N Syamasundara Naidu Vs Dakshinamoorthy and Ors on 21 Jun 2022

Posted on May 29, 2024 by ShadesOfKnife

A single judge of Madras High Court held as follows,

From Paras 5 and 6,

5. The Hon’ble Supreme Court of India in Shiv Kumar Vs. Hukam Chand and Another3, after considering the nature of Sections 301 and 302 of the Code of Criminal Procedure, categorically held that a reading of the Sections 301 and 302 of the Code of Criminal Procedure, it would be clear that Section 302 of the Code of Criminal Procedure would be applicable for the Magistrate Court and Section 301 of the Code of Criminal Procedure will be applicable only for the other Courts. It is useful to extract the paragraph No.12 of the said judgment, which reads as follows:-
“ 12. In the backdrop of the above provisions we have to understand the purport of Section 301 of the Code. Unlike its succeeding provision in the Code, the application of which is confined to Magistrate Courts, this particular section is applicable to all the courts of criminal jurisdiction. This distinction can be discerned from employment of the words “any court” in Section 301. In view of the provision made in the succeeding section as for Magistrate Courts the insistence contained in Section 301(2) must be understood as applicable to all other courts without any exception.”
Therefore, the entire reasoning, which is based on Section 301 of the Code of Criminal Procedure, is unsustainable as it is not applicable to the Magistrate Courts.
6. Secondly, the passage extracted by the learned Magistrate from the judgment of Rekha Murarka Vs. The State of West Bengal (cited supra), which is reproduced hereunder, reads as follows:-
“12.5. However, even if there is a situation where the Public Prosecutor fails to highlight some issue of importance despite it having been suggested by the victim’s counsel, the victim’s counsel may still not be given the unbridled mantle of making oral arguments or examining witnesses. This is because in such cases, he still has a recourse by channelling his questions or arguments through the Judge first. For instance, if the victim’s counsel finds that the Public Prosecutor has not examined a witness properly and not incorporated his suggestions either, he may bring certain questions to the notice of the Court. If the Judge finds merit in them, he may take action accordingly by invoking his powers under Section 311 of the CrPC or Section 165 of the Indian Evidence Act, 1872. In this regard, we agree with the observations made by the Tripura High Court in Smt. Uma Saha v. State of Tripura 2014 SCC OnLine Tri 859 that the victim’s counsel has a limited right of assisting the prosecution, which may extend to suggesting questions to the Court or the prosecution, but not putting them by himself.”
(Emphasis supplied)
Thus, it may be seen that even in the said case, it has been held that the victim‘s learned Counsel cannot take the role of conducting the prosecution himself by examining the witnesses or making arguments, but, certainly, it would be within his right to bring it to the notice of the Court and if the learned Judge finds merits in any of the shortcomings complained, it is the Court which invokes its powers and acts accordingly. In the instant case also, P.W.1, victim, has filed an application bringing to the notice of the Court about the fact that certain specific charges are omitted to be framed, arising out of the self-same allegations, for which there need not be further investigation or additional evidence and therefore, it is for the Court to consider the same on merits. Therefore, on the mere reason that same is not emanating from the learned Public Prosecutor/Police, it cannot be thrown out. Therefore, the order of the learned Magistrate is unsustainable.

N Syamasundara Naidu Vs Dakshinamoorthy and Ors on 21 Jun 2022

Citations:

Other Sources:

Shrikrishna Vs Sunita Bai on 02 May 2024

Posted on May 11, 2024 by ShadesOfKnife

A single judge of MP High Court at Indore bench held as follows,

From Para 13,

13. From the record, it is evident that learned JMFC has passed the order by dismissing the application under Section 125 of Cr.P.C. on the ground that
since the respondent did not get divorce from her earlier husband and without getting divorce she entered into second marriage. Hence, she cannot be
ascertained as a legally wedded wife of the petitioner and she is not entitled for the claim of maintenance.

From Paras 15-18,

15. It is unearthed from the aforesaid provision that an illegitimate child is entitled to get maintenance but an illegitimate wife is not entitled to get maintenance. The intention of legislature is obvious that maintenance can only be granted in favour of legally wedded wife. On this issue the law laid down by the full Bench in the case of Savitaben Somabhai Bhatia vs. State of Gujarat and Ors. reported as 2005 Lawsuit (SC) 466, is also poignant to be pointed out here:
“There may be substance in the plea of learned counsel for the appellant that law operates harshly against the woman who unwittingly gets into relationship with a married man and Section 125 of the Code does not give protection to such woman. This may be an inadequacy in law, which only the legislature can undo. But as the position in law stands presently there is no escape from the conclusion that the expression ‘wife’ as per Section 125 of the Code refers to only legally married wife.“
16. In view of aforesaid settled propositions and provisions of law, it is crystal clear that the wife should be a “legally wedded wife” for claiming maintenance from her husband. A woman, having solemnized second marriage to another person is only entitled to get maintenance from that person, when the first marriage has been declared either null and void or she has obtained a divorce decree from her first husband. The aforesaid view has recently been endorsed by this Court in the cases of Sangeeta Rathore W/o Naresh Rathore Vs. Naresh Rathore, 2023 LawSuit (MP) 470 and Kewal Singh Vs. Durgabai, 2024 LawSuit (MP) 179.
17. In conspectus of the aforesaid settled proposition, in this petition filed under Section 125 Cr.P.C., the term “wife” under Section 125 Cr.P.C. envisages a situation wherein she, having a living spouse, cannot seek maintenance from her second husband without getting divorce from her earlier husband. Nevertheless, this Court finds it unfortunate that many women, specially those belonging to the poorer strata of society, are routinely exploited in this manner, and that legal loopholes allow the offending parties to slip away unscathed and unquestioned. In spite of the social justice factor embedded in Section 125 Cr.P.C., the objective of the provision is frustrated as it fails to arrest the exploitation which it seeks to curb. In the instant case, while the Court sympathizes with the position of the Respondent, it is constrained to deny her maintenance as per the law of the land which stands as of today. However, the Respondent has the liberty to avail other remedies that may be better suited to the facts and circumstances of this case, such as seeking of compensation under Section 22 of the D.V. Act.
18. In the result thereof, the order of the learned Revisional Court awarding the maintenance to the respondent is found against the law and is also suffering from infirmity and illegality. Accordingly, the impugned order of the learned Revisional Court is set aside and the order of learned trial Court dated 06.09.2021 is hereby affirmed.

Shrikrishna Vs Sunita Bai on 02 May 2024

Index of Maintenance cases u/s 125 CrPC is here.

Achin Gupta Vs State of Haryana and Anr on 03 May 2024

Posted on May 4, 2024 by ShadesOfKnife

A division bench of the Apex Court held as follows,

From Para 31-32,

31. We are of the view that the category 7 referred to above should be taken into consideration and applied in a case like the one on hand a bit liberally. If the Court is convinced by the fact that the involvement by the complainant of her husband and his close relatives is with an oblique motive then even if the FIR and the chargesheet disclose the commission of a cognizable offence the Court with a view to doing substantial justice should read in between the lines the oblique motive of the complainant and take a pragmatic view of the matter. If the submission canvassed by the counsel appearing for the Respondent No. 2 and the State is to be accepted mechanically then in our opinion the very conferment of the inherent power by the Cr.P.C. upon the High Court would be rendered otiose. We are saying so for the simple reason that if the wife on account of matrimonial disputes decides to harass her husband and his family members then the first thing, she would ensure is to see that proper allegations are levelled in the First Information Report. Many times the services of professionals are availed for the same and once the complaint is drafted by a legal mind, it would be very difficult thereafter to weed out any loopholes or other deficiencies in the same. However, that does not mean that the Court should shut its eyes and raise its hands in helplessness, saying that whether true or false, there are allegations in the First Information Report and the chargesheet papers disclose the commission of a cognizable offence. If the allegations alone as levelled, more particularly in the case like the one on hand, are to be looked into or considered then why the investigating agency thought fit to file a closure report against the other co-accused? There is no answer to this at the end of the learned counsel appearing for the State. We say so, because allegations have been levelled not only against the Appellant herein but even against his parents, brother & sister. If that be so, then why the police did not deem fit to file chargesheet against the other co-accused? It appears that even the investigating agency was convinced that the FIR was nothing but an outburst arising from a matrimonial dispute.
32. Many times, the parents including the close relatives of the wife make a mountain out of a mole. Instead of salvaging the situation and making all possible endeavours to save the marriage, their action either due to ignorance or on account of sheer hatred towards the husband and his family members, brings about complete destruction of marriage on trivial issues. The first thing that comes in the mind of the wife, her parents and her relatives is the Police, as if the Police is the panacea of all evil. No sooner the matter reaches up to the Police, then even if there are fair chances of reconciliation between the spouses, they would get destroyed. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences are mundane matters and should not be exaggerated and blown out of proportion to destroy what is said to have been made in the heaven. The Court must appreciate that all quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case, always keeping in view the physical and mental conditions of the parties, their character and social status. A very technical and hyper sensitive approach would prove to be disastrous for the very institution of the marriage. In matrimonial disputes the main sufferers are the children. The spouses fight with such venom in their heart that they do not think even for a second that if the marriage would come to an end, then what will be the effect on their children. Divorce plays a very dubious role so far as the upbringing of the children is concerned. The only reason why we are saying so is that instead of handling the whole issue delicately, the initiation of criminal proceedings would bring about nothing but hatred for each other. There may be cases of genuine ill-treatment and harassment by the husband and his family members towards the wife. The degree of such ill-treatment or harassment may vary. However, the Police machinery should be resorted to as a measure of last resort and that too in a very genuine case of cruelty and harassment. The Police machinery cannot be utilised for the purpose of holding the husband at ransom so that he could be squeezed by the wife at the instigation of her parents or relatives or friends. In all cases, where wife complains of harassment or ill-treatment, Section 498A of the IPC cannot be applied mechanically. No FIR is complete without Sections 506(2) and 323 of the IPC. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty.

From Para 35,

35. In one of the recent pronouncements of this Court in Mahmood Ali & Ors. v. State of U.P & Ors., 2023 SCC OnLine SC 950, authored by one of us (J.B. Pardiwala, J.), the legal principle applicable apropos Section 482 of the CrPC was examined. Therein, it was observed that when an accused comes before the High Court, invoking either the inherent power under Section 482 CrPC or the extraordinary jurisdiction under Article 226 of the Constitution, to get the FIR or the criminal proceedings quashed, essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive of wreaking vengeance, then in such circumstances, the High Court owes a duty to look into the FIR with care and a little more closely. It was further observed that it will not be enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not as, in frivolous or vexatious proceedings, the court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection, to try and read between the lines.

Achin Gupta Vs State of Haryana and Anr on 03 May 2024

Index of Quash judgments is here.

K Sreekanth Naik Vs P Nalini and Anr on 25 Apr 2024

Posted on May 3, 2024 by ShadesOfKnife

A single judge bench of Andhra Pradesh High Court held that an Order for Maintenance passed without adhering to the guidelines issued by Apex Court in Rajnesh Vs Neha is liable to be set aside.

From Para 5,

5. During the hearing, it is brought to the notice of the Court that both parties have not complied with the directions of the Hon’ble Apex Court enunciated in the judgment of Rajnesh V. Neha & Anr.,1 concerning the filing of affidavits disclosing the assets and liabilities. Considering the submissions made, I have gone through the observations in Rajnesh V. Neha (cited supra) case. The said judgment has brought revolutionary change in the procedure to be followed by the Courts in dealing with the applications filed under Chapter IX of the Cr.P.C. 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 Cr.P.C., or for Contempt of Court.

From Paras 7-14,

7. The aforesaid Judgment in the case of Rajnesh (cited supra) has been recently reiterated by the Hon’ble Supreme Court in the case of Aditi alias Mithi V. Jitesh Sharma 2 and 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.
8. It is acknowledged that both parties have failed to submit the affidavits disclosing their assets and liabilities. Learned counsel for the Petitioner has relied on the decision of High Court of Patna in between Gitanjali Devi @ Gitanjali Kumari V. State of Bihar and another3, wherein, it is observed that the impugned order of granting maintenance amount is liable to be set aside for the reason that it has not followed the procedure prescribed by the Hon’ble Apex Court.
9. By following the principles laid down in the Aditi alias Mithi’s case cited supra, the High Court of Madras in Balram Dixit V. Smt. Kiran Dixit and another (Criminal Revision No.1255 of 2023, dated 17.01.2024) also set aside the maintenance awarded by the learned Principal Judge, Family Court,Gwalior and further directed the both parties to submit fresh affidavits of disclosure of assets and liabilities with complete particulars in compliance with the directions of the Hon’ble Supreme Court laid down in the case of Rajnesh’s case cited supra.
10. Learned counsels representing both sides submit that because of lack of proper instructions, both parties could not comply with the directions of the Hon’ble Apex Court and at present, they are ready to comply with the observations made in the judgments referred to supra, by filing the affidavits and both parties submits that the Respondent-husband is paying interim maintenance amount @ Rs.8,000/- per month vide orders dated 26.09.2019 in Crl.M.P.No.39 of 2019 in F.C.O.P.No.183 of 2018 and he is ready to pay such maintenance amount during the pendency of FCOPs and after its restoration.
11. In view of the same, this Court refrains from delving into the merits of the case at this juncture, as the impugned order passed in F.C.O.P.No.183 of 2018 is liable to be set aside for the reason that it has not followed the procedures prescribed by the Hon’ble Apex Court.
12. The impugned order passed in F.C.O.P.No.183 of 2018, is accordingly, set aside and the matter is remitted back to the learned Judge, Family Court – cum – VII Additional District Judge, Ananthapuramu for fresh consideration and by following the procedures which are laid down in the judgment of the Hon’ble Supreme Court.
13. This Court further directs the both parties to submit affidavits disclosing their assets and liabilities, giving complete particulars, in accordance with the directives of the Hon’ble Apex Court as laid down in the case of Rajnesh (supra) before the Family Court. The Family Court must ensure strict adherence to these guidelines. If any of the affidavits are found to be lacking in necessary particulars, the learned Judge shall direct to produce the relevant information from the respective party.
14. The Family Court shall dispose of the F.C.O.P.No.183 of 2018 afresh after giving reasonable opportunity to both parties to let in further evidence, if any. In the meantime, the Respondent-husband is directed to pay maintenance amount of Rs.8,000/- per month to the Petitioner-wife till the disposal of the FCOP. Both parties are directed to bear their own costs.

K Sreekanth Naik Vs P Nalini and Anr on 25 Apr 2024

Disclaimer: This is a case that I handled myself for the husband. This is my first reportable judgment.

Citations: [2024 Latest Caselaw 3581 AP]

Other Sources:

https://indiankanoon.org/doc/7473550/

https://www.casemine.com/judgement/in/671c878cafb795648bb5985d

https://mynation.net/docs/1098-2023/

https://latestlaws.com/judgements/andhra-high-court/2024/april/2024-latest-caselaw-3581-ap

Index of Maintenance cases under section 125 CrPC is here.

Abhishek Gour Vs State of MP on 31 Aug 2023

Posted on March 20, 2024 by ShadesOfKnife

A full bench of the Apex Court passed this order,

From Para 8, (Police merely replicated the contents of the FIR and added nothing further on the strength of their investigation, observes Supreme Court of India, karma!)

8. Om Prakash, Bhawna’s father, also made a statement before the police on 08.09.2013 on the same lines. He said that her marriage was performed at Indore on 02.07.2007 and as per his status, he had given cash,gold, jewellery, clothes etc., totalling to ₹.5 lakhs, in dowry. He said that, whenever Bhawna came to meet them, she used to tell him and all the neighbours that her husband, Nimish, mother-in-law, Kusum Lata, and brothers-in-law, Abhishek and Sourabh, used to tell her that her father had given nothing in dowry and when she went to her parental home, she should bring .2 lakhs in cash, a car and gold jewellery. ₹ He stated that they had been harassing his daughter mentally and physically for dowry. He alleged that, on Karvachauth day, Bhawna’s mother-in-law had demanded 100 sarees but he had refused. Renubala, Bhawna’s mother, also made a statement on 08.09.2013 on identical lines. Two of their neighbours, Sushila Bai andMohan, also gave statements on the same day, supporting Bhawna’s version. According to them, whenever Bhawna came to meet her parents, she used to tell them that her in-laws were torturing her mentally and physically for dowry.On the other hand, Shailendra and Radhey Shyam, who lived in the neighbourhood where Nimish’s father had his residence, stated to the effect that there were no demands made of Bhawna or her family for dowry and that she was never harassed on that ground. In their final report dated20.09.2013, the police merely replicated the contents of the FIR and added nothing further on the strength of their investigation.

From Para 9, (Attempts to terrorize)

9. Certain other facts are also of pertinence and may be noted. Abhishek entered judicial service as a Civil Judge six or seven months after the marriage of Bhawna with Nimish. He was posted at Ujjain and, thereafter,at Neemuch in Madhya Pradesh. Kusum Lata used to reside with Abhishek. Saurabh, Bhawna’s other brother-in-law, is an architect and was working at Delhi since the year 2007. Nimish made written representations to the police authorities at Narsinghpur on 09.09.2012 and 17.11.2012 complaining of intimidation by and at the behest of Bhawna. Prior thereto, an anonymous complaint was made to the Chief Justice, Madhya Pradesh High Court, against Abhishek, making scandalous allegations to the effect that he was undeserving of judicial office. A complaint was also made to the Anti-Corruption Bureau, Mumbai, purportedly in the name of one Sanyogita Mishra. Again, the allegations therein were directed against Abhishek.

From Para 11,

11. This being the factual backdrop, we may note at the very outset that the contention that the appellants’ quash petition against the FIR was liable to be dismissed, in any event, as the chargesheet in relation thereto was submitted before the Court and taken on file, needs mention only to be rejected. It is well settled that the High Court would continue to have the power to entertain and act upon a petition filed under Section 482 Cr.P.C. to quash the FIR even when a chargesheet is filed by the police during the pendency of such petition [See Joseph Salvaraj A. vs. State of Gujarat and others {(2011) 7 SCC 59}]. This principle was reiterated in Anand Kumar Mohatta and another vs. State (NCT of Delhi), Department of Home and another [(2019) 11 SCC 706]. This issue, therefore, needs no further elucidation on our part.

From Para 13,

13. Instances of a husband’s family members filing a petition to quash criminal proceedings launched against them by his wife in the midst of matrimonial disputes are neither a rarity nor of recent origin. Precedents aplenty abound on this score. We may now take note of some decisions of particular relevance. Recently, in Kahkashan Kausar alias Sonam and others vs. State of Bihar and others [(2022) 6 SCC 599], this Court had occasion to deal with a similar situation where the High Court had refused to quash a FIR registered for various offences, including Section 498A IPC. Noting that the foremost issue that required determination was whether allegations made against the in-laws were general omnibus allegations which would be liable to be quashed, this Court referred to earlier decisions wherein concern was expressed over the misuse of Section 498A IPC and the increased tendency to implicate relatives of the husband in matrimonial disputes. This Court observed that false implications by way of general omnibus allegations made in the course of matrimonial disputes, if left unchecked, would result in misuse of the process of law. On the facts of that case, it was found that no specific allegations were made against the in-laws by the wife and it was held that allowing their prosecution in the absence of clear allegations against the in-laws would result in an abuse of the process of law. It was also noted that a criminal trial, leading to an eventual acquittal, would inflict severe scars upon the accused and such an exercise ought to be discouraged.

From Para 21, (unexplained delay)

21. Most damaging to Bhawna’s case is the fact that she did nothing whatsoever after leaving her matrimonial home in February, 2009, and filed a complaint in the year 2013 alleging dowry harassment, just before her husband instituted divorce proceedings.

Abhishek Gour Vs State of MP on 31 Aug 2023

Index of Quash judgments is here.

Savitri Pandey Vs Prem Chandra Pandey on 8 Jan 2002

Posted on March 13, 2024 by ShadesOfKnife

A division bench of Apex Court held as follows, (with regards to Cruelty)

From Para 6,

6. Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. “Cruelty”, therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other.

From Para 19, (with regards to the time limit to file an appeal against an Order of Family Court)

At this stage we would like to observe that the period of limitation prescribed for filing the appeal under Section 28(4) is apparently inadequate which facilitates the frustration of the marriages by the unscrupulous litigant spouses. In a vast country like ours, the powers under the Act are generally exercisable by the District Court and the first appeal has to be filed in the High Court. The distance, the geographical conditions, the financial position of the parties and the time required for filing a regular appeal, if kept in mind, would certainly show that the period of 30 days prescribed for filing the appeal is insufficient and inadequate. In the absence of appeal, the other party can solemnise the marriage and attempt to frustrate the appeal right of the other side as appears to have been done in the instant case. We are of the opinion that a minimum period of 90 days may be prescribed for filing the appeal against any judgment and decree under the Act and any marriage solemnised during the aforesaid period be deemed to be void. Appropriate legislation is required to be made in this regard. We direct the Registry that the copy of this judgment may be forwarded to the Ministry of Law & Justice for such action as it may deem fit to take in this behalf.

This judgment led to the passing of amendment here.

Savitri Pandey Vs Prem Chandra Pandey on 8 Jan 2002

Citations: [AIR 2002 SUPREME COURT 591], [2002 (2) SCC 73], [2002 AIR SCW 182], [2002 ALL. L. J. 355], [2002 ALL CJ 1 122], [2002 (2) SRJ 553], [2002 (1) SLT 103], [(2002) 1 ALL WC 472], [(2002) 1 JCR 377 (SC)], [2002 (1) LRI 28], [(2002) 1 JT 25 (SC)], [2002 (1) UJ (SC) 273], [(2002) 1 MARRILJ 277], [2002 (1) ALL CJ 22], [2002 UJ(SC) 1 273], [2002 (1) BLJR 378], [(2002) 3 CIVILCOURTC 318], [(2002) 1 RECCIVR 719], [(2002) 6 BOM CR 511], [(2002) 1 HINDULR 338], [(2002) 2 MAHLR 263], [(2002) 2 PAT LJR 256], [(2002) 2 JLJR 135], [(2002) 2 GUJ LR 1369], [(2002) 1 KER LJ 193], [(2002) WLC(SC)CVL 116], [(2002) 1 SCALE 33], [(2002) 1 RAJ LW 183], [(2002) 3 GUJ LH 470], [(2002) 1 DMC 177], [(2002) 1 ANDH LT 55], [(2002) 1 CURCC 7], [(2002) 22 OCR 280], [(2002) 1 UC 299], [(2002) 1 SCJ 6], [(2002) 46 ALL LR 465], [(2002) 2 CAL HN 50], [(2002) 2 BLJ 177], [(2002) 1 SUPREME 90], [(2002) MATLR 224], [2002 (1) MARR LJ 277], [(2002) 4 CURCRIR 254], [(2002) 1 CAL HN 124], [(2002) 1 ALLCRILR 658], [(2002) 1 CALLT 32]

Other Sources:

https://indiankanoon.org/doc/325522/

https://www.casemine.com/judgement/in/56e0f1ad607dba38965f8bcd

https://www.the-laws.com/Encyclopedia/browse/Case?caseId=002002900000&title=savitri-pandey-vs-prem-chandra-pandey

https://lawfyi.io/savitri-pandey-vs-prem-chandra-pandey-on-8-january-2002-case-summary/

https://www.indianemployees.com/judgments/details/savitri-pandey-vs-prem-chandra-pandey

http://roundup.manupatra.in/trans/viewdoc.aspx?i=ptiDy4oUEz7W4RhahAaT6h93RFUeTV40hI1vo81W7g5uCfRP5tL0pktJVchar(43)F5g3qk&id=zwKDa4S8QbBCBSkXPhUPwY5CqQmaAQ/9fT/TmfIpDN9bjNPkWKzs5n8Hchar(43)U/Dqe21io8GIp7cHk/RGFLXdXEB6A==

Index of Divorce judgments is here.

Gaurav Nighawan Vs Shweta on 05 Jan 2024

Posted on March 13, 2024 by ShadesOfKnife

A division bench of Delhi High Court held as follows,

From Paras 19 and 20,

19. With regard to Section 13(1) (ib) of the Hindu Marriage Act, 1955, the pertinent observations of the Hon’ble Supreme Court in Bipin Chandra Jaisinghbhai Shah Vs. Prabhavati 1956 SCC OnLine SC 15 are as under:-
“Thus the quality of permanence is one of the essential elements which differentiates desertion from wilful separation. If a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned : (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid.”
20. The Hon’ble Supreme Court in Bipinchandra Jaisinghbhai Shah(Supra) has further observed that once it is found that one of the spouses has been in desertion, the presumption is that the desertion has continued and that is not necessary for the deserted spouse actually to take steps to bring the deserting spouse back to the matrimonial home.

Finally in Paras 23 and 24,

23. Applying the provisions of Section 13(ib) of the Act, we find that merely within two months of marriage between the parties, the respondent-wife left the matrimonial home. Neither she made any complaint against the appellant nor did she file petition under Section 9 of the Hindu Marriage Act, 1955 seeking Restitution of Conjugal Rights. No doubt, even appellant has not been able to show before the learned Family Court and even in this Court that he had made any concrete efforts to bring back his wife to the matrimonial home. However, when he approached the court seeking divorce, despite service through publication, the respondent did not appear before the learned Family Court to contest the allegations made by the appellant. The respondent has even abstained herself from appearing before this Court despite service through the SHO concerned. Relevantly, since the marriage in the year 2015 till the year 2023, the respondent has not made any effort to join company of appellant-husband. There is no doubt that respondent has quietly chosen to stay apart from appellant and broken the bond of marriage, though not legally but otherwise.
24. In the light of afore-noted facts and circumstances of the present case, this Court is of the considered opinion that respondent has wilfully deserted the appellant and so, appellant is entitled to get benefit of provision of Section 13(1) (ib) of the Hindu Marriage Act, 1955. The marriage between the parties is thus, dissolved and a decree of divorce is granted. Decree sheet be prepared accordingly.

Gaurav Nighawan Vs Shweta on 05 Jan 2024

Index of Divorce judgments 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.

Neeta Amar Vs Vipul Amar on 20 Dec 2023

Posted on December 25, 2023 by ShadesOfKnife

A division bench of Delhi High Court held as follows,

From Para 50,

50. Hence, it is no more res integra that such reckless, defamatory, humiliating and unsubstantiated allegations by one spouse, which has the impact of publically tarnishing the image of the other spouse, is nothing but acts of extreme cruelty. In the present case as well, the appellant always had doubts on the fidelity of her husband which necessarily led to harassment resulting in mental cruelty to the respondent/husband. The strongest pillars on which any marriage stands is trust, faith and respect, and thus, no person can reasonably be expected to put with such disrespectful conduct of their “significant other” who lacks faith in her partner. Any spouse not only expects their partner to respect them but also envisions that in times of need, the spouse would act as a shield to protect their image and reputation. Unfortunately, here is a case where the husband himself is being publically harassed, humiliated and verbally-attacked by his wife, who had gone to the extent of levelling allegation of infidelity during his office meetings in front of all his office staff/guests. She even took to harassing the woman workers of his office and left no stone unturned to portray him as a womanizer in the office. This behaviour is but an act of extreme cruelty to the respondent/husband.

From Paras 56 and 57,

56. The other act of cruelty relied upon by the respondent was that the appellant/wife used to allege that the respondent/husband was impotent. She compelled him to go for Doppler‟s Impotency Test in which he was found to be fit. Such allegations caused mental cruelty to the respondent.
57. This version has been explained by the appellant who asserted that the respondent/husband suffered losses in his business on account of change of Government policies in regard to the business with European countries because of which he went into depression and took to smoking and drinking. She, out of concern for his health, insisted on his visiting the Doctor. She denied that she got the Impotency Test conducted of the respondent/ husband. The appellant while fanning ignorance about the test being conducted, herself gave the explanation that the respondent had visited the Doctor to address his problem of not being able to perform sexually when under intoxication and irritated and frustrated. The admissions of the appellant establish that the respondent was made to undergo the Impotency Test in which he was found to be fit. Clearly, such averments and allegations about the manhood of a person would not only be depressive but also mentally traumatic for any person to accept.

From Para 58,

58. The appellant had made serious allegations of respondent being abusive, quarrelsome and erratic in his behaviour. However, in her cross-examination she admitted that the respondent used to provide everything to her and the child and that he never made any dowry demands. The allegations of dowry demands by the respondent and his family members clearly get demolished by her own admissions. Learned Addl. Principal Judge has rightly concluded that levelling of such allegations of dowry demands would certainly cause mental cruelty to the respondent and his family members.

From Para 60,

60. In the case of Prabin Gopal v. Meghna, 2021 SCC OnLine Ker 2193 in a similar situation, the Kerala High Court observed that the mother had intentionally distanced the child from the father and had deprived the child from the parental love and affection. It was a case of parental alienation where the child, who was in the custody of one parent, had been psychologically manipulated against the estranged parent. It was a strategy whereby one parent intentionally displayed to the child unjustified negativity aimed at the other parent, with the intent to damage the relationship between the child and the estranged parent and to turn the child emotionally against the parent. It was further observed that the child has a right to love and affection of both the parents and likewise, the parents also have a right to receive love and affection of the child. Any act of any parent calculated to deny such affection to the other parent, amounts to alienating the child which amounts to mental cruelty. Since the child was in the custody of the mother, it was held that the mother had breached her duty which she owed as a custodian parent to instil love, affection and feelings in the child for the father. Nothing more can be more painful than experiencing one’s own flesh and blood i.e., the child, rejecting him or her. Such wilful alienation of the child by a parent amounts to mental cruelty to the other parent.

Neeta Amar Vs Vipul Amar on 20 Dec 2023

Citations:

Other Sources:

Mahalakshmi and Ors Vs State of Karnataka on 30 Nov 2023

Posted on December 13, 2023 by ShadesOfKnife

A division bench of the Apex Court passed this Order, whereby the allegations in the complaint are held to be vague and therefore case against the petitioners was Quashed.

Super Specific Allegations:

We have perused the complaint, as well as the charge sheet. In the complaint, the informant/respondent no. 2 – Rekha Bhaskaran had alleged that in February 2016, appellant no.1 – Mahalakshmi commented on her physical appearance and on 20.09.2016, Mahalakshmi had thrown the personal belongings of Rekha Bhaskaran in the dustbin. In the charge sheet, however, the only allegation that was found to be substantiated was the second allegation, that is, the appellant no. 1 – Mahalakshmi had thrown some of the personal belongings of the informant/respondent no. 2 – Rekha Bhaskaran on the ground, as they were not kept at the proper place. Further, appellant no. 1 – Mahalakshmi had cursed the informant/respondent no. 2 – Rekha Bhaskaran in foul words.

Visits to India:

It is the contention of appellant no. 1 – Mahalakshmi that the assertions made in the complaint are false and incorrect. However, it is accepted that she was living and working in Canada. Further,sometime in March 2016, she visited India to attend her friend’s wedding in Mysore and stayed there for nearly twenty days. Again,in September 2016, she had remained in India for almost 12 days when her father, accused no.2 – Surendra Prasad, was operated and hospitalized under critical care for two to three weeks.

Reasoning and Decision:

Having considered the charge sheet filed, we are of the view that the assertions made therein are very vague and general. One instance unless portentous, in the absence of any material evidence of interference and involvement in the marital life of the complainant, may not be sufficient to implicate the person as having committed cruelty under section 498A of the IPC. Given that the appellants were not residing at the marital home, and appellant no.1 was not even living in India, the absence of specific details that constitute cruelty, we would accept the present appeal.
Accordingly, we quash the criminal proceedings against the appellants. However, we clarify that if any material comes on record during the recording of evidence, it will be open to the trial court to take recourse to Section 319 of the Code and proceed following the law.

Mahalakshmi and Ors Vs State of Karnataka on 30 Nov 2023

Citations:

Other Sources:

https://www.indianemployees.com/judgments/details/mahalakshmi-versus-the-state-of-karnataka

https://www.latestlaws.com/latest-news/498a-ipc-sc-one-instance-unless-portentous-not-sufficient-to-implicate-a-person-for-cruelty-read-order-209416

https://www.lawinsider.in/news/supreme-court-quashes-section-498a-case-against-husbands-sisters-cousins

https://lawtrend.in/supreme-court-quashes-498a-case-against-husbands-relative-says-one-trivial-instance-not-sufficient-for-cruelty/

https://www.lawyersclubindia.com/judiciary/court-dismisses-498a-case-against-husband-s-relative-ruling-that-one-minor-incident-is-insufficient-to-establish-cruelty-supreme-court-in-mahalakshmi-ors-v-the-state-of-karnataka-anr–7056.asp

Shades of Knife

True Colors of a Vile Wife

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