Anupati Rajesh Vs Peruboina Anusha Sai on 05 Feb 2024

Posted on February 19, 2024 by ShadesOfKnife

A perverse order passed by the AP High Court, totally bypassing the intent of the Apex Court is prescribing the guidelines in Rajnesh Vs Neha decision here.

From Paras 6-7,

6. Learned counsel for the revision petitioner submitted that the court below erred in allowing the petition even without filing the statement of assets and liabilities and further that the respondent herself deserted the petitioner and yet, sought maintenance, and therefore, she is not entitled to claim any interim maintenance. It is also submitted by him that without there being any evidence of income of the petitioner, the Court below granted interim maintenance of exorbitant amount, which is unsustainable. In support of his contentions, learned counsel placed reliance on the decision of the Supreme Court in Rajnesh Vs. Neha and others1, wherein at paragraph No.99, it was held as follows:
“99. The Affidavit of Disclosure of Assets and Liabilities annexed as Enclosures I, II and III of this judgment, as may be applicable, shall be filed by both parties in all maintenance proceedings, including pending proceedings before the concerned Family Court/District Court/Magistrates Court, as the case may be, throughout the country.”
7. On the other hand, learned counsel for the respondent submitted that the petitioner has not raised any objection before the trial Court about the statement to be filed nor did he file any such statement. He further submitted that the petitioner herein did not dispute his income in the counter filed by him and further, after considering the facts and allegations submitted on both sides, the impugned order was passed by the Court below, and therefore, the same does not require any interference.

From Paras 9-11,

9. The petitioner herein has not raised any objection that the interim order cannot be granted in view of non-filing of such a statement by the respondent herein. As such, the trial Court had no opportunity to decide on that aspect. Hence, the petitioner cannot contend that the impugned order is illegal on that ground.
10. As rightly contended, the petitioner herein in his counter did not specifically deny his earnings and he merely stated that the respondent/wife did not file any proof in support of the income stated in the petition. Therefore, the trial Court has rightly taken the earning capacity of the revision petitioner into consideration while fixing the quantum of maintenance.
11. Insofar as the question of desertion by the respondent herein is concerned, it is a matter of enquiry after full-fledged trial and prima facie there is no material on record to support the contention of the petitioner herein that the respondent herself deserted the petitioner as contended.

Anupati Rajesh Vs Peruboina Anusha Sai on 05 Feb 2024

Index of all maintenance cases is here.

Chatter Pal and Ors Vs State and Anr on 16 May 2023

Posted on February 19, 2024 by ShadesOfKnife

A single judge bench of Delhi High Court passed these guidelines to the Mediators…

From Para 42,

(b) Guidelines Apropos Drafting A Settlement Agreement in Matrimonial Disputes with Special Reference to Clauses dealing with Criminal Cases
42. Having discussed the significance of process of mediation in resolution of a dispute, especially those arising out of family and matrimonial cases, and having taken note of complexities that can arise due to inadequate drafting, inconsistencies, omissions or oversights within a settlement agreement achieved between parties subsequent to a successful mediation, this Court deems it appropriate to lay down following guidelines in relation to drafting of a Mediated Settlement Agreement, in addition to the guidelines laid down:
(i) Specify Names of Parties: The agreement must specifically contain names of all the parties to the agreement.
(ii) Avoid Ambiguous Terms: The terms such as ‘respondent’, ‘respondents’, ‘petitioner’ or ‘petitioners’, in absence of their names in the agreement must be avoided in an agreement as it leads to ambiguities and further litigation.
(iii) Include All Details: The terms and conditions of the agreement reached between the parties, howsoever small and minute they may be, must be incorporated in the agreement.
(iv) Timeline For Compliance: The timeline of the fulfilment of terms and conditions as well as their execution must be clearly mentioned. There should be no tentative dates as far as possible.
(v) Default Clause: A default clause should be incorporated in the agreement and the consequences thereof should be explained and enlisted in the agreement itself.
(vi) Mode of Payment: In case any payment is to be made as per settlement, the agreement should specify the method of payment agreed upon between the parties which should also be as per their convenience i.e. electronic mode, by way of a Demand Draft or FDR and the necessary details for fulfilment of this condition.
(vii) Follow-Up Documents: The agreement should also stipulate as to which Follow-up documents are to be prepared and signed by which party. It may also be mentioned as to when, where, how and at whose cost such documents are to be prepared in furtherance of the terms of the agreement, as far as possible.
(viii) Cases involving 498A IPC: Further, especially in cases of matrimonial disputes, where one of the conditions in the Agreement is to cooperate in quashing of FIR, such as those under Section 498A IPC, and filing of affidavit and appearing in the Court for the purpose of the same, it is advisable that the agreement must stipulate the names of all the parties concerned who have been named in the FIR specifically and the fact that the claims have been settled in totality for quashing of entire FIR and proceedings emanating therefrom qua all persons named in the FIR. It be also clarified specifically that the FIR will be quashed in totality against all the persons arrested, not arrested, chargesheeted, not chargesheeted, with their names and whether the entire FIR will be quashed against all of them upon payment by husband or any other person on behalf of the husband.
(ix) Criminal Complaints/Cross-cases: Criminal Complaints filed by parties against each other, pending trial or investigation should also find specific mention with names of all the parties, the Court concerned, and as to how the parties intend to deal with them. The number/details of the complaint, FIR, Sections under which they have been filed, should also be mentioned specifically.
(x) Read and Understood: The agreement should necessarily mention that all the parties have read and understood the contents of the settlement agreement in their vernacular language.
(xi) Signing of Agreement: In case only one or some parties are present during mediation proceedings and only their signatures are obtained on the agreement, it be clearly mentioned and clarified that the agreement is being signed on behalf of those relatives or parties also even in case they are not present, in case the agreement is qua them too and they are not present in person due to age, ailment, distance or any other reason. It is important to do so since in matrimonial offences, the near and distant relatives may, due to above reasons, not be present in person but agreements are reached in totality, especially regarding quashing of FIRs and criminal proceedings and withdrawal of complaints.
(xii) Clarity of Language: At last, the language used in a settlement agreement must be definite enough to understand the real intention of the parties and the goals they wish to achieve by entering into the agreement.

Chatter Pal and Ors Vs State and Anr on 16 May 2023

Kinjal Jayesh Mehta Vs Disha Jimit Sanghvi and Anr on 14 Feb 2024

Posted on February 15, 2024 by ShadesOfKnife

A single judge of Bombay High Court held as follows,

From Para 12,

12. The issue presented for consideration is whether the Petitioner who is the married sister in law of the aggrieved person and admittedly residing in her own matrimonial house can be stated to be in a domestic relationship within the meaning of Section 2 (f) of the D.V. Act particularly when the marriage of the Petitioner has taken place prior to the marriage of the Respondent No.1. While deciding the above issue the incidental issue to be decided is whether the allegation in the application that the Petitioner used to spend her whole day in the shared household is sufficient to constitute domestic relationship between the aggrieved person and the Petitioner.
13. The relationship between the parties inter se is not disputed neither the factum of the Petitioner’s marriage being solemnised prior to the marriage of the Respondent No 1. The separate residence of the Petitioner at her matrimonial house is also borne out from the address of the Petitioner given in the domestic violence application which is different from the address of the shared household.

From Para 16,

16. The facts of the instant case makes it evident that the Petitioner and the Respondent No 1 never resided together in the shared household i.e. the matrimonial house of the Respondent No.1 at “Siddesh Jyoti Tower”. To salvage the situation, given the above noted admitted position, Mr. Desai would contend that the decision of Apex Court in Prabha Tyagi (supra) as well as the decision in Rashmi Mehrotra (supra) has held that it was not mandatory for the aggrieved person to have actually resided with those persons against whom the allegations have been levelled. I am unable to subscribe to the reading of the decision of the Apex Court as desired by Mr.Desai. The decision in the case of Prabha Tyagi (supra) is being read by Mr. Desai dehors the facts of that case which are completely distinguishable.

From Para 20,

20. The law laid down by the Apex Court in Prabha Tyagi (supra) will not assist the case of Respondent No 1 as the Petitioner is the married sister-in-law residing in her own matrimonial house and it cannot be said that the right of the aggrieved person to reside in the shared household would constitute a subsisting domestic relationship with the Petitioner. It would have been a different matter if the Petitioner was unmarried and was residing in the shared household in which case considering the right to reside conferred by Section 17(1) of the D.V. Act, the aggrieved person could have been said to be in subsisting domestic relationship with the Petitioner even if the parties had never resided together in the shared household. It is the right of the aggrieved person to reside in the shared household which constitutes domestic relationship between the aggrieved person and persons residing in the shared household. However, such are not the facts in the instant case as Petitioner is residing separately in her matrimonial house.

From Para 23,

23. Now coming to the pleadings in the application, it is pleaded by the Respondent No 1 that the Petitioner was spending her whole day in the shared household. The said pleading finds place in the paragraph describing the inter se relationship between the aggrieved person and the Respondents. The other pleading is that the Petitioner everyday used to come to the shared household at 2:00 p.m. and leave at around 8:00 p.m. The marriage of the Respondent No.1 was solemnized on 20th November, 2021 and has claimed to be dispossessed on 30th January, 2022. The pleadings as regards the visits of the Petitioner do not indicate an element of permanency sufficient enough to constitute domestic relationship even if it is accepted that the Petitioner was spending her entire day in the shared household.

Finally, from Para 27,

27. In view of the discussion above, in my view, there was no subsisting domestic relationship between the Petitioner and the Respondent No 1 and the Petitioner could not have been arrayed as Respondent in the D.V. application. The mere visits of the Petitioner to the shared household being devoid of any permanency is not sufficient and adequate to constitute residence in shared household. Even otherwise considering the pleadings in the applications read with the reliefs, there is no case of domestic violence made out qua the Petitioner.

Kinjal Jayesh Mehta Vs Disha Jimit Sanghvi and Anr on 14 Feb 2024

Index of DV cases is here.

M.R.Somasundaram and Ors Vs B Rahini and Anr on 12 Dec 2023

Posted on February 12, 2024 by ShadesOfKnife

A single judge of Madras High Court at Madurai bench held as follows, while relying on Kunapareddy case,

From Para 10,

10. Considering the above, the petitioners are entitled to approach the concerned Magistrate Court itself and raise the issue of maintainability and other preliminary issues and if such an application is filed, the learned Magistrate shall decide the same as per the decision of the Hon’ble Supreme Court in Kunapareddy @ Nookala Shanka Balaji Vs. Kunapareddy Swarna Kumari and another reported in (2016) 11 SCC 774.

M.R.Somasundaram and Ors Vs B Rahini and Anr on 12 Dec 2023

Index of DV cases is here.

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.

Shades of Knife

True Colors of a Vile Wife

Tag: 1-Judge Bench Decision

Anupati Rajesh Vs Peruboina Anusha Sai on 05 Feb 2024

Chatter Pal and Ors Vs State and Anr on 16 May 2023

Kinjal Jayesh Mehta Vs Disha Jimit Sanghvi and Anr on 14 Feb 2024

M.R.Somasundaram and Ors Vs B Rahini and Anr on 12 Dec 2023

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