Hon’ble High Court of Andhra Pradesh has, in this judgment, reminded about the menace of roping in all relatives of husband into false litigation while granting anticipatory bail to relatives of husband.
Citations :
Other Sources :
https://indiankanoon.org/doc/122766842/
https://www.legitquest.com/case/tahmeena-kaleem-others-v-state-of-andhra-pradesh/86139
https://www.lawyerservices.in/Tahmeena-Kaleem-and-Others-Versus-State-of-Andhra-Pradesh-2014-01-17
In this Writ Petition by Sushil Kumar Sharma, which was dismissed though, had this prayer,
By this petition purported to have been filed under Article 32 of the Constitution of India, 1950 (in short ‘the Constitution’) prayer is to declare Section 498A of Indian Penal Code, 1860 (in short ‘the IPC’) to be unconstitutional and ultra vires in the alternative to formulate guidelines so that innocent persons are victimized by unscrupulous persons making false accusations.
And,
Further prayer is made that whenever, any court comes to the conclusion that the allegations made regarding commission of offence under Section 498 IPC are unfounded, stringent action should be taken against person making the allegations. This according to the petitioner, would discourage persons from coming to courts with unclean hands and ulterior motives. Several instances have been highlighted to show as to how commission of offence punishable under Section 498A IPC has been made with oblige motive and with a view to harass the husband, in-laws and relatives.
Here is the legal terrorism comment,
The object of the provision is prevention of the dowry menace. But as has been rightly contended by the petitioner many instances have come to light where the complaints are not bonafide and have filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignonymy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra-vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame work. As noted the object is to strike at the roots of dowry menace. But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used a shield and not assassins’ weapon. If cry of “wolf” is made too often as a prank assistance and protection may not be available when the actual “wolf” appears. There is no question of investigating agency and Courts casually dealing with the allegations. They cannot follow any strait jacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that ultimate objective of every legal system is to arrive at truth, punish the guilty and protect the innocent. There is no scope for any pre- conceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the courts start with the presumption that the accused persons are guilty and that the complainant is speaking the truth. This is too wide available and generalized statement. Certain statutory presumption are drawn which again are reputable. It is to be noted that the role of the investigating agencies and the courts is that of watch dog and not of a bloodhound. It should be their effort to see that in innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally indisputable that in many cases no direct evidence is available and the courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view.
And it was dismissed like this,
Prayer has been made to direct investigation by the Central Bureau of Investigation (in short the ‘CBI’) in certain matters where the petitioner is arrayed as an accused. We do not find any substance in this plea. If the petitioner wants to prove his innocence, he can do so in the trial, if held.
Citations: [2005 ALLMR SC 5 982], [2005 SCR 730], [2006 CRLR 44], [2005 SRJ 8 90], [2005 CRLJ 0 3439], [2005 CRI LJ 3439], [2005 RCR CRI 3 745], [2005 SCC CR 0 1473], [2005 AIOL 300], [2005 CCR 3 43], [2005 KERLT 3 611], [2005 JT 6 266], [2005 CRLR 661], [2005 SCALE 5 523], [2005 MLJ CRI 1 887], [2005 ALLMR 5 982], [2006 CALCRILR 44], [2005 SLT 5 438], [2005 JCRIC 2 1193], [2005 ALD CRI 2 633], [2005 DMC 2 325], [2005 SCJ 5 303], [2005 SCC 6 281], [2005 AIR SC 3100], [2005 SCC CRI 0 1473], [2005 AIR SC 0 3569], [2005 UJ SC 2 1057], [2005 SUPREME 5 137]
Other Source links: https://indiankanoon.org/doc/1172674/ and https://www.casemine.com/judgement/in/5609ae15e4b0149711412e70
This judgment from Hon’ble Apex Court allowed Exemption from Personal Appearance under CrPC 205 to parents and family of Arnesh Kumar.
This landmark judgment from Apex Court has been cited in many cases handled by CBI as the contemnors in this case were handed out Simple Imprisonment from 1 day to 3 months.
The petitioner of this Writ petition could have gotten compensation from State for his illegal detention but due to his exaggeration of the incident, has disentitled themselves from receiving any compensation.
Some related news here.
Citations : [1995 SCC CRI 608], [1995 SCALE 3 138], [1995 AIR SC 1795], [1995 CRIMES SC 2 592], [1995 SCC 3 757], [1995 BOMCR SC 4 366], [1995 ALR 26 180], [1995 ALT CRI 2 340], [1996 BLJR 1 352], [1995 SCR 3 964], [1996 UPLBEC 1 203], [1995 JT SC 4 483]
Other Sources :
https://indiankanoon.org/doc/1877695/
https://www.casemine.com/judgement/in/5609acc2e4b014971140fa5f
Index of Perjury Judgments is here.
Hon’ble Supreme Court held that perjury proceedings initiated by Trial Court and High Court does not suffer from any infirmity and as such the petitions were dismissed,
As she resiled from the statement made during investigation, she was permitted to be cross-examined by the prosecution. She even denied to have lodged the first information report (Exh.P-1) and to have given any statement 1 to the police (Exh.P-2). In view of the statement of the petitioner, the two accused persons were acquitted by judgment dated 28.11.2001.
Another gem of the mindset of some women and her family members
Learned counsel for the petitioner stated that being a girl of tender age, she was pressurized by her mother and uncle to give a false report. This is at variance with the statement made in court during trial to the effect that she had not reported anything to the police.
Purpose of Section 344, Cr.P.C.
The purpose of enacting Section 344, Cr.P.C. corresponding to Section 479-A of the Code of Criminal Procedure, 1898 (hereinafter referred to as ‘the Old Code’) appears to be further arm the Court with a weapon to deal with more flagrant cases and not to take away the weapon already in its possession. The object of the legislature underlying enactment of the provision is that the evil of perjury and fabrication of evidence has to be eradicated and can be better achieved now as it is open to the courts to take recourse to Section 340(1) (corresponding to Section 476 of the Old Code) in cases in which they are failed to take action under Section 344 Cr.P.C.
Conditions to initiate CrPC 344 proceedings
For exercising the powers under the section the Court at the time of delivery of judgment or final order must at the first instance express an opinion to the effect that the witness before it has either intentionally given false evidence or fabricated such evidence. The second condition is that the Court must come to the conclusion that in the interests of justice the witness concerned should be punished summarily by it for the offence which appears to have been committed by the witness. And the third condition is that before commencing the summary trial for punishment the witness must be given reasonable opportunity of showing cause why he should not be so punished. All these conditions arc mandatory. [See Narayanswamy v. State of Muharashtra, (1971) 2 SCC 182].
Citations : [2008 SCC 8 34], [2008 KERLT 3 509], [2009 SCJ 1 89], [2009 SCJ 1 396], [2008 AIR SC 2965], [2008 SCR 10 869], [2008 SCALE 10 97], [2008 SLT 6 419], [2008 AIR SC 4989], [2009 MPJR 1 7], [2008 CALCRILR 2 490], [2009 ILR MP 332], [2008 KLD 2 513], [2008 RAJLW 3 2379], [2008 AIOL 814], [2009 BOMCR CRI SC 2 494], [2008 SCC CRI 3 414], [2008 AIC SC 69 189], [2008 AIR SCW 4989], [2008 CRLJ SC 3867]
Other Sources:
https://indiankanoon.org/doc/46073/
https://www.casemine.com/judgement/in/5609ae92e4b01497114142e2
https://www.legalauthority.in/judgement/mahila-vinod-kumari-vs-state-of-m-p-13468
Read for yourself. This is the judgment of Hon’ble Apex Court which held that interim maintenance can be given in a Sec 125 CrPC case.
From Para 6,
6. In view of the foregoing it is the duty of the court to interpret the provisions in Chapter IX of the Code in such a way that the construction placed on them would not defeat the very object of the legislation. In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under section 125 of the code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under section 125 of the code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the court. Every court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective. This principle is embodied in the maxim “ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest” (Where anything is conceded, there is conceded also anything without which the thing itself cannot exist). [Vide Earl Jowitt’s Dictionary of English Law, 1959 Edn., p. 1797.] Whenever anything is required to be done by law and it is found impossible to do that thing unless something not authorised in express terms be also done then that something else will be supplied by necessary intendment. Such a construction though it may not always be admissible in the present case however would advance the object of the legislation under consideration. A contrary view is likely to result in grave hardship to the applicant, who may have no means to subsist until the final order is passed. There is no room for the apprehension that the recognition of such implied power would lead to the passing of interim orders in a large number of cases where the liability to pay maintenance may not exist. It is quite possible that such contingency may arise in a few cases but the prejudice caused thereby to the person against whom it is made is minimal as it can be set right quickly after hearing both the parties. The Magistrate may, however, insist upon an affidavit being filed by or on behalf of the applicant concerned stating the grounds in support of the claim for interim maintenance to satisfy himself that there is a prima facie case for making such an order. Such an order may also be made in an appropriate case ex parte pending service of notice of the application subject to any modification or even an order of cancellation that may be passed after the respondent is heard. If a civil court can pass such interim orders on affidavits, there is no reason why a Magistrate should not rely on them for the purpose of issuing directions regarding payment of interim maintenance. The affidavit may be treated as supplying prima facie proof of the case of the applicant. If the allegations in the application or the affidavit are not true, it is always open to the person against whom such an order is made to show that the order is unsustainable. Having regard to the nature of the jurisdiction exercised by a Magistrate under section 125 of the code, we feel that the said provision should be interpreted as conferring power by necessary implication on the Magistrate to pass an order directing a person against whom an application is made under it to pay a reasonable sum by way of interim maintenance subject to the other conditions referred to therein pending final disposal of the application. In taking this view we have also taken note of the provisions of Section 7(2)(a) of the Family Courts Act, 1984 (Act 66 of 1984) passed recently by Parliament proposing to transfer the jurisdiction exercisable by Magistrates under section 125 of the code to the Family Courts constituted under the said Act.
Note: By way on an amendment to Cr.P.C. 1973 in 2001, the Parliament brought the following two Provisos.
Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:
Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.
Citations: [1986 AIR SC 984], [1985 AWC SC 11 906], [1986 BOMLR 88 223], [1985 GLH 1184], [1985 MHLJ 976], [1986 PLJR 6], [1985 SCALE 2 697], [1985 SCC 4 337], [1985 SUPP SCR 3 615], [1985 SCC CRI 556], [1985 CRIMES SC 2 872], [1986 CRIMES SC 1 148], [1986 CRLJ SC 41], [1986 CAR 1], [1986 CRLR 1], [1985 BBCJ 160], [1986 MLJ CRI 1 12], [1985 DLT 28 437], [1985 MPLJ SC 662]
Other Sources:
https://indiankanoon.org/doc/1194071/
https://www.casemine.com/judgement/in/5609ac1fe4b014971140e17e
https://vlex.in/vid/special-leave-petition-civil-852326810
A division bench of Apex Court explained who is eligible to claim maintenance u/s 125 Cr.P.C. and under what conditions.
From Para 7,
7. Under the law the burden is placed in the first place upon the wife to show that the means of her husband are sufficient. In the instant case there is no dispute that the appellant has the requisite means. But there is an inseparable condition which has also to be satisfied that the wife was unable to maintain herself. These two conditions are in addition to the requirement that the husband must have neglected or refused to maintain his wife. It has to be established that the wife was unable to maintain herself. The appellant has placed material to show that the respondent wife was earning some income. That is not sufficient to rule out application of Section 125 CrPC. It has to be established that with the amount she earned the respondent wife was able to maintain herself.
Heart and soul of this judgment from Hon’ble Apex Court is in Para 8.
In an illustrative case where wife was surviving by begging, would not amount to her ability to maintain herself. It can also be not said that the wife has been capable of earning but she was not making an effort to earn. Whether the deserted wife was unable to maintain herself, has to be decided on the basis of the material placed on record. Where the personal income of the wife is insufficient she can claim maintenance under Section 125 Cr.P.C. The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband. In Bhagwan v. Kamla Devi (AIR 1975 SC 83) it was observed that the wife should be in a position to maintain standard of living which is neither luxurious nor penurious but what is consistent with status of a family. The expression “unable to maintain herself” does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125 Cr.P.C.
Citations: [AIR 2008 SUPREME COURT 530], [2007 AIR SCW 7416], [2008 CRI LJ (NOC) 186], [2008 CRI LJ (NOC) 2], [2008 (1) AIR JHAR R 664], [2008 (1) SRJ 29], [(2008) 1 MH LJ (CRI) 644], [(2008) 1 JCC 486 (SC)], [2008 (1) CALCRILR 416], [2008 (1) SCC(CRI) 356], [2008 (2) CRI RJ 401], [2008 ALL MR(CRI) 860], [2008 (2) SCC 316], [2007 (13) SCALE 402], [2007 (8) SUPREME 525], [(2008) 1 MPHT 13], [(2008) 64 ALLINDCAS 735 (CHH)], [(2008) 1 CGLJ 228], [(2008) 1 CHANDCRIC 27], [(2008) 1 DMC 22], [(2008) 1 CIVILCOURTC 233], [(2008) 2 GUJ LR 1159], [(2008) 1 HINDULR 130], [(2008) 2 JAB LJ 70], [(2008) 1 MADLW(CRI) 615], [(2008) 2 MAD LJ 481], [(2008) 1 MAD LJ(CRI) 1400], [(2008) 2 MARRILJ 605], [(2008) MATLR 775], [(2008) MATLR 165], [(2008) 39 OCR 383], [(2008) 1 PUN LR 263], [(2008) 1 RAJ LW 142], [(2008) 1 RECCRIR 163], [(2007) 4 CURCRIR 408], [(2008) 1 RECCIVR 136], [(2008) 2 ALLCRIR 1409], [(2008) 3 CGLJ 473], [(2008) 1 CAL LJ 166], [(2008) 1 ALLCRILR 342], [(2008) 105 CUT LT 729], [(2007) 3 JCC 2446 (DEL)], [(2008) 1 KER LT 41], [(2008) 1 RAJ CRI C 35], [2008 CRILR(SC&MP) 1], [(2008) 1 CRILR(RAJ) 1], [2008 CRILR(SC MAH GUJ) 1], [2008 (1) ALD(CRL) 97], [2008 (1) ANDHLT(CRI) 131 SC], [2007 INSC 1190]
Other Sources:
https://indiankanoon.org/doc/1720873/
https://www.casemine.com/judgement/in/5609ae55e4b01497114137ad
https://www.the-laws.com/Encyclopedia/browse/Case?caseId=007002893100&title=chaturbhuj-vs-sita-bai
Index Maintenance Judgments under Section 125 Cr.P.C. is here.
Landmark judgment from Apex Court here around the Sec 125 CrPC and few more details.
From Para 16,
Bare reading of sub-section (1) of Section 125 leaves no room for doubt that if any person having sufficient means, neglects or refuses to maintain his wife who is unable to maintain herself or his legitimate (or illegitimate) child (children) unable to maintain itself (themselves), or his father, or mother, unable to maintain himself or herself, a Court, upon proof of negligence or refusal, order such person to pay maintenance to his wife or child (children) or parents, as the case may be. It is also clear that maximum amount which could be ordered to be paid was Rs.500/- p.m. which was clear from the expression “not exceeding Rs.500/- in the whole”.
From Para 18,
By the Code of Criminal Procedure (Amendment) Act, 2001 (Act 50 of 2001), subsections (1) and (2) came to be amended with effect from September 24, 2001. The amended sub-sections now read thus:
…..
a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:
How the interim maintenance’ came to be about?
So far as ‘interim’ maintenance is concerned, it is true that Section 125 of the Code as it originally enacted did not expressly empower the Magistrate to make such order and direct payment of interim maintenance. But the Code equally did not prohibit the Magistrate from making such order. Now, having regard to the nature of proceedings, the primary object to secure relief to deserted and destitute wives, discarded and neglected children and disabled and helpless parents and to ensure that no wife, child or parent is left beggared and destitute on the scrap-heap of society so as to be tempted to commit crime or to tempt others to commit crime in regard to them, it was held that the Magistrate had ‘implied power’ to make such order. The jurisdiction of the Magistrate under Chapter IX (Order for Maintenance of Wives, Children and Parents) is not strictly criminal in nature. Moreover, the remedy provided by Section 125 of the Code is a summary remedy for securing reasonable sum by way of maintenance subject to a decree passed by a competent civil Court. Hence, in absence of any express bar or prohibition, Section 125 could be interpreted as conferring power by necessary implication to make interim order of maintenance subject to final outcome in the application.
Golden Words
Again, maintenance is a right which accrues to a wife against her husband the minute the former gets married to the latter. It is not only a moral obligation but is also a legal duty cast upon the husband to maintain his wife. Hence, whenever a wife does not stay with her husband and claims maintenance, the only question which the Court is called upon to consider is whether she was justified to live separately from her husband and still claim maintenance from him? If the reply is in the affirmative, she is entitled to claim maintenance.
Citations : [2008 CRLJ SC 3881], [2008 AIR SC 5063], [2008 AIOL 871], [2008 SCR 11 386], [2008 ANJ SC SUPP 2 70], [2009 BOMCR SC SUPP 1 324], [2008 SCC CRI 3 839], [2008 JT 8 227], [2008 SCALE 10 602], [2008 AIR SC 3006], [2008 SCC 9 632], [2008 KERLT 3 576], [2008 AIR SCW 5063]
Other Sources:
https://indiankanoon.org/doc/1952766/
https://www.casemine.com/judgement/in/5609ae64e4b0149711413b53
Hon’ble Supreme Court has laid down three categories of cases where the inherent jurisdiction could and should be exercised to quash proceedings:
(i) where there was a legal bar against the institution or continuance of the proceedings;
(ii) where the allegations in the first information report or complaint did not make out the offence alleged; and
(iii)where either there was no legal evidence adduced in support of the charge or the evidence adduced clearly or manifestly failed to prove the charge.
Conclusion:
It is not a case where the appellant can justly contend that on the face of the record the charge levelled against him is unsustainable.
Citation: [1960 AIR 862], [1960 SCR (3) 311], [(1960) 3 SCR 388], [1960 CRLJ SC 1239], [1960 CRILJ 239], [1961 AWR 31 49], [1960 AIR SC 866]
Other Source links: https://indiankanoon.org/doc/1033301/ or https://www.casemine.com/judgement/in/5609ab10e4b014971140b8c1
Reproduced in accordance with Section 52(q) of the Copyright Act 1957 (India) from judis.nic.in, lobis.nic.in, indiacode.nic.in and other Indian High Court and District Court Websites such as ecourts.gov.in
Awesome judgment from Justice J.B.PARDIWALA, at Hon’ble High Court of Gujarat. Excellent analysis and dissection of cunning knife’s mind.
Funny Anecdote #1:
Establishing Jurisdiction:
The sum and substance of the FIR lodged by the respondent No.2 appears to be a matrimonial dispute between the husband and the wife, but as usual, all other family members have been roped in as accused persons. The applicant No.2, Dipikaben, is the wife of the applicant No.1’s brother. I am told that Dipikaben is a widow and she is residing independently at Padra of District Baroda. Dipikaben has a daughter aged about 20 years. The applicant No.3 Hetalben is the niece of the applicant No.1, and is residing at her matrimonial home at Gotri. The applicant No.3 got married in the year 2006, and before her marriage, was residing at Delhi. The applicants Nos. 4 and 5 are the husband and wife, and both are residing at Delhi. The applicant No.4 is one of the brothers of the applicant No.1. The applicant No.6, who is the sister of the applicant No.1, is residing at her matrimonial home at Baroda.
Funny Anecdote #2:
Delay in filing Complaint/FIR:
It appears on a plain reading of the FIR that on her own admission, she had stayed at her matrimonial home upto the year 2004, and thereafter, she left the matrimonial home and started residing at her parental home. The respondent No.2 lodged the F.I.R after a period of four years thereafter i.e. in 2009.
Legal Point #1:
When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.
One more:
Although the respondent No.2 is much more annoyed with her husband, with an obvious motive, has arrayed all the close relatives of her husband in the FIR. The Police also seems to have recorded stereo-type statements of the witnesses who are none other than the parents and other relatives of the respondent No.2 and has filed a charge-sheet.
Legal Point #3
Thus, it could be seen from the above that the apex Court has noticed the tendency of the married women roping in all the relatives of her husband in such complaints only with a view to harass all of them, though they may not be even remotely involved in the offence alleged.
One more here
In all cases where wife complains of harassment or ill-treatment, Section 498-A of the IPC cannot be applied mechanically. No F.I.R is complete without Sections 506(2) and 323 of the IPC.
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