This is such an atrocious case whereby the so-called mother flouts the orders passed by Canadian Courts regd Custody of a minor child and reaches India only to file a 498A IPC case. Crooks!
The Earlier decision from Karnataka High Court’s Division Bench, where a parenting plan was devised by the judges.
Another false case filer bites the dust…
10. Undisputed facts of the case are, petitioner was married with complainant in July 2008. Even after her marriage with the petitioner, complainant was defending the petition for restitution of conjugal rights filed by her previous husband Asif Farooqi. Within about three years after marriage, her relation with petitioner came to an end in August 2011 as per her own admission recorded by the learned Sessions Judge in paragraph No. 14 of his order in Criminal Appeal No. 256/2016. There is yet another judicial finding that complainant had contracted into third marriage with one Asrar Ahmed and given birth to a child. The order also discloses that complainant initiated proceedings under the Domestic Violence Act (DV Act for short) in April 2012. The learned Sessions Judge has also recorded that it was proved by Ex.R7 that complainant had married for third time and ultimately, dismissed the petition. The Criminal Appeal filed thereon has also been dismissed with costs.
11. Not being satisfied, complainant initiated proceedings under Section 125 Cr.P.C. in the year 2014. (C.Mis.No.526/2014) seeking maintenance for her and the child. The said petition has also been rejected so far as complainants claim was concerned.
12. Having thus suffered in the hands of complainant, petitioner also filed a private complaint in PCR No.1085/2016 alleging inter alia that complainant had suppressed her earlier marriage with Asif Ali Farooqi and when questioned about the same, she has filed the instant false complaint. Thereafter, she has married for the third time. With the said allegations, petitioner sought action against complainant and three others for commission of offences punishable under Sections 120A, 120B, 107, 108, 494, 496 read with Section 34 IPC. The learned Magistrate referred the case for investigation under Section 156(3) Cr.P.C. Accordingly, FIR No.149/2016 has been registered on 11th August 2016 in Narasimharaja Police Station, Mysuru City. Records further disclose that complainant and other accused unsuccessfully challenged the said FIR before this Court in Criminal Petition No.1182/2017.
13. Petitioners application under Section 239 Cr.P.C. seeking discharge has been dismissed by the learned trial Judge by recording that presence of accused as on the date of incident and whether marriage is void, cannot be considered at the stage of discharge.
14. A conspectus of facts narrated by the petitioner and the undisputed facts which can be gathered from the records lead to an irresistible inference that though complaint is filed alleging commission of offence under Section 498A IPC, it is, in fact the petitioner who has suffered an untold misery in the hands of the complainant.
15. It cannot be gainsaid that disclosure of a previous subsisting marriage causes immense mental pain and agony to a husband.
16. Complainant has, though unsuccessfully, driven the petitioner to various Courts unabatedly. It started with complainant initiating proceedings under the provisions of DV Act followed by proceedings under Section 125 Cr.P.C. Judicial findings have been recorded by the learned Trial Magistrates in both proceedings with regard to complainants conduct. Learned Magistrate adjudicating proceedings under DV Act has recorded that as per Ex.R7, complainants marriage with her third husband was proved. This finding has been affirmed by the learned Sessions Judge while dismissing the appeal.
17. Suffice to note that records unequivocally disclose that complainant was respondent in a matrimonial case for restitution of conjugal rights initiated by her first husband when she got married with the petitioner. She has admitted this fact in proceedings before the learned Magistrate in proceedings under Section 125 Cr.P.C.
18. This is a classic case in which a complainant by initiating criminal proceedings under Section 125 Cr.P.C and Section 498A IPC against the petitioner has abused the said provisions.
****
20. It is relevant to note that though the complaint contains the allegations recorded above, there is interpolation with regard to the date 03.08.2011, on which date she was allegedly confined in a room and attempt was made to kill her by pouring kerosene. Further, it is stated that Faizal made an attempt to hang her to a Ceiling fan. In the following sentence, it is stated that Faizal made her fall from a motor cycle and tried to kill her. The two allegations that Faizal attempted to hang the complainant and thereafter made her fall from the motor cycle contradict each other. If Faizal had really attempted to hang her, how did she escape from his clutches? No details are forthcoming in this behalf. However, even if it is assumed that the said allegation were true, it is not understandable why she sat on Faisals motor cycle.
22. Thus, the Complaint is full of unbelievable and self contradicting allegations. The first allegation of demand for Rs.3,00,000/- is said to have been made jointly by petitioner and his family members. The second allegation regarding demand of money to purchase a car is alleged jointly against petitioner and his sisters. Thus all allegations in the complaint are omnibus in nature and in the least, made jointly with other accused and there are no specific against the petitioner.
23. After investigation, admittedly police have not filed charge-sheet against accused No.2 to 6 namely Shahjahan Begum, Afzal Ahmed Khan, Parveez Ahamed, Anjum Nazeer and Siddique. Neither the prosecution nor the complainant have placed any other material which may suggest commission of any of the alleged criminal act/s by the petitioner. Therefore, it can be safely concluded that allegations against petitioner are designed to harass him.
Citations: [2019 SCC ONLINE KAR 3113], [2020 ILR KAR 130], [2020 KCCR 1 236], [2020 AIC 205 770], [2020 AIR KANT R 1 306], [2020 KANT LJ 1 323]
Other Sources:
https://www.casemine.com/judgement/in/5ded72464a932629f01c7297
A division bench of Karnataka HC held as follow with regards to Cruelty and Desertion grounds as found under Hindu Marriage Act 1955.
From Para 9,
9. The Trial Court examined PWs-1 to 3 and RW-1 and perused Ex.P1 and Exs.R1 to R8. The appellants attitude towards the respondent and staying away from him for years together and so also filing a petition for maintenance in Criminal miscellaneous No.95/2007 and partition suit in O.S.No.73/2005, she has not made any efforts to join her husband. On the other hand, the respondent had filed petition under Section 9 of the Hindu Marriage Act and petition was not continued on account of appellants readiness and willingness to join the respondent due to which the respondent had withdrawn the petition filed under Section 9 of the Hindu Marriage Act. Even thereafter the appellant had not joined the respondent. The appellant has not apprised the Trial Court as well as before this Court by producing any material evidence and so also what efforts she has made all these years to join the respondent. The contention of the appellant that she is ready to join her husband is only an afterthought for the reasons that she had ample opportunity of joining the respondent during the pendency of M.C.No.4/2010. Now we are in the year 2019. Even during the period from 30.11.2013, the date on which M.C.No.4/2010 was disposed off, till date she has not shown her willingness to join her husband. If her intention was really to join her husband, both Trial and this Court would have made necessary efforts to refer the matter to the Mediation & Conciliation Centre. Therefore, the attitude of the appellant towards respondent for these many years resulted in failure of marriage among the appellant and the respondent. Once the appellant failed to return to her marital home and remained in her parental house for more than one and half decade amounts to both desertion and cruelty.
From Para 16,
16. The principle is, thus, settled that whether in the facts and circumstances of a given case, the plaintiff has been able to make out a case of grant of divorce on the ground of cruelty would depend upon the nature of pleadings and evidence in that case and there can be no straitjacket formula nor an exhaustive list of instances can be prepared, where cruelty is said to have been committed by one or other party to the marriage. Cruelty can also not be inferred by applying any formula because the said question is to be determined keeping in view the social status of the parties, their financial and other conditions, the atmosphere and the kind of employment or vocation which they carry out would all be important to interfere whether on the given set of allegations it has become difficult for the plaintiff to live with the other side and the behaviour of such degree which amounts to the cruelty.
Citations :
Other Sources :
https://www.legitquest.com/case/renuka-v-sangappa/1a2cde
https://www.lawyerservices.in/Renuka-Versus-Sangappa-2019-12-11
A single judge of Karnataka High Court held that, an offence under the PWDV Act alone is subject to limitation under CrPC but not the application filed belatedly u/s 12 of the Act.
From Paras 16-17,
16. To attract Section 468 of Cr.P.C, essentially the Act alleged must be an offence. Under the DV Act, the offence is not defined, as defined in Section 40 of IPC. Therefore, we have to revert to the General Clauses Act, 1897. Section 3(38) of the General Clauses Act defines the offences as follows:
“3(38). “Offence” shall mean any act or omission made punishable by any law for the time being in force.
17. Perusal of the above provision makes it clear that to call an act as offence, act or omission must be made punishable under law. As already pointed out, under Sections 12, 20 and 21 of the DV Act have not made the domestic violence alleged thereunder punishable or defined them as offence. Section 12 of the DV Act is only an enabling provision to initiate enquiry to find out whether such act or omission is committed.
From Para 19-20, Conclusions
19. Perusal of Section 31 of the DV Act makes it clear that only breach of the protection order or interim protection order etc. passed under Section 12 of the DV Act constitutes an offence and made punishable. As held by Punjab High Court in Vikas’s case referred to supra, Section 12 of the DV Act is only enabling provision. Therefore it is clear that the act or omission contemplated under Section 31 of the DV Act is an offence and the application under Section 12 of the DV Act itself is not an offence.
20. When the application under Section 12 of the DV Act is not covered under the term ‘offence’, Section 468 of Cr.P.C. is inapplicable. Therefore the application of Section 468 of Cr.P.C. to an application under Section 12 of the DV Act is clearly a misconception.
From Paras 24-26,
24. Distinguishing judgment in Inderjit Singh Grewal’s case, the Hon’ble Supreme Court in subsequent judgment in Krishna Bhattacharjee’s case referred to supra held that the observation regarding domestic relationship in Inderjit Singh Grewal’s case were based on the facts and circumstances of the said case and they are not of general application.
25. Further in para 32 of the judgment in Krishna Bhattacharjee’s case referred to supra, the Hon’ble Supreme Court held that the definition of the aggrieved person and domestic relationship remains and the act of domestic violence attracts the term ‘continuing offence’, therefore does not get time barred.
26. In the judgments of the Hon’ble Supreme Court referred to above, the interplay of Section 3(38) of the General Clauses Act, Section 31 of the DV Act and Section 468 of Cr.P.C. had not fallen for consideration. In view of the later judgment of the Hon’ble Supreme Court in Krishna Bhattacharjee’s case referred to supra the judgments of this Court in Srinivas’s case and Gurudev’s case cannot be followed. Therefore this Court does not find any merit in the contention that the petition was time barred. Under the circumstances the respondent is entitled for withdrawal of the amount. The application is allowed.
Citations :
Other Sources :
https://primelegal.in/2021/05/20/an-application-under-section-12-of-the-domestic-violence-act-is-not-barred-by-the-limitations-set-out-in-section-468-of-the-criminal-procedure-code-karnataka-high-court/
https://www.indiclegal.com/post/application-of-section-468-to-section-12-of-the-domestic-violence-act-is-clearly-a-misconception-hc
https://www.lawyersclubindia.com/judiciary/sri-puttaraju-vs-smt-shivakumari-5216.asp
A division bench of Karnataka High Court held that a Son is a son, irrespective of if he is a legitimate son or illegitimate, with regards to compassionate appointments.
Citations :
Other Sources :
Earlier Writ Petition here; Review Petition here.
Based on Landmark Chengalvaraya Naidu case here, the division bench of Karnataka High Court dismissed the case with heavy cost of Rs1,00,000/-!!!
From Para 4,
4. Having heard the learned counsel for the parties and having perused the original TCR, we decline to grant indulgence in the matter and anguishingly impose heavy costs on the claimant for the following reasons:
(a) The accident allegedly happened on 30.08.2014 at 7.30 a.m. when the offending motorbike bearing Registration No.KA-34/U-1161 had dashed claimant’s motorcycle from behind and as a result thereof he suffered some injuries; all this may be taken to be true, of course with reluctance,
since there is no formal challenge to this finding by the insurer by way of appeal or cross-objection; had it been otherwise, we are not sure that we would have sustained this finding; be that as it may.
(b) Admittedly, claimant had the medical history of coronary problem when the accident happened; because of the alleged injuries caused by the accident, he was treated at the Government College & Hospital i.e., VIMS-Ballari, as an out-patient; the Wound Certificate, dated 30.08.2014, issued by the General Duty Medical Officer at Ex.P.5specifically states that the “injuries are simple in nature”; this opinion was formed by the said Medical Officer after examination & on the basis of radiological tests, as is stated in the very Certificate itself; there being no reason to doubt the same, the said opinion has to be treated as the expert opinion under Section 45 of the Evidence Act, 1872 and therefore, carries a lot of weight, nothing emerging from the record for discounting it’s probative value.
(c) Later, the claimant moved to Narayana Institute of Cardiac Sciences at Bengaluru wherein he had admittedly undergone coronary related operation & treatment in a long hospitalization; in his affidavit-evidence, at para 2, 3 & 4, he has stated that the said accident resulted in “severe
injuries over chest, head, forehead, nose, face, abdomen, hands & legs” and that all this happened only because of the accident which has “decreased his life span due to heart injury”; all this is false, to say the least; neither in his claim petition nor in his affidavit evidence, he has mentioned anything about his pre-existing heart ailment; as already mentioned above, he had not suffered any injury to the chest, much less heart nor to any vital organ; had it been otherwise, the Wound Certificate at Ex.P.5 would have mentioned the same; there is no reason for the Government Doctor in VIMS to write a false or wrong certificate; that is not the case of claimant, either;
(d) Even in the cross-examination, dated 09.06.2016, he falsely asserts that he suffered the heart ailment only because of the accident though the medical records of the Heart Hospital even remotely do not whisper about it; on the contrary, Dr. Lakshmi Narayana K., whom he had examined as P.W.3 himself has stated that the heart ailment of the kind i.e., blockages do not occur abruptly; this apart, by no stretch of imagination, it can be stated that blockages in the heart could happen by the kind of the vehicular accident. A perusal of deposition of the claimant given as P.W.1 not only does not generate confidence but appears to have been designed for extracting huge money from the insurer; this is nothing short of perjury.
(e) The claimant has also suppressed the reimbursement of huge expenses incurred by him for the heart treatment under “Yashashvini Co-operative Health Care for Farmers” a welfare Scheme of the Government, both in his claim petition & affidavit evidence; in his cross-examination, he has not denied the receipt of money but he only feigns ignorance as to the same having been not mentioned in the claim petition; it is said that, truth somewhere & somehow trickles out, and that has happened in this case; Ex.P.9A is the final bill issued by the Heart Hospital; it mentions the Corporate Sponsorship as “Yashashvini Co-operative Farmers Health Care Trust” with Account No.1043; thus, the claimant being a “clandestine liar” cannot be believed at all; he has designed his case on fraud, fabrication & duplicity and therefore, he is liable to be non-suited vide S.P. Chengalvaraya Naidu (dead) by L.Rs. V. Jagannath (dead) by L.Rs. and others, AIR 1994 SC 853.
And the Medical Witness turned out to be a ‘regular liar’ in the Courts!!!
5. As to Dr. Lakshmi Narayana K., of Prakash Clinic, Ballari, & his evidence vide P.W.3 being unworthy of credence,
a) the claimant had examined this doctor as P.W.3 in support of his case; it is submitted at the Bar that his ‘Sanad’ has been suspended on the ground of malpractice; it is also there in his cross-examination; we have noticed several other cases, huge in number wherein he has deposed as a Medical Witness in accident cases; in his cross-examination, dated 07.01.2017, he contradicts the version of the claimant-P.W.1 that the claimant had not visited his hospital personally; he also admits claimant having undergone the operation/treatment for coronary blocks; he also admits having not stated the factors based on which he has issued the Disability Certificate at Ex.P.8; any prudent Medical Practitioner would have mentioned these things including the coronary disease; he has prepared his Disability Certificate dated 17.03.2016 in such a clandestine way that the alleged disability of the claimant is occasioned by the injuries sustained by him in the accident; this is nothing short of perjury, to which claimant is also a party.
So, the High Court said…
(c) We are pained to see cases of the kind coming in considerable numbers nowadays; something has to be done to eradicate the evil of perjury, fraud & fabrication; a mere non-suiting of the unscrupulous litigants by throwing their case papers out through the court window would be militantly insufficient; something more drastic needs to be devised, so that message reaches out loudly to the unscrupulous class; in this case, we are made to spend more than an hour of valuable time in turning every page of the original Trial Court Record that runs into 656 pages, keeping other older cases at a bay; it is a sheer waste of huge public time & money occasioned by this perjured case of the appellant; this is not a happy thing to happen; we are of the considered view that this appeal should be dismissed with exemplary & penal cost of Rs.1,00,000/-.
Also the cherry on top of the cake…
Liberty is reserved to the insurer to take up civil and criminal proceedings for the act of perjury perpetrated by the claimant i.e. P.W.1 and Dr.Lakshmi Narayan K., i.e. P.W.3, who had issued the Disability Certificate at Ex.P.8, in accordance with law; it hardly needs to be stated that the delay brooked in taking such proceedings is liable to be discounted because of pendency of this appeal for all these years.
Citations :
Other Sources :
Index of Perjury Decision here.
A brain dead person seems to have tried to implicate unrelated person into a false DV case but the single bench of Karnataka High Court quashed such designed…
From Para 2,
2. The argument of the petitioner’s counsel is that the petitioner has been unnecessarily made a party by the 1st respondent in her application before the Magistrate under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (‘Act’ for short). He submits that the only allegation found is that the 1st respondent suspected her husband to be having illegal relationship with the petitioner and he thought of bringing her to his house. Therefore he argued that the petitioner herein should not have been made a party in the application filed under Section 12 of the Act as she does not fall within the meaning of respondent as mentioned under Section 2(q) of the Act. So far as the petitioner is concerned it cannot be said that she has committed domestic violence to prosecute her to claim any relief from her. In fact if the reliefs claimed in the application made under Section 12 of the Act are perused, no relief is claimed against the petitioner and therefore the proceedings against her requires to be quashed.
Citations :
Other Sources :
The Division Bench clarified the legal position on obtaining NOC from an advocate before engaging the services of another advocate while perusing an earlier case law here.
Memo for withdrawal of the appeal is filed on 31-1-2019 signed by the three appellants. The memo filed by the new counsel does not have a ‘No Objection Certificate’ from the earlier counsel. On questioning, he places reliance on the Judgment of this Court passed in MFA No.6526 of 2013 on 2-12-2016 (KARNATAKA POWER TRANSMISSION CORPORATION LIMITED., vs. M.RAJASHEKAR AND OTHERS) and submits that it is not necessary to obtain a No Objection Certificate to file a vakalath. We are unable to accept the submission. Reliance placed by the counsel on para-8 of the Judgment is misconceived. The Division Bench held therein that ‘No Objection Certificate’ is not required only in a situation where the Advocate is discharged by his client in a manner known to law, only then a new counsel can enter vakalath without a ‘No Objection Certificate’. When the earlier counsel still holds a valid vakalath, the question of a new Advocate entering the case cannot be accepted. Therefore, the counsel has misread the aforesaid Judgment.
Citations : [2019 SCC ONLINE KAR 1974], [2019 KCCR 2 1453], [2019 AIR KAR 133], [2019 AIR KANT R 3 50], [2019 ICC 4 31]
Other Sources :
https://indiankanoon.org/doc/26814810/
https://www.casemine.com/judgement/in/5c8d0f119eff430a1ad75a63
https://www.lawyerservices.in/Bhagya-andamp-Others-Versus-Jayalakshmi-andamp-Others-2019-02-13
Other Judgements on this subject here.
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