Shailaja Patil Vs Khobbanna Patil on 18 Jan 2017

Posted on November 14, 2020 by ShadesOfKnife

In this Order, Supreme Court held as follows,

That apart, we find that the High Court has proceeded on the basis that the appellant No.1 was capable of earning and that is one of the reasons for reducing the maintenance granted to her by the Family Court. Whether the appellant No.1 is capable of earning or whether she is actually earning are two different requirements. Merely because the appellant No.1 is capable of earning is not, in our opinion, sufficient reason to reduce the maintenance awarded by the Family Court.

This means, due to the mistake of High Court in assuming that being capable means earning, Supreme Court clarified that it is NOT so. This principle should apply to men as much as it was applied to women.

And, it is not clear why no Court is asking this question: Why are your needs/expenses out of sync with your income? Just because of the termination of financial assistance from husband?

Shailaja Patil Vs Khobbanna Patil on 18 Jan 2017

Citations : [2017 SCC ONLINE SC 2692017 AIR SC 11742017 AKR 2 3142017 ALLMR CRI 31072017 CRILJ 23062017 KCCR 3 18092017 OLR 1 9212017 RLW SC 3 24902017 RCR CIVIL 2 7012017 RCR CRIMINAL 2 4972017 SCC ONLINE SC 2692017 AIR SC 1174]

Other Sources :

https://www.casemine.com/judgement/in/5a65cbb44a93263320779de5

Here is the High Court Order.

Shailaja Patil Vs Khobbanna Patil on 17 Apr 2013

Note: The mistake is this… All Assumptions are highlighted…

Petitioner is said to be working as a Lecturer and in a matrimonial dispute between him and the 1st respondent wife, the Family Court has ordered to pay maintenance of Rs.15,000/- to the wife and Rs.10,000/- per month to the son. According to the petitioner’s counsel, the 1st respondent is also working as a Teacher and is earning.
However, according to the counsel representing the 1st respondent, there is no proof of income being produced and she has no permanent source of income. Accordingly, he has sought for rejection of the application filed by the petitioner and to enhance the maintenance awarded.
Having regard to the fact that the wife is also capable of earning, she could be awarded Rs.6,000/- per month and the son could be awarded Rs.6,000/- per month. Ordered accordingly. Amount in deposit be adjusted towards arrears and also for future payment. Amount in deposit be released in favour of the respondent wife and child, as per the modified award.

Vikas Sharma Vs Monica Parashar on 30 Sep 2016

Posted on November 14, 2020 by ShadesOfKnife

Single Judge declared as follows with regards to the application of Sec 25(2) of PWDV Act 2005 and specifically, what does ‘change in circumstances’ mean.

32. I find no force in the contention of the appellant that merely filing of application under section 25 (2) of the D. V. Act would amount to a change in the circumstances. The phrase “change in circumstances” would require that the circumstances on the basis of which any previous order was passed under this Act have undergone alteration, modification or have ceased to exist and warrant interference of the court. Hence, the contention of the appellant that merely filing an application under section 25(2) of the D. V. Act would amount to change in circumstances cannot be accepted. Moreover, if such arguments of the appellant is accepted then parties will take advantage of such interpretation and would intentionally stay away from court on a day when any order is to be passed so that after passing of the order, they would file the application under section 25(2) of the D. V. Act and would plead that mere filing of an application under section 25(2) of the D.V. Act is a change in the circumstances thereby warranting passing of orders under section 25(2) of the D. V. Act.
33. A perusal of the application under section 25(2) of the D. V. Act filed by the appellant before the trial court shows that in the said application, the appellant has nowhere mentioned that consequent to the passing of the order by which interim maintenance has been fixed, there has been any change in the circumstances which warranted filing the application under section 25(2) of the D. V. Act for modification of the previous order dated 10.04.2015.

Vikas Sharma Vs Monica Parashar on 30 Sep 2016

Sabina Sahdev and Ors Vs Vidur Sahdev on 9 Jul 2018

Posted on November 14, 2020 by ShadesOfKnife

A Division bench of Delhi High Court held that, the law does not prescribe any precondition such that the arrears amount of maintenance has to be deposited before appeal or revision can be allowed.

From Para 22,

22. Neither the language used by the Legislature in Section 399 read with Section 401 of the Cr.P.C., nor the language used in Section 29 of the DV Act even remotely suggest that the Legislature intended to impose pre-conditions to the availment of the said remedies, of the kind evolved in Rajeev Preenja (supra).

And then from Para 25,

25. Laudable as the object of the learned Single Judge may have been, the question is, whether in the light of the settled law taken note of hereinabove, the learned Single Judge while deciding Rajeev Preenja (supra) could have issued a general direction barring entertainment of criminal revisions under Section 399 read with Section 401 Cr.P.C. against orders granting interim maintenance to the wife/ child under Section 125 Cr.P.C., unless the entire arrears of maintenance up to date were first deposited? In our view, with due respect to the learned Single Judge, the answer is clearly in the negative. As to what should be the policy of the law is a matter which squarely falls within the preserve of the Legislature, and it is not a matter which the Courts can dictate, or evolve. It is one thing to interpret an existing law and, while doing so, to adopt an interpretation which is purposive, i.e. one which advances the objective of the enactment. However, it is quite a different thing to evolve a statutory scheme which, even the Legislature did not provide for.

Finally, in Paras 29 and 30,

29. As rightly pointed out by Mr. Bahl, imposition of a limitation on the statutory remedy of revision/ appeal under Section 399 of the Cr.P.C. or Section 29 of the DV Act- as the case may be, also falls foul of Article 14 of the Constitution of India for the reasons noticed by the Division Bench in Gagan Makkar (supra).Even if the condition in question – of the nature directed by the learned Single Judge in Rajeev Preenja (supra), were to exist in the statutory framework, the same may fail the test of reasonableness under Article 14 of the Constitution of India. This is for the reason that, in a given case, the order granting interim maintenance passed by the Ld. Magistrate either under Section 125 Cr.P.C or under Section 29 of the DV Act, may be so harsh and so unreasonable, as to make it impossible for the opposite party/ husband to comply with the same. Experience shows that in a large number of cases, the arrears of interim maintenance- which may be granted from the date of moving of the application before the Ld. Magistrate, may accumulate to a very large amount running into lakhs of rupees. The arrears of interim maintenance may not necessarily be a meager amount in all cases. It would be most unjust and unreasonable to bar his statutory remedy of revision/ appeal as the case may be, merely because he may not be in a position to deposit the entire arrears of interim maintenance.

From Para 30 (Corum cleverly clubbed 125 Cr.P.C. cases also along with DV cases!)

30. Thus, we answer the reference by holding that the general direction issued in Rajeev Preenja (supra) in paragraphs 15, 16 and 20 are not sustainable. The said directions could not have been issued by the learned Single Judge as they seek to curtail the statutory remedy of revision available under Section 399 read with Section 401 of the Cr.P.C, and of appeal under Section 29 of the DV Act, against orders granting interim maintenance under Section 125 Cr.P.C. and Section 23 of the DV Act respectively. The direction in question over steps into the legislative field, which was impermissible for the Court to do. We agree with the view taken by the learned Single Judge in Brijesh Kumar Gupta (supra), that there cannot be an absolute rider that the entire maintenance amount, as granted by the Trial Court, should be deposited prior to the entertainment of the statutory remedy, because it would leave the remedy of statutory revision/ appeal illusory. Accordingly, we hold that a revision under Section 399 read with Section 401 Cr.P.C. and an appeal under Section 29 of the DV Act, against the order granting maintenance under Section 125 Cr.P.C. and under Section 23 of the DV Act respectively, would be maintainable, and would be entertained and heard without any pre-condition of deposit of the arrears of maintenance as ordered by the Ld. MM. We further hold that the pendency of such a Revision or Appeal- as the case may be, shall not operate as a stay of the operation of the order granting interim maintenance. The reference is answered accordingly.

Sabina Sahdev and Ors Vs Vidur Sahdev on 9 Jul 2018

Citations : [2018 DLT 251 245], [2018 HLR 3 413], [2019 CRI LJ 218],[2018 (4) RCR (Criminal) 30], [2018 SCC OnLine Del 9747],

Other Sources :

https://indiankanoon.org/doc/80568294/

https://www.casemine.com/judgement/in/5b44dfac9eff431bb54655a9

Index of PWDV Act cases here. Index of Maintenance cases u/s 144 BNSS (125 Cr.P.C.) here.

Binita Dass Vs Uttam Kumar on 9 Aug 2019

Posted on November 14, 2020 by ShadesOfKnife

Single-judge Bench said one thing in this Order which is as follows:

7. Qualification of the wife and the capacity to earn cannot be a ground to deny interim maintenance to a wife who is dependant and does not have any source of income.

The converse is read like this:

Wife who is independant and have source of income, can be a ground to deny interim maintenance to a wife.

Binita Dass Vs Uttam Kumar on 9 Aug 2019

Citations :

Other Sources :

https://indiankanoon.org/doc/92763076/

https://www.casemine.com/judgement/in/5d8b2ff8714d58374079df99

Index of Maintenance cases under Section 125 CrPC here.

State Of Goa Vs Jose Maria Albert Vales @ Robert Vales on 18 Aug 2017

Posted on November 13, 2020 by ShadesOfKnife

2-Judge bench held that without prima facie opinion in a complaint made otherwise than a police complaint, invoking of perjury u/s 340 CrPC or 341 CrPC is indefensible.

From Para 58,

58. We are thus of the firm opinion that a Trial Magistrate, on receipt of a complaint under Section 340 and/or Section 341 of the Code, if there is a preliminary inquiry and adequate materials in support of the considerations impelling action under the above provisions are available, would be required to treat such complaint to constitute a case, as if instituted on police report and proceed in accordance with law. However, in absence of any preliminary inquiry or adequate materials, it would be open for the Trial Magistrate, if he genuinely feels it necessary, in the interest of justice and to avoid unmerited prosecution to embark on a summary inquiry to collect further materials and then decide the future course of action as per law. In both the eventualities, the Trial Magistrate has to be cautious, circumspect, rational, objective and further informed with the overwhelming caveat that the offence alleged is one affecting the administration of justice, requiring a responsible, uncompromising and committed approach to the issue referred to him for inquiry and trial, as the case may be. In no case, however, in the teeth of Section 343(1), the procedure prescribed for cases instituted otherwise than on police report would either be relevant or applicable qua the complaints under Section 340 and/or 341 of the Cr.P.C.

And from Final Para,

60. In view of the determination as above, the approach of the High Court is wholly indefensible, as in the face of Section 343(1) of the Cr.P.C., the procedure prescribed for cases instituted otherwise than on police report is not attracted qua a complaint under Section 340 and/or Section 341 of the Code. Even assuming that the Trial Magistrate had examined few witnesses in support of the complaint, it was in the form of a summary inquiry, to be satisfied as to whether the materials on record would justify the framing of charge against the respondent or not and nothing further. Any other view would fly in the face of the ordainment of Section 343(1) of the Cr.P.C. and thus cannot receive judicial imprimatur. The impugned judgment of the High Court in quashing the charge framed by the Trial Magistrate and remanding the case to him to follow the procedure outlined for cases, instituted otherwise than on police report, under Chapter XIX-B is on the face of it unsustainable in law and on facts. It is thus set aside. The appeals are allowed. The Trial Magistrate would proceed from the stage of framing of charge, strictly in compliance of the letter and spirit of the precept contained in Section 343(1) of the Code. We make it clear that we have not offered any observation on the merits of the charge and the Trial Court would further the proceedings in accordance with law.

State Of Goa Vs Jose Maria Albert Vales @ Robert Vales on 18 Aug 2017

Citations : [2017 SCC ONLINE SC 1021], [2017 ALLCC 101 330], [2017 CCR SC 4 28], [2017 JCC 4 2245], [2017 RCR CRIMINAL 3 981], [2017 SCALE 9 527], [2017 SCC ONLINE SC 1021]

Other Sources :

https://indiankanoon.org/doc/194410529/

https://www.casemine.com/judgement/in/5a65cbaf4a93263320778706

Index of Perjury Case laws is here.

Bikramjit Singh Vs State of Punjab on 12 Oct 2020

Posted on November 10, 2020 by ShadesOfKnife

Supreme Court held that, the default bail that is available to an accused person u/s 167(2)(a) of CrPC, is part of the fundamental rights available to him/her under Article 21 of Constitution of India.

From Para 28,

A conspectus of the aforesaid decisions would show that so long as an application for grant of default bail is made on expiry of the period of 90 days (which application need not even be in writing) before a charge sheet is filed, the right to default bail becomes complete. It is of no moment that the Criminal Court in question either does not dispose of such application before the charge sheet is filed or disposes of such application wrongly before such charge sheet is filed. So long as an application has been made for default bail on expiry of the stated period before time is further extended to the maximum period of 180 days, default bail, being an indefeasible right of the accused under the first proviso to Section 167(2), kicks in and must be granted.

But then from Para 29,

…
We must not forget that we are dealing with the personal liberty of an accused under a statute which imposes drastic punishments. The right to default bail, as has been correctly held by the judgments of this Court, are not mere statutory rights under the first proviso to Section 167(2) of the Code, but is part of the procedure established by law under Article 21 of the Constitution of India, which is, therefore, a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2) are fulfilled.
…

Bikramjit Singh Vs State of Punjab on 12 Oct 2020

Citations : [(2020) SCC Online SC 824]

Other Sources :

https://indiankanoon.org/doc/10807134/

https://www.indianemployees.com/judgments/details/bikramjit-singh-versus-the-state-of-punjab

Arnab Manoranjan Goswami Vs State of Maharashtra and Ors on 09 Nov 2020

Posted on November 9, 2020 by ShadesOfKnife

Division Bench of Bombay High Court, while denying interim protection from arrest to Arnab Goswami, held that,

From Para 45,

45. The principle stated therein will equally apply to the exercise of this Court’s power under Article 226 of the Constitution of India and section 482 of the Code of Criminal Procedure while considering the applications for bail since the petitioner is already in Judicial custody. The legislature has provided specific remedy under Section 439 Cr.P.C. for applying for regular bail. Having regard to the alternate and efficacious remedy available to the petitioner under section 439 of the Code of Criminal Procedure, this Court has to exercise judicial restraint while entertaining application in the nature of seeking regular bail in a petition filed under Article 226 of the Constitution of India read with section 482 of Code of Criminal Procedure.

and from Para 70,

70. In our opinion, the petitioner has an alternate and efficacious remedy under section 439 of the Code of Criminal Procedure to apply for regular bail. At the time of concluding the hearing of Applications, we had made it clear that if the petitioner, if so advised, to apply for regular bail under section 439 of the Code of Criminal Procedure before the concerned Court, then, in that case, we have directed the concerned Court to decide the said
application within four days from filing of the same.

Arnab Manoranjan Goswami Vs State of Maharashtra and Ors on 09 Nov 2020

Here is the Bail application

Arnab Bail Application

Pinakin Mahipatray Rawal Vs State of Gujarat on 9 Sep 2013

Posted on November 7, 2020 by ShadesOfKnife

Division bench of Supreme Court held that,

From Para 306,

26. Section 306 refers to abetment of suicide. It says that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment for a term which may extend to 10 years and shall also be liable to fine. The action for committing suicide is also on account of mental disturbance caused by mental and physical cruelty. To constitute an offence under Section 306, the prosecution has to establish that a person has committed suicide and the suicide was abetted by the accused. Prosecution has to establish beyond reasonable doubt that the deceased committed suicide and the accused abetted the commission of suicide. But for the alleged extra marital relationship, which if proved, could be illegal and immoral, nothing has been brought out by the prosecution to show that the accused had provoked, incited or induced the wife to commit suicide.

From Para 28, exoneration of husband,

28. Suicide note completely exonerates A-1, which states that he was not responsible for death of the deceased. On the other hand, the deceased described herself as extremely selfish, egoist and, therefore, not a match for A-1. She entertained the belief that her husband A-1 was in love with A-2 and wanted to marry A-2. Note states it was for their happiness she had decided to end her life. She also wanted to have the marriage of A-1 and A-2 solemnized with pomp and gaiety. On reading the suicide note, one can infer that the deceased was so possessive of her husband, and was always under an emotional stress that she might lose her husband. Too much of possessiveness could also lead to serious emotional stress, over and above the fact that she had one abortion and her daughter died after few days of birth. No evidence is forthcoming in this case to show that A-2 ever evinced any interest to marry A-1. On the other hand, during the subsistence of the alleged relationship, A-2 herself got married.

Pinakin Mahipatray Rawal Vs State of Gujarat on 9 Sep 2013

Citations : [2013 CRLJ SC 44482013 AIOL 5932013 CRIMES SC 4 2952013 CRIMES SC 4 1102013 SCC 10 482013 AIR SC 52192013 RCR CRIMINAL SC 4 2712013 SLT 7 7062014 AIR SC 3312013 SCALE 11 1982013 JT 12 3572013 SUPREME 6 3662014 JLJR SC 1 3902013 SCC CRI 3 8012013 SCC CIV 4 6162013 SCC ONLINE SC 8142013 AIC 130 292013 CRILJ 44482014 PLJR 1 5112013 BOMCR CRI 4 5222013 UC 3 19352013 DMC 3 2452014 ALT CRL AP 1 2582013 ALD CRI 2 7552013 MLJ CRI 3 7002013 OLR 2 8672013 KHC 3 8102013 AD SC 10 452013 ABR 6 1792014 SCJ 1 5262013 RCR CRIMINAL 4 2712014 JLJR 1 3902013 CRI LJ 44482013 MLJ CRL 3 7002013 AIR SCW 5219

Other Sources :

https://indiankanoon.org/doc/170814796/

https://www.casemine.com/judgement/in/5609af2de4b0149711415bb9

Husband’s extra- marital relationship does not amount to cruelty

K.V Prakash Babu Vs State of Karnataka on 22 Nov 2016

Posted on November 7, 2020 by ShadesOfKnife

Supreme Court held that the necessary ingredients to make out a IPC 306 offence are missing in the case.

From Para 15, Mental Cruelty,

15. The concept of mental cruelty depends upon the milieu and the strata from which the persons come from and definitely has an individualistic perception regard being had to one’s endurance and sensitivity. It is difficult to generalise but certainly it can be appreciated in a set of established facts. Extra-marital relationship, per se, or as such would not come within the ambit of Section 498-A IPC. It would be an illegal or immoral act, but other ingredients are to be brought home so that it would constitute a criminal offence. There is no denial of the fact that the cruelty need not be physical but a mental torture or abnormal behaviour that amounts to cruelty or harassment in a given case. It will depend upon the facts of the said case. To explicate, solely because the husband is involved in an extra-marital relationship and there is some suspicion in the mind of wife, that cannot be regarded as mental cruelty which would attract mental cruelty for satisfying the ingredients of Section 306 IPC.

From Para 17, Final nail in the coffin,

17. In the instant case, as the evidence would limpidly show, the wife developed a sense of suspicion that her husband was going to the house of Ashwathamma in Village Chelur where he got involved with Deepa, daughter of Ashwathamma. It has come on record through various witnesses that the people talked in the locality with regard to the involvement of the appellant with Deepa. It needs to be noted that Anjanamma, being not able to digest the humiliation, committed suicide. The mother and the brother of Anjanamma paved the same path. In such a situation, it is extremely difficult to hold that the prosecution has established the charge under Section 498-A IPC and the fact that the said cruelty induced the wife to commit suicide. It is manifest that the wife was guided by the rumour that aggravated her suspicion which has no boundary. The seed of suspicion planted in mind brought the eventual tragedy. But such an event will not constitute the offence or establish the guilt of the appellant-accused under Section 306 IPC.

K.V Prakash Babu Vs State of Karnataka on 22 Nov 2016

Citations : [2017 SCC 11 176], [2017 SCC CRI 4 242], [2016 SCC ONLINE SC 1363], [2016 AIR SC 5430], [2016 SCR 11 509], [2016 CRIMES 4 184], [2017 CRI LJ 264], [2017 AIC 169 211], [2017 KLT 1 125], [2017 KCCR 1 673], [2017 ECRN 1 1]

Other Sources :

https://indiankanoon.org/doc/33506004/

https://www.casemine.com/judgement/in/5837160c53bee74f64c25ebc

Gurcharan Singh vs State of Punjab on 1 Oct 2020

Posted on November 6, 2020 by ShadesOfKnife

3-Judge Bench of Supreme Court held that, for IPC 306 to be made out, necessary ingredients must be satisfied.

From Para 6, Learn the art and craft of Trail Courts in India, assuming certain sections apply to accused in the face of no direct evidence. Some of them are fit-for-nothing fellows…

6. The Trial Court then posed a question to itself as to why a young lady with two small children would commit suicide unless she has been pushed to do so, bythe circumstances in the matrimonial home. It was then observed that the expectation of a married woman will be love and affection and financial security at thehands of her husband and if her hopes are frustrated by the act or by wilful negligence of the husband, it would constitute abetment within the meaning of section107 IPC, warranting conviction under section 306 IPC. With such reasoning, the Trial Court concluded that Shinder Kaur committed suicide when her hopes were frustrated by the act of her husband or alternatively, by his wilful neglect. Thus, the Court itself wasuncertain on the nature of the act to be attributed to the appellant. Moreover, even while noting that no direct evidence of cruelty against the husband and thein-laws is available, the learned Court assumed that section 306 IPC can be applied against the appellant. With such conjecture, while acquitting all threeaccused of the charged crime under section 304B and 498A of IPC, the husband was convicted under section 306 IPC.

From Para 11, Rebutting the callous nature in which Trial Court used conjectures to lay conviction

11. Insofar as the possible reason for a young married lady with two minor children committing suicide, in the absence of evidence, conjectures cannot be drawn that she was pushed to take her life, by the circumstances and atmosphere in the matrimonial home. What might have been the level of expectation of the deceased from her husband and in-laws and the degree of her frustration, if any, is not found through any evidence on record. More significantly, wilful negligence by the husband could not be shown by the prosecution.

Then from Para 15,

15. As in all crimes, mens rea has to be established. To prove the offence of abetment, as specified under Sec 107 of the IPC, the state of mind to commit a particular crime must be visible, to determine the culpability. In order to prove mens rea, there has to be something on record to establish or show that the appellant herein had a guilty mind and in furtherance of that state of mind, abetted the suicide of the deceased. The ingredient of mens rea cannot be assumed to be ostensibly present but has to be visible and conspicuous. However, what transpires in the present matter is that both the Trial Court as well as the High Court never examined whether appellant had the mens rea for the crime, he is held to have committed. The conviction of Appellant by the Trial Court as well as the High Court on the theory that the woman with two young kids might have committed suicide, possibly
because of the harassment faced by her in the matrimonial house, is not at all borne out by the evidence in the case. Testimonies of the PWs do not
show that the wife was unhappy because of the appellant and she was forced to take such a step on his account.

From Para 19, Supreme Court declared that Trail Court and High Court speculated. How horrible !!!

19. Proceeding with the above understanding of the law and applying the ratios to the facts in the present case, what is apparent is that no overt act or illegal omission is seen from the appellant’s side, in taking due care of his deceased wife. The evidence also does not indicate that the deceased faced persistent harassment from her husband. Nothing to this effect is testified by the parents or any of the other prosecution witnesses. The Trial Court and the High Court speculated on the unnatural death and without any evidence concluded only through conjectures, that the appellant is guilty of abetting the suicide of his wife.

Gurcharan Singh vs State of Punjab on 1 Oct 2020

Citations :

Other Sources :

https://indiankanoon.org/doc/167656481/

Shades of Knife

True Colors of a Vile Wife

Tag: Legal Procedure Explained – Interpretation of Statutes

Shailaja Patil Vs Khobbanna Patil on 18 Jan 2017

Vikas Sharma Vs Monica Parashar on 30 Sep 2016

Sabina Sahdev and Ors Vs Vidur Sahdev on 9 Jul 2018

Binita Dass Vs Uttam Kumar on 9 Aug 2019

State Of Goa Vs Jose Maria Albert Vales @ Robert Vales on 18 Aug 2017

Bikramjit Singh Vs State of Punjab on 12 Oct 2020

Arnab Manoranjan Goswami Vs State of Maharashtra and Ors on 09 Nov 2020

Pinakin Mahipatray Rawal Vs State of Gujarat on 9 Sep 2013

K.V Prakash Babu Vs State of Karnataka on 22 Nov 2016

Gurcharan Singh vs State of Punjab on 1 Oct 2020