Kalavakuru Srinivas Kumar Reddy Vs Kalavakuru @ Revuru Sujatha and Ors on 05 Feb 2025

Posted on March 21, 2025 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 6,

6. Learned counsel for the petitioner herein/husband would contend that no disclosure statement was filed by the respondent No.1 herein/wife and without the said statement, it is difficult to estimate the financial expenses of either of the parties to come to a conclusion as to how much amount is to be awarded to the respondent Nos.1 and 2 towards maintenance.

From Para 8,

8. A perusal of entire material on record coupled with the Order and Judgment passed by the learned Magistrate and the learned Sessions Judge, respectively, goes to show that either of the parties did not file disclosure statement. A disclosure statement in a Domestic Violence Case (DVC) refers to a document where a party involved in the case is required to provide detailed information about their financial assets and liabilities, including income, property ownership, bank accounts, and debt, as per the Court’s Order, usually to help in determining the appropriate maintenance or compensation amount in the case

From Para 10,

10. A plain reading of the above proposition of law, it is evident that while deciding the quantum of maintenance in the subsequent proceeding, the Civil Court/Family Court shall take into account the maintenance awarded in any previously instituted proceeding, and determine the maintenance payable to the claimant. The applicant shall disclose the previous maintenance proceeding, and the orders passed therein, to enable the Court to take into consideration the maintenance that was already awarded in the previous proceeding, and grant an adjustment or set-off of the said amount and if the order passed in the previous proceeding requires any modification or variation, the party would be required to move the concerned court in the previous proceeding. In the case on hand, apparently, no disclosure statement was filed. It is mandatory that both husband and wife are supposed to file the disclosure statement before the trial Court. In view of the aforesaid facts and circumstances, this Court is of the opinion that the case in DVC No.27 of 2016 shall be remanded to the Special Judicial Magistrate of First Class for trial of Prohibition and Excise Offences, Nellore, for fresh disposal.

Kalavakuru Srinivas Kumar Reddy Vs Kalavakuru @ Revuru Sujatha and Ors on 05 Feb 2025

Disclaimer: This is a case that I handled myself for the husband.

Citations:

Other Sources:

Index of Maintenance cases under section 12 of DV Act is here.

Musin Babulal Thengade and Ors Vs State of Maharashtra and Anr on 29 Jan 2025

Posted on March 2, 2025 by ShadesOfKnife

A division bench of Bombay High Court at Aurangabab held that

From Para 6,

6. Apart from this, the learned A.P.P. has also placed reliance on judgment of Hon’ble Supreme Court in the matter of Rupali Devi Vs. State of Uttar pradesh reported in AIR OnLine (2019) SC 394.

From Paras 9 and 10,

9. As regards Section 472 of the Cr. P. C, contention of the learned A.P.P. that offence under Section 498-A of the IPC is a continuing wrong will have to be accepted, but only with a rider. Although the offence under Section 498-A of the IPC is a continuing wrong, it would not mean that limitation would continue to run perennially.The correct interpretation of the provision is provided in the matter of Arun Vyas and another Vs. Anita Vyas (supra) which sates that in case of offence under Section 498-A, a new starting point of limitation is start on every occasion when the wrong is committed and the period of limitation needs to be computed from the last such wrong. We may profitably quote paragraph 13 of the said decision, which reads as under :-
“ The essence of the offence in Section 498-A is cruelty as defined in the explanation appended to that section. It is a continuing offence and on each occasion on which the respondent was subjected to cruelty, she would have a new starting point of limitation. The last act of cruelty was committed against the respondent, within the meaning of the explanation, on October 13, 1988 when, on the allegation made by the respondent in the complaint to Additional Chief Judicial Magistrate, she was forced to leave the matrimonial home. Having regard to the provisions of Sections 469 and 472 the period of limitation commenced for offences under Sections 406 and 498-A from October 13, 1988 and ended on October 12, 1991. But the charge sheet was filed on December 22, 1995,therefore, it was clearly barred by limitation under Section 468(2)(c) Cr. P. C.’’
10. Thereafter, the Hon’ble Supreme Court has further stated in paragraph No. 14 that in complaints under Section 498-A the wife will invariably be oppressed, who is subjected to cruelty and, therefore, Section 473 of the Cr. P.C should be construed liberally in favour of wife. However, the Hon’ble Supreme Court has also cautioned that the words interest of justice employed in Section 473 of the Cr. P. C. cannot mean in the interest of prosecution and the true object of the provision is to advance the cause of justice by protecting the oppressed and punishing the offender. The Hon’ble Supreme Court has also referred to its earlier judgment in the matter of Onkar Radha Manohari (Smt) Vs. Venka Venkata Reddy reported in 1993 AIR SCW 3595 that while dealing with Section 498-A of the Indian Penal Code, the Court should not only examine as to whether delay is properly explained, but also as to whether it is necessary to entertain a time barred matter in the interest of justice.

From Paras 13 and 14,

13. These observations have been made in the context of territorial jurisdiction. The judgment does not deal with the aspect of limitation. Provisions of Sections 468, 472 and 473 of the Cr. P.C did not fall for consideration in this case. As against this in the cases of Arun Vyas and another Vs Anita Vyas (supra) and Ramesh and other Vs. state of Tamil Nadu (supra), the question of limitation was directly involved and the same is answered referring to the relevant statutory provisions. It is settled legal principle that judgments of the Courts have to be interpreted in the backdrop of facts of the particular case. Ratio of a case has to be understood and appreciated in the backdrop of the facts in which the judgment is delivered. The law laid down in the judgment cannot be divorced from the facts of the case in which it is delivered. A judgment cannot be interpreted like a statute. It cannot be applied uniformly every where like Euclid’s theorems of geometry. Therefore, while dealing with aforesaid three judgments cited during the course of hearing, we are of the considered opinion that the ratio laid down in the matters of Arun Vyas and Ramesh which directly deal with the question of limitation will have to be accepted. The judgment in the matter of Rupali Devi is relating to territorial jurisdiction of a Court to deal with offence under Section 498-A of the IPC.
14. In the light of above, we are of the opinion that limitation for offence punishable under Section 498-A of the IPC shall commence from the last act of cruelty. Offence under Section 498-A of the IPC is a continuing offence implies that each act of cruelty would offer new starting point of limitation. Limitation for prosecution under Section 498-A does not continue for indefinite period. Such interpretation will render Section 468 of the Cr. P.C. nugatory or otiose for the purpose of Section 498-A of the Indian Penal Code which does not appear to be the intention of legislature. Had there been intention to exclude Section 498-A of the IPC from the sweep of Section 468 of the Cr. P.C express provision could have been made for the said purpose.

Musin Babulal Thengade and Ors Vs State of Maharashtra and Anr on 29 Jan 2025

Citations: [2025:BHC-AUG:2858-DB]

Other Sources:

https://www.livelaw.in/high-court/bombay-high-court/bombay-high-court-cruelty-498a-ipc-limitation-283107

https://lawtrend.in/limitation-period-for-ipc-section-498-a-to-commence-from-last-act-of-cruelty-bombay-high-court/

Limitation for offence punishable under Section 498-A of IPC commences from the last act of cruelty: Bombay HC

https://www.verdictum.in/court-updates/high-courts/bombay-high-court/aurangabad-musin-babulal-thengade-v-the-state-of-maharashtra-2025-bhc-aug-2858-db-limitation-1567184

Index of Quash judgments is here.

Vishal Shah Vs Monalisha Gupta and Ors on 20 Feb 2025

Posted on February 22, 2025 by ShadesOfKnife

A division bench of Apex Court passed this judgment whereby the marriage of parties is severed and Rs.25 Lakhs alimony was ordered to be paid to wife. Also since DV cases are quasi-criminal in nature, thus, there cannot be any justification to require the personal presence/appearance of the appellant in these proceedings.

From Para 18,

18. In the afore-mentioned complaint case, an application10 was filed by the respondent under Section 26 of the DV Act against the appellant, her mother-in-law, and their five other relatives. A notice was issued to the appellant vide order dated 21st July 2022. Subsequently, on 11th August 2022, the learned JMFC passed an interim order in favour of the respondent, prohibiting her eviction from the matrimonial home and directing the personal appearance of the appellant (respondent therein) and other respondents on the next hearing date. However, when the matter was listed again, the Court noticed that the appellant had not returned to India, and the concerned authorities were directed to initiate the extradition process against him.
We may observe that as the proceedings under the DV Act are quasi-criminal in nature, thus, there cannot be any justification to require the personal presence of the appellant in these proceedings. Thus, the learned Magistrate grossly erred while directing the appellant to remain personally present in the Court.

From Para 20,

20. It is apparent that the appellant’s inability to travel to India and appear in Miscellaneous Case No. 440 of 2022, filed by the respondent under Section 26 of the DV Act, stemmed from the impoundment of his passport, a circumstance beyond his control. Consequently, the order of the learned JMFC directing the initiation of extradition proceedings against the appellant as a consequence of his non-appearance, despite being aware of the fact of impounding of the passport of the appellant, is untenable and unsustainable in the eyes of the law. Otherwise also, as noted above, there is no requirement for the personal presence of any party in the proceedings under the DV Act, because they are quasi-criminal in nature and do not entail any penal consequences except when there is a breach of a protection order, which is the only offence provided under Section 31 of the DV Act.

From Para 26,

26. On the issue as to grant of divorce on the ground of irretrievable breakdown of marriage in the exercise of jurisdiction under Article 142(1) of the Constitution of India, this Court, in a very recent judgment of Rinku Baheti v Sandesh Sharda13, held that the factual analysis has to be undertaken in each case to determine as to what constitutes an ‘irretrievable breakdown’ while keeping in mind the non-exhaustive factors laid down in Shilpa Sailesh (supra).

From Para 31,

31. The filing of the aforesaid cases by the respondent-wife reflects her vindictive attitude towards the appellant and his family members and unambiguously reflects the bitterness that has seeped into the marital relationship. The tumultuous state of the marital relationship between the parties is quite evident, irrespective of the fate of the criminal complaints and the imputations made by the parties against each other. The passport of the appellant was also impounded by the concerned authorities, pursuant to the pending cases filed by the respondent.

From Paras 35-37,

35. Whatever may be the justification for the spouses living separately, with so much time having passed by any marital love or affection that may have developedbetween the parties seems to have evanesced. This is a classic case of irretrievable breakdown of marriage. The admitted long-standing separation, nature of differences, prolonged and multiple litigations pending adjudication, and the unwillingness of the parties to reconcile are evidence enough to establish beyond all manner of doubt that the marriage between the parties has broken down irretrievably and that there is no scope whatsoever for marriage to survive. Thus, no useful purpose, emotional or practical, would be served by continuing the soured relationship. On the basis ofthe above factual matrix, the present appears to be a case of irretrievable breakdown of marriage.
36. Apart from the irreconcilable status of the relationship between the parties, in the present case, another factor that has weighed with this Court in favour of the exercise of the power under Article 142(1)of the Constitution of India is that there is no child born from the wedlock and therefore, any direction to allowthe parties to part ways would only affect the parties themselves and not any innocent child.
37. Thus, this is a fit case warranting the exercise of the discretion conferred under Article 142(1) of the Constitution of India to dissolve the marriage between the parties on the grounds of irretrievable breakdown of marriage.

From Paras 42-43,

42. Before we conclude our discussion, we must note that the act of impounding the passport of the appellant by the concerned authorities of the Government of India was ex-facie illegal in the eyes of the law. In the present case, the appellant’s passport was impounded on the mere premise that the respondent has filed numerous cases before the various courts in India.
43. The law regarding the impounding of a passport of an individual has been settled by this Court in the case of Maneka Gandhi v. Union of India and Anr.16, wherein it was held that the rules of natural justice must be followed before impounding a passport under Section 10(3) of the Passports Act, 1967.

From Paras 45-46,

45. Further, this Court, in Rajesh Sharma v. State of U.P.17, while dealing with the question of arrest and fair investigation in a case alleging the offence of cruelty under Section 498A IPC, was of the view that in respect of persons ordinarily residing out of India impounding of passports or issuance of ‘Red Corner Notice’ should not be a routine.
46. Applying the afore-mentioned legal principles to the present case, we find that the act of impounding the appellant’s passport under Section 10 of the Passport Act, 1967, was carried out without granting the appellant an opportunity to be heard. This clear violation of the principles of natural justice renders the act of impounding the passport ex-facie illegal. Consequently, we hold that the concerned authorities should release the appellant’s passport within a period of one week from today.

Vishal Shah Vs Monalisha Gupta and Ors on 20 Feb 2025

Citations: [2025 INSC 254], [2025 LiveLaw (SC) 240]

Other Sources:

https://indiankanoon.org/doc/97306350/

https://www.caseciter.com/vishal-shah-vs-monalisha-gupta-2025-insc-254-domestic-violence-act-passport-impounding-irretrievable-breakdown-of-marriage-permanent-alimony/

Index of Domestic Violence Judgments is here. Divorce Judgments are here. Passport judgements are here.

Sukhdev Singh Vs Sukhbir Kaur on 12 Feb 2025

Posted on February 12, 2025 by ShadesOfKnife

A full bench of Supreme Court passed this order to a reference from a division bench.

From Para 6,

6. The following questions arise for our consideration:
(i)Whether a spouse of a marriage declared as void by a competent Court under Section 11 of the 1955 Act is entitled to claim permanent alimony and maintenance under Section 25 of the 1955 Act?
(ii)Whether in a petition filed seeking a declaration under Section 11 of the 1955 Act, a spouse is entitled to seek maintenance pendente lite under Section 24 of the 1955 Act?

From Para 26,

26. An apprehension is the expression by the learned counsel for the appellant that if it is held that Section 25 of the 1955 Act also applies to void marriages, it will lead to a ridiculous result. He gave an example of a wife whose first marriage is subsisting, inducing another man to marry her. He also gave an example of a daughter getting married to her father. We must note that Sub-Section 1 of Section 25 uses the word “may”. A grant of a decree under Section 25 of the 1955 Act is discretionary. If the conduct of the spouse who applies for maintenance is such that the said spouse is not entitled to discretionary relief, the Court can always turn down the prayer for the grant of permanent alimony under Section 25 of the 1955 Act. Equitable considerations do apply when the Court considers the prayer for maintenance under Section 25. The reason is that Section 25 lays down that while considering the prayer for granting relief under Section 25, the conduct of the parties must be considered.

From Paras 27 and 28,

27. Section 24 confers a power on a matrimonial Court to grant interim maintenance in pending proceedings seeking a decree contemplated under the 1955 Act. The power is to be exercised pending the proceedings for a grant of a decree under Sections 9 to 13 of the 1955 Act. The conditions for applicability of Section 24 are:
(i) There must be a proceeding under the 1955 Act pending and
(ii) the court must come to a conclusion that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding.
26. Even if, prima facie, the matrimonial court finds the marriage between the parties is void or voidable, the court is not precluded from granting maintenance pendente lite provided the conditions mentioned above are satisfied. The grant of relief under Section 24 is discretionary as the Section uses the word ‘may’. While deciding the prayer for interim relief under Section 24, the Court will always consider the conduct of the party seeking the relief. It provides for issuing a direction to pay a reasonable amount.

Final conclusions:

29. Accordingly, we answer the questions as follows:
a. A spouse whose marriage has been declared void under Section 11 of the 1955 Act is entitled to seek permanent alimony or maintenance from the other spouse by invoking Section 25 of the 1955 Act. Whether such a relief of permanent alimony can be granted or not always depends on the facts of each case and the conduct of the parties. The grant of relief under Section 25 is always discretionary; and
b. Even if a court comes to a prima facie conclusion that the marriage between the parties is void or voidable, pending the final disposal of the proceeding under the 1955 Act, the court is not precluded from granting maintenance pendente lite provided the conditions mentioned in Section 24 are satisfied. While deciding the prayer for interim relief under Section 24, the Court will always take into consideration the conduct of the party seeking the relief, as the grant of relief under Section 24 is always discretionary.

Sukhdev Singh Vs Sukhbir Kaur on 12 Feb 2025

Citations: [2025 INSC 197]

Other Sources:

https://www.livelaw.in/supreme-court/permanent-alimony-interim-maintenance-can-be-granted-even-when-marriage-is-void-under-hindu-marriage-act-supreme-court-283751

https://www.barandbench.com/news/litigation/spouse-of-void-marriage-under-hindu-marriage-act-entitled-to-permanent-alimonymaintenance-supreme-court

https://www.advocatekhoj.com/library/judgments/announcement.php?WID=18508

https://lawtrend.in/hindu-marriage-act-alimony-and-maintenance-granted-even-if-marriage-is-void-supreme-court/

Index of Maintenance Judgements under HMA here.

Srinivas Raghavendrarao Desai (Dead) By Lrs. Vs V.Kumar Vamanrao and Ors on 04 Mar 2024

Posted on December 23, 2024 by ShadesOfKnife

A division bench of the Apex Court reiterated that no evidence could be led beyond pleadings.

From Para 15,

15. There is no quarrel with the proposition of law that no evidence could be led beyond pleadings. It is not a case in which there was any error in the pleadings and the parties knowing their case fully well had led evidence to enable the Court to deal with that evidence. In the case in hand, specific amendment in the pleadings was sought by the plaintiffs with reference to 1965 partition but the same was rejected. In such a situation, the evidence with reference to 1965 partition cannot be considered.

Srinivas Raghavendrarao Desai (Dead) By Lrs. Vs V.Kumar Vamanrao and Ors on 04 Mar 2024

Mummireddygari Prathap Reddy and Ors Vs Mummireddygari Srivani and Ors on 17 Jul 2023

Posted on October 10, 2024 by ShadesOfKnife

A single judge of AP High Court held that when there is No Shared household, so no domestic relationship so no DVC maintainable on family members.

From Para 7,

7. A perusal of the D.V.C. application would show that the aggrieved woman’s husband and in-laws and the siblings of her husband all are natives of Adapareddypalli Village, Tirupathi Rural Mandal, Chittoor District. By the time the D.V.C. was filed the husband of the aggrieved woman has been working as a Software Engineer at Houstan, Texas, United States of America. Aggrieved woman’s in-laws are living at their native places. Siblings of the aggrieved woman’s husband are also employed and Sri M.Suresh Reddy is working at Bangalore and Sri M.Prasad Reddy working at Hyderabad or Tirupathi. The application in D.V.C. also indicates that subsequent to the marriage the spouses lived for some time at Adapareddypalli Village and thereafter they lived at Mysore of Karnataka State and thereafter they went Abroad and lived together at Houstan, Texas, United States of America. Finally the aggrieved woman and her child came back to India and they have been living with the woman’s parents at Aditya Nagar, Nellore in SPSR Nellore District. D.V.C. was filed at Nellore. All the above facts are not in dispute.

From Paras 9 and 10, (All the respondents, except husband, reside are different locations; No shared household)

9. Coming to the parents and siblings of her husband, at para No.4 of the application, the aggrieved woman states that respondent Nos.4 and 5 therein, who are siblings of her husband, used to visit Adapareddypalli Village during weekends when she was brought by her husband from Mysore to the native place. It is on those occasions, the siblings of her husband used to harass her for money and additional dowry.
10. Coming to her in-laws, the aggrieved person at pares No.5 of her application in D.V.C. mentions that all the cruelty and bad conduct of her husband used to be informed by her to her in-laws, but they used to support their son and all of them together demanded her to bring additional dowry. It is with those allegations, the D.V.C. was filed seeking various reliefs.

From Para 17,

17. The term shared household is hinged on the concept of intentional residence of the parties in one household. Mere fleeting or casual living does not make one a shared household vide Satish Chander Ahuja v. Sneha Ahujal and Rajnesh v. Neha2. In this regard, learned counsel for petitioners cited the judgment of the then composite High Court in P.Sugunamma v. State of A.P.3. Referring to a similar situation where relatives of the husband have not been living along with the spouses but living elsewhere with periodical or sporadic visits, it was held that where any person who is so related who has been not living or had not lived together at any point of time with the aggrieved person in a shared household they cannot be said to be in domestic relationship. To the similar effect is the law spelt out by the Hon’ble Bombay High Court in Prakash Vinayak Gaikwad v. State of Maharashtra4. The averments in the application in D.V.C. of the aggrieved person do indicate that since the time of marriage it is the spouses who lived together under one roof at different places at all times and the remaining respondents who are their family members have been living at different other places and in their own respective houses. It is on occasions they paid visits to the spouses. Such occasional visits were only meant for those occasions and they were never intended and could not be intended to be visits making one to think that they are holding shared household. The definition of “aggrieved person” under Section 2(a) of the Act, 2005 requires a domestic relationship and domestic relationship as defined in Section 2(f) of the Act, 2005 means a relationship between two persons who live or have, at any point of time, lived together in a shared household. The facts mentioned in the application in D.V.C. clearly show that, that domestic relationship is absent between the aggrieved woman on one hand and petitioner Nos.2 to 5 on the other hand. It is in that view of the matter, one has to agree with the contentions of the learned counsel for petitioners that without there being any case disclosed by the application in D.V.C. permitting the learned Magistrate to take up further proceedings against them would be abuse of process of Court.

Mummireddygari Prathap Reddy and Ors Vs Mummireddygari Srivani and Ors on 17 Jul 2023

Citations:

Other Sources:

Index of DV Judgments is here.

Yerramilli Srinivas Vs State of Telangana and 2 Ors on 09 Jan 2023

Posted on October 8, 2024 by ShadesOfKnife

A single judge bench of Telangana High Court deprecated the practice of Telangana Police in not sending delete LOC requests to BoI, after a competent Criminal Court grants bail to an accused.

From Paras 7 and 8,

7. This Court has gone through the Circular that was issued by the respondents pursuant to the order passed by this Court. By and large, in criminal matters, particularly under Section 498-A IPC., where a complaint is given by wife and husband is residing abroad, without making even an effort to reach the person by way of e-mail or whatever communication, and without even coming to a conclusion that the said person is trying to avoid the investigation, police are straight away issuing the Look Out Circular, by that time, accused would not even be knowing that a case is registered against him by the respondents. In respect of accused persons who are outside the country, the police shall make an endeavour to communicate about the pending case to the said person. Recourse to LOC shall not be resorted to by the respondents in non-cognizable offences under IPC. or in any other laws if accused is not evading arrest or has not failed to appear before the Court. Necessarily issuing the Look Out Circular will affect the person’s right to movement and the respondents shall be very careful while opening the LOC and resort to it in compelling and extraordinary circumstances. Secondly, in the report that is filed by the Director General of Police, it is stated that LOC will be continued basing on their satisfaction whether the person is going to cooperate with the investigation or not. When once an accused is granted bail by the Court or a notice under Section 41-A Cr.P.C. is issued by the police, if the police have apprehensions about his non-cooperation with the investigation or trial, it is always open to the police to make an appropriate Application before the Court concerned for imposing a condition that the person be directed not to leave the country. Once the bail is granted, the respondent police cannot continue the LOC without further recourse to the Court. In every case, the police are opening the LOCs. and keeping it pending forever and causing irreparable loss and hardship to the accused who in some cases has no intention to evade the investigation. The other difficulty that has been expressed in several cases is that the respondents are not leaving a toll-free or a specific number with BOI. They are generally giving the number of the concerned Station House Officers and sometimes, if they do not pick up the calls, the person is made to wait for hours together in the Airport. The respondent police shall take appropriate steps to evolve procedure or they shall see that some mechanism is in place such as centralised 24 x 7 service to attend the calls in respect of LOC from Bureau of Investigation so that if the immigration has to contact the concerned they will be able to reach out and the inconvenience caused to the concerned may be minimised. Wherever LOCs. are opened, the respondent police shall review the same once in three months and in cases where bail is granted, they shall immediately close the LOCs. The officer concerned who fails to inform the BOI is responsible and if he fails to address the letter to BOI, appropriate action shall be initiated against him for the said lapses. The Courts have to always balance the interest of the accused as well as the societal interest.
8. Fundamental right of the citizen in the democratic setup plays a pivotal role. The Hon’ble Apex Court in Maneka Gandhi v. Union of India1 interpreted the scope of Article 21 in the widest possible manner. The fundamental rights of a citizen can only be curtailed by a procedure known to law. The police while issuing the look out circular has to be very cautious. The circular directions issued by the Director General of Police shall be scrupulously followed. The Director General of Police apart from issuing the circular shall also see that it is implemented and fix the accountability.

Yerramilli Srinivas Vs State of Telangana and 2 Ors on 09 Jan 2023

Citations:

Other Sources:

https://indiankanoon.org/doc/162671944/

https://www.casemine.com/judgement/in/659eb9c767795103e653e2bd

https://www.the-laws.com/Encyclopedia/browse/Case?CaseId=823202811000&Title=YERRAMILLI-SRINIVAS-Vs.-STATE-OF-TELANGANA

https://lawsuitcasefinder.com/casedetail?id=U2FsdGVkX19hrqxZBmhqLvP3mplo2JtpfyJa3CjqW3EDUUMgs5

Index of judgments about Look Out Circular Notices is here.

Kavitha M Vs Raghu on 16 Mar 2023

Posted on October 4, 2024 by ShadesOfKnife

A single judge of Karnataka HC held that there is no need to conduct Inquiry in the nature of summary trial before passing Interim reliefs, relying on the Magistrate’s inherent power u/s 28(2) of the PWDV Act, while overruling earlier 2009 judgment here. (Comment to myself: someone has to challenge the Sec 28(2) of the DV Act as unconstitutional and get rid of it!)

From Para 14,

14. In the aforesaid circumstances, reference being made to the judgment of the Apex Court in the case of KUNAPAREDDY v. KUNAPAREDDY SWARNA KUMARI1 is apposite.
The Apex Court, in the aforesaid judgment, while considering the purport of promulgation of the Act and its provisions clearly holds that sub-section (2) of Section 28 is significant. The concerned Court is well within its powers to lay down its procedure for disposal of the application under Section 12 or Section 23(2) of the Act. The Apex Court also recognizes that this provision is incorporated by the Legislature keeping a definite purpose for which it is enacted. This Court also recognizes the power of the Magistrate under Section 23 to grant an interim order ex-parte owing to the specific power under sub-section (2) of Section 23 of the Act which is carved out in that behalf. In the light of the judgment of the Apex Court, any other law that is laid down by the co-ordinate Benches of this Court will have to be placed into the oblivion on two counts, as the heart and soul of the Act is found in Section 12 and its beat in Section 23.The reliance placed by the respondent/State upon the judgment of the co-ordinate Bench in the case of KRISHNA MURTHYNOOKULA v. Y SAVITHA2 is in clear contradiction with what the Apex Court has held. The said judgment has also been distinguished in the case of one K.MANJUNATH REDDY v. SMT.A.C. LATHA3.
The co-ordinate Bench recognizes that the section itself provided that the Court can form its own procedure and it would override sub-section (1) of Section 28 and any Rules framed thereunder. The co-ordinate Bench then holds that there was no illegality committed by the Court in exercise of its inherent power for disposal of the application without an inquiry and by way of an affidavit filed by the parties before the concerned Court.

From Para 15-18, [Happy that Section 12(5) is emphasized and directions issued]

15. On a coalesce of the aforesaid analysis of the provisions of the Act and the law laid down by the Apex Court and that of the co-ordinate Bench of this Court, what would unmistakably emerge is that applications concerning protection orders under Section 18, residence orders under Section 19 and monetary relief under Section 20, all of which direct that if the learned Magistrate is prima facie finds justification he could grant those reliefs. Section 23 of the Act empowers the learned Magistrate to grant of interim and ex-parte orders in any application under Sections 18, 19, 20 and 21
or even 22 against the respondent, granting interim relief in terms of the application/s so filed cannot be after an eon, it has to be granted anon. Therefore, there is no warrant for any Magistrate to await for the procedure as stipulated under the CrPC to get concluded, and then grant the relief that is sought in the application. It defeats the very life blood of the Act. If Section 12 is the one under which applications are filed before the concerned Court, sub-section (5) of Section 12 mandates disposal within 60 days.
16. It is quite appalling that an application filed by the petitioner under Section 12 of the Act for the relief as available under Sections 19, 20 and 22 of the Act has been kept pending for close to 52 months after its filing, notwithstanding the fact that the mandate of the Act is disposal of those applications within 60 days. The applications being kept pending would display apathy towards the litigants. The reason for the applications being kept pending is free fall for adjournments being granted by the concerned Court. In the case at hand, close to two years have passed by and the Court has gone on granting time to the husband for filing assets and liabilities statement to determine the payment of maintenance to the wife under the provisions of the Act while the wife/aggrieved person suffers. An application that has to be disposed of within 60 days, has taken 52 months, and is yet to be disposed of.
17. The law Courts which exist to remedy the wrong when it is brought to its notice has to act swiftly, as it is trite that, actus curiae neminem gravabit that the act of Court should prejudice no person. If an act of the Court should not prejudice any person; the Court should not permit any procrastination of the proceedings before it. A woman, who is a victim of domestic violence, knocking at the doors of the Magistrate, under the Act seeking maintenance or shelter such grievance, will have to be addressed with immediacy. It is for this reason that the statute mandates that such applications have to be disposed of within 60 days in terms of sub-section (5) of Section 12 of the Act. The mandate is unequivocal as sub-section (5) mandates that the Magistrate shall endeavour to dispose every application; every application would mean each and every, not a few or more. If the delay takes away the very soul of the enactment, such delay would definitely deny justice. It is, therefore, often said that “justice delayed is justice denied”. If the facts of the case at hand are taken note of, it would display that the petitioner has been denied maintenance and other benefits available under the Act for close to five years now, after she has been out of the matrimonial house.
18. In the aforesaid circumstances, it becomes necessary for this Court to direct the Magistrates, to henceforth decide the applications filed by the aggrieved persons within the time frame. The applications could be for the benefit of Sections 19 and 20 of the Act which are filed along with the application under Section 12 of the Act. Any delay beyond 60 days to consider the application should be only for reasons to be recorded in writing. For a maintenance application, the concerned Court shall direct the husband, after receipt of notice, to file his assets and liabilities statement within four weeks from the date of appearance and in the event, he would dodge appearance before Court, the Court is empowered to grant interim maintenance, on what is filed by the aggrieved person as assets and liabilities statement and as sought in the application, failing which, such cases, like the one that is brought before this Court, would mushroom and defeat the very purport of the promulgation of the Act.

Kavitha M Vs Raghu on 16 Mar 2023

Citations: [2023 SCC OnLine Kar 11],

Other Sources:

https://indiankanoon.org/doc/158022851/

https://www.casemine.com/judgement/in/6423e02cd66f1c555c648b74

https://www.livelaw.in/news-updates/karnataka-high-court-disposal-of-application-dometic-violence-act-accommodation-monetary-relief-interim-maintenance-224447

Domestic Violence Victims Must Be Addressed With Immediacy: Karnataka High Court Issues Directions to Magistrate Courts

https://www.the-laws.com/Encyclopedia/browse/Case?caseId=013202793200&title=kavitha-m-vs-raghu

https://www.scconline.com/blog/post/2023/03/23/magistrates-decide-applications-domestic-violence-act-within-60-day-time-frame-written-reasons-recorded-karnataka-high-court-legal-news-updates/

Index of Domestic Violence judgments is here.

Parul Tyagi Vs Gaurav Tyagi on 04 Aug 2023

Posted on September 23, 2024 by ShadesOfKnife

A single judge of Allahabad High Court passed the following guidelines in elaboration of Rajnesh Pal Naidu Vs Neha Naidu Joshi and Anr on 04 Nov 2020 and Aditi Sharma Vs Jitesh Sharma on 06 Nov 2023

G. Guidelines to the Family Courts
87.1 The Family Court Judge shall ensure compliance of the following guidelines in maintenance proceedings:
i) Both parties must submit the Affidavit of Disclosure of Assets and Liabilities as Enclosure-I or II (as applicable), as provided in the Rajnesh Case (supra).
ii) The memo of parties shall include the parties’ current mobile number, email address (if available), and the latest residential and official addresses, particularly if the applicant/respondent is employed.
iii) The memo of parties shall also specifically mention the name of the concerned police station, where the applicant and respondent resides and works (as applicable).
iv) Additionally, the Family Court Judge must ensure that Enclosure-I or II, as applicable, are accompanied by an affidavit from the respondent, containing the following details:
a) Permanent and current address of the respondent.
b) Mobile number of the respondent for communication during the pendency of the petition.
c) Email ID and WhatsApp number, if any.
d) Name and address of the respondent’s employer, along with a telephone number.
e) An undertaking from the respondent to promptly inform the court through an affidavit if there is any changes to his address, mobile number, E-mail ID, WhatsApp number, residential address, workplace, or employer’s name.
87.2 Upon receiving an application for maintenance, the Family Court shall include the following specifics in the initial order:
i) Mandatory requirement of an Affidavit of Disclosure of Assets and Liabilities, as per Enclosure-I & II, whichever is applicable, along with the reply.
ii) The respondent shall be given two opportunities for filing a reply, and the application for interim maintenance shall be decided in less than six months.
iii) The respondent must submit the reply within four weeks.
iv) If the affidavit is not filed within four weeks, the court will proceed based on the applicant’s submission and the existing pleadings to decide the application. If the respondent repeatedly delays in filing the reply with the affidavit, requesting more than two adjournments, the court may exercise its authority to strike off the respondent’s defence, provided it determines that the delays are intentional and obstructive, causing undue disruptions to the proceedings. In such cases, the Family Court may proceed to adjudicate the maintenance application based on the applicant’s submitted affidavit and the existing pleadings.
v) The order shall indicate that false statements in the Affidavit of Disclosure of Assets and Liabilities may lead to proceedings under section 340 Cr.P.C. besides contempt of court. It should also explain the ingredients of section 340 Cr.P.C., the potential criminal prosecution in IPC, and the maximum sentence for such offences, if proved in court.
87.3 The Family Court shall employ all legally permissible methods of serving notices to the respondent, using persuasive measures as may be necessary. The Family Court shall develop practical and effective mechanisms to ensure successful service on the respondent, aligning with the objectives and principles of these guidelines. If the court determines that the Process Server/Postman/Police Officer has submitted a routine, repetitive service report (e.g., citing unclaimed postal articles, locked premises, addressee left the address, or an unknown address), it may hold the officer accountable in accordance with the law. The Family Court may also explore modern methods of service facilitated by internet access, including courier services, email, or instant messaging platforms like WhatsApp and other electronic media. The essence of service lies in ensuring that the proceedings are duly conveyed to the respondents or contesting parties. Service on a litigant can be accomplished through e-mail or phone contact29. Serving notice, summons, and exchange of pleadings, service via e-mail, fax, or commonly used instant messaging services like WhatsApp is considered valid30.
87.4 If either party disputes the information declared in the Affidavit of Disclosure of Assets and Liabilities, the aggrieved party has the right to seek the other party to produce the relevant documents in question31.
87.5 To determine the amount of maintenance, the Family Court Judge shall adhere to the criteria outlined in Part-3 of the Rajnesh Case (supra). In cases where the wife has her own income, this shall not preclude her from being eligible to receive maintenance from her husband. The court must assess whether the wife’s income allows her to sustain a lifestyle commensurate with that of her husband in her matrimonial home32.
87.6 It is assumed that an able-bodied husband is capable of earning enough to support his wife and children. For interim maintenance determination, the minimum wage rates of Uttar Pradesh, as per the latest Government Notification, may serve as a guideline. This is just one of the alternatives that the Family Court Judge may consider when assessing a person who claims to be a labourer with no other income sources, among other pleadings.
88. The interim maintenance order shall contain the ingredients of the third proviso to section 125 Cr.P.C. (added by Act 50 of 2001, effective from 24.9.2001), and Uttar Pradesh State Amendments (upto date) in this regard, in plain language so that the respondent could understand understand the consequences of non-payment of interim maintenance. A table summarizing hearing dates and a brief description of Family Court orders on each date shall also be made part of the order.
89. Both interim and final maintenance orders shall include a table showing the number of orders passed by the Family Court prior to awarding interim and final maintenance, along with brief descriptions of orders passed on each date until the final adjudication of the section 125 Cr.P.C. application. The final maintenance order shall also include a date-wise account of proceedings related to section 125(3) Cr.P.C.
90. In cases involving parties from the Economically Weaker Section, individuals living below the poverty line, or casual labourers, the obligation to submit the Affidavit of Disclosure of Assets and Liabilities would be exempted. The court may demand an EWS/BPL certificate issued by the competent authority, which may be the Office of the Labour Commissioner or the Revenue Authority, as applicable.
91. District Judges shall develop a structural system for regularly assessing and overseeing the performance of family courts within their districts, ensuring the adherence to directives issued by the Supreme Court in Rajnesh Case (supra) and by this Court, in the instant case, this reporting mechanism would serve as a means of accountability, enabling timely interventions by the Constitutional Courts, when necessary. This may encompass routine evaluations, case audits, and feedback mechanisms to gauge the effectiveness and quality of judicial decisions in this context.
92. All District Judges shall convene semi-annual meetings of their respective Family Court Judges to review and evaluate the implementation progress of the guidelines issued by the Supreme Court in Rajnesh Case (supra) and this Court in the instant case. If the guidelines issued to Family Courts are not followed, concerned District Judge shall submit a semi-annual report to the Registrar General of this Court, against the Judicial Officer, who has not complied the guidelines. The Registrar General shall record its finding and present these reports to the respective Administrative Judge of the concerned Judicial Officer for their review and reference. Additionally, a record of these reports shall also be maintained in the service book of the concerned Judicial Officer. The District Judge shall prepare the progress report in the manner as provided in Enclosure-III attached with this judgment.
93. The District Judge along with the Principal Judge, Family Court shall flag the critical issues with respect to service of notice/summons and problems encountered in enforcement of interim maintenance/maintenance orders passed by respective Family Court Judges in the meeting of District Monitoring Committee for Family Courts, and the civil administration shall provide all assistance, as may deem necessary.
94. The District Legal Services Authority, in collaboration and cooperation with the respective District Bar Association, shall arrange awareness and training sessions/ workshops to encourage Bar members to submit pleadings in accordance with Enclosure-I & II.
95. For the sake of convenience, the Enclosures I & II attached to Rajnesh Case (supra) are hereby included as part of this order. Additionally, Enclosure-III is provided for the convenience of all District Judges to prepare the compliance report, in case aforesaid guidelines are not followed.
96. The Registrar (Compliance) of this court shall communicate copy of this judgment to all District Judges for dissemination among all Family Court Judges, and Chief Secretary, Government of Uttar Pradesh to circulate among all District Magistrates and Senior Superintendent of Police, of respective districts. Furthermore, a copy of this judgment shall be published on the websites of all District Courts, Family Courts, and Courts of Judicial Magistrate to facilitate awareness and implementation.

Parul Tyagi Vs Gaurav Tyagi on 04 Aug 2023

Index of Maintenance cases u/s 144 BNSS (125 CrPC) is here.

Tavaragi Rajashekhar Shiva Prasad Vs State of Karnataka and Ors on 19 Jul 2024

Posted on September 4, 2024 by ShadesOfKnife

A single judge of Karnataka High Court (Bengaluru Bench) held that along with notice under 41A CrPC (Section 35 BNSS), a copy of the FIR must be sent along.

From Para 9,

This notice does have clarity as to why the petitioner is being summoned. The matter could be disposed of recording the fact that the second notice does contain the crime number, as the issue may seem to be very simple. In the considered view of the Court, it is not, as Section 41 of the Cr.P.C., deals with arrest of persons. Any notice so issued under Section 41-A if not complied with, the Station House Officer is entitled to arrest the noticee. Therefore, the noticee must be aware of why he is being summoned to the Police Station, as summoning to the Police Station is not summoning a person to a happy place. A citizen must know as to why he is being summoned. The information to the citizen cannot be half baked; it must be in full. The notice must contain the crime number and the purpose for which he is being summoned. While it can be transmitted electronically, no fault can be found with that, but it should mention crime number. The duty of the Station House Officer would not stop at mentioning crime number, but he should also attach to the communication, a copy of the FIR, so registered against the noticee, as power is available to summon the accused or any person in connection with a crime. Therefore, the noticee, without knowing the crime number and without getting a copy of the FIR, cannot be asked to appear before an officer of the police station on receipt of notice under Section 41-A.

From Para 10,

Sub-sections (2) to (6) of Section 35 of the BNSS assume significance. Section 35(4) permits issuance of a notice to any person and the noticee shall be bound to comply with the terms of the notice. Section 35(6) commands that if a person fails to comply with the terms of the notice or is unwilling to identify himself, the Police Officer may, subject to such orders as may have been passed by the competent Court in this behalf, arrest him for the offence mentioned in the notice. Therefore, the rigour is little stronger. Stronger the rigour, the noticee is required to know all that he has to reply, prior to his appearance before the Police. It, thus, becomes mandatory for a notice to be issued under Section 35 of the BNSS to mention the crime number, the offence alleged in the crime so registered and necessarily append to it a copy of the FIR so registered, as any person who receives the notice must be aware for what he is being summoned to the Police Station.

From Para 13,

13. It is made clear that till the guidelines/check list is so notified by the State, if any person is necessary to be summoned, the drill that shall be followed are:-
(a) The notice under Section 35 of the BNSS shall mention the crime number and the offence alleged in the crime number. This can be communicated to the noticee either through the conventional method or through electronic mode.
(b) The communication shall attach copy of the FIR so registered, as the FIR would contain the gist of the complaint.
(c) In the event notice does not contain the crime number, the offence alleged or appending of the FIR, subject to just exceptions, the noticee is not obliged to appear before the officer who has directed him to appear and no coercive action can be taken for non-appearance.
(d) It is also necessary for the Police Department to bring about robust system for the FIR being uploaded immediately on their registration and make it search friendly.

Tavaragi Rajashekhar Shiva Prasad AND State of Karnataka on 19 Jul 2024

Other remedies to police atrocities are here.

Shades of Knife

True Colors of a Vile Wife

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