R.Sundar Vs The Sub Inspector of Police on 12 Oct 2023

Posted on February 7, 2024 by ShadesOfKnife

A single judge of Madurai bench of Madras High Court held that, the court can recall NBW without insisting upon the presence of the accused.

From Para 6,

6.On hearing both, it is clear that the revision petitioner is Accused No.1 in C.C.No.95 of 2007 on the file of the Judicial Magistrate Court, Lalgudi. Already NBW is pending against Accused No.2 from the year 2013. NBW was also pending against Accused No.3, who filed the petition to recall NBW and the same was allowed on 12.09.2023. Admittedly the petitioner was directed to appear for hearing, but he filed the petition for dispense of his presence. On perusal of decision of this Court relied on by the petitioner, there is no wrong the presence of an accused for any effective hearing. On perusal of impugned order, there is nothing mentioned about any of effective hearing. Further, in the absence co-accused, no effective hearing can be made in the main case. This Court already held that while recalling NBW appearance of accused need not be insisted upon. At the same time, the accused has to be present when the case is posted for any effective hearing. In this case, when NBWs are pending against co-accused there would not be any effective hearing. However, it is stated that the petitioner has not been appearing before the Trial Court for several years, in such circumstance, there is nothing wrong in passing order for his appearance. In the above circumstances, this Court is inclined to allow this Criminal Revision Case with conditions by setting aside the impugned order.

R.Sundar Vs The Sub Inspector of Police on 12 Oct 2023

Index of NBW judgments here.

Post Views: 894

Arige Venkataramaiah Vs State of Telangana on 20 Dec 2023

Posted on February 7, 2024 by ShadesOfKnife

A single judge of Telangana High Court held that, the court can recall NBW without insisting upon the presence of the accused.

From Para 5,

5. Having regard to the rival contentions and the material on record, this Court finds that under Section 70 of the Code of Criminal Procedure (‘Cr.P.C.’ in short), the Court can issue a warrant in writing and under sub-section (2) thereof, every such warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed. The petitioner claims to have filed the application for recall of the NBW and it is his case that the accused can be represented by his counsel and he need not be present physically during the proceedings when the application for recall of NBW is being considered. In support of this contention, he placed reliance upon the judgment of Madurai Bench of Madras High Court in the case of R.Sundar Vs. The Sub Inspector of Police (1 supra), wherein the Hon’ble High Court has observed that the presence of the accused need not be insisted upon during the proceedings for recall of NBW.

Arige Venkataramaiah Vs State of Telangana on 20 Dec 2023

Index of NBW judgments here.

Post Views: 765

S.Sundar Vs State of Tamilnadu on 02 Mar 2016

Posted on February 7, 2024 by ShadesOfKnife

A single judge of Madras High Court held that, the court can recall NBW without insisting upon the presence of the accused.

From paras 7-9,

7. The learned counsel for the petitioner would submit that in this branch of law, there is march of law. Earlier, there used to be not entertaining such recall petitions when the accused was not present in the court. This conception of compulsion of the presence of accused has been departed because
of change in the judicial thinking. The fact that the accused, who is stated to have eluded has since engaged a counsel and wanted to participate in the criminal proceedings had effect on the courts.
8. The learned counsel for the petitioner would submit that without insisting upon the presence of the accused, the court can recall NBW. I hasten to add that the courts can impose certain conditions, but it should not be harsh or conditions should not be to terrorise the accused. In support of his said view, the learned counsel would cite the following decisions:
(i) VALAMPURI JOHN V. PETER JAMES [1997(2) MWN (CR.) 196
(ii) VALIULLAZ SHERIF V. STATE BY INSPECTOR OF POLICE, ALL WOMEN POLICE STATION, NELLORE [2000(3) MWN 28
(iii) SIRUGUDUGU NAGA VENKATA DURGAKUMARI V. SIRUGUDU JHANSILAKSHMI [(2007) 2 MLJ (Crl) 1668]
(iv) INDER MOHAN GOSWAMI AND ANOTHER V. STATE OF UTTARANCHAL AND OTHERS [(2007) 12 SCC 1]
9. Courts must protect the rights of the accused. But, atthe same time, the court has to see that the offenders are prosecuted. This legal philosophy could be seen as a currentjudicial thing [SANJAY CHANDRA VS.C.B.I [2012(1)SCC 40] also known as 2G scam case. While striking a balance between thesetwo extremes, cause of justice cannot be compromised. Now the fear of the petitioner is that as and when he shows his face, there is possibility of he being sent to jail. When he filesrecall petition, it is an indication that he will participate in the court proceedings. At the same time, there is fear ofpsychosis on the prosecution that the accused may put bottle necks in the administration of criminal justice. Now the law is very clear. Accused cannot be asked to present in court as acondition precedent to recall the NBW.

S.Sundar Vs State of Tamilnadu on 02 Mar 2016

Index of NBW judgments here.

Post Views: 691

Balram Dixit Vs Kiran Dixit and Anr on 17 Jan 2024

Posted on January 31, 2024 by ShadesOfKnife

A single judge of Madhya Pradesh High Court at Gwalior bench held as follow:

The Supreme Court in case of Rajnesh Vs. Neha (2021) 2 SCC 324 considering the issues relating to grant of interim-maintenance, observed that the maintenance is decided on the basis of pleadings of the parties and some amount of guess work. Both the parties submit scanty material and do not disclose correct details. Keeping that in view, the Supreme Court laid down the procedure to streamline grant of maintenance. These guidelines were laid down in exercise of power under Article 136 read with Article 142 of Constitution of India prescribing a uniform format of Affidavit of Disclosure of Assets and Liabilities to be filed in every proceeding relating to maintenance.
The Supreme Court in case of Aditi alias Mithi versus Jitesh Sharma 2023 SCC Online SC 1451 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.
The copy of Affidavit of Disclosure of Assets and Liabilities submitted by Balram Dixit and Kiran Dixit show that most of the entries are filled cursorily without providing requisite particulars. Consequently, learned Principal Judge could not consider availability of source of income with the parties and their standard of living before the matrimonial discord. Non-compliance with the guidelines in its true spirit and substance is not acceptable.
In view of the above, the impugned order dated 08.02.2023 is set aside with the direction that both the parties shall submit fresh Affidavits of Disclosure of Assets and Liabilities with complete particulars in compliance with the directions of the Supreme Court laid down in case of Rajnesh (supra). Learned Additional Judge to the Principal Judge, Family Court, Gwalior shall ensure strict compliance with the guidelines. If any of the affidavit is lacking in requisite particulars, learned Judge shall demand relevant particulars from concerned party. This exercise shall be completed within 15 days. If any of the parties fails to comply with the directions, appropriate action with regard to non-compliance may be taken against such party. Learned Principal Judge on consideration of the affidavits and material on record, pass an order afresh on application for interim-maintenance.

Balram Dixit Vs Kiran Dixit and Anr on 17 Jan 2024

Index of Maintenance cases here.

Post Views: 780

Gitanjali Devi Vs State of Bihar and Anr on 02 Dec 2023

Posted on January 31, 2024 by ShadesOfKnife

A single judge of Patna High Court held as follow:

From Paras 6-10,

6. Having heard learned counsel for the parties and on perusal of the records, this Court finds that in the court below the applicant-petitioner did not submit any proof of income of her husband. Her husband (opposite party no.2) filed his salary details and the bank account of the Oriental Bank of Commerce, New Delhi from which it appears that he was employed at Batra Hospital, Delhi in 2008 and was getting Rs.7524/- as salary till May, 2008. On the face of the discussions made in the impugned order, this Court has no doubt that the court has not followed the procedures which were mandated by the Hon’ble Supreme Court in its judgment in the case of Rajnesh (supra).
7. The aforesaid judgment in the case of Rajnesh (supra) has been recently reiterated in the case of Aditi Alias Mithi (supra).
8. This Court is of the considered opinion that the impugned order is liable to be set aside for the reason that it has not followed the procedures prescribed by the Hon’ble Apex Court.
9. The impugned order is, accordingly, set aside and the matter is remitted to the court of learned Principal Judge, Family Court, West Champaran, Bettiah for fresh consideration and by following the procedures which are laid down in the judgment of the Hon’ble Supreme Court.
10. The parties shall be given an opportunity to file their respective affidavits and pleadings within a reasonable period.

Gitanjali Devi Vs State of Bihar and Anr on 02 Dec 2023

Index of Maintenance cases here.

Post Views: 848

Rijas MT Vs Hafseena M on 15 Nov 2023

Posted on January 31, 2024 by ShadesOfKnife

A single judge of Kerala High Court held as follow:

From Para 29-32, (Regarding issuing of arrest warrants without following procedure u/s 421 Cr.P.C.)

29. Now, coming to the next question regarding the failure of the Family Court in not following the procedure for levy of fines as contemplated under Section 421 of the Code.
30. Section 125 (3) extracted above, stipulates that in case of failure of a person to comply with an order to pay maintenance without sufficient cause, then for every breach, the Magistrate has to issue a warrant for levying the amount due in the same manner provided for levying fines.
32. It is well-settled in a whole line of precedents that the Courts shall not order a warrant of arrest against a defaulter, without following the procedure under Section 421 of the Code.

From Para 33,

33. Nonetheless, after the pronouncement of the celebrated judgment in Rajnesh v. Neha (supra), a revolutionary change has been brought in the procedure to be followed by the courts in dealing with the applications filed under Chapter IX of the Code. 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 Code or for contempt of court.
34. In the instant case, the Family Court, following the directions laid down in Rajnesh v. Neha (supra), directed both parties to file their affidavits of disclosure in the original proceedings. The revision petitioner filed his affidavit stating that he had no movable or immovable properties. Again, on the execution side, the Family Court directed the first respondent to file an affidavit regarding the assets of the revision petitioner, and she reiterated that the revision petitioner had no assets or properties. Based on the affirmation in the affidavits, that the revision petitioner had no movable or immovable properties, the Family Court issued a non-bailable warrant against the revision petitioner. I do not find any error or illegality in the procedure adopted by the Family Court in the post-Rajnesh era. Once a party declares on oath that he has no movable and immovable properties, it would be an empty formality to follow the procedure under Section 421 because, ultimately, the enquiry by the revenue authorities would yield the same result as disclosed by the parties on solemn affirmation. The exposition of the law in Rajnesh was to remove the stumbling blocks in the procedure and the inordinate delay being caused in the disposal of maintenance applications and the enforcement of the orders. It is trite, that procedural laws are handmaids of justice. Therefore, the dispensation of the procedure under Section 421 of the Code, in a case where the respondent disclosed that he has no movable or immovable property, is justifiable and sustainable in law. In the emerged scenario post Rajnesh, I do not find any meaningful purpose in the Courts ritualistically following the procedure under Section 421, especially after the respondent states on oath that he has no property, other than to prolong the miseries of the persons living in vagrancy.

Rijas MT Vs Hafseena M on 15 Nov 2023

Index of Maintenance cases here.

Post Views: 870

Shama Sharma Vs Kishan Kumar on 10 Jan 2024

Posted on January 29, 2024 by ShadesOfKnife

A division bench of Apex Court passed following order prohibiting mentioning of caste/religion of any litigant either before it or the courts below, while allowing the transfer of a RCR case from Rajasthan to Punjab.

From Para 7,

7. Further, liberty is granted to the respondent-husband to move an appropriate application before the transferee Court for permission to participate in the proceedings virtually. If such a request is made, the transferee Court may grant such permission and direct the personal presence of the respondent-husband only when it is absolutely necessary. Further, if examination of outstation witnesses is required and a request is made for recording the evidence through a Court Commissioner, the transferee Court shall consider the same and pass appropriate orders.

From Paras 10-12,

10. Before parting with this matter, we have noted with surprise that the caste of both the parties has been mentioned in the memo of parties, besides their other details. Learned counsel for the petitioner submits that if the memo of parties as filed before the courts below is changed in any manner, the Registry raises an objection and in the present case as the caste of both the parties was mentioned before the court below, he had no option but to mention their caste in the Transfer Petition.
11. We see no reason for mentioning the caste/religion of any litigant either before this Court or the courts below. Such a practice is to be shunned and must be ceased forthwith. It is therefore deemed appropriate to pass a general order directing that henceforth the caste or religion of parties shall not be mentioned in the memo of parties of a petition/proceeding filed before this Court, irrespective of whether any such details have been furnished before the courts below. A direction is also issued to all the High Courts to ensure that the caste/religion of a litigant does not appear in the memo of parties in any petition/suit/proceeding filed before the High Court or the Subordinate Courts under their respective jurisdictions.
12. The above directions shall be brought to the notice of the members of the Bar as well as the Registry for immediate compliance. A copy of this order shall be placed before the Registrar concerned for perusal and for circulation to the Registrar Generals of all the High Courts for strict compliance.

Shama Sharma Vs Kishan Kumar on 10 Jan 2024

Post Views: 517

Payal Sethi Vs Rohit Sethi on 09 Jan 2024

Posted on January 27, 2024 by ShadesOfKnife

A division bench of Delhi High Court held that, repeated threats to commit suicide and the attempt to commit suicide was held to be an action amounting to cruelty, based on Supreme Court decisions.

From Pars 25-31,

25. The repeated threats to commit suicide and the attempt to commit suicide was held to be an action amounting to cruelty by the Supreme court in the case of Pankaj Mahajan Vs. Dimple, (2011) 12 SCC 1. It was further observed that cruelty postulates a treatment of a spouse with such cruelty that it would be harmful or injurious to live with the other spouse. Similarly in Narendra Vs. K. Meena (2016) 9 SCC 455, it was observed that in case the wife succeeds in committing suicide, one can only imagine how the poor husband would get entangled into the clutches of law which would virtually ruin his sanity, peace of mind, career and probably his entire life. Such threat of attempting suicide amounts to cruelty.
26. In the present case as well, the conduct of the appellant is clearly is an act of cruelty towards the respondent/husband.
27. We may note further that on leaving the matrimonial home on 15.12.2009, the appellant lodged a complaint with Crime against Women Cell, which became the basis of registration of FIR No. 508/2012 under Section 498A/406/34 IPC. The respondent was once again driven to take anticipatory bail. The appellant even made a claim of Rs.5 lakhs to settle all the disputes, but the respondent was not in a position to offer more than Rs.3 lakhs because of which the matter could not be settled.
28. Even thereafter another case under the Protection of Women Against Domestic Violence Act was filed in the year 2018 despite the separation of more than nine years. The appellant, no doubt has a legal right to take recourse for the wrong that may have been committed but making unsubstantiated allegations of having been subjected to dowry demands or acts of cruelty by the respondent or his family members, and getting criminal trials initiated against the respondent are clearly acts of cruelty.
29. In the case of K. Srinivas Vs. K. Sunita (2013) 5 SCC 226, the Hon’ble Supreme Court held that filing of false complaints against the husband and his family members constitutes mental cruelty for the purpose of Section 13 (1) (ia) of the Hindu Marriage Act. It was further observed that filing appeals questioning the acquittal of the husband indicates the relentless attempts of the wife to somehow ensure that the husband and his family are put in jail. Such acts, without a doubt, amount to cruelty.
30. The Supreme Court in Mangayakarasi v. M. Yuvaraj (2020) 3 SCC 786, observed that an unsubstantiated allegation of dowry demand or such other allegations made against the husband and his family members exposed them to criminal litigation. Ultimately, if it is found that such allegations were unwarranted and without basis, the husband can allege that mental cruelty has been inflicted on him and claim a divorce on such a ground.
31. We note that during the two years of their matrimonial life, the parties barely resided together for ten months in all and even during that time there were various acts of the cruelty of being subjected to false complaints and civil as well as criminal litigation, committed by the appellant towards the respondent. We therefore, conclude that the learned Addl. Principal Judge, Family Court has rightly held that the respondent was subjected to cruelty by the appellant and granted divorce under Section 13 (1)(ia) of the HMA.

Payal Sethi Vs Rohit Sethi on 09 Jan 2024

Index of Divorce Judgments is here.

Post Views: 695

NCV Aishwarya Vs AS Saravana Karthik Sha on 18 Jul 2022

Posted on January 20, 2024 by ShadesOfKnife

A division bench of Apex Court said that wife’s convenience which must be looked at while considering transfer.

From Paras 8-11,

8. It is not disputed that the appellant is the resident of Chennai and that the appellant’s husband-respondent herein is the resident of Vellore and he is employed. The appellant who is 21 years old does not have any source of income of her own as she is not employed and is totally dependent on her parents for her livelihood. In order to attend the court proceedings of the case filed by her husband at Vellore she has to travel alone all the way from Chennai to Vellore as her parents are not in a position to accompany her on account of their old age. Secondly, the appellant has also filed a petition, H.M.O.P. No.1741 of 2021, for restitution of conjugal rights and another petition, M.C. Sr. No.672 of 2021, for her maintenance before the Family Court at Chennai.
9. The cardinal principle for exercise of power under Section 24 of the Code of Civil Procedure is that the ends of justice should demand the transfer of the suit, appeal or other proceeding. In matrimonial matters, wherever Courts are called upon to consider the plea of transfer, the Courts have to take into consideration the economic soundness of both the parties, the social strata of the spouses and their behavioural pattern, their standard of life prior to the marriage and subsequent thereto and the circumstances of both the parties in eking out their livelihood and under whose protective umbrella they are seeking their sustenance to life. Given the prevailing socio-economic paradigm in the Indian society, generally, it is the wife’s
convenience which must be looked at while considering transfer.
10. Further, when two or more proceedings are pending in different Courts between the same parties which raise common question of fact and law, and when the decisions in the cases are interdependent, it is desirable that they should be tried together by the same Judge so as to avoid multiplicity in trial of the same issues and conflict of decisions.
11. As noticed above, the appellant is a young lady aged about 21 years, staying alone along with her aged parents. Under the above circumstances, it is difficult for her to travel all the way from Chennai to Vellore to attend the court proceedings of the case filed by the respondent seeking annulment of marriage. Further, it is also just and proper to club all the three cases together to avoid multiplicity of the proceedings and conflict of decisions. Therefore, the High Court was not justified in rejecting transfer petition bearing TR.C.M.P.No.473 of 2020, filed by the appellant herein.
12. Resultantly, the appeal succeeds and is accordingly allowed. The Order dated 19.11.2020 passed by the High Court in TR.C.M.P. NO.473 of 2020 is set aside. We direct transfer of F.C.O.P. No.125 of 2020 pending consideration before the Family Court, Vellore to the jurisdictional Family Court at Chennai. We also direct the clubbing of the aforementioned three cases so that a common order may be passed by the concerned Family Court at Chennai.

NCV Aishwarya Vs AS Saravana Karthik Sha on 18 Jul 2022

Citations:

Other Sources:

Index of Transfer Judgments is here.

Post Views: 991

E.Thilagavathy Vs M.Punniyamoorthi on 22 Dec 2023

Posted on January 19, 2024 by ShadesOfKnife

A Division bench at Madurai of Madras High Court held as follows

From Para 17,

17. Whether the wife has committed cruelty by levelling such allegation is the point for consideration. The wife is always ready and willing to live with the husband along with two children. It is the husband, who is running away from the matrimonial home without discharging his duty and responsibility as a husband. It is the specific plea of the wife as well as in her evidence that they have not even availed the facilities offered by the Southern Railway for the last 15 years. The husband has not even included the name of the wife and children in the Service Register so as to enjoy certain facilities offered by the railways to the staff of the family. This attitude of the husband assumes significance inasmuch as he never intended to lead a peaceful/joint life with the wife and children by taking care of them as a dutyful husband. In the absence of any specific plea regarding alleged desertion and in the absence of the proof with regard to desertion for continuous period of two years by the wife, without reasonable cause, the trial Court has gone and discussed in detail and treated the same as cruelty. None of the allegation that was averred by the husband as cruelty and nor proved in the manner known to law. On the contrary, the wife has clearly demonstrated before this Court through her pleadings and her evidence and by way of suggestion during the cross-examination of P.W.1-husband that the husband has not discharged his duties and he is the one, who has not come to the matrimonial home, even when the wife is willing to lead a peaceful life and therefore, we find that she has demonstrated the cruelty at the hands of the husband to the effect that he is not interested to live with the wife and children by not giving any financial assistance and has not included the wife and children in the service register in the railways so as to enjoy the facilities as a family member. These admitted facts would go to show that it is the husband, who has committed cruelty and therefore, the wife was forced to live in the house of her father. The reason assigned by the wife is found to be reasonable and acceptable.

E.Thilagavathy Vs M.Punniyamoorthi on 22 Dec 2023

Divorce judgments here.

Post Views: 615

Shades of Knife

True Colors of a Vile Wife

R.Sundar Vs The Sub Inspector of Police on 12 Oct 2023

Arige Venkataramaiah Vs State of Telangana on 20 Dec 2023

S.Sundar Vs State of Tamilnadu on 02 Mar 2016

Balram Dixit Vs Kiran Dixit and Anr on 17 Jan 2024

Gitanjali Devi Vs State of Bihar and Anr on 02 Dec 2023

Rijas MT Vs Hafseena M on 15 Nov 2023

Shama Sharma Vs Kishan Kumar on 10 Jan 2024

Payal Sethi Vs Rohit Sethi on 09 Jan 2024

NCV Aishwarya Vs AS Saravana Karthik Sha on 18 Jul 2022

E.Thilagavathy Vs M.Punniyamoorthi on 22 Dec 2023