Asfaq Alam Vs State of Jharkhand and Anr on 31 Jul 2023
Category: Supreme Court of India Judgment or Order or Notification
Afia Rasheed Khan Vs Mazharuddin Ali Khan and Anr on 10 Oct 2022
The Apex Court held that there is no cause of action arising at Mumbai for a DV case, due to casual visits and such trips do not qualify as ‘temporarily residing’.
The present petition has been filed at the instance of the petitioner/complainant assailing the order passed by the High Court affirming the view expressed by the trial Court holding that the complaint filed at the instance of the petitioner under Section 12 of the Protection of Women from Domestic Violence Act (‘DV Act’) instituted before the competent court at Mumbai lacks territorial jurisdiction.
It is an admitted fact which has come on record that from the date of their marriage which was solemnized, i.e. 26.09.1993, the petitioner was residing in Hyderabad along with the other family members including the respondent (husband) and her children. She came to Mumbai for the first time leaving her matrimonial home on27.09.2021 and complaint under Section 12 of DV Act came to be filed at her instance before the Court of learned Magistrate, Bandra on 20.10.2021 that came to be dismissed by the learned trial Judge because of lack of territorial jurisdiction.
After we have heard learned counsel for the parties and taking into consideration the facts on record, find that no error has been committed by the High Court under the impugned judgment.
The Special Leave Petition is accordingly dismissed.
The Bombay High Court Order is given below:
Index of DV cases is here.
Deoki Panjhiyara Vs Shashi Bhushan Narayan Azad and Anr on 12 Dec 2012
A division bench of Apex Court held that, Unless there is a declaration of nullity by a competent Court or authority, a aggrieved person can take advantage of benefits under DV Act.
From Para 19,
19. In the present case, if according to the respondent, the marriage between him and the appellant was void on account of the previous marriage between the appellant and Rohit Kumar Mishra the respondent ought to have obtained the necessary declaration from the competent court in view of the highly contentious questions raised by the appellant on the aforesaid score. It is only upon a declaration of nullity or annulment of the marriage between the parties by a competent court that any consideration of the question whether the parties had lived in a “relationship in the nature of marriage” would be justified. In the absence of any valid decree of nullity or the necessary declaration the court will have to proceed on the footing
that the relationship between the parties is one of marriage and not in the nature of marriage. We would also like to emphasise that any determination of the validity of the marriage between the parties could have been made only by a competent court in an appropriate proceeding by and between the parties and in compliance with all other requirements of law. Mere production of a marriage certificate issued under Section 13 of the Special Marriage Act, 1954 in support of the claimed first marriage of the appellant with Rohit Kumar Mishra was not sufficient for any of the courts, including the High Court, to render a complete and effective decision with regard to the marital status of the parties and that too in a collateral proceeding for maintenance. Consequently, we hold that in the present case until the invalidation of the marriage between the appellant and the respondent is made by a competent court it would only be correct to proceed on the basis that the appellant continues to be the wife of the respondent so as to entitle her to claim all benefits and protection available under the DV Act, 2005.
Citations: [2013 ALLMR CRI SC 1099], [2013 AIR SC 168], [2013 RCR CIVIL SC 2 400], [2013 AIR SC 346], [2013 SCC 2 137], [2013 RCR CRIMINAL SC 1 338], [2012 SCALE 12 282], [2013 CRLJ SC 684], [2012 AIOL 584], [2013 BOMCR CRI SC 1 333], [2012 SLT 9 266], [2013 SCC CIV 1 1019], [2012 SCC ONLINE SC 1035], [2013 GUJ LH 1 208], [2013 CTC 2 232], [2013 ECRN 1 913], [2013 ACR 1 1089], [2013 AD SC 3 59], [2013 AJR 2 133], [2013 AKR 1 615], [2013 ALD CRI 1 469], [2013 ALT CRI 3 70], [2013 ALT CRI 1 472], [2013 DMC SC 1 18], [2013 JLJR 1 198], [2012 JCC 1 502], [2013 JCC 1 508], [2012 JT SC 12 575], [2013 LW 2 60], [2013 LW CRL 1 330], [2013 NCC 1 322], [2013 OLR 1 891], [2013 PLJR 1 172], [2013 MLJ CRL 1 137]
Other Sources:
https://indiankanoon.org/doc/154350889/
https://www.casemine.com/judgement/in/5609af10e4b0149711415804
https://www.indianemployees.com/judgments/details/deoki-panjhiyara-vs-shashi-bhushan-narayan-azad-anr
State of U.P Vs Santosh Kumar and Ors on 3 Sep 2009
A decision from the erudite pen of Justice Dalveer Bhandari ji… clearly says, if demand for dowry is satisfied, such act of dowry giver constitutes an offence under section 3 of DP Act.
From Para 40,
40. Section 4 of the Dowry Act deals with penalty for demanding dowry, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be. The object of section 4 is to discourage the very demand for property or valuable security as consideration for a
marriage between the parties thereto. Section 4 prohibits the demand for ‘giving’ property or valuable security which demand, if satisfied, would constitute an offence under section 3 read with section 2 of the Act.
Citations: [2009 AIR SC 2687], [2009 SCC 9 626], [2010 MWN CR 1 39], [2009 AIOL 1115], [2009 ANJ SC 2 350], [2009 JT 11 592], [2009 SCALE 12 269], [2010 SCC CRI 1 88], [2009 SCR 14 106], [2009 SUPREME 6 448], [2010 ECRN SC 1 196], [2010 MLJ CRL 1 679], [2010 ALL LJ 1 180]
Other Sources:
https://indiankanoon.org/doc/521213/
https://www.casemine.com/judgement/in/5609aecee4b0149711414da5
Captain Manjit Singh Virdi (Retd.) Vs Hussain Mohammed Shattaf and Ors on 18 May 2023
A division bench of Apex Court passed this reportable judgment relying on a earlier decision.
From Para 11,
11. The law on issue as to what is to be considered at the time of discharge of an accused is well settled. It is a case in which the Trial Court had not yet framed the charges. Immediately after filing of chargesheet, application for discharge was filed. The settled proposition of law is that at the stage of hearing on the charges entire evidence produced by the prosecution is to be believed. In case no offence is made out then only an accused can be discharged. Truthfulness, sufficiency and acceptability of the material produced can be done only at the stage of trial. At the stage of charge, the Court has to satisfy that a prima facie case is made out against the accused persons. Interference of the Court at that stage is required only if there is strong reasons to hold that in case the trial is allowed to proceed, the same would amount to abuse of process of the Court.
12. The law on the point has been summarised in a recent judgment of this Court in State of Rajasthan v. Ashok Kumar Kashyap2.
Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj Vs State of A.P and Ors on 15 Jul 1999
A division bench of the Apex Court held as follows,
From Paras 10 and 11,
10. Power of the police to conduct further investigation, after laying final report, is recognised under Section 173(8) of the Code of Criminal Procedure.Even after the court took cognizance of any offence on the strength of the police report first submitted, it is open to the police to conduct further investigation. This has been so stated by this Court in Ram Lal Narang v. State (Delhi Administration) AIR 1979 SC 1791. The only rider provided by the aforesaid decision is that it would be desirable that the police should inform the court and seek formal permission to make further investigation.
11. In such a situation the power of the court to direct the police to conduct further investigation cannot have any inhibition. There is nothing in Section 173(8) to suggest that the court is obliged to hear the accused before any such direction is made. Casting of any such obligation on the court would only result in encumbering the court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard. As the law does not require it, we would not burden the Magistrate with such an obligation.
Citations: [1999 ACR SC 2 1580], [1999 AIR SC 2332], [1999 ALD CRI 2 340], [1999 CRI LJ 3661], [1999 CRIMES SC 3 117], [1999 JT SC 4 537], [1999 OLR 2 344], [1999 PLJR 9 83], [1999 SCALE 4 86], [1999 SCC 5 740], [1999 SCR 3 870], [1999 UJ 2 1270], [1999 SCC CRI 1047], [1999 KERLJ 2 272], [1999 CRLJ 0 366], [11999 SCC CR 0 1047], [1999 AIR SC 0 2429], [1999 SUPREME 6 47], [1999 CRLJ 0 1661], [1999 BOMCR SC 4 248], [1999 AIR SCW 0 2429], [1999 CRLJ SC 3661], [1999 JT 4 537], [1999 UJ SC 2 1270], [1999 CRLJ 3661], [1999 OLR SC 2 344], [1999 AIR SCW 2429], [1999 SCC CR 1047], [1999 CRILJ 3661]
Other Sources:
https://indiankanoon.org/doc/1308855/
https://www.casemine.com/judgement/in/5609ad59e4b0149711411248
Kalyan Dey Chowdhury Vs Rita Dey Chowdhury on 19 Apr 2017
A division bench of Apex Court held as follows,
From Para 16,
16. The review petition under Order XLVII Rule 1 CPC came to be filed by the respondent-wife pursuant to the liberty granted by this Court when the earlier order dated 02.02.2015 awarding a maintenance of Rs.16,000/- to the respondent-wife as well as to her minor son was under challenge before this Court. As pointed out by the High Court, in February 2015, the appellant-husband was getting a net salary of Rs.63,842/- after deduction of Rs.24,000/- on account of GPF and Rs.12,000/- towards income-tax. In February, 2016, the net salary of the appellant is stated to be Rs.95,527/-. Following Dr. Kulbhushan Kumar vs. Raj Kumari and Anr. (1970) 3 SCC 129, in this case, it was held that 25% of the husband’s net salary would be just and proper to be awarded as maintenance to the respondent-wife. The amount of permanent alimony awarded to the wife must be befitting the status of the parties and the capacity of the spouse to pay maintenance. Maintenance is always dependant on the factual situation of the case and the court would be justified in moulding the claim for maintenance passed on various factors. Since in February, 2016, the net salary of the husband was Rs. 95,000/- per month, the High Court was justified in enhancing the maintenance amount. However, since the appellant has also got married second time and has a child from the second marriage, in the interest of justice, we think it proper to reduce the amount of maintenance of Rs.23,000/- to Rs.20,000/- per month as maintenance to the respondent-wife and son.
Download judgment here.
Citations: [2017 SCC ONLINE SC 440], [2017 AIR SC 2383], [2017 CDR SC 2 257], [2017 ALLMR 5 426], [2017 ALR 123 287], [2017 AWC SC 3 2259], [2017 ALT 3 51], [2017 ALD 4 176], [2017 BOMCR 3 765], [2017 CHN SC 2 212], [2017 CTC 3 209], [2017 CLT 124 555], [2017 DMCSC 2 1], [2017 ILR KER 2 335], [2017 JLJR 3 23], [2017 JKJ SC 2 1], [2017 JCC 3 1953], [2017 KHC 2 606], [2017 KLJ 2 614], [2017 OLR 1 946], [2017 PLJR 3 72], [2017 RLW SC 2 1154], [2017 RCR CIVIL 2 1033], [2017 SCALE 5 55], [2017 WLN SC 3 70], [2017 SCC 14 200], [2018 SCC CIV 1 216]
Other Sources:
https://indiankanoon.org/doc/87785076/
https://www.casemine.com/judgement/in/58f7912e53bee77d50c515fe
Shilpa Sailesh Vs Varun Sreenivasan on 01 May 2023
A Constitution Bench of 5 judges held as follows,
From Para 40,
40. In view of our findings recorded above, we are of the opinion that the decisions of this Court in Manish Goel (supra), Neelam Kumar (supra), Darshan Gupta (supra), Hitesh Bhatnagar (supra), Savitri Pandey (supra) and others have to be read down in the context of the power of this Court given by the Constitution of India to do ‘complete justice’ in exercise of the jurisdiction under Article 142(1) of the Constitution of India. In consonance with our findings on the scope and ambit of the power under Article 142(1) of the Constitution of India, in the context of matrimonial disputes arising out of the Hindu Marriage Act, we hold that the power to do‘complete justice’ is not fettered by the doctrine of fault and blame, applicable to petitions for divorce under Section 13(1)(i-a) of the Hindu Marriage Act. As held above, this Court’s power to dissolve marriage on settlement by passing a decree of divorce by mutual consent, as well as quash and set aside other proceedings, including criminal proceedings, remains and can be exercised.
From Para 41,
41. Lastly, we must express our opinion on whether a party can directly canvass before this Court the ground of irretrievable breakdown by filing a writ petition under Article 32 of the Constitution. In Poonam v. Sumit Tanwar65, a two judges’ bench of this Court has rightly held that any such attempt must be spurned and not accepted, as the parties should not be permitted to file a writ petition under Article 32 of the Constitution of India, or for that matter under Article 226 of the Constitution of India before the High Court, and seek divorce on the ground of irretrievable breakdown of marriage. The reason is that the remedy of a person aggrieved by the decision of the competent judicial forum is to approach the superior tribunal/forum for redressal of his/her grievance. The parties should not be permitted to circumvent the procedure by resorting to the writ jurisdiction under Article 32 or 226 of the Constitution of India, as the case may be. Secondly, and more importantly, relief under Article 32 of the Constitution of India can be sought to enforce the rights conferred by Part III of the Constitution of India, and on the proof of infringement thereof. Judicial orders passed by the court in, or in relation to, the proceedings pending before it, are not amenable to correction under Article 32 of the Constitution of India.66 Therefore, a party cannot file a writ petition under Article 32 of the Constitution of India and seek relief of dissolution of marriage directly from this Court. While we accept the said view, we also clarify that reference in Poonam (supra) to Manish Goel (supra) and the observation that it is questionable whether the period of six months for moving the second motion can be waived has not been approved by us.
Citations: [2023 SCC OnLine SC 544]
Other Sources:
Earlier Matter is here.
Index of Divorce judgments is here.
Rakesh Raman Vs Kavita on 26 Apr 2023
A division bench of the Supreme Court held as follows in a divorce matter between a couple who lived separately for 25 years…
From Para 8,
8. This case has travelled from the Family Court to the High Court and now finally to this Court. The decision of Delhi High Court is of 08.04.2011, which goes back to twelve years. We have to take into consideration all the facts which are before us as of now. To our mind the facts which we must take into account are: (i) that the “couple” is now living separately for the last almost 25 years, and all these years there has been no cohabitation between them. (ii) That there is no child out of the wedlock, and the couple lived together as husband and wife for barely 4 years. (iii) That repeated efforts by the Courts for reconciliation or settlement have resulted in failure.
From Para 10,
10. The husband and wife, who are before us have been living separately since the last 25 years. There is no child out of the wedlock. There are bitter allegations of cruelty and desertion from both the sides and multiple litigations between the two in the last more than 25 years. This embittered
relationship between the appellant and the respondent which has not witnessed any moment of peace for the last 25 years is a marital relationship only on paper. The fact is that this relationship has broken down irretrievably long back.
From Paras 12 and 13,
12. Other aspect which we must consider is the fact that for the last 25 years the appellant and respondent, are living separately, and have not cohabitated. There is absolutely no scope of reconciliation between the parties. There is in fact no bond between the two and as the Law Commission in its 71st report said about such a marriage, which is a marriage which has de facto broken down, and only needs a de jure recognition by the law. The same was reiterated by the Law Commission in its 217th report.
13. Under similar circumstances, this Court in R. Srinivas Kumar v. R. Shametha3, Munish Kakkar v. Nidhi Kakkar4 and Neha Tyagi v. Lieutenant Colonel Deepak Tyagi5 has held that an irretrievable marriage is a marriage where husband and wife have been living separately for a considerable period and there is absolutely no chance of their living together again. In all the above cited three cases, this Court in exercise of its power under Article 142 of the Constitution of India has dissolved the marriage on the ground of irretrievable breakdown as a ground, which otherwise does not exist under the Hindu Marriage Act.
Finally, Para 20,
20. However, considering the fact that the appellant/husband is an employee in Life Insurance Corporation, as we have been informed at the Bar and his present salary is more than Rs.1,00,000/(One Lakh Rupees) per month, we deem it fit and proper that he gives an amount of Rs.30,00,000/ (Thirty Lakh Rupees) to the respondent/wife as permanent alimony. This amount of Rs.30,00,000/ (Thirty Lakh Rupees) shall be deposited in the name of the respondent, within a period of four weeks from today with the Registry of this Court. The decree of divorce shall be made effective only from the date of such a deposit. On the event of such deposit, the Registry after verifying the credentials of the respondent/wife shall disburse the amount to the respondent/wife without further reference to this Court.
