Bharti Anand Vs Sushant Anand and Ors on 26 Apr 2022

Posted on February 11, 2024 by ShadesOfKnife

A single judge of Delhi High Court held as follows,

From Paras 13-15,

13. Although the complaint contains several allegations against the respondent Nos. 3 and 4 as noted above, as far as the living arrangements are concerned, it is the case of the complainant herself that the matrimonial home in Jalandhar was shared between her and the respondent Nos. 1 and 2. The respondent Nos. 3 and 4 (being the sister-in-law of the petitioner and her husband) visited often for various lengths of time, but there is no suggestion that they were, or intended to be, permanently resident in the said household. It is in this context that the MM and the Appellate Court have reached the conclusion that there is no domestic relationship between the petitioner and the respondent Nos. 3 and 4.
14. The Supreme Court in Satish Chander Ahuja vs. Sneha Ahuja7, with respect to the definition of shared household in the DV Act, has observed inter alia as follows:-
“68. The words “lives or at any stage has lived in a domestic relationship” have to be given its normal and purposeful meaning. The living of woman in a household has to refer to a living which has some permanency. Mere fleeting or casual living at different places shall not make a shared household. The intention of the parties and the nature of living including the nature of household have to be looked into to find out as to whether the parties intended to treat the premises as shared household or not. As noted above, the 2005 Act was enacted to give a higher right in favour of women. The 2005 Act has been enacted to provide for more effective protection of the rights of the women who are victims of violence of any kind occurring within the family. The Act has to be interpreted in a manner to effectuate the very purpose and object of the Act. Section 2(s) read with Sections 17 and 19 of the 2005 Act grants an entitlement in favour of the woman of the right of residence under the shared household irrespective of her having any legal interest in the same or not.”
15. While the above observations of the Court are in the context of the place of residence of the “aggrieved person”, it would equally apply to the identification of those who may be properly impleaded as respondents on the basis of residence in the shared household. Just as the woman living fleetingly or casually at different places, would not convert those places into a “shared household”, the visits of sundry family members to the matrimonial home, without permanency or the intention to treat the premises as shared household, would not render them as members of the “shared household”.

Bharti Anand Vs Sushant Anand and Ors on 26 Apr 2022

Index of Domestic Violence cases is here.

Mohammed Yasin Naikwadi Vs Aneesa and Anr on 13 Dec 2023

Posted on February 10, 2024 by ShadesOfKnife

A single judge of Dharwad bench of Karnataka HC held that, the protection order does not include the order of granting monetary relief of maintenance under Section 20 of the D.V. Act.

From Paras 14-17,

14. In the present case, provisions of Section 31 of the D.V. Act was pressed into service before the Trial Court essentially on ground that of arrears of the maintenance was not paid and therefore it paved for penal action under Section 31 of the D.V Act. The learned Magistrate has construed that even the non-payment of arrears of maintenance amounts to the violation of protection order and thereby Section 31 of the D.V. Act could be invoked.
15. Providing two separate reliefs, one under Section 18 of the D.V. Act for protection and another for monetary relief under Section 20 of the D.V. Act will have to be taken into consideration while analyzing the scope of Section 31 of the D.V. Act. If protection order was inclusive of monetary relief of granting maintenance, Section 20 of the D.V. Act would not have been separately provided.
16. Co-ordinate Bench of this Court in the case of the Mr. Francis Cyril C Cunha Vs. Smt Lydia Jane D’Cunha(supra) considering similar case has exhaustively dealt with the scope of Section 31 of the D.V. Act in the light of Sections 2(o), 18 and 20 of the D.V. Act and held that the protection order does not include the order of granting monetary relief of maintenance under Section 20 of the D.V. Act.
17. In view of the matter, the approach of learned Magistrate in taking cognizance of the offence punishable under Section 31 of the D.V. Act is a glaring legal error and hence, the same will have to be set aside. Consequently, the proceedings against this petition in C.C.No/1/2022 pending on the file of the IV JMFC, Belagavi are requires to be quashed.

Mohammed Yasin Naikwadi Vs Aneesa and Anr on 13 Dec 2023

Index of DV judgments here.

Venus Remedies Ltd and Ors Vs State of Karnataka on 30 Oct 2023

Posted on February 7, 2024 by ShadesOfKnife

A single judge of Dharwad bench of Karnataka HC held as follows:

From Paras 10 and 11,

10. In the application filed by the petitioners seeking recall of NBW, they have undertaken to appear before the Court if sufficient time is granted to them in para 13 of their application. The application of the petitioners seeking recall of NBW came to be rejected on the ground that they are not physically kept present. The Hon’ble Apex Court in SATENDER KUMAR ANTIL case (supra) as held that the NBW may be cancelled or converted into a bailable warrant/summons without insisting physical appearance of accused, if such an application is moved on behalf of the accused before execution of the NBW on an undertaking of the accused to appear physically on the next date/s of hearing.
11. The learned Magistrate erred in rejecting the application seeking recall of NBW only ground that they were not kept present either physically or in Video Conference and no affidavit is filed undertaking to appear on the next date on hearing. The application itself contains an undertaking of the accused persons that they will appear if sufficient time is given to them in para 13 of their application.

Venus Remedies Ltd and Ors Vs State of Karnataka on 30 Oct 2023

Index of NBW Judgments is here.

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.

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.

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.

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.

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.

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.

Jaspreet Kaur Vs State of NCT of Delhi on 12 Dec 2023

Posted on January 19, 2024 by ShadesOfKnife

A single bench of Delhi High Court held as follows, wrt usage of section 91 Cr.P.C.

From Para 14,

14. The Division Bench of Hon‟ble High Court of Madhya Pradesh in case of Special Police Establishment v. Umesh Tiwari 2022 SCC OnLine MP 100 had enlisted the ingredients of Section 91 of Cr.P.C., and had also observed that the right to invoke Section 91 is not limited only to the Court and Police, but also to the victim, accused and/or any other stakeholder. The relevant observations are reproduced hereunder for reference:
“4.3 Language employed in Section 91 reveals following foundational ingredients and characteristics:-
(i) Section 91 is meant to be invoked for producing documents/other things by way of summon.
(ii) Section 91 can be invoked at any stage of investigation, inquiry, trial or even other proceedings under the Cr.P.C.
(iii) Section 91 does not expressly provide as to who can invoke this provision.
(iv) However, the language of Section 91 implies that it can be invoked by the Court or the Officer in-charge of the Police Station concerned.
(v) And this invocation can be done when the Court or the Police is of the view that production is necessary or desirable for the purpose of investigation, inquiry, trial or other proceedings under Cr.P.C.
(vi) The satisfaction regarding necessity or desirability of the Court or the Police is sine qua non for invoking this provision.
(vii) The production of document or other thing is to be made before the Court if directed by the Court or before the officer if directed by Police Officer. ***
4.5 From the aforesaid analysis, it is vivid that it would not be proper to restrict the right to invoke Section 91 to only the Court and the Police Officer. The window of Section 91 will have to remain open for all the stakeholders in an investigation, inquiry, trial and other proceedings, be it the victim, accused, police, Court or any other stakeholders involved.

From Para 15,

15. The Hon’ble Apex Court in case of Debendra Nath Padhi (supra), while examining the issue of when an accused would be entitled to file an application under Section 91 of Cr.P.C., had discussed the concept of “necessity‟ and “desirability‟ of production of a document or any other thing. The relevant observations of the Hon’ble Apex Court read as under:
“25. Any document or other thing envisaged under the aforesaid provision can be ordered to be produced on finding that the same is “necessary or desirable for the purpose of investigation, inquiry, trial or other proceedings under the Code”.
The first and foremost requirement of the section is about the document being necessary or desirable. The necessity or desirability would have to be seen with reference to the stage when a prayer is made for the production. If any document is necessary or desirable for the defence of the accused, the question of invoking Section 91 at the initial stage of framing of a charge would not arise since defence of the accused is not relevant at that stage. When the section refers to investigation, inquiry, trial or other proceedings, it is to be borne in mind that under the section a police officer may move the court for summoning and production of a document as may be necessary at any of the stages mentioned in the section. Insofar as the accused is concerned, his entitlement to seek order under Section 91 would ordinarily not come till the stage of defence. When the section talks of the document being necessary and desirable, it is implicit that necessity and desirability is to be examined considering the stage when such a prayer for summoning and production is made and the party who makes it, whether police or accused…”

Jaspreet Kaur Vs State of NCT of Delhi on 12 Dec 2023

Shades of Knife

True Colors of a Vile Wife

Tag: 1-Judge Bench Decision

Bharti Anand Vs Sushant Anand and Ors on 26 Apr 2022

Mohammed Yasin Naikwadi Vs Aneesa and Anr on 13 Dec 2023

Venus Remedies Ltd and Ors Vs State of Karnataka on 30 Oct 2023

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

Jaspreet Kaur Vs State of NCT of Delhi on 12 Dec 2023