A division bench of the Apex Court held that ‘Section 9 of Hindu Marriage Act, 1955 (popularly called as Restitution of Conjugal Rights case) is not violative of Articles 14 and 21 (right to privacy)‘.
Tag: Landmark Case
Ankit Singh and 3 Ors Vs State of U.P. and Anr
A single bench judge at Allahabad High Court held as follows,
On 16 Jul 2024
From Paras ,
On 23 May 2024
From Paras 18-24,
18. This Court is witnessing that in cases where allegations of dowry is being made, same is being investigated by police and not by Dowry Prohibition Officer. The police in case diary are not recording whether procedure under the Rules of 1999 are being followed more particularly whether the principle provided under Rule 6 (4) and Rule 7 (9) of Rules of 1999 are being implemented in letter and spirit. It is to be noted that Dowry Prohibition Officer under Rule 6(4) of Rules of 1999 is empowered to take preventive and remedial measures (to save the marriage) and can pass orders in this respect, which the police is not empowered under law. Once the mandate as to whether the parties to marriage is required to be prosecuted for an offence under the Dowry Prohibition Act is to be decided by the Dowry Prohibition Officer then how the police authority is bypassing the aforesaid special procedure and jurisdiction of Dowry Prohibition Officer and are submitting chargesheet against the groom and his family members.
19. This Court is observing that in many cases the allegations are being levelled against groom and his family members with regard to dowry and other offences. The chargesheet is been submitted by police in a mechanical manner just by recording the statement of bride or their family members. In order to take away jurisdiction of Dowry Prohibition Officer, along with offence under Dowry Prohibition Act, allegations are also being levelled with regard to provisions of Indian Penal Code. In respect of offence under Dowry Prohibition Act, authority to collect evidence and prosecute is vested with Dowry Prohibition Officer and when other offences are also involved then the State Government can always resort to Section 8B (3) of Dowry Prohibition Act. However, in the garb of allegations with regard to offence under the Indian penal code being levelled by the informant, the jurisdiction of the Dowry Prohibition Officer cannot be taken away in respect of offence under the Dowry Prohibition Act.
20. A unique situation has arisen on account of the enactment of the Dowry Prohibition Act, 1961 and the Rules of 1999. The offences under the Dowry Prohibition Act would be examined and prosecuted by the Dowry Probation Officer while keeping into account the principles laid down under Rule 6 (4) of the Rules of 1999. However, when the offence under the Dowry Prohibition Act is investigated along with other offences under the Indian Penal Code then the principal of saving the marriage being resorted to at the first instance (as per Rule 6 (4) of the Rules of 1999), is ignored and the chargesheet and criminal prosecution is being resorted to by police. Prima facie, this Court is of the opinion that once an offence is arising out of marriage and allegations with regard to dowry is made then the Dowry Prohibition Officer is required to examine the dispute at the first instance by resorting to the principal laid down in Rule 6 (4) of Rules of 1999 and upon being satisfied that all of the measures to save the marriage are not effective then Dowry Prohibition Officer can recommend for prosecution or himself prosecute. Any other interpretation of law would mean that bride or her family members may resort to allegations under the Indian penal code along with allegations under the Dowry Prohibition Act and thereby take away the jurisdiction of Dowry Prohibition Officer and straight away expose the groom and their family members to the rigour of criminal law and deprived them of liberty although dispute may be a matrimonial dispute between parties. Even otherwise, the State government is required to examine the necessity of exercising the power under Section 8B (3) of Dowry Prohibition Act to remove such an anomaly.
21. It is further to be noted that Rule 6 (12) of Uttar Pradesh Dowry Prohibition Rules, 1999 (as amended by Uttar Pradesh Dowry Prohibition (First Amendment) Rules, 2004) provides that Dowry Prohibition Officer shall render assistance to police investigating complaint filed under the Dowry Prohibition Act or to the court in the trial of the case. In none of cases coming up before this Court, where the police are investigating, it is found that any assistance is being rendered to police by Dowry Prohibition Officer. The purpose of Rule 6 (12) of the Rules of 1999 is to involve the Dowry Prohibition Officer at the stage of investigation so that he can pass orders for remedial and preventive nature in terms of Rule 6(4) of the Rules of 1999. The involvement of an officer who is a person outside the police department is to initiate remedial measures and collect evidence. The case diaries of investigation are not revealing that Dowry Prohibition Officer has rendered assistance in investigation. Such an approach when the matter is being investigated by police is not desirable.
22. It is further to be noted that in first information report, bride or her family members are stating that they have given dowry at time of marriage. In many cases, dowry is alleged to have been given in cash being huge amount. As per Section 3 of Dowry Prohibition Act, 1961, giving of dowry or betting to giving dowry is also an offence. The bride and her family members are blatantly stating in First Information Report and in their statement under Section 161 Cr.P.C that they have given dowry of huge amount at time of marriage to groom and his family members. The bride and her family members in defiance of the law, which prohibits giving dowry, are indulging in giving dowry as per their own admission. Although, bride or her family members who are giving dowry are offenders as per Section 3 of Dowry Prohibition Act, however they are not being prosecuted in view of Section 7 (3) of Dowry Prohibition Act, 1961. The effect of Section 7 (3) of Dowry Prohibition Act, 1961 is that bride or her family members, who indulge in giving dowry although being an offender under Section 3 of the Dowry Prohibition Act, cannot be proceeded with for prosecution under the Dowry Prohibition Act. The situation can be summarised that a person who is giving dowry will not be prosecuted as per the bar under law, however receiver of dowry is being prosecuted. The situation is alarming as some citizens (bride or her family members) are openly giving in writing to authorities that they have given dowry, which is indicative of fact that they have no respect to law laid down by Parliament. It is for the executive to take effective measures so that the situation does not arise where the citizens openly disrespect the law laid down by the Parliament or State Legislature, otherwise, the law with regard to prohibition in giving dowry would be a dead letter.
23. It is also being observed by this Court that in first information report or in the statement, it is being alleged that huge amount of cash is paid at the time of marriage to the groom or his family members, as dowry. Section 269ST of Income Tax Act prohibits cash transaction beyond Rupees two lakhs, however bride and her family members are openly giving statement in the first information report or during investigation that they have paid dowry in cash beyond Rupees two Lakhs to groom or his family members. Even, when the amount is being paid in cash as dowry, is beyond the limit prescribed by law, neither any investigation is being carried out as to source of aforesaid amount nor any investigation with regard to utilisation aspect by groom side is being made by police or investigating officer. Even the amount given as dowry in cash is not being recovered during investigation by police authorities. Only on the basis of statement of person who has given dowry, the chargesheet is being filed against groom and his family members.
24. A person who has given dowry is also an offender under Dowry Prohibition Act and solely relying on the statement of such a person who defies the law and is an offender, the groom side is being proceed with, which is not permissible nor desirable. The investigating officer is required to look at corroborative evidence in this respect. The source of huge cash (beyond permissible limit) alleged to be given in dowry is required to be investigated and whether such huge cash was given by known sources of income is also required to be investigated. Even otherwise, amount given in dowry are crime proceeds (being amount from illegal activity) as such the same are also required to be recovered during investigation.
From Paras 28-29,
28. If source of dowry/cash is not found during investigation nor the dowry amount is recovered from accused-person then solely relying upon the statement of person who has given dowry (who is also an offender under the Dowry Prohibition Act) will be unjust, unfair and unreasonable. It is to be seen that the person giving dowry is an offender under Section 3 of the Dowry Prohibition Act however such a person cannot be prosecuted in view of the bar provided under Section 7 (3) of the Dowry Prohibition Act. The bar of prosecution of person giving dowry does not remove his status as an offender under Dowry Prohibition Act however only effect of such a bar is that he cannot be criminally proceeded with or prosecuted. In these circumstances, solely relying on statement of offender (person giving dowry) for prosecution of groom or his family members under Section 3 of Dowry Prohibition Act, 1961 is not fair, just or reasonable. Some other evidence to corroborate the allegations is required to be looked into including source of dowry amount and whether the individual has given dowry from known sources of income more particularly when allegation of dowry is beyond the limit of cash transaction prescribed under the Income Tax Act.
29. There is another aspect of matter, under Section 4 of Dowry Prohibition Act, the punishment for demand of dowry may extend to 2 years and punishment under Section 498A of Indian Penal Code is a term which extend to three years however the punishment for receiving dowry under Section 3 of the Dowry Prohibition Act is not less than five years. Where except for the allegation of giving huge amount in dowry there is no other corroborative evidence (as discussed hereinabove or where the dowry amount which are the proceeds of the crime are not recovered during investigation), it may be that the allegations under section 3 have been made so that the groom and his family members are prosecuted for bigger punishment in order to take vengeance in a matrimonial dispute.
From Para 31,
31. It is therefore, imperative that investigation in dowry matters should examine whether the presents that are being alleged as dowry are customary in nature and whether the same is within the financial status of the person who is giving dowry. A person who does not have financial status/means to give the dowry and is also not able to substantiate the source of dowry given, may be indicative of fact that the allegations are incorrect or that there is use of undisclosed income or back money or there is tax evasion. Use of black money or tax evasion is required to be reported to authorities under the Income Tax Act as the same does not stand protected under Section 7(3) of Dowry Prohibition Act, 1961. Where there is no substantive evidence with regard to giving or receiving dowry then only on the basis of the statement of an offender, criminal prosecution under Section 3 of the Dowry Prohibition Act should not be permitted. In such matters either further investigation is required to be carried out or provisions of Section 3 of Dowry Prohibition Act may have to be eliminated from prosecution on account of lack of substantive evidence. Such aspect of matters is required to be examined by the appropriate authority.
On 08 May 2024
From Paras 4-11,
4. The legislature in its wisdom carved out an exception by providing that the presents which are given to the bride or the bridegroom at the time of marriage are not construed as dowry attracting Section 3 of the Dowry Prohibition Act. In order that the aforesaid exception is available to an individual, it is necessary that the aforesaid presents are entered in a list maintained in accordance with the Rules made under the Dowry Prohibition Act. The Dowry Prohibition (Maintenance of Lists of Presents to the Bride and Bridegroom) Rules, 1985 have been framed in this respect by the Central Government in the Indian marriage system gifts and presents act as a token of celebration and honouring the important event. The legislature was aware of the Indian tradition and as such the above mentioned exception was carved out. The above mentioned list would also act as a measure to thrash out the allegations of dowry which are subsequently levelled in matrimonial dispute. The maintenance of the list is also important so that both the parties to the marriage and their family members may not level false allegation of taking dowry or giving dowry in a marriage subsequently. The arrangement made by the Dowry Prohibition Act may also assist in subsequent litigation between the parties to arrive at a conclusion whether the allegations with regard to the taking or giving of dowry is covered by the exception carved out under section 3(2) of the Dowry Prohibition Act, 1961.
5. Before this Court the parties to the marriage are filing cases with allegations of dowry, however, no list in terms of Section 3(2) of the Dowry Prohibition Act and Rules of 1985 are being filed by the husband or the wife or their family members. It may be a case where no list is being prepared by the parties to the marriage. It has not been brought to the notice of this Court that the aforesaid provision is in any manner being monitored or implemented by any responsible officer of the State Government. Section 3(2) of the Dowry Prohibition Act, 1961 is required to be implemented in its letter and spirit so that citizens are not subject matter of frivolous litigation.
6. As per the aforesaid provision of law, list of presents which are required to be entered in a list and the aforesaid list is required to be signed by both bride and bridegroom. Under section 8B of the Dowry Prohibition Act, Dowry Prohibition Officers are required to be appointed for the purpose to see that the provisions of the Dowry Prohibition Act are complied with.
7. The Chief Secretary, U.P. or any other officer authorised by him shall file an affidavit as to whether in terms of Section 8B of the Act, Dowry Prohibition Officers have been appointed by the State Government.
8. In the event, Dowry Prohibition Officers have not been appointed till date, the State Government shall explain as to why the Dowry Prohibition Officers have not been appointed when the dispute of dowry is rising.
9. In the event, the State Government has appointed Dowry Prohibition Officers, it is then imperative that the steps taken by such Dowry Prohibition officers towards implementation of the provisions of the Dowry Prohibition Act is shown in respect of preparation of list of presents given in the marriage as per section 3(2) of the Dowry Prohibition Act. The State Government shall also disclose the orders issued for implementation of the Dowry Prohibition (Maintenance of Lists of Presents to the Bride and Bridegroom) Rules, 1985. The Dowry Prohibition Officers are enjoined with the duty to ensure compliance of the Dowry Prohibition Act and the Rules framed thereunder. The affidavit shall also disclose how many Dowry Prohibition Officers have been appointed throughout the State and at what level.
10. The State Government shall also file an affidavit to the effect whether at the time of registration of marriage, list of presents as required by the Dowry Prohibition (Maintenance of Lists of Presents to the Bride and Bridegroom) Rules, 1985 are being taken by the officers and being maintained so that subsequently in the event there is dispute between the parties to marriage with regard to the presents being given in marriage being designated as dowry, the same can be verified.
11. The State Government shall also file an affidavit whether any rules (for carrying out the purpose of the Dowry Prohibition Act) in terms of Section 10 of the Dowry Prohibition Act has been enacted by the State Government. A copy of the same shall also be placed before this Court on the next date.
Shrikrishna Vs Sunita Bai on 02 May 2024
A single judge of MP High Court at Indore bench held as follows,
From Para 13,
13. From the record, it is evident that learned JMFC has passed the order by dismissing the application under Section 125 of Cr.P.C. on the ground that
since the respondent did not get divorce from her earlier husband and without getting divorce she entered into second marriage. Hence, she cannot be
ascertained as a legally wedded wife of the petitioner and she is not entitled for the claim of maintenance.
From Paras 15-18,
15. It is unearthed from the aforesaid provision that an illegitimate child is entitled to get maintenance but an illegitimate wife is not entitled to get maintenance. The intention of legislature is obvious that maintenance can only be granted in favour of legally wedded wife. On this issue the law laid down by the full Bench in the case of Savitaben Somabhai Bhatia vs. State of Gujarat and Ors. reported as 2005 Lawsuit (SC) 466, is also poignant to be pointed out here:
“There may be substance in the plea of learned counsel for the appellant that law operates harshly against the woman who unwittingly gets into relationship with a married man and Section 125 of the Code does not give protection to such woman. This may be an inadequacy in law, which only the legislature can undo. But as the position in law stands presently there is no escape from the conclusion that the expression ‘wife’ as per Section 125 of the Code refers to only legally married wife.“
16. In view of aforesaid settled propositions and provisions of law, it is crystal clear that the wife should be a “legally wedded wife” for claiming maintenance from her husband. A woman, having solemnized second marriage to another person is only entitled to get maintenance from that person, when the first marriage has been declared either null and void or she has obtained a divorce decree from her first husband. The aforesaid view has recently been endorsed by this Court in the cases of Sangeeta Rathore W/o Naresh Rathore Vs. Naresh Rathore, 2023 LawSuit (MP) 470 and Kewal Singh Vs. Durgabai, 2024 LawSuit (MP) 179.
17. In conspectus of the aforesaid settled proposition, in this petition filed under Section 125 Cr.P.C., the term “wife” under Section 125 Cr.P.C. envisages a situation wherein she, having a living spouse, cannot seek maintenance from her second husband without getting divorce from her earlier husband. Nevertheless, this Court finds it unfortunate that many women, specially those belonging to the poorer strata of society, are routinely exploited in this manner, and that legal loopholes allow the offending parties to slip away unscathed and unquestioned. In spite of the social justice factor embedded in Section 125 Cr.P.C., the objective of the provision is frustrated as it fails to arrest the exploitation which it seeks to curb. In the instant case, while the Court sympathizes with the position of the Respondent, it is constrained to deny her maintenance as per the law of the land which stands as of today. However, the Respondent has the liberty to avail other remedies that may be better suited to the facts and circumstances of this case, such as seeking of compensation under Section 22 of the D.V. Act.
18. In the result thereof, the order of the learned Revisional Court awarding the maintenance to the respondent is found against the law and is also suffering from infirmity and illegality. Accordingly, the impugned order of the learned Revisional Court is set aside and the order of learned trial Court dated 06.09.2021 is hereby affirmed.
Index of Maintenance cases u/s 125 CrPC is here.
Achin Gupta Vs State of Haryana and Anr on 03 May 2024
A division bench of the Apex Court held as follows,
From Para 31-32,
31. We are of the view that the category 7 referred to above should be taken into consideration and applied in a case like the one on hand a bit liberally. If the Court is convinced by the fact that the involvement by the complainant of her husband and his close relatives is with an oblique motive then even if the FIR and the chargesheet disclose the commission of a cognizable offence the Court with a view to doing substantial justice should read in between the lines the oblique motive of the complainant and take a pragmatic view of the matter. If the submission canvassed by the counsel appearing for the Respondent No. 2 and the State is to be accepted mechanically then in our opinion the very conferment of the inherent power by the Cr.P.C. upon the High Court would be rendered otiose. We are saying so for the simple reason that if the wife on account of matrimonial disputes decides to harass her husband and his family members then the first thing, she would ensure is to see that proper allegations are levelled in the First Information Report. Many times the services of professionals are availed for the same and once the complaint is drafted by a legal mind, it would be very difficult thereafter to weed out any loopholes or other deficiencies in the same. However, that does not mean that the Court should shut its eyes and raise its hands in helplessness, saying that whether true or false, there are allegations in the First Information Report and the chargesheet papers disclose the commission of a cognizable offence. If the allegations alone as levelled, more particularly in the case like the one on hand, are to be looked into or considered then why the investigating agency thought fit to file a closure report against the other co-accused? There is no answer to this at the end of the learned counsel appearing for the State. We say so, because allegations have been levelled not only against the Appellant herein but even against his parents, brother & sister. If that be so, then why the police did not deem fit to file chargesheet against the other co-accused? It appears that even the investigating agency was convinced that the FIR was nothing but an outburst arising from a matrimonial dispute.
32. Many times, the parents including the close relatives of the wife make a mountain out of a mole. Instead of salvaging the situation and making all possible endeavours to save the marriage, their action either due to ignorance or on account of sheer hatred towards the husband and his family members, brings about complete destruction of marriage on trivial issues. The first thing that comes in the mind of the wife, her parents and her relatives is the Police, as if the Police is the panacea of all evil. No sooner the matter reaches up to the Police, then even if there are fair chances of reconciliation between the spouses, they would get destroyed. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences are mundane matters and should not be exaggerated and blown out of proportion to destroy what is said to have been made in the heaven. The Court must appreciate that all quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case, always keeping in view the physical and mental conditions of the parties, their character and social status. A very technical and hyper sensitive approach would prove to be disastrous for the very institution of the marriage. In matrimonial disputes the main sufferers are the children. The spouses fight with such venom in their heart that they do not think even for a second that if the marriage would come to an end, then what will be the effect on their children. Divorce plays a very dubious role so far as the upbringing of the children is concerned. The only reason why we are saying so is that instead of handling the whole issue delicately, the initiation of criminal proceedings would bring about nothing but hatred for each other. There may be cases of genuine ill-treatment and harassment by the husband and his family members towards the wife. The degree of such ill-treatment or harassment may vary. However, the Police machinery should be resorted to as a measure of last resort and that too in a very genuine case of cruelty and harassment. The Police machinery cannot be utilised for the purpose of holding the husband at ransom so that he could be squeezed by the wife at the instigation of her parents or relatives or friends. In all cases, where wife complains of harassment or ill-treatment, Section 498A of the IPC cannot be applied mechanically. No FIR is complete without Sections 506(2) and 323 of the IPC. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty.
From Para 35,
35. In one of the recent pronouncements of this Court in Mahmood Ali & Ors. v. State of U.P & Ors., 2023 SCC OnLine SC 950, authored by one of us (J.B. Pardiwala, J.), the legal principle applicable apropos Section 482 of the CrPC was examined. Therein, it was observed that when an accused comes before the High Court, invoking either the inherent power under Section 482 CrPC or the extraordinary jurisdiction under Article 226 of the Constitution, to get the FIR or the criminal proceedings quashed, essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive of wreaking vengeance, then in such circumstances, the High Court owes a duty to look into the FIR with care and a little more closely. It was further observed that it will not be enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not as, in frivolous or vexatious proceedings, the court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection, to try and read between the lines.
Index of Quash judgments is here.
K Sreekanth Naik Vs P Nalini and Anr on 25 Apr 2024
A single judge bench of Andhra Pradesh High Court held that an Order for Maintenance passed without adhering to the guidelines issued by Apex Court in Rajnesh Vs Neha is liable to be set aside.
From Para 5,
5. During the hearing, it is brought to the notice of the Court that both parties have not complied with the directions of the Hon’ble Apex Court enunciated in the judgment of Rajnesh V. Neha & Anr.,1 concerning the filing of affidavits disclosing the assets and liabilities. Considering the submissions made, I have gone through the observations in Rajnesh V. Neha (cited supra) case. The said judgment has brought revolutionary change in the procedure to be followed by the Courts in dealing with the applications filed under Chapter IX of the Cr.P.C. The Hon’ble Supreme Court has issued comprehensive procedural and normative directions streamlining the maintenance laws, inter alia, directing that the parties in a maintenance application have to file affidavits of disclosure of their assets and liabilities, which must be considered by Courts while deciding the application. It is also held that, in case of a dispute on the declaration made in the affidavits of disclosure, the aggrieved person can seek leave of the Court to serve interrogatories on the opposite side and seek production of relevant documents as provided under Order 9 of the Code of Civil Procedure, and in case a false statement or misrepresentation is made, the Court can initiate proceedings under section 340 of the Cr.P.C., or for Contempt of Court.
From Paras 7-14,
7. The aforesaid Judgment in the case of Rajnesh (cited supra) has been recently reiterated by the Hon’ble Supreme Court in the case of Aditi alias Mithi V. Jitesh Sharma 2 and expressing anguish over noncompliance/ improper compliance of the directions laid down in case of Rajnesh (supra) and directed re-circulation of the judgment for compliance thereof.
8. It is acknowledged that both parties have failed to submit the affidavits disclosing their assets and liabilities. Learned counsel for the Petitioner has relied on the decision of High Court of Patna in between Gitanjali Devi @ Gitanjali Kumari V. State of Bihar and another3, wherein, it is observed that the impugned order of granting maintenance amount is liable to be set aside for the reason that it has not followed the procedure prescribed by the Hon’ble Apex Court.
9. By following the principles laid down in the Aditi alias Mithi’s case cited supra, the High Court of Madras in Balram Dixit V. Smt. Kiran Dixit and another (Criminal Revision No.1255 of 2023, dated 17.01.2024) also set aside the maintenance awarded by the learned Principal Judge, Family Court,Gwalior and further directed the both parties to submit fresh affidavits of disclosure of assets and liabilities with complete particulars in compliance with the directions of the Hon’ble Supreme Court laid down in the case of Rajnesh’s case cited supra.
10. Learned counsels representing both sides submit that because of lack of proper instructions, both parties could not comply with the directions of the Hon’ble Apex Court and at present, they are ready to comply with the observations made in the judgments referred to supra, by filing the affidavits and both parties submits that the Respondent-husband is paying interim maintenance amount @ Rs.8,000/- per month vide orders dated 26.09.2019 in Crl.M.P.No.39 of 2019 in F.C.O.P.No.183 of 2018 and he is ready to pay such maintenance amount during the pendency of FCOPs and after its restoration.
11. In view of the same, this Court refrains from delving into the merits of the case at this juncture, as the impugned order passed in F.C.O.P.No.183 of 2018 is liable to be set aside for the reason that it has not followed the procedures prescribed by the Hon’ble Apex Court.
12. The impugned order passed in F.C.O.P.No.183 of 2018, is accordingly, set aside and the matter is remitted back to the learned Judge, Family Court – cum – VII Additional District Judge, Ananthapuramu for fresh consideration and by following the procedures which are laid down in the judgment of the Hon’ble Supreme Court.
13. This Court further directs the both parties to submit affidavits disclosing their assets and liabilities, giving complete particulars, in accordance with the directives of the Hon’ble Apex Court as laid down in the case of Rajnesh (supra) before the Family Court. The Family Court must ensure strict adherence to these guidelines. If any of the affidavits are found to be lacking in necessary particulars, the learned Judge shall direct to produce the relevant information from the respective party.
14. The Family Court shall dispose of the F.C.O.P.No.183 of 2018 afresh after giving reasonable opportunity to both parties to let in further evidence, if any. In the meantime, the Respondent-husband is directed to pay maintenance amount of Rs.8,000/- per month to the Petitioner-wife till the disposal of the FCOP. Both parties are directed to bear their own costs.
Disclaimer: This is a case that I handled myself for the husband. This is my first reportable judgment.
Citations: [2024 Latest Caselaw 3581 AP]
Other Sources:
https://indiankanoon.org/doc/7473550/
https://www.casemine.com/judgement/in/671c878cafb795648bb5985d
https://mynation.net/docs/1098-2023/
https://latestlaws.com/judgements/andhra-high-court/2024/april/2024-latest-caselaw-3581-ap
Index of Maintenance cases under section 125 CrPC is here.
Bipin Chander Jaisinghbhai Shah Vs Prabhawati on 19 Oct 1956
A division bench of Apex Court held as follows, (with respect to ‘desertion’)
Thus the quality of permanence is one of the essential elements which differentiates desertion from wilful separation. If a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned : (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid.
Citations: [1957 AIR 176], [1956 SCR 838]
Other Sources:
https://indiankanoon.org/doc/1131783/
Index of Divorce judgments is here.
Savitri Pandey Vs Prem Chandra Pandey on 8 Jan 2002
A division bench of Apex Court held as follows, (with regards to Cruelty)
From Para 6,
6. Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. “Cruelty”, therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other.
From Para 19, (with regards to the time limit to file an appeal against an Order of Family Court)
At this stage we would like to observe that the period of limitation prescribed for filing the appeal under Section 28(4) is apparently inadequate which facilitates the frustration of the marriages by the unscrupulous litigant spouses. In a vast country like ours, the powers under the Act are generally exercisable by the District Court and the first appeal has to be filed in the High Court. The distance, the geographical conditions, the financial position of the parties and the time required for filing a regular appeal, if kept in mind, would certainly show that the period of 30 days prescribed for filing the appeal is insufficient and inadequate. In the absence of appeal, the other party can solemnise the marriage and attempt to frustrate the appeal right of the other side as appears to have been done in the instant case. We are of the opinion that a minimum period of 90 days may be prescribed for filing the appeal against any judgment and decree under the Act and any marriage solemnised during the aforesaid period be deemed to be void. Appropriate legislation is required to be made in this regard. We direct the Registry that the copy of this judgment may be forwarded to the Ministry of Law & Justice for such action as it may deem fit to take in this behalf.
This judgment led to the passing of amendment here.
Citations: [AIR 2002 SUPREME COURT 591], [2002 (2) SCC 73], [2002 AIR SCW 182], [2002 ALL. L. J. 355], [2002 ALL CJ 1 122], [2002 (2) SRJ 553], [2002 (1) SLT 103], [(2002) 1 ALL WC 472], [(2002) 1 JCR 377 (SC)], [2002 (1) LRI 28], [(2002) 1 JT 25 (SC)], [2002 (1) UJ (SC) 273], [(2002) 1 MARRILJ 277], [2002 (1) ALL CJ 22], [2002 UJ(SC) 1 273], [2002 (1) BLJR 378], [(2002) 3 CIVILCOURTC 318], [(2002) 1 RECCIVR 719], [(2002) 6 BOM CR 511], [(2002) 1 HINDULR 338], [(2002) 2 MAHLR 263], [(2002) 2 PAT LJR 256], [(2002) 2 JLJR 135], [(2002) 2 GUJ LR 1369], [(2002) 1 KER LJ 193], [(2002) WLC(SC)CVL 116], [(2002) 1 SCALE 33], [(2002) 1 RAJ LW 183], [(2002) 3 GUJ LH 470], [(2002) 1 DMC 177], [(2002) 1 ANDH LT 55], [(2002) 1 CURCC 7], [(2002) 22 OCR 280], [(2002) 1 UC 299], [(2002) 1 SCJ 6], [(2002) 46 ALL LR 465], [(2002) 2 CAL HN 50], [(2002) 2 BLJ 177], [(2002) 1 SUPREME 90], [(2002) MATLR 224], [2002 (1) MARR LJ 277], [(2002) 4 CURCRIR 254], [(2002) 1 CAL HN 124], [(2002) 1 ALLCRILR 658], [(2002) 1 CALLT 32]
Other Sources:
https://indiankanoon.org/doc/325522/
https://www.casemine.com/judgement/in/56e0f1ad607dba38965f8bcd
https://www.the-laws.com/Encyclopedia/browse/Case?caseId=002002900000&title=savitri-pandey-vs-prem-chandra-pandey
https://lawfyi.io/savitri-pandey-vs-prem-chandra-pandey-on-8-january-2002-case-summary/
https://www.indianemployees.com/judgments/details/savitri-pandey-vs-prem-chandra-pandey
http://roundup.manupatra.in/trans/viewdoc.aspx?i=ptiDy4oUEz7W4RhahAaT6h93RFUeTV40hI1vo81W7g5uCfRP5tL0pktJVchar(43)F5g3qk&id=zwKDa4S8QbBCBSkXPhUPwY5CqQmaAQ/9fT/TmfIpDN9bjNPkWKzs5n8Hchar(43)U/Dqe21io8GIp7cHk/RGFLXdXEB6A==
Index of Divorce judgments is here.
Grasim Industries Ltd Vs Collector of Customs Bombay on 04 Apr 2002
Sitting on the full bench of Apex Court, Justice Arijit Pasayat, held as follows, while interpreting the statutes passed by the Legislature.
From Para 9,
No words or expressions used in any statute can be said to be redundant or superfluous. In matters of interpretation one should not concentrate too much on one word and pay too little attention to other words. No provision in the statute and no word in any section can be construed in isolation. Every provision and every word must be looked at generally and in the context in which it is used. It is said that every statute is an edict of the legislature. The elementary principle of interpreting any word while considering a statute is to gather the mens or sententia legis of the legislature. Where the words are clear and there is no obscurity, and there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for the Court to take upon itself the task of amending or alternating the statutory provisions. Wherever the language is clear the intention of the legislature is to be gathered from the language used. While doing so what has been said in the statute as also what has not been said has to be noted. The construction which requires for its support addition or substitution of words or which results in rejection of words has to be avoided. As stated by the Privy Council in Crawford v. Spooner [(1846) 6 Moore PC 1] “we cannot aid the Legislature’s defective phrasing of an Act, we cannot add or mend and, by construction make up deficiencies which are left there”. In case of an ordinary word there should be no attempt to substitute or paraphrase of general application. Attention should be confined to what is necessary for deciding the particular case. This principle is too well settled and reference to few decisions of this Court would suffice. [See: Gwalior Rayons Silk Mfg. (Wvg.) Co. Ltd. v. Custodian of Vested Forests, Palghat and Anr. (AIR 1990 SC 1747), Union of India and Anr. v. Deoki Nandan Aggarwal (AIR 1992 SC 96), Institute of Chartered Accountants of India v. Price Waterhouse and Anr. (1997 (6) SCC 312) and Harbhajan Singh v. Press Council of India and Ors. (JT 2002 (3) SC 21)]
Court Kutchehry Version:
Satender Kumar Antil Vs CBI and Anr on 07 Oct 2021 (and other Directions)
A division bench of Apex Court passed these guidelines with respect to issue of Summons and Warrants and Recall of NBW,
After filing of chargesheet/complaint taking of cognizance
a) Ordinary summons at the 1st instance/including permitting appearance through Lawyer.
b) If such an accused does not appear despite service of summons, then Bailable Warrant for physical appearance may be issued.
c) NBW on failure to failure to appear despite issuance of Bailable Warrant.
d) NBW may be cancelled or converted into a Bailable Warrant/Summons without insisting physical appearance of accused, if such an application is moved on behalf of the accused before execution of the NBW on an undertaking of the accused to appear physically on the next date/s of hearing.
e) Bail applications of such accused on appearance may be decided w/o the accused being taken in physical custody or by granting interim bail till the bail application is decided.
Citations: [(2021) 10 SCC 773], [2022 LiveLaw (SC) 577]
Other Sources:
https://indiankanoon.org/doc/16350770/
https://www.casemine.com/judgement/in/62ba660db50db90d4b55ecaf
A corrected Reportable judgment is passed on 11 Jul 2022…
Further time is given to comply with the directions earlier given on 03 Feb 2023…
Supreme Court also directed as follows.
The judgment in the present case i.e. “Satender Kumar Antil Vs. CBI” reported in (2022) 10 SCC 51 and the judgment in Siddharth’s case (supra) should be incorporated as part of the curriculum of the State Judicial Academies and the National Judicial Academy.
Interim directions given on 21 Mar 2023 considering the States and High Courts did not provide the required information to Amicus
Some individual cases were filed alleging non-compliance of this Order by some Magistrates… SC passed this order on 02 May 2023
Final Judgment on 13 Feb 2024
Supreme gave another ‘last’ change on 07 May 2024 to file affidavits that have not complied with the directions issued in this case.
Notices must not be issued via WhatsApp, says Supreme Court.
Negating the plea of State of Haryana, Supreme Court held that notices u/s 41A of Cr.P.C. or u/s 35 of BNSS cannot be sent via WhatsApp or any other electronic communication medium, unlike section 530 BNSS, which mandates that, Trials, Inquires and Proceedings that may be held in electronic mode, by use of electronic communication or use of audio-video electronic means.” So, Parliament says, Courts can use technologia but Police must use postman.
Index of NBW Judgments is here.
Amit Kumar Vs Suman Beniwal on 11 Dec 2021
In addition to the guidelines issue in Amardeep Singh Vs Harveen Kaur here, Additional guidelines/factors were issued in this case.
From Para 27,
27. For exercise of the discretion to waive the statutory waiting period of six months for moving the motion for divorce under Section 13B (2) of the Hindu Marriage Act, the Court would consider the following amongst other factors:
(i) the length of time for which the parties had been married;
(ii) how long the parties had stayed together as husband and wife;
(iii) the length of time the parties had been staying apart;
(iv) the length of time for which the litigation had been pending;
(v) whether there were any other proceedings between the parties;
(vi) whether there was any possibility of reconciliation;
(vii) whether there were any children born out of the wedlock;
(viii) whether the parties had freely, of their own accord, without any coercion or pressure, arrived at a genuine settlement which took care of alimony, if any, maintenance and custody of children, etc.
Index of Divorce cases is here.
