Maria Margadia Sequeria Fernandes and Ors Vs Erasmo Jack De Sequeria (D) thru LRs on 21 Mar 2012

Posted on October 6, 2020 by ShadesOfKnife

Shri Dalveer Bhandari J has held so with regards to civil cases such as DVC, HMA24 etc…

42. In civil cases, adherence to Section 30 CPC would alsohelp in ascertaining the truth. It seems that this provision which ought to be frequently used is rarely pressed in serviceby our judicial officers and judges. Section 30 CPC reads as under:-
30. Power to order discovery and the like. –
Subject to such conditions and limitations as may be prescribed, the Court may, at any time either of its own motion or on the application of any party, –
(a) make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence;
(b) issue summons to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid;
(c) order any fact to be proved by affidavit

Regarding punishing perjurers:

82. This Court in a recent judgment in Ramrameshwari Devi aptly observed at p. 266, para 43 that unless wrongdoers are denied profit from frivolous litigation, it would be difficult to prevent it. In order to curb uncalled for and frivolous litigation, the courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that the court’s otherwise scarce time is consumed or more appropriately, wasted in a large number of uncalled for cases. In this very judgment, the Court provided that this problem can be solved or at least can be minimised if exemplary costs is imposed for instituting frivolous litigation. The Court observed at pp. 267-68, para 58 that imposition of actual, realistic or proper costs and/or ordering prosecution in appropriate cases would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases, the courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings.

Maria Margadia Sequeria Fernandes and Ors Vs Erasmo Jack De Sequeria (D) thru LRs on 21 Mar 2012

Citations: [2012 SCC CIV 3 126], [2012 AIR SC 1727], [2012 AIR SC 2162], [2012 RCR CIVIL SC 2 441], [2012 SCALE 3 550], [2012 AIR BOMR 3 857], [2012 AIOL 139], [2012 SLT 2 753], [2012 JT 3 451], [2012 BOMCR SC 4 75], [2012 CCC SC 2 344], [2012 SUPREME 2 602], [2012 SCC 5 370], [2012 SCC ONLINE SC 281], [2012 ALR 92 251], [2012 LW 3 111], [2012 AIC 113 212], [2012 ALD 4 1], [2012 ALT SC 3 518], [2012 AWC SC 4 3645], [2012 CUT LT 114 437], [2012 SCSUPPL CHN 3 1]

Other Sources:

https://indiankanoon.org/doc/100486606/

https://www.casemine.com/judgement/in/5609af13e4b014971141585f

Naveen Kohli Vs Neelu Kohli on 21 March, 2006

Posted on August 22, 2019 by ShadesOfKnife

Landmark judgment from Justice Shri Dalveer Bhandari regarding Law around Mental cruelty and irretrievable breakdown of marriage as a ground for Divorce under Hindu Marriage Act 1955.

Naveen Kohli Vs Neelu Kohli on 21 March, 2006

Citations : [2006 BOMCR SC 5 240], [2006 SUPREME 2 627], [2006 SCALE 3 252], [2006 AIR SC 1550], [2006 JT 3 491], [2006 ALLMR SC 4 190], [2006 MHLJ SC 4 242], [2006 SCR 3 53], [2006 MPLJ SC 3 1], [2006 AIOL 157], [2006 AIR SC 1675], [2006 SCC 4 558], [2006 DLT 128 360], [2006 AIR SCW 1550]

Other Sources :

https://indiankanoon.org/doc/1643829/

https://www.indianemployees.com/judgments/details/naveen-kohli-vs-neelu-kohli

https://www.casemine.com/judgement/in/5609ae31e4b0149711413211

https://www.legitquest.com/case/naveen-kohli-v-neelu-kohli/26101

Other cases wherein Divorce was granted to Husband here.

Siddharam Satlingappa Mhetre Vs State Of Maharashtra And Others on 2 December, 2010

Posted on September 13, 2018 by ShadesOfKnife

This is the landmark judgment from my favorite judge Shri Dalveer Bhandari J on the duration of a anticipatory bail granted by a High Court of a Sessions Court.

Based on Gurbaksh Singh Sibbia case available here, it was held that once granted anticipatory bail continues to protect the accused until the end of trial.
In Sushila Aggarwal & Ors Vs State (NCT of Delhi) in 15 May, 2018 here, a reference is made to a larger bench of Supreme Court on the point of valid time period of an anticipatory bail. This was at last decided in favor this Mhetre judgment only here.

From Para 25,

Mr. Bhushan submitted that a plain reading of the section 438 Cr.P.C. clearly reveals that the legislature has not placed any fetters on the court. In other words, the legislature has not circumscribed court’s discretion in any manner while granting anticipatory bail, therefore, the court should not limit the order only for a specified period till the charge-sheet is filed and thereafter compel the accused to surrender and ask for regular bail under section 439 Cr.P.C., meaning thereby the legislature has not envisaged that the life of the anticipatory bail would only last till the charge-sheet is filed. Mr. Bhushan submitted that when no embargo has been placed by the legislature then this court in some of its orders was not justified in placing this embargo.

From Para 93,

Some courts of smaller strength have erroneously observed that section 438 Cr.P.C. should be invoked only in exceptional or rare cases. Those orders are contrary to the law laid down by the judgment of the Constitution Bench in Sibbia’s case (supra).

From Para 94,

The complaint filed against the accused needs to be thoroughly examined including the aspect whether the complainant has filed false or frivolous complaint on earlier occasion. The court should also examine the fact whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be takenagainst him in accordance with law. If the connivance betweenthe complainant and the investigating officer is established then action be taken against the investigating officer in accordance with law.

From Para 97,

A great ignominy, humiliation and disgrace is attached to the arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage.

From Para 101,

The proper course of action ought to be that after evaluating the averments and accusation available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the public prosecutor. After hearing the public prosecutor the court may either reject the bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of bail. The public prosecutor or complainant would be at liberty to move the same court for cancellation or modifying the conditions of bail any time if liberty granted by the court is misused. The bail granted by the court should ordinarily be continued till the trial of the case.

From Para 102, (VERY IMPORTANT)

The order granting anticipatory bail for a limited duration and thereafter directing the accused to surrender and apply before a regular bail is contrary to the legislative intention and the judgment of the Constitution Bench in Sibbia’s case (supra).

From Para 105, (VERY IMPORTANT)

The court which grants the bail has the right to cancel the bail according to the provisions of the General Clauses Act but ordinarily after hearing the public prosecutor when the bail order is confirmed then the benefit of the grant of the bail should continue till the end of the trial of that case.

From Para 106, (VERY IMPORTANT)

The judgment in Salauddin Abdulsamad Shaikh (supra) is contrary to legislative intent and the spirit of the very provisions of the anticipatory bail itself and has resulted in an artificial and unreasonable restriction on the scope of enactment contrary to the legislative intention.

From Para 108,

Section 438 Cr.P.C. does not mention anything about the duration to which a direction for release on bail in the event of arrest can be granted. The order granting anticipatory bail is a direction specifically to release the accused on bail in the event of his arrest. Once such a direction of anticipatory bail is executed by the accused and he is released on bail, the concerned court would be fully justified in imposing conditions including direction of joining investigation.

From Para 110,

In pursuance to the order of the Court of Sessions or the High Court, once the accused is released on bail by the trial court, then it would be unreasonable to compel the accused to surrender before the trial court and again apply for regular bail.

From Para 112,

The validity of the restrictions imposed by the Apex Court, namely, that the accused released on anticipatory bail must submit himself to custody and only thereafter can apply for regular bail. This is contrary to the basic intention and spirit of section 438 Cr.P.C. It is also contrary to Article 21 of the Constitution. The test of fairness and reasonableness is implicit under Article 21 of the Constitution of India. Directing the accused to surrender to custody after the limited period amounts to deprivation of his personal liberty.

From Paras 115, 116 (VERY IMPORTANT)

The Apex Court in Salauddin’s case (supra) held that anticipatory bail should be granted only for a limited period and on the expiry of that duration it should be left to the regular court to deal with the matter is not the correct view. The reasons quoted in the said judgment is that anticipatory bail is granted at a stage when an investigation is incomplete and the court is not informed about the nature of evidence against the alleged offender.

The said reason would not be right as the restriction is not seen in the enactment and bail orders by the High Court and Sessions Court are granted under sections 437 and 439 also at such stages and they are granted till the trial.

From Para 119, (VERY VERY IMPORTANT)

This Court in the Sibbia’s case (supra) laid down the following principles with regard to anticipatory bail:
a) Section 438(1) is to be interpreted in light of Article21 of the Constitution of India.
b) Filing of FIR is not a condition precedent to exercise of power under section 438.
c) Order under section 438 would not affect the right of police to conduct investigation.
d) Conditions mentioned in section 437 cannot be read into section 438.
e) Although the power to release on anticipatory bail can be described as of an “extraordinary” character this would “not justify the conclusion that the power must be exercised in exceptional cases only.” Powers are discretionary to be exercised in light of the circumstances of each case.
f) Initial order can be passed without notice to the Public Prosecutor. Thereafter, notice must be issued forthwith and question ought to be reexamined after hearing. Such ad interim order must conform to requirements of the section and suitable conditions should be imposed on the applicant.

From Para 128, (VERY VERY IMPORTANT)

In case, the State consider the following suggestions in proper perspective then perhaps it may not be necessary to curtail the personal liberty of the accused in a routine manner. These suggestions are only illustrative and not exhaustive.
1) Direct the accused to join investigation and only when the accused does not cooperate with the investigating agency, then only the accused be arrested.
2) Seize either the passport or such other related documents, such as, the title deeds of properties or the Fixed Deposit Receipts/Share Certificates of the accused.
3) Direct the accused to execute bonds;
4) The accused may be directed to furnish sureties of number of persons which according to the prosecution are necessary in view of the facts of the particular case.
5) The accused be directed to furnish undertaking that he would not visit the place where the witnesses reside so that the possibility of tampering of evidence or otherwise influencing the course of justice can be avoided.
6) Bank accounts be frozen for small duration during investigation.

Siddharam Satlingappa Mhetre Vs State Of Maharashtra And Others on 2 December, 2010

Citation: [(2011) 1 SCC 694], [AIR 2011 SC 312],

Indiankanoon.org or Casemine link: https://indiankanoon.org/doc/1108032/

Index of all Anticipatory Bail Matters is here.

Samar Ghosh vs Jaya Ghosh on 26 March, 2007

Posted on April 30, 2018 by ShadesOfKnife

This judgment from a Supreme Court Bench comprising Justice Dalveer Bhandari has enumerated some of the illustrations of mental cruelty citing Judgments of England, America, Canada and Australia.

Intro

The appellant and the respondent are senior officials of the Indian Administrative Service, The respondent was a divorcee and had a female child from her first marriage. The custody of the said child was given to her by the District Court of Patna where the respondent had obtained a decree of divorce against her first husband, Debashish Gupta, who was also an I.A.S. officer. The respondent’s first husband, Debashish Gupta filed a belated appeal against the decree of divorce obtained by her from the District Court of Patna. Therefore, during the pendency of the appeal, she literally persuaded the appellant to agree to the marriage immediately so that the appeal of Debashish Gupta may become infructuous.

The marriage between the parties was solemnized on 13.12.1984.

… In these circumstances, the appellant has prayed that it would not be possible to continue the marriage with the respondent and he eventually filed a suit for the grant of divorce. In the suit for divorce filed by the appellant in Alipur, Calcutta, the respondent filed her written statement and denied the averments. The learned Additional District Judge came to the finding that the appellant has succeeded in proving the case of mental cruelty against the respondent, therefore, the decree was granted by the order dated 19.12.1996 and the marriage between the parties was dissolved.

The Division Bench of the High Court vide judgment dated 20.5.2003 reversed the judgment of the Additional District Judge on the ground that the appellant has not been able to prove the allegation of mental cruelty.

Key Points

Such a vital decision cannot be taken unilaterally after marriage by the respondent and if taken unilaterally, it may amount to mental cruelty to the appellant.

The finding of the High Court that the appellant started living with the respondent amounted to condonation of the act of cruelty is unsustainable in law.

The finding of the High Court that the respondent’s refusal to cook food for the appellant could not amount to mental cruelty as she had to go to office, is not sustainable….. The question was not of cooking food, but wife’s cooking food only for herself and not for the husband would be a clear instance of causing annoyance which may lead to mental cruelty.

The High Court’s finding that the husband and wife might be sleeping in separate rooms did not lead to a conclusion that they did not cohabit and to justify this by saying that the respondent was highly educated and holding a high post was entirely unsustainable. Once the respondent accepted to become the wife of the appellant, she had to respect the marital bond and discharge obligations of marital life.

During illness, particularly in a nuclear family, the husband normally looks after and supports his wife and similarly, he would expect the same from her. The respondent’s total indifference and neglect of the appellant during his illness would certainly lead to great annoyance leading to mental cruelty.

The credibility of the witness does not depend upon his financial standing or social status only. A witness which is natural and truthful should be accepted irrespective of his/her financial standing or social status.

… the appellant and the respondent have been living separately for more than sixteen and half years (since 27.8.1990). The entire substratum of the marriage has already disappeared. During this long period, the parties did not spend a single minute together. The appellant had undergone bye-pass surgery even then the respondent did not bother to enquire about his health even on telephone. Now the parties have no feelings and emotions towards each other.

Mental Cruelty Guidelines

No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of ‘mental cruelty’. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.

(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.

(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.

(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.

(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.

(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.

(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.

(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.

Samar_Ghosh_vs_Jaya_Ghosh_on_26_March,_2007

Citations : [2007 SCC 4 511], [2007 SUPREME 3 26], [2007 JT 5 569], [2007 CTC 3 464], [2007 BLJR 2 1047], [2007 RCR CIVIL 2 595], [2007 RAJ 2 177], [2007 ALD SC 4 11], [2007 ALL SCR 0 881], [2007 SCALE 5 1], [2007 SCC 4 411], [2007 SLJ SC 2 705], [2007 ALT 3 62], [2007 DMC 1 597], [2007 SCJ 3 253], [2007 WBLR 3 525], [2007 GHJ 16 204], [2007 KERLT 2 55], [2007 RAJLW 2 1357], [2007 AWC 5 4820], [2007 CLT 2 72], [2007 JCIVC 2 1028], [2007 SLT 4 76], [2007 AIOL 339], [2007 BOMCR SC 6 834], [2007 SCR 4 428], [2007 GUJ LR 2 1520], [2007 MADLJ 2 1185]

Other Sources :

https://indiankanoon.org/doc/766894/

https://www.casemine.com/judgement/in/5609ae45e4b01497114135d2

The index page is here.

Perjury Judgments

Posted on April 27, 2018 by ShadesOfKnife

Is it a crime to lie under oath in India?

Yes.

Any person can initiate Perjury Proceedings

Section 340 of Cr.P.C. contains the law procedure that has to be followed in Perjury proceedings.

Section 195 of Cr.P.C contains offences against public justice and for offences relating to documents given in evidence.

Court can initiate Perjury Proceedings, Suo moto

Section 344 of Cr.P.C contains the law procedure that the Court can invoke against any witness appearing in such proceeding who had knowingly or wilfully given false evidence or had fabricated false evidence with the intention that such evidence should be used in such proceeding.

These are 30+ various provisions under the Indian Penal Code (IPC) that cater to definition and punishment for various perjuries of opposite parties and other public servants.

As per CrPC sec 195(1)(a), the following is the list of 18 provisions of contempt to the lawful authority of public servants. Key here is, a complaint can only be filed by such public servant or by a superior officer of such public servant. Generally Police folks and their bosses. No private complaint under 190/200 CrPC maintainable:
IPC 172: Absconding to avoid service of summons or other proceeding
IPC 173: Preventing service of summons or other proceeding, or preventing publication thereof
IPC 174: Non-attendance in obedience to an order from public servant
IPC 174A: Non-appearance in response to a proclamation under section 82 of Act 2 of 1974
IPC 175: Omission to produce document to public servant by person legally bound to produce it
IPC 176: Omission to give notice or information to public servant by person legally bound to give it
IPC 177: Furnishing false information
IPC 178: Refusing oath or affirmation when duly required by public servant to make it
IPC 179: Refusing to answer public servant authorised to question
IPC 180: Refusing to sign statement
IPC 181: False statement on oath or affirmation to public servant or person authorised to administer an oath or affirmation
IPC 182: False information, with intent to cause public servant to use his lawful power to the injury of another person
IPC 183: Resistance to the taking of property by the lawful authority of a public servant
IPC 184: Obstructing sale of property offered for sale by authority of public servant
IPC 185: Illegal purchase or bid for property offered for sale by authority of public servant
IPC 186: Obstructing public servant in discharge of public functions
IPC 187: Omission to assist public servant when bound by law to give assistance
IPC 188: Disobedience to order duly promulgated by public servant

As per CrPC sec 195(1)(b), the following is the list of 16 provisions of contempt to the lawful authority of Courts. Key here is, a complaint can only be filed by such Court or by such officer of the Court as that Court may authorise in writing in this behalf, or by a superior Court of such Court. Generally Trial Courts and their Appellate Courts. No private complaint under 190/200 CrPC maintainable:

IPC 193: Punishment for offenses u/s 191 & 192 IPC
IPC 194: Giving or fabricating false evidence with intent to procure conviction of capital offence
IPC 195: Giving or fabricating false evidence with intent to procure conviction of offence punishable with imprisonment for life or imprisonment
IPC 195A: Threatening any person to give false evidence
IPC 196: Using evidence known to be false
IPC 199: False statement made in declaration which is by law receivable as evidence
IPC 200: Using as true such declaration knowing it to be false
IPC 205: False personation for purpose of act or proceeding in suit or prosecution
IPC 206: Fraudulent removal or concealment of property to prevent its seizure as forfeited or in execution
IPC 207: Fraudulent claim to property to prevent its seizure as forfeited or in execution
IPC 208: Fraudulently suffering decree for sum not due
IPC 209: Dishonestly making false claim in Court
IPC 210: Fraudulently obtaining decree for sum not due
IPC 211: False charge of offence made with intent to injure
IPC 228: Intentional insult or interruption to public servant sitting in judicial proceeding

Terms used in judgments are misrepresentation, unclean hands, fraud on court, misuse of administration of justice etc if you are searching for judgments online.

Here are the judgments for your usage in your cases under above IPC sections.

IMP NOTE: Apart from the listed (and implied) sections, there are many more provisions of IPC which can be filed as a direct complaint as per 154 CrPC, 155 CrPC or 190/200 CrPC. The said procedure under sec CrPC 340 does not apply to those sections. Like IPC 218 etc.

Additionally, such contemnors are liable for punishment under Contempt of Courts Act, 1971 as well, at the State High Court.

Muthu Karuppan Vs Parithi Ilamvazhuthi and Anr on 15 Apr 2011

Shades of Knife

True Colors of a Vile Wife

Tag: Justice Dalveer Bhandari

Maria Margadia Sequeria Fernandes and Ors Vs Erasmo Jack De Sequeria (D) thru LRs on 21 Mar 2012

Naveen Kohli Vs Neelu Kohli on 21 March, 2006

Siddharam Satlingappa Mhetre Vs State Of Maharashtra And Others on 2 December, 2010

Samar Ghosh vs Jaya Ghosh on 26 March, 2007

Perjury Judgments

Yes.