Asfaq Alam Vs State of Jharkhand and Anr on 31 Jul 2023
Tag: 2-Judge (Division) Bench Decision
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
Lanka Venkateswarlu (D) by LRs Vs State of AP and Ors on 24 Feb 2011
A division bench of Supreme Court held as follows,
From Para 26,
26. We are at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. The concepts such as “liberal approach”, “justice oriented approach”, “substantial justice” can not be employed to jettison the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay. In our opinion, the approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis between the
parties. We are rather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court resorted to blatant sarcasms. The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases. Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections can not and should not form the basis of exercising discretionary powers.
Citations: [2011 SCALE 2 703], [2011 AIR SC 1199], [2011 AIR SC 1459], [2011 SUPREME 2 174], [2011 AIOL 144], [2011 SLT 2 378], [2011 BOMCR SC 5 857], [2011 JT 2 540], [2011 SCC 4 363], [2011 MHLJ SC 4 104], [2011 RCR CIVIL SC 2 880], [2011 ALR 86 59], [2011 AWC SC 3 2295], [2011 SCSUPPL CHN 2 130], [2011 CLT SC 112 152], [2011 KCCR SN 2 124], [2011 LW 3 26], [2011 SCR 3 2172909 CIVIL APPEAL NO OF 2913 2005], [2011 BOMCR 5 857], [2011 KCCRSN 2 124], [2011 RCR CIVIL 2 880], [2011 AIR SCW 1459]
Other Sources:
https://indiankanoon.org/doc/912526/
https://www.casemine.com/judgement/in/5609af08e4b0149711415652
https://vlex.in/vid/c-no-002909-002913-852352762
Dr. Ramkeshwar Singh Vs Sheela Singh on 13 Jul 2022
A division bench of High Court of Chhattisgarh held that the wife committed mental cruelty upon husband and therefore granted divorce to husband. But Court also ordered payment Rs.15,000/- per month to wife as alimony.
From Para 24,
24. The appellant is a Doctor and as stated during the course of hearing, the respondent wife is a private teacher. Therefore, facing a criminal case would always castigate a stigma in the Society. The report u/s 498-A of the IPC cannot be used as a tool to teach a lesson to the family members of the husband as it may adversely affect the future prospects of a young professional and it may take long time to fill up the gap. Therefore, we are of the opinion that false accusations made by the wife against the entire family members under section 498-A would amount to mental cruelty and such conduct of respondent wife which inflicts upon the appellant husband such mental pain and suffering would make it not possible for her to live with the appellant husband.
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.
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.
Jitendra Kumar Rode Vs Union of India on 24 Apr 2023
A division bench of Apex Court passed these guidelines, with respect to digitization of Court records in all High Courts as well as District Courts.
From Paras 39-42,
39. Before parting with the present leave petition another important issue must be dealt with, i.e. the digitization of records. Technology has, in the present time become increasingly enmeshed with the systems of dispute resolution and adjudication with the trends pointing leading to all the more interplay, both supplementary and complimentary between technology and law.
40. On 24.9.2021, the learned E-committee of the Supreme Court of India issued an SOP for digital preservation. Step by step implementation of the digitization process involves eighteen steps therein. Primarily, it requires all High Courts to establish Judicial Digital Repositories (JDR) as well as the
standardized system therefor; A digitisation cell at each of the High Courts is to be established to monitor the progress on day to day basis; It is the work of the cell to manage contracts with vendors for specialized services; an online data tracking system to keep track of the data transferred to the High Courts and to facilitate the receipts for each set of transferred records to the District Courts as well; District Courts to have backups
of all data transferred to the High Court on a monthly basis while maintaining an independent record thereof.
41. It cannot be doubted that had there been properly preserved records of the Trial Court, the issue in the present appeal as to whether the High Court could uphold a conviction having not perused the complete Trial Court record, would not have arisen. Judicial notice can be taken of the fact that, in accordance with the SOP issued, private entities providing specialized service have been contracted, and therefore considering the importance and essentiality of such record, a robust system of responsibility and accountability must be developed and fostered in order to ensure the proper protection and regular updation of all records facilitating the smooth functioning of the judicial process.
42. Therefore, this Court finds it fit to issue the following directions:
1. The Registrar General of the High Courts shall ensure that in all cases of criminal trial, as well as civil suits, the digitization of records must be duly undertaken with promptitude at all District Courts, preferably within the time prescribed for filing an appeal within the laws of procedure.
2. The concerned District Judge, once the system of digitization along with the system of authentication of the digitized records is in place in their judgeship, to ensure that the records so digitized are verified as expeditiously as possible.
3. A continually updated record of Register of Records digitized shall be maintained with periodic reports being sent to the concerned High Courts for suitable directions.
4. Interlocutory application(s), if any, shall stand disposed of.
Premchand Vs State of Maharashtra on 03 Mar 2023
A Division Bench of the Supreme Court held as follows regarding the purpose and import of Section 313 of Cr.P.C.,
From Para 15,
15. What follows from these authorities may briefly be summarized thus:
a. section 313, Cr. P.C. [clause (b) of sub-section 1] is a valuable safeguard in the trial process for the accused to establish his innocence;
b. section 313, which is intended to ensure a direct dialogue between the court and the accused, casts a mandatory duty on the court to question the accused generally on the case for the purpose of enabling him to personally explain any circumstances appearing in the evidence against him;
c. when questioned, the accused may not admit his involvement at all and choose to flatly deny or outrightly repudiate whatever is put to him by the court;
d. the accused may even admit or own incriminating circumstances adduced against him to adopt legally recognized defences;
e. an accused can make a statement without fear of being cross-examined by the prosecution or the latter having any right to cross-examine him;
f. the explanations that an accused may furnish cannot be considered in isolation but has to be considered in conjunction with the evidence adduced by the prosecution and, therefore, no conviction can be premised solely on the basis of the section 313 statement(s);
g. statements of the accused in course of examination under section 313, since not on oath, do not constitute evidence under section 3 of the Evidence Act, yet, the answers given are relevant for finding the truth and examining the veracity of the prosecution case;
h. statement(s) of the accused cannot be dissected to rely on the inculpatory part and ignore the exculpatory part and has/have to be read in the whole, inter alia, to test the authenticity of the exculpatory nature of admission;
i. if the accused takes a defence and proffers any alternate version of events or interpretation, the court has to carefully analyze and consider his statements; and
j. any failure to consider the accused’s explanation of incriminating circumstances, in a given case, may vitiate the trial and/or endanger the conviction.
From Para 16,
16. Bearing the above well-settled principles in mind, every criminal court proceeding under clause (b) of sub-section (1) of section 313 has to shoulder the onerous responsibility of scanning the evidence after the prosecution closes its case, to trace the incriminating circumstances in the evidence against the accused and to prepare relevant questions to extend opportunity to the accused to explain any such circumstance in the evidence that could be used against him. Prior to the amendment of section 313 in 2009, the courts alone had to perform this task. Instances of interference with convictions by courts of appeal on the ground of failure of the trial court to frame relevant questions and to put the same to the accused were not rare. For toning up the criminal justice system and ensuring a fair and speedy trial, with emphasis on cutting down delays, the Parliament amended section 313 in 2009 and inserted sub-section (5), thereby enabling the court to take the assistance of the Public Prosecutor and Defence Counsel in preparing such questions [the first part of sub-section (5)]. Ideally, with such assistance (which has to be real and not sham to make the effort effective and meaningful), one would tend to believe that the courts probably are now better equipped to diligently prepare the relevant questions, lest there be any infirmity. However, judicial experience has shown that more often than not, the time and effort behind such an exercise put in by the trial court does not achieve the desired result. This is because either the accused elects to come forward with evasive denials or answers questions with stereotypes like ‘false’, ‘I don’t know’, ‘incorrect’, etc. Many a time, this does more harm than good to the cause of the accused. For instance, if facts within the special knowledge of the accused are not
satisfactorily explained, that could be a factor against the accused. Though such factor by itself is not conclusive of guilt, it becomes relevant while considering the totality of the circumstances. A proper explanation of one’s conduct or a version different from the prosecution version, without being obliged to face cross-examination, could provide the necessary hint or clue for the court to have a different perspective and solve the problem before it. The exercise under section 313 instead of being ritualistic ought to be realistic in the sense that it should be the means for securing the ends of justice; instead of an aimless effort, the means towards the end should be purposeful. Indeed, it is optional for the accused to explain the circumstances put to him under section 313, but the safeguard provided by it and the valuable right that it envisions, if availed of or exercised, could prove decisive and have an effect on the final outcome, which would in effect promote utility of the exercise rather than its futility.
From Para 17,
17. Once a written statement is filed by the accused under subsection (5) of section 313, Cr. P.C. and the court marks it as an exhibit, such statement must be treated as part of the accused’s statement under sub-section (1) read with sub-section (4) thereof. In view of the latter sub-section, the written statement has to be considered in the light of the evidence led by the prosecution to appreciate the truthfulness or otherwise of such case and the contents of such statement weighed with the probabilities of the case either in favour of the accused or against him.
