biological complications that can occur with pregnancies at her age, such as a higher risk of miscarriage and potential complications during delivery.The delay in the divorce process is causing her a great deal of anxiety, as she is keenly aware that time is not on her side which is an immediate resolution to her request for divorce.

From Para 15,

15. In the present case the marriage between the petitioners was solemnized on 01.06.2023 and they commenced their matrimonial life together. However, their marital journey was short-lived as they continued their marital life for two (02) months. During this brief period, their relationship was beset by differences that arose primarily due to health problems and impotency. These issues created a barrier in their relationship and led to the consensual decision of dissolving their marital bond. The primary reason that necessitated the divorce is the couple’s incapacity to continue their marital relationship, which has been severely affected by health problems and impotency. Both parties are unequivocally in agreement about their decision to divorce, and there seems to be no possibility of reconciliation. Their mutual consent for divorce underscores the irreparable breakdown of their marriage. Further adding to the complexity of the situation is the fact that the petitioner No.2, who is forty (40) years old, has received marriage proposals and is keen on remarrying. Her decision is fuelled by the potential biological complications associated with pregnancies at her age. She is acutely aware of the higher risks of miscarriage and potential complications during delivery that can occur with pregnancies at her age. Therefore, she wishes to remarry as soon as possible to mitigate these risks at the earliest. Since they have already completed their ten (10) months waiting period and just about two (02) months time is left to complete the waiting period. Hence, they already waited for the substantial part of the statutory waiting period.

Dandamudi Phani Krishna Vs Boyapati Lakshmi Aparna on 22 Mar 2024

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