Rameshchandra Rampratapji Daga Vs Rameshwari Rameshchandra Daga on 13 Dec 2004

Posted on March 14, 2021 by ShadesOfKnife

A division bench of Supreme Court held that, Alimony and maintenance can be given even if a marriage is held to be null and void.

From Para 18,

18. In the present case, on the husband’s petition, a decree declaring the second marriage as null and void has been granted. The learned counsel has argued that where the marriage is found to be null and void — meaning non-existent in the eye of the law or non est, the present respondent cannot lay a claim as wife for grant of permanent alimony or maintenance. We have critically examined the provisions of section 25 in the light of conflicting decisions of the High Court cited before us. In our considered opinion, as has been held by this Court in Chand Dhawan case, the expression used in the opening part of Section 25 enabling the “court exercising jurisdiction under the Act” “at the time of passing any decree or at any time subsequent thereto” to grant alimony or maintenance cannot be restricted only to, as contended, decree of judicial separation under Section 10 or divorce under Section 13. When the legislature has used such wide expression as “at the time of passing of any decree”, it encompasses within the expression all kinds of decrees such as restitution of conjugal rights under Section 9, judicial separation under Section 10, declaring marriage as null and void under Section 11, annulment of marriage as voidable under Section 12 and divorce under Section 13.
19. Learned counsel for the husband has argued that extending the benefit of Section 25 to even marriages which have been found null and void under Section 11 would be against the very object and purpose of the Act to ban and discourage bigamous marriages.
20. It is a well-known and recognised legal position that customary Hindu law like Mohammedan law permitted bigamous marriages which were prevalent in all Hindu families and more so in royal Hindu families. It is only after the Hindu law was codified by enactments including the present Act that bar against bigamous marriages was created by Section 5(i) of the Act. Keeping in consideration the present state of the statutory Hindu law, a bigamous marriage may be declared illegal being in contravention of the provisions of the Act but it cannot be said to be immoral so as to deny even the right of alimony or maintenance to a spouse financially weak and economically dependent. It is with the purpose of not rendering a financially dependent spouse destitute that Section 25 enables the court to award maintenance at the time of passing any type of decree resulting in breach in a marriage relationship.
21. Section 25 is an enabling provision. It empowers the court in a matrimonial case to consider facts and circumstances of the spouse applying and decide whether or not to grant permanent alimony or maintenance.
22. The facts of the present case fully justify grant of maintenance both to the wife and the daughter. The evidence of the wife has been believed by the courts below and according to us rightly so. From the circumstances preceding and attending the marriage, it can safely be inferred that the present husband must have made reasonable enquiries about the previous marriage of the present wife. The wife’s version is natural and inspires belief that the document of chhor chithhi was shown and given to the husband. It is proved from the photocopy of the foil of registration, placed on record. According to the wife, the husband did receive the document of chhor chithhi but has not produced it before the Family Court. It is argued that it is open to the wife, if the document was registered, to get a copy from the registration office. Even if that was possible, we find no ground to disbelieve her version that the fact of her previous marriage was not concealed from the present husband. The husband is an advocate. His falsehood went to the extent of denying his second marriage and calling his wife only to be a governess of his children from the first wife. He unsuccessfully denied even the parentage of daughter Puja, born through him. He failed to lead any evidence on the illegitimacy of the child. After the second marriage the parties lived as husband and wife and they had a considerably long married life of about nine years from 1981 to 1990. In such a situation, the Family Court and the High Court were fully justified in holding that the wife deserves to be granted maintenance under Section 25 of the Act.

Rameshchandra Rampratapji Daga Vs Rameshwari Rameshchandra Daga on 13 Dec 2004

Citations : [2005 ALD SC 2 62], [2005 BOMCR 3 834], [2005 CTC 1 66], [2005 DMC SC 1 1], [2005 GLH 1 288], [2005 GLR 2 939], [2005 JCR SC 2 306], [2004 JT SC 10 366], [2005 KLT SC 1 188], [2005 LW 4 11], [2005 MLJ SC 2 49], [2004 SCALE 10 391], [2005 SCC 2 33], [2005 AIR SC 422], [2005 GUJLR 2 939], [2005 GUJ LR 2 939]

Other Sources :

https://indiankanoon.org/doc/938507/

https://www.casemine.com/judgement/in/5609adffe4b0149711412a91

Index of Maintenance Judgements under HMA is here.

Krishnaveni Rai Vs Pankaj Rai and Anr on 19 Feb 2020

Posted on March 14, 2021 by ShadesOfKnife

The division bench of Apex Court held as follows,

From Paras 26, 27 and 28

26. It is well settled that a marriage which is null and void is no marriage in the eye of law. Where the marriage is a nullity application for maintenance is liable to be set aside on that ground alone. Under Section 5 of the Hindu Marriage Act, a marriage may validly be solemnized between any two Hindus, subject to the following conditions:-
(i) Neither party has a spouse living at the time of marriage [(Section 5(i) of the Hindu Marriage Act];
(ii) Neither party was incapable of giving valid consent of the marriage in circumstances specified in Section 5(ii) of the Hindu Marriage Act;
(iii) The parties to the marriage are of requisite age, that is, the bridegroom should have completed 21 years of age and the bride 18 years of age, at the time of marriage [Section 5(iii) of the Hindu Marriage Act];
(iv) The parties should not be within the degree of prohibited relationship unless the custom or usage governing each of them permits such marriage
[(Section 5(iv) of the Hindu Marriage Act];
(v) Parties are not sapindas of each other unless the custom or usage governing each of them permits between two. [(Section 5 (v) of the Hindu Marriage Act];
27. Section 11 of the Hindu Marriage Act provides that any marriage solemnized after the commencement of this Act shall be null and void and may on a petition presented by either party thereto, against the other party, be so declared by a decree of nullity, if it contravenes any of the conditions in Clauses (i), (iv) and (v) of the Section 5.
28. A careful reading of Sections 5, 11 and 15 makes it amply clear that while Section 5 specifies the conditions on which a marriage may be solemnized between two Hindus, only contravention of some of those conditions render a marriage void.

And from Para 38,

38. Learned counsel appearing on behalf of the Appellant has also argued that maintenance cannot be refused on the ground of nullity of marriage, until there is a declaration of nullity of marriage by a competent Court, in appropriate proceedings under Section 11 of the Hindu Marriage Act. We need not go into this question in view of our finding that a marriage contracted during the pendency of an appeal from a decree is not ab initio void, and certainly not when such an appeal is filed after expiry of the period of limitation.

Krishnaveni Rai Vs Pankaj Rai and Anr on 19 Feb 2020

Citations : [2020 SCC ONLINE SC 225]

Other Sources :

https://indiankanoon.org/doc/81931264/

https://www.casemine.com/judgement/in/5e52c0a93321bc1e173f86fe

https://www.indianemployees.com/judgments/details/krishnaveni-rai-versus-pankaj-rai-anr

Krishna Prasad Verma (D) Thr. Lrs. Vs State of Bihar on 26 Sep 2019

Posted on March 13, 2021 by ShadesOfKnife

The division bench of the Apex Court held as follows:

From Para 16,

16. We would, however, like to make it clear that we are in no manner indicating that if a judicial officer passes a wrong order, then no action is to be taken. In case a judicial officer passes orders which are against settled legal norms but there is no allegation of any extraneous influences leading to the passing of such orders then the appropriate action which the High Court should take is to record such material on the administrative side and place it on the service record of the judicial officer concerned. These matters can be taken into consideration while considering career progression of the concerned judicial officer. Once note of the wrong order is taken and they form part of the service record these can be taken into consideration to deny selection grade, promotion etc., and in case there is a continuous flow of wrong or illegal orders then the proper action would be to compulsorily retire the judicial officer, in accordance with the Rules. We again reiterate that unless there are clear-cut allegations of misconduct, extraneous influences, gratification of any kind etc., disciplinary proceedings should not be initiated merely on the basis that a wrong order has been passed by the judicial officer or merely on the ground that the judicial order is incorrect.

Krishna Prasad Verma (D) Thr. Lrs. Vs State of Bihar on 26 Sep 2019

Citations : [2019 SCC ONLINE SC 1330], [2019 SCC 10 640], [2020 SCC CRI 1 78], [2019 AIR SC 4852]

Other Sources :

https://indiankanoon.org/doc/23604802/

https://www.casemine.com/judgement/in/5dc567dd46571b38af731d48

Upkar Singh Vs Ved Prakash and Ors on 10 Sep 2004

Posted on March 11, 2021 by ShadesOfKnife

A landmark judgment from a 3-judge bench of Supreme Court, categorically declares as follows:

From Para 17,

17. It is clear from the words emphasised hereinabove in the above quotation, this Court in the case of T.T Antony v. State of Kerala has not excluded the registration of a complaint in the nature of a counter-case from the purview of the Code. In our opinion, this Court in that case only held that any further complaint by the same complainant or others against the same accused, subsequent to the registration of a case, is prohibited under the Code because an investigation in this regard would have already started and further complaint against the same accused will amount to an improvement on the facts mentioned in the original complaint, hence will be prohibited under section 162 of the code. This prohibition noticed by this Court, in our opinion, does not apply to counter-complaint by the accused in the first complaint or on his behalf alleging a different version of the said incident.

From Para 23,

23. Be that as it may, if the law laid down by this Court in T.T Antony case is to be accepted as holding that a second complaint in regard to the same incident filed as a counter-complaint is prohibited under the Code then, in our opinion, such conclusion would lead to serious consequences. This will be clear from the hypothetical example given hereinbelow i.e if in regard to a crime committed by the real accused he takes the first opportunity to lodge a false complaint and the same is registered by the jurisdictional police then the aggrieved victim of such crime will be precluded from lodging a complaint giving his version of the incident in question, consequently he will be deprived of his legitimated right to bring the real accused to book. This cannot be the purport of the Code.

Upkar Singh Vs Ved Prakash and Ors on 10 Sep 2004

Citations : [2004 AIR SC 4320], [2004 ALD CRI 2 906], [2004 CRI LJ 4219], [2004 JCR SC 4 158], [2004 JT SC 7 488], [2004 KLT SC 3 444], [2005 OLR SC 1 43], [2004 PLJR 4 157], [2004 SCALE 7 563], [2004 CRLJ 0 4219], [2004 SCC 13 2922004 ACR 3 2450], [2005 SCC CR 0 211], [2004 SCC 1 292], [2004 JT 7 4881], [2005 JIC 1 1092005 ACC 51 673], [2004 AIR SC 3240], [2004 AIR SC 0 4320], [2004 RCR CRIMINAL 4 294], [2004 SCC 22 292], [2004 SCC 6 528], [2004 AIR SC 5017], [2005 BOMCR CRI SC 1 199], [2004 CRIMES SC 4 20], [2005 SCC CRI 211], [2004 SUPREME 6 528], [2004 ALLLJ 3436], [2004 CRLJ SC 4219], [2004 RCR CRL 4 2942004 ALL LJ 3436], [2004 CRILJ 42192004 JT 7 488], [2004 AIR SCW 5017], [2004 AIR SCW 0 4320]

Other Sources :

https://indiankanoon.org/doc/1054183/

https://www.casemine.com/judgement/in/5609adefe4b0149711412948

Krishna Lal Chawla and Ors Vs State of UP and Anr on 08 Mar 2021

Posted on March 11, 2021 by ShadesOfKnife

A division bench of Apex Court held that a second complaint/FIR against same accused person by same complaint is impermissible in law and is also violative of Article 21 of Constitution.

It is the aforementioned part of the holding in Upkar Singh that bears directly and strongly upon the present case. This Court in Upkar Singh has clearly stated that any further complaint by the same complainant against the same accused, after the case has already been registered, will be deemed to be an improvement from the original complaint. Though Upkar Singh was rendered in the context of a case involving cognizable offences, the same principle would also apply where a person gives information of a non-cognizable offence and subsequently lodges a private complaint with respect to the same offence against the same accused person. Even in a non-cognizable case, the police officer after the order of the Magistrate, is empowered to investigate the offence in the same manner as a cognizable case, except the power to arrest without a warrant. Therefore, the complainant cannot subject the accused to a double whammy of investigation by the police and inquiry before the Magistrate.

Krishna Lal Chawla and Ors Vs State of UP and Anr on 08 Mar 2021

Citations :

Other Sources :

Sharad Birdhi Chand Sarda Vs State of Maharashtra on 17 Jul 1984

Posted on March 10, 2021 by ShadesOfKnife

Landmark judgment by a 3-judge bench of Supreme Court around circumstantial evidence (Sec 106 of Evidence Act 1872) basis which the accused were acquitted. The 5 golden principles postulated in this decision are as below.

153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established :
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade and another Vs. State of Maharashtra 1973 2 SCC 793 where the observations were made :
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature and tendency,
(4) they should exclude every possible hypothesis except the one to be proved, and
(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the
accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.

Sharad Birdhi Chand Sarda Vs State of Maharashtra on 17 Jul 1984 (SCR)

Citations : [1984 SCC 4 116], [1984 AIR SC 1622], [1984 CRI LJ 1738], [1984 CRIMES 2 235], [1984 CAR 263], [1984 CRLJ 90 1738], [1984 SCALE 2 445], [1985 SCR 1 88], [1984 CRLR 296], [1985 BOMCR SC 1 208], [1984 CRIMES SC 2 853], [1984 SCC CRI 1 487], [1984 SCC CRI 487], [1984 CRLJ SC 1738], [1984 AIR 1622], [1984 CRIMES SC 2 235]

Other Sources :

https://indiankanoon.org/doc/1505859/

https://www.casemine.com/judgement/in/56b48ca6607dba348ffede2b

Kapil Agarwal and Ors Vs Sanjay Sharma and Ors 01 Mar 2021

Posted on March 9, 2021 by ShadesOfKnife

Apex Court quashed the FIR in this case, and u/s 210 CrPC, held as follows

From Paras 5 and 6,

Thus, as per Section 210 Cr.P.C., when in a case instituted otherwise than on a police report, i.e., in a complaint case, during the course of the inquiry or trial held by the Magistrate, it appears to the Magistrate that an investigation by the police is in progress in relation to the offence which is the subject matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation. It also provides that if a report is made by the investigating police officer under Section 173 Cr.P.C. and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. It also further provides that if the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of Cr.P.C.
Thus, merely because on the same set of facts with the same allegations and averments earlier the complaint is filed, there is no bar to lodge the FIR with the police station with the same allegations and averments.
6. However, at the same time, if it is found that the subsequent FIR is an abuse of process of law and/or the same has been lodged only to harass the accused, the same can be quashed in exercise of powers under Article 226 of the Constitution or in exercise of powers under Section 482 Cr.P.C. In that case, the complaint case will proceed further in accordance with the provisions of the Cr.P.C.

Kapil Agarwal and Ors Vs Sanjay Sharma and Ors 01 Mar 2021

Citations : [2021 SCC OnLine SC 154]

Other Sources :

https://indiankanoon.org/doc/97191348/

https://www.indianemployees.com/judgments/details/kapil-agarwal-and-others-versus-sanjay-sharma-and-others

https://www.legitquest.com/case/kapil-agarwal-and-others-v-sanjay-sharma-and-others/1DA1F3

https://www.scconline.com/blog/post/tag/inherent-powers-of-high-courts/

Santokh Singh Vs Izhar Hussain and Anr on 25 Apr 1973

Posted on February 28, 2021 by ShadesOfKnife

A 2-judge bench of Apex Court held that, in this particular case, the Police officer can not be saddled with IPC 211 and prosecuted u/s 340 CrPC read with 195 CrPC. But the necessary ingredients are clearly articulated and hence this case law has to be relied upon as landmark judgment to file perjury against the person who made the false complaint (FIR need not be registered).

From Para 8,

8. In this Court, Shri Gupta has very forcefully contended that on the material on the record this direction is wholly unjustified, if not positively illegal, being based on misreading of evidence and on erroneous view of law. According to the submission, the appellant had neither lodged the FIR nor otherwise instituted any criminal proceeding or falsely charged Izhar Hussain within the contemplation of Section 211 IPC. Besides, there is absolutely no material on the record on which the High Court could have formed an opinion that it is expedient in the interest of justice that a complaint under Section 211 IPC should be filed against the appellant.

From Para 10,

… The short question posed, therefore, is, if by giving false evidence as a witness against Izhar Hussain the appellant can be said to have charged him within the contemplation of Section 211 IPC. If this question is answered in the affirmative, then it will have to be determined whether there is in fact a false accusation and finally whether it is expedient in the interest of justice on the facts and circumstances of the present case to direct a complaint to be filed under Section 211 IPC. This section as its marginal note indicates renders punishable false charge of offence with intent to injure. The essential ingredient of an offence under Section 211 IPC is to institute or cause to be instituted any criminal proceeding against a person with intent to cause him injury or with similar intent to falsely charge any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge. Instituting or causing to institute false criminal proceedings assume false charge but false charge may be preferred even when no criminal proceedings result. It is frankly conceded by Shri Kohli that the appellant cannot be said to have instituted any criminal proceeding against any person. So that part of Section 211 IPC is eliminated. Now, the expression “falsely charges” in this section, in our opinion, cannot mean giving false evidence as a prosecution witness against an accused person during the course of a criminal trial. To “falsely charge” must refer to the original or initial accusation putting or seeking to put in motion the machinery of criminal investigation and not when speaking to prove the false charge by making deposition in support of the charge framed in that trial. The words “falsely charges” have to be read along with the expression “institution of criminal proceeding”. Both these expressions, being susceptible of analogous meaning should be understood to have been used in their cognate sense. They get as it were their colour and content from each other. They seem to have been used in a technical sense as commonly understood in our criminal law. The false charge must, therefore, be made initially to a person in authority or to someone who is in a position to get the offender punished by appropriate proceedings. In other words, it must be embodied either in a complaint or in a report of a cognizable offence to the police officer or an officer having authority over the person against whom the allegations are made. The statement in order to constitute the “charge” should be made with the intention and object of setting criminal law in motion. Statement on oath falsely supporting the prosecution case against an accused person more appropriately amounts to an offence under Sections 193 and 195 IPC and not under Section 211 IPC. We do not think that the offences contemplated by Sections 193/195 IPC on the one hand and Section 211 IPC on the other were intended by the legislature in this context, to overlap so as to make it optional whether to proceed under one or the other. ..…

From Para 11,

Every incorrect or false statement does not make it incumbent on the court to order prosecution. The Court has to exercise judicial discretion in the light of all the relevant circumstances when it determines the question of expediency. The court orders prosecution in the larger interest of the administration of justice and not to gratify feelings of personal revenge or vindictiveness or to serve the ends of a private party. Too frequent prosecutions for such offences tend to defeat its very object. It is only in glaring cases of deliberate falsehood where conviction is highly likely that the court should direct prosecution.

Original:

Santokh Singh Vs Izhar Hussain and Anr on 25 Apr 1973 (SCI)

Casemine Version.

Santokh Singh Vs Izhar Hussain and Anr on 25 Apr 1973

Citations : [1973 AIR SC 2190], [1974 BLJR 22 877], [1973 SCC 2 406], [1974 SCR 1 78], [1973 CAR 316], [1973 CRLR SC 473], [1973 SCC CR 828], [1973 SCC CRI 828], [1973 CRLJ SC 1176]

Other Sources :

https://indiankanoon.org/doc/56524/

https://www.casemine.com/judgement/in/5609ab94e4b014971140cd11

Index of Perjury judgments here.

State of Karnataka Vs M. Devendrappa and Anr on 16 Jan 2002

Posted on February 25, 2021 by ShadesOfKnife

A 3 judge bench citing Bhajan lal judgment here, held as follows:

In dealing with the last case, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is function of the trial Judge. Judicial process should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of private complainant as unleash vendetta to harass any person needlessly.

Finally, it was held that, there were grounds to Quash the proceedings, by saying,

the involvement of excise officials cannot be ruled out and when they have been indicated to be witnesses, likelihood of prejudice cannot be ruled out. It was also noted that there was no “definite evidence” to show that accused nos. 1&2 were directly involved. Finally, it was observed that there was no material to hold that the accused persons had committed theft of “Letter Heads” from Karnataka Bank Ltd., and/or they had committed forgery for the purpose of cheating or have used genuine forged documents or had cheated the government. Finally, it was observed that there was no evidence to infer common intention to commit such offences.

State of Karnataka Vs M. Devendrappa and Anr on 16 Jan 2002

Citations : [2002 SCC 3 89], [2002 SCALE 1 176], [2002 AIR SC 671], [2002 SCR 1 275], [2002 CRLJ SC 998], [2002 SCC CRI 539], [2002 UJ SC 1 362], [2002 AIR SC 286], [2002 SUPREME 1 192], [2002 ACR SC 1 605], [2002 ALD CRI 1 412], [2002 SCSUPPL CHN 2 21], [2002 UC 1 294], [2002 AIR SCW 286], [2002 JT SC 1 213]

Other Sources :

https://indiankanoon.org/doc/1014506/

https://www.casemine.com/judgement/in/5609adc4e4b0149711412362

Shades of Knife

True Colors of a Vile Wife

Tag: Reportable Judgement or Order

Rameshchandra Rampratapji Daga Vs Rameshwari Rameshchandra Daga on 13 Dec 2004

Krishnaveni Rai Vs Pankaj Rai and Anr on 19 Feb 2020

Krishna Prasad Verma (D) Thr. Lrs. Vs State of Bihar on 26 Sep 2019

Upkar Singh Vs Ved Prakash and Ors on 10 Sep 2004

Krishna Lal Chawla and Ors Vs State of UP and Anr on 08 Mar 2021

Sharad Birdhi Chand Sarda Vs State of Maharashtra on 17 Jul 1984

Kapil Agarwal and Ors Vs Sanjay Sharma and Ors 01 Mar 2021

Santokh Singh Vs Izhar Hussain and Anr on 25 Apr 1973

State of Karnataka Vs M. Devendrappa and Anr on 16 Jan 2002