The SC on October 15, 2020 {SATISH CHANDER AHUJA vs. SNEHA AHUJA} held that the domestic violence in this country is rampant and several women encounter violence in some form or the other or almost every day, however, it is the least reported form of cruel behavior. It was held that a woman resigns her fate to the never ending cycle of enduring violence and discrimination as a daughter, a sister, a wife, a mother, a partner or a single woman in her lifetime.
It was observed by the Bench, comprising of Justice Ashok Bhushan, Justice R. Subhash Reddy and Justice M. R. Shah, that the right to residence under Section 19 is not an indefeasible right of residence in shared household especially when the daughter-in-law is pitted against aged father-in-law and mother-in-law. It was held that the senior citizens in the evening of their life are also entitled to live peacefully not haunted by marital discord between their son and daughter-in-law. It was held that while granting relief both in application under Section 12 of Act, 2005 or in any civil proceedings, the Court has to balance the rights of both the parties.
This appeal before the SC raised important questions of law pertaining to the interpretation and working of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “Act, 2005”).
The SC held that definition of shared household given in Section 2(s) cannot be read to mean that shared household can only be that household which is household of the joint family of which husband is a member or in which husband of the aggrieved person has a share.
It was held that the earlier judgment of the Court in S.R. Batra Vs. Taruna Batra has not correctly interpreted Section 2(s) of Act, 2005 and the judgment does not lay down a correct law.
The SC held that the claim of the defendant that suit property is shared household and she has right to reside in the house ought to have been considered by the Trial Court and non-consideration of the claim/defence is nothing but defeating the right, which is protected by Act, 2005.
It was held that the power under Order XII Rule 6 is discretionary and cannot be claimed as a matter of right. In the facts of the present case, it was held that the Trial Court ought not to have given judgment under Order XII Rule 6 on the admission of the defendant as contained in her application filed under Section 12 of the D.V. Act.
It was held that one of the conditions to treat a person as a respondent is that “against whom the aggrieved person has sought any relief under the Act”. It was held that the defendant in her pleadings having claimed that she has right of residence in the suit property, she for successful resisting the suit has to plead and prove that she has been subjected to any act of domestic violence by the respondent, which is implicit in the definition of the aggrieved person itself as given in the Section 2(a) of the Act, 2005.
It was held that to treat a person as the “respondent” for purposes of Section 2(q) it has to be proved that person arrayed as respondent has committed an act of domestic violence on the aggrieved person.
It was held that for the purposes of determination of right of defendant under Sections 17 and 19 read with Section 26 in the suit in question the plaintiff can be treated as “respondent”, but for the grant of any relief to the defendant or for successful resisting the suit of the plaintiff necessary conditions for grant of relief as prescribed under the Act, 2005 has to be pleaded and proved by the defendant, only then the relief can be granted by the Civil Court to the defendant.
It was held that one most common example for eviction and exclusion may be when the aggrieved person is provided same level of alternate accommodation or payment of rent as contemplated by Section 19 sub-section (f) itself.
It was held that in case, the shared household of a woman is a tenanted/allotted/licensed accommodation where tenancy/ allotment/license is in the name of husband, father-in-law or any other relative, the Act, 2005 does not operate against the landlord/lessor/licensor in initiating an appropriate proceedings for eviction of the tenant/allottee/licensee qua the shared household. However, it was held that in case the proceedings are due to any collusion between the two, the woman, who is living in the shared household has right to resist the proceedings on all grounds which the tenant/lessee/licensee could have taken in the proceedings. It was held that the embargo under Section 17(2) of Act, 2005 of not to be evicted or excluded save in accordance with the procedure established by law operates only against the “respondent”, i.e., one who is respondent within the meaning of Section 2(q) of Act, 2005.
It was held that that direction to the Courts to implead in all cases the husband of an aggrieved person cannot be given and it is the Trial Court which is to exercise the jurisdiction under Order I Rule 10. It was held that even the Civil Court has to take into consideration the relief already granted by the Magistrate in the proceedings under the D.V. Act and vice versa.
It was held — (1) the previous judgment which is final can be relied upon as provided under Sections 40 to 43 of the Evidence Act; (2) in civil suits between the same parties, principle of res judicata may apply; (3) in a criminal case, Section 300 CrPC makes provision that once a person is convicted or acquitted, he may not be tried again for the same offence if the conditions mentioned therein are satisfied; (4) if the criminal case and the civil proceedings are for the same cause, judgment of the civil court would be relevant if conditions of any of Sections 40 to 43 are satisfied, but it cannot be said that the same would be conclusive except as provided in Section 41. It was held that Section 41 provides which judgment would be conclusive proof of what is stated therein.
In Vishnu Dutt Sharma Vs. Daya Sapra, (2009) 13 SCC 729, the Supreme Court earlier reiterated that a judgment of a criminal court in civil proceedings will have only a limited application and finding in a criminal proceeding by no stretch of imagination would be binding in a civil proceeding.
The SC held that it needs to observe that in event a judgment of criminal court is relevant as per Sections 40 to 43 of Evidence Act in civil proceedings, the judgment can very well be taken note of and there is no embargo on the civil court to place reliance upon it as a corroborative material.
It was held that there is no embargo in referring to or relying on an admissible evidence, be of a civil court or criminal court both in civil or criminal proceedings.
The SC held that pendency of proceedings under Act, 2005 or any order interim or final passed under D.V. Act under Section 19 regarding right of residence is not an embargo for initiating or continuing any civil proceedings, which relate to the subject matter of order interim or final passed in proceedings under D.V. Act, 2005.
It was held that the judgment or order of criminal court granting an interim or final relief under Section 19 of D.V. Act, 2005 are relevant within the meaning of Section 43 of the Evidence Act and can be referred to and looked into by the civil court.
It was held that a civil court is to determine the issues in civil proceedings on the basis of evidence, which has been led by the parties before the civil court.
It was held that in the facts of the present case, suit filed in civil court for mandatory and permanent injunction was fully maintainable and the issues raised by the appellant as well as by the defendant claiming a right under Section 19 were to be addressed and decided on the basis of evidence, which is led by the parties in the suit.
The SC held that High Court has rightly set aside the decree of the Trial Court and remanded the matter for fresh adjudication. The appeal was dismissed.
]]>The SC on June 18, 2020 {RANA NAHID @ RESHMA @ SANA & ANR. vs SAHIDUL HAQ CHISTI} was considering vexed, but interesting question of law i.e. whether the family court has jurisdiction to try application filed by Muslim divorced woman for maintenance under Section 3 of Muslim Women (Protection of Rights on Divorce) Act, 1986.
However, as the question was vexed one, two Judges on the Bench did not concur, Justice R. Banumathi and Justice Indira Banerjee had divergent opinions in the appeal.
Per Justice R. Banumathi
Justice R. Banumathi held that since the Muslim Women’s Protection Act, 1986 does not refer to the Family Court or does not say that an application under Sections 3 and 4 can be filed before the Family Court, in her lordship's view, the Family Court cannot entertain the application of divorced Muslim woman under Sections 3 and 4 of the Muslim Women’s Protection Act, 1986.
Justice R. Banumathi further held that the application under Section 3(2) of the Act of 1986 by the divorced wife has to be filed before the competent Magistrate having jurisdiction if she claims maintenance beyond the iddat period. It was held even if the Family Court has been established in that area, the Family Court not having been conferred the jurisdiction under Section 7 of the Family Courts Act, 1984 to entertain an application filed under Section 3 of the Muslim Women Protection Act, the Family Court shall have no jurisdiction to entertain an application under Section 3(2) of the Act of 1986. It was held that the Family Court, therefore, cannot convert the petition for maintenance under Section 125 Cr.P.C. to one under Section 3 or Section 4 of the Act of 1986. It was concluded by her lordship that the High Court rightly held that the Family Court has no jurisdiction to entertain the petition under Sections 3 and 4 of the Act of 1986 and that the Family Court cannot convert the petition for maintenance under Section 125 Cr.P.C. to one under Section 3 or Section 4 of the Act of 1986. Justice R. Banumathi does not find any reason warranting interference with the impugned order.
Per Justice Indira Banerjee
Whereas, Justice Indira Banerjee held that it was never the intention of the 1986 Act for Muslim Women to deprive divorced Muslim Women from the litigant friendly procedures of the Family Courts Act and denude Family Courts of jurisdiction to decide applications for maintenance of divorced Muslim women.
It was further held by Justice Indira Banerjee that if proceedings under Section 125 Cr.P.C. are civil in nature as held earlier by Supreme Court in Iqbal Bano v. State of UP and Another (2007) 6 SCC 785, the Court of the Magistrate dealing with an application under Section 125 Cr.P.C. is to be deemed a Civil Court for the purpose of deciding the application under Section 125 Cr.P.C. It was held that on a parity of reasoning, an application under Section 3/4 of the 1986 Act for Muslim Women is also civil in nature. It was held that the Court deciding an application under Section 3/4 of the 1986 Act for Muslim Women is to be deemed to be a Civil Court.
Thus, it was concluded by Justice Indira Banerjee that the Family Court would have jurisdiction under Section 7 of the Family Courts Act to entertain an application under Section 3 and 4 of 1986 Act for Muslim Women, since the Court of Magistrate dealing with such an application is to be deemed to be a Civil Court subordinate to the District Court.
Resultantly, in view of difference of opinions and the distinguishing judgments (Justice R. Banumathi dismissed the appeal and Justice Indira Banerjee allowed the appeal), the matter was placed before the Chief Justice of India for referring the matter to the Larger Bench.
]]>The Delhi High Court on April 30, 2020 {AJAY GUPTA v. SONIA GUPTA} held if the provisions of Chapter IV of the Family Courts Act, 1984 (hereafter ‘the FC Act’) are read, it would be at once clear that sub-section (3) of Section 10 of the FC Act must be read in an expansive manner and a Family Court would not be precluded from laying down a procedure, which is in variance with the procedures prescribed under the Cr.PC, to deal with the subject matter before it.
The question that arose for consideration before the HC was whether a Family Court can adopt a procedure in variance with the procedure for taking evidence as is prescribed under Section 126 Cr.PC read with Section 273 of the Cr.PC.? The Family Court has answered - it can adopt the procedure at variance i.e. by taking evidence by way of affidavit. The present Criminal Revision Petition was therefore filed before the HC.
It is the petitioner’s case before the HC that in terms of sub-section (2) of Section 126 of Cr.PC, all evidence is required to be taken in presence of the person against whom an order for payment of maintenance is proposed to be made and is to be recorded in the manner prescribed for a summons case. Therefore, an affidavit by way of evidence, in substitution of recording the examination-in-chief, is not permissible.
It was held by the HC that Section 12 of the FC Act entitles the Family Court to seek assistance of medical experts or other persons as the Court may think fit, for the purposes of discharging its functions under the FC Act. It was held that Section 13 of the Act contains a non obstante clause and provides that no party to a suit or proceedings would be entitled as a matter of right to be represented by a legal practitioner.
The Court held that Section 14 of the FC Act is also couched in very wide terms. It was held that it enables the Family Court to receive in evidence any report, statement, documents, information or matter that may in its opinion assist it to deal effectively with the dispute. It was also held that Section 15 of the FC Act provides that it would not be necessary to record evidence of witnesses at length but the judge shall record a memorandum of substance of what the witness has deposed.
The High Court observed that provisions of Section 16 of the FC Act must be considered in the light of the scheme of the other provisions of chapter IV of the FC Act. It was held, therefore, it must be construed as enabling the Family Court to accept formal evidence by way of affidavit and not limiting the discretion of the Court to evolve its own procedure including accepting evidence, which is otherwise not of a formal character, on affidavit.
The HC held that Section 20 of the FC Act enacts a non obstante clause and provides that provisions of the said Act would have the effect notwithstanding anything inconsistent contained in any other law for the time being in force or any instruction having effect by virtue of any law. It was held, thus, by virtue of Section 20 of the FC Act, the provisions of the FC Act, have an overriding effect and in case of any repugnancy between the provisions of the FC Act and any other law, the provisions of the FC Act are required to be given effect to.
In view of the above, it was held by the HC that the Family Courts are required to follow the procedure as set out in the FC Act for determining the matters placed before it notwithstanding the procedure as may be stipulated in the Cr.PC.
The HC, therefore, found no infirmity with the decision of the Family Court in accepting evidence by way of an affidavit; permitting the respondent to tender the same in her examination-in-chief; and providing an opportunity to the petitioner to cross-examine the respondent.
By the impugned order, the Family Court, inter alia, rejected the petitioner’s application under Section 126 of the Code of Criminal Procedure, 1973 praying that the evidence filed by the respondent by way of an affidavit be struck off and the respondent be directed to examine herself in accordance with the procedure prescribed under Cr.PC.
The Criminal Revision Petition was, accordingly, dismissed by the High Court.
]]>The Delhi High Court on May 1, 2020 {FAISAL KHAN v. HUMERA} held that the respondent/ wife had got married to Mr. Mussavir Mustafa, she had left with the child for Dubai, where her husband is working in a multinational company. The Court held that this goes to show that the respondent has sufficient funds and economic resources to attend to all the needs of the child either for purposes of his schooling or for bringing him up comfortably. It was held that the respondent's remarriage can hardly be a ground for the appellant to claim that being the natural guardian of the child, he has a better right to claim his custody, over the respondent. The Court held that at the end of the day, the court must examine the facts and circumstances of the case and then come to a conclusion as to whether it would be in the better interest of the minor child to remain in the custody of the father or the mother.
The Court observed that since the child has remained in the custody of the respondent all this while, even if the appellant is the legal guardian of the minor, the respondent's claim to retain the custody of the child as the biological mother would stand on a better footing.
The HC held that in evaluating a case of custody of a minor child, the sole and predominant factor that ought to weigh with the court is in the best interest of the child which included the aspect of stability, security, love and understanding, for a wholesome development of the child’s personality and talent. It was held that the said welfare has to be measured not only in terms of the financial support and physical comfort that the child may get. It was held that equally pre-eminent is the emotional, moral and ethical welfare of the child.
The Court held that when there is a dispute between the parents in respect of the custody of the minor, the court has to try and strike a balance between the welfare of the child and the rights of the parents over the child. It was held that while deciding a custody petition, the courts must not be swayed only by the legal rights of the parties. It was held that the sole and dominant consideration ought to be the welfare and the happiness of the minor and the need to find out what would be the best manner of serving his interest, whether by way of offering emotional security or psychological stability or by showering him with love, and understanding.
It was further held that, at the same time, the court can also not be oblivious to fact circumstances that reveal that the husband has been mistreating his wife which would be treated a negative character trait and the court would have to ponder if it would be desirable for him to claim the custody of child only because he is the natural guardian.
In the present case, the appeal was directed against an ex-parte judgment, passed by the Family Court, Saket Court, dismissing a petition filed by the appellant/father under Section 25 of the Guardians & Wards Act, 1890 for seeking custody of the minor son of the parties, master Azhaan, who is in the care and custody and the respondent/mother.
The High Court, while dismissing the appeal, observed that the guardianship petition filed by the appellant appears to be more a tool to even out a score with the respondent, rather than a genuine means to reach out to the child and take over his custody, purely in his best interest and for his well being.
Accordingly, the impugned judgment was sustained and present appeal was dismissed as meritless by the Delhi High Court.
]]>The SC on April 29, 2020 {NEELAM GUPTA v. MAHIPAL SHARAN GUPTA AND ANOTHER} held that the present appeals were being entertained by the Court principally to explore the possibilities of settlement between the appellant and the respondent No.1. The parties arrived at the settlement in present matrimonial dispute; lump sum payment of Rs. 65,00,000/- to wife/ appellant, subject to other conditions, and divorce by mutual consent.
The SC Bench, comprising of Justice U U Lalit, Justice Indu Malhotra and Justice Krishna Murari, observed that in case the respondent No.1 fails to deposit the first installment of Rs.6,00,000/- within the time stipulated in the directions issued, this Appeal shall stand allowed and the Orders under appeal will stand set aside. Consequently, in that case, the application preferred by the appellant under Section 12 of the DV Act shall stand allowed.
In present case, the appeals arose out of the common Judgment and order passed by the High Court of Delhi, by which the High Court affirmed (i) the order passed by Mahila Court in proceedings initiated by the appellant under Section 12 of the DV Act and (ii) the order passed by Additional Sessions Judge-2, (North), Rohini Courts, Delhi - as per those orders, prayer for residence order in the property in dispute as 'shared household' of the appellant was not allowed.
]]>The SC on April 27, 2020 {AISHWARYA ATUL PUSALKAR v. MAHARASHTRA HOUSING & AREA DEVELOPMENT AUTHORITY & ORS.} held that the Protection of Women from Domestic Violence Act, 2005 has recognised the concept of “shared household” in terms of Section 2(s) of this statute. It was held that alienating an immovable asset to defeat the right of a victim lady under the said Act can constitute domestic violence, coming, inter-alia, within the ambit of the expression “economic abuse” under Section 3(iv) of 2005 Act. It was held that a Magistrate having jurisdiction under Section 19 of the said Act is empowered to pass a residence order to protect a victim of domestic violence from being removed from her shared household. It was further held that for a husband to compel his wife to live in a separate household, which is not her matrimonial home, an order from appropriate legal forum would be necessary. It was held that there cannot be forcible dishousing of a wife from her matrimonial home.
It was further held by the SC Bench, comprising of Justice Deepak Gupta & Justice Aniruddha Bose, that the appellant has right to reside in her matrimonial home. Such right has a legitimate basis. It was observed that though the enforcement mechanism adopted by her to enforce her right is not legally acceptable. It was held that a married woman is entitled to live, subsequent to her marriage, with rest of her family members on the husband’s side, in case it is a joint-property. It was held that if she resides in an accommodation as an independent family unit with her husband and children, the matrimonial home would be that residential unit. It was held that this right is embedded in her right as a wife. It was held that it is implicit under the provisions of Section 18 of the Hindu Adoption and Maintenance Act, 1956 in situations that statute is applicable.
It was held by the SC, in the present case, when a builder has discharged his obligation by accommodating the original owners in the redeveloped portion as per such a scheme, a lady married into that family would not be entitled to invoke the writ jurisdiction of the High Court to enforce her right to matrimonial home citing the provisions of the Maharashtra Housing and Area Development Act, 1976, if her husband does not permit her to reside in the allocated portion. It was held that it is so as she does not have any independent claim on title or interest to that property having its genesis in that statute.
It was further observed by the SC that the position as it stands now is that the decree of judicial separation stands invalidated and as of now, the appellant is the legally wedded wife of the respondent no.8. It was held that she has been out of her matrimonial home since the year 2000. But such right cannot be enforced invoking the writ jurisdiction.
In the present case, the Bombay High Court in the judgment, subject matter of this case, sustained the plea of the respondents that the right which the writ petitioner (appellant before the SC) was seeking to establish could not be enforced invoking jurisdiction of the Court under Article 226 of the Constitution of India.
It was observed by the SC that now the question arises as to whether any relief can be granted to the appellant in this appeal. It was held by the SC that the Bombay High Court has in substance non-suited her on the ground that the Writ Court was not the appropriate forum for granting her relief. It was held that it does not per se find any error in such approach.
However, it was held by the SC that considering the fact that the dispute is pending for a very long time, it is inclined to exercise its jurisdiction under Article 142 of the Constitution of India. It was observed that it does so having regard to the fact that the builder and the husband of the appellant have uniformly stated that Flat No. 101 in Om Apartment is available to accommodate the appellant. For this reason, it was directed by the SC that the appellant should be given the choice of occupying that flat as her residence. It was observed by the SC, if she does not wish to exercise option to occupy Flat No. 101, then she can approach competent court to enforce her right in matrimonial home, and in case, she decides to go to the competent court, for 8 months her possession shall be protected in Flat no. 101 where she is presently residing and the husband was directed to pay rent thereof till 8 months only, and thereafter, subject to orders, if any, of the competent court. The appeal was accordingly disposed of by the SC.
]]>Justice R Banumathi & Justice A S Bopanna
The SC on March 19, 2020 {SHYAM SAHNI v. ARJUN PRAKASH AND OTHERS } held that since repeated undertakings were filed and the same were not complied with, learned Single Judge directed respondent No.1 to surrender his passport. It was held that the said order was passed to ensure the presence of the first respondent and compliance of the order of the Court. It was further held that it cannot be said that the learned Single Judge exceeded the jurisdiction or committed an error in ordering surrender of the passport. Further held that in order to ensure the presence of the parties in the contempt proceedings, the Court is empowered to pass appropriate orders including the surrender of passport. It was also held that while dealing with child custody matter, in David Jude vs. Hannah Grace Jude and Another (2003) 10 SCC 767, the Supreme Court directed Union of India to cancel the passport of contemnor No.1 and to take necessary steps to secure the presence of contemnor No.1 with the child in India and to ensure her appearance before the Court on the date of hearing.
In the present case, the appeal was filed assailing the impugned judgment and final order dated 01.08.2018 passed by the High Court of Delhi at New Delhi in FAO (OS) No.210 of 2017 in and by which the Division Bench of the High Court had set aside the order of the learned Single Judge and allowed the appeal filed by respondent No.1 (defendant No.4) herein by holding that the passport of respondent No.1 (defendant No.4) ought not to have been ordered to be detained and further directed return of the passport of respondent No.1 (defendant No.4). The appeal was allowed by the SC setting aside the order of the Division Bench and restoring the order of the Single Judge directing deposit of passport.
]]>Justice A S Bopanna & Justice R Banumathi & Justice S Abdul Nazeer
The SC {Mangayakarasi v. M. Yuvaraj} holds that a perusal of the judgment of the High Court indicates that there is no reference whatsoever with regard to the evidence based on which the dissolution of marriage had been sought, which had been declined by the Trial Court and the First Appellate Court and whether such consideration had raised any substantial question of law. But the entire consideration has been by placing reliance on the judgment which was rendered in the criminal proceedings and had granted the dissolution of the marriage. It was held that the tenor of the substantial questions of law as framed in the instant case and decision taken on that basis by HC if approved, it would lead to a situation that in every case if a criminal case is filed by one of the parties to the marriage and the acquittal therein would have to be automatically treated as a ground for granting divorce which will be against the statutory provision.
It was held that though a criminal complaint had been lodged by the wife and husband has been acquitted in the said proceedings the basis on which the husband had approached the Trial Court is not of alleging mental cruelty in that regard but with regard to her intemperate behaviour regarding which both the courts below on appreciation of the evidence had arrived at the conclusion that the same was not proved. In that background, it was held that if the judgment of the High Court is taken into consideration, the High Court was not justified in its conclusion.
Further, held the SC can in any event exercise the power under Article 142 of the Constitution of India in appropriate cases for dissolution of marriage. However, in the instant facts, it was held that the parties hail from a conservative background where divorce is considered a taboo and further they have a female child born on 03.01.2007 who is presently aged about 13 years. It was also held that in a matter where the differences between the parties are not of such magnitude and is in the nature of the usual wear and tear of marital life, the future of the child and her marital prospects are also to be kept in view, and in such circumstance the dissolution of marriage merely because they have been litigating and they have been residing separately for quite some time would not be justified in the present facts, more particularly when the restitution of conjugal rights was also considered simultaneously.
In the present case, the High Court has through the impugned judgment dated 20.07.2018 allowed the appeals, set aside the order for restitution of conjugal rights and dissolved the marriage between the parties herein. It is in that light the appellant wife is before the SC in these appeals.
The SC arrived at the conclusion that the very nature of the substantial questions of law framed by the High Court is not justified and the conclusion reached is also not sustainable, the judgment of the High Court is liable to be set aside.
]]>
Supreme Court of India
Justice Indira Banerjee & Justice M R Shah
The SC {Krishnaveni Rai v. Pankaj Rai & Anr.} holds that the bar of Section 15 is not at all attracted, where the appeal from the decree of divorce had been filed almost a year after expiry of the period of limitation for filing an appeal. Section 15 permits a marriage after dissolution of a marriage if there is no right of appeal against the decree, or even if there is such a right to appeal, the time of appealing has expired without an appeal having been presented, or the appeal has been presented but has been dismissed. It was held that in this case no appeal had been presented with the period prescribed by limitation.
Further, held that the bar, if any, under Section 15 of the Hindu Marriage Act applies only if there is an appeal filed within the period of limitation, and not afterwards upon condonation of delay in filing an appeal unless of course, the decree of divorce is stayed or there is an interim order of Court, restraining the parties or any of them from remarrying during the pendency of the appeal.
It was also held that the effect of the prohibition against one of the parties from contracting a second marriage for a certain period is not to nullify the divorce and continue the dissolved marriage, as if the same were subsisting.
Accordingly, the present case was remitted by the SC to the appropriate Court having jurisdiction for determination of the Appellant’s claim to maintenance. In the meanwhile, it was directed by the SC that the Respondent No.1 shall pay to the Appellant maintenance of Rs.20,000/- per month, as directed by the Family Court by its order dated 19.12.2018, without prejudice to the rights and contentions of either party, until further orders of the appropriate Court/Family Court in the application under Section 125 of the Cr.P.C.
In the present case, the appeal was against a judgment and order dated 9.4.2019 passed by the High Court for the State of Telangana, dismissing Criminal Revision Case No. 2587 of 2017 filed by the Appellant under Section 397/401 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C”), challenging the order dated 7.8.2017 passed by the Additional Metropolitan Sessions Judge, Fast Track Jubilee Hills Bomb Blast Case(JHBBC)-cum-Additional Family Judge at Hyderabad, dismissing the application of the Appellant under Section 125 of the Cr.P.C. for maintenance, on the purported ground that the marriage between the Appellant and the Respondent No.1 was a nullity. The appeal was allowed by the SC.
]]>Justice Ashok Bhushan and Justice R. Subhash Reddy
The SC {SANJEEV KAPOOR v. CHANDANA KAPOOR & ORS.} holds that the order passed by Family Court reviving the maintenance application of the wife under Section 125 Cr.P.C. by setting aside order dated 06.05.2017 passed on settlement is not hit by the embargo contained in Section 362 Cr.P.C. Further held that the submission of learned senior counsel for the appellant that Section 362 Cr.P.C. prohibit the Magistrate to pass the order dated 05.01.2019 cannot be accepted.
It was also held that Magistrate does not become functus officio after passing an order under Section 125 Cr.P.C., as and when occasion arises the Magistrate exercises the jurisdiction from time to time. By Section 125(5) Cr.P.C., Magistrate is expressly empowered to cancel an order passed under Section 125(1) Cr.P.C. on fulfilment of certain conditions.
It was held that the High Court did not commit an error in rejecting the application filed by appellant under Section 482 Cr.P.C. The inherent powers of the High Court given under Section 482 Cr.P.C. are to be exercised to secure the ends of justice. The Family Court in passing order dated 05.01.2019 has done substantial justice in reviving the maintenance application of the wife which need no interference by the High Court in exercise of its jurisdiction under Section 482 Cr.P.C.
In the present case, the issue falling for consideration before the SC was whether the magistrate has power to recall order - disposing the petition- under Sec 125 Cr.P.C; by restoration of the application for maintenance. The SC as aforesaid answered the same in affirmative.
Justice R Banumathi, Justice A S Bopanna and Justice Hrishikesh Roy
The SC {SHYAMLAL DEVDA AND OTHERS v. PARIMALA} holds in present case, insofar, as appellant No.14-husband of the respondent and appellants No.1 and 2-Parents-in-law, there are averments of alleging domestic violence alleging that they have taken away the jewellery of the respondent gifted to her by her father during marriage and the alleged acts of harassment to the respondent. But there are no specific allegations as to how other relatives of appellant No.14 have caused the acts of domestic violence. It is also not known as to how other relatives who are residents of Gujarat and Rajasthan can be held responsible for award of monetary relief to the respondent. It was held that the High Court was not right in saying that there was prima facie case against the other appellants No.3 to 13. Since there are no specific allegations against appellants No.3 to 13, the criminal case of domestic violence against them cannot be continued and is liable to be quashed.
It was further held that a plain reading of the above provision makes it clear that the petition under the DV Act can be filed in a court where the “person aggrieved” permanently or temporarily resides or carries on business or is employed. Further held, in the present case, the respondent is residing with her parents within the territorial limits of Metropolitan Magistrate Court, Bengaluru. In view of Sec27(1)(a) of the Act, the Metropolitan Magistrate court, Bengaluru has the jurisdiction to entertain the complaint and take cognizance of the offence. There is no merit in the contention raising objection as to the jurisdiction of the Metropolitan Magistrate Court at Bengaluru.
According, in above terms, the appeal was disposed of by the SC.
]]>Justice A S Bopanna and Justice R. Banumathi
The SC {Ravinder Kaur v. Manjeet Singh (Dead) through Lrs.} after setting aside the decree granted for divorce by HC on the ground of cruelty, holds that if the respondent husband is to contend that the allegations of illegitimate relations made against him by the wife has amounted to mental cruelty, then in that case, the bald allegations made by the respondent against the appellant wife would also amount to the same, therefore, the husband cannot contend that the same has caused mental cruelty to him. And, even otherwise, the said instances cannot be held sufficient to cause mental cruelty to the husband of the degree as required for granting divorce under the Act. The HC erred in granting divorce by setting aside the judgment of the trial Court.
It was further held by the SC that insofar as the action taken by the appellant herein to file a police complaint and the proceedings initiated under Section 107/151 of Cr.PC it is the natural legal course adopted by respondent to protect her right and possession of the property. It was held that it is not in dispute that at the point when a complaint was filed and a suit was also stated to have been filed by the appellant herein on 05.09.1995 there was misunderstanding brewing in the marital life of the parties and in that circumstance the appellant herein had adopted the legal course to protect her rights. It was held that such action taken in accordance with law cannot, in any event, be considered as inflicting cruelty as the legal proceedings was used only as a shield against the assault. Therefore, the decree of divorce granted by the HC was set aside by the SC.
]]>Justice K M Joseph and Justice Sanjay Kishan Kaul
The Supreme Court {Girish Singh versus the State of Uttarakhand} was dealing with the case under Section 304 B IPC for dowry death - in the said case the trial court initially had acquitted the appellants but the High Court has convicted them for the said offence.
While setting aside the judgement of the High Court and acquitting the appellants, it was held by the SC that the foremost aspect to be established by the prosecution is that there was reliable evidence to show that the woman was subjected to cruelty or harassment by her husband or his relatives, which must be for or in connection with any demand for dowry, soon before her death. It was further held that before the presumption is raised, it must be established that the woman was subjected by such a person, to cruelty or harassment, and it is not any cruelty that becomes the subject matter of the provision, but it is the cruelty or harrassment for in connection with demand for dowry.
It was held by the SC that in the present case having regard to the state of the evidence demand for dowry was not proved, therefore, foremost ingredient of Sec 304 B IPC has not been established. The judgement of the High Court being completely perverse was set aside and the appellants were acquitted.
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Justice Ashok Bhushan and Justice Navin Sinha
The SC { Sheoli Hati v. Somnath Das} affirms the order of the High Court, by which, it was directed that the child shall be admitted to boarding school i.e. Good Shepherd International School, Ooty for the academic session 2018-2019 at the expense of the father/respondent. Initially, the Family Court in the petition of the Husband u/s 7 and 12 of the Guardian and Wards Act,1890 had directed the admission of the child in the session 2019-2020, but it was modified by the HC as aforesaid on the report of day School in which the child was earlier studying.
The SC while dismissing the appeal of the wife/appellant had observed that the appellant/wife has right from beginning opposing the prayer of the respondent to send the child in the boarding school and tried to find fault with the school at Ooty. On the other hand, it was held that the intention of the husband/respondent has always been that the child should get best education at a neutral environment, which may help in developing the personality of child.
It was also held that what is in the interest of the child depends on the facts and circumstances of each case and has to be decided on its own merits without adhering to any fixed formula or rule. It was directed that High Court should also take into consideration subsequent materials which may be brought before it by the parties including the progress report of the child from Good Shepherd International School, Ooty and reports received from Child Welfare Committee, while finally deciding the pending appeals. As no good ground was found to interfere with the impugned judgment of the High Court, the appeal was dismissed by the SC.
]]>Justice R. Banumati
It was held by the Apex Court that the father is natural guardian as per Sec 6 of the HIndu Minority and Guardianship Act and merely because the appellants being the relative took care of the child for some time, they cannot retain the custody of the child.
In the said case the custody of the child was with sister of mother of the child as the mother died on 17/10/2018. The husband was denied the custody, therefore, the husband filed the Writ of Habeus Corpus, which was allowed by the High Court. As the child was only 1.5 years of age and was not able to tell his choice, and the husband never abandoned the child nor has deprived the child of a right to his love and affection. The right to custody of the husband was upheld.
In the said case titled as "Tejaswini Gaud & Ors. Vs. Shekhar Jagdish", the circumstances were such due to illness of parents, the appellants had to take care of the child for some time. It was held welfare of the child is of paramount consideration. While dismissing the appeal, the visitation rights were granted to the appellants for certain period.
]]>Justice Ashok Bhushan
The SC had quashed the complaint against the, relatives / parents / siblings, of the husband in the case titled as "Rashmi Chopra versus State of UP", it was held by the SC that no allegation of offence against the appellants, except one, is being made out in the complaint, therefore, the summoning order against other appellants against whom there are no allegations was quashed.
It was further held that the allegations under Section 3 and 4 of Dowry Prohibition Act were general and sweeping. No dates and details, were specifically mentioned in the complaint. Also the complaint was filed as a counterblast to the divorce petition of the husband. No allegations of criminal offence in the reply submitted by the wife to USA family court, which granted divorce were made. It was also held that the complaint under Section 498 A IPC can be filed by the relatives of the victim.
Finally, it was held that under Section 482 CrPC, the high court did not deal facts of the case, but only cited the law, the approach of the High Court was deprecated, and the Order of the High Court was set aside.
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Justice N.V. Ramana
The Supreme Court setting aside the conviction of the appellant/husband in the case titled as "Jagdishraj Khattar V/s State of Himachal Pradesh", held that the allegations levelled against the family member(s) were general in nature and were never raised to the IO or at the time of preparation of Inquest. The husband was tried for Sec 498A IPC & Sec 306 IPC.
It was also held that the neighbours were not examined to show the cruelty before the death. The alleged instances had taken place much before the date of death of deceased and hence could not be treated as conduct which drove the deceased to commit suicide.
It was further held that the handwriting of the deceased had not been proved on the letter allegedly written by the deceased. The deceased had not written any other letter after marriage and was in touch with the family members through phone - it strengthens the case of the accused. The judgment of the HC set aside and that of trial court acquitting the accused was affirmed.
]]>Justice Ranjan Gogoi (3 judges bench)
The problem faced by the married women is not uncommon when she is driven out from the matrimonial home by the husband and his family members, while choosing the court for filing the complaint under criminal offences; the divergence of opinion of different high courts have been put to rest by the Supreme Court.
The 3 judge bench of the apex court in the words of the chief Justice of India Justice Ranjan Gogoi titled as 'Rupali Devi Versus State of UP and Others' has held that married women can file a complaint for commission of criminal offences, inter alia, under Section 498 A IPC at any place where the married women goes after leaving the matrimonial home.
It was held that the cruelty meted out to the wife remains fresh in the mind of the wife after leaving matrimonial home and wherever the wife thinks about it. The consequences as envisaged in 179 CrPC of offence ensued at the place where the married lady takes refuge.
The exposition of law has now settled the basic issue of jurisdiction which goes to the root of the matter.
]]>Abhay Manohar Sapre (J ) and Dinesh Maheshwari(J)
Now a days . It's is not uncommon that married women have been levelling false allegations of cruelty and dowry against the entire family of her husband.
In the present case also similar issue was under consideration before the Honorable Supreme Court of India. The complaint was filed against the husband and the entire family alleging offence under Section 498 A, 323, 504, 506 IPC and section 3, 4 of dowry prohibition act .
The family members of the husband filed the petition under section 482 CrPC before the High Court seeking quashing of the summons issued by the the magistrate Court against the family members. How ever, the high court refused to quash the proceedings emanating from the complaint in question.
In the case titled as "Tabraz Khan Versus the state of UP and another" , the Supreme court had set aside the order of the High Court refusing to quash the complaint in the aforesaid facts and circumstances.
And held that no case is made out as per the averments made in the complaint against the family members of the husband, by the married women, therefore, quashed the complaint against the family members and set them free from rigour of trial . The Appeal was allowed in the above facts.
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