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[S. 14 of Family Courts Act] Del HC | In a contest between right to privacy and right to fair trial, both of which arise under expansive Art. 21, right to privacy may have to yield to right to fair trial

Delhi High Court: Anup Jairam Bhambhani, J., while addressing a matrimonial dispute, observed that,

“the only criterion or test under Section 14 of Family Courts Act for a Family Court to admit, evidence is it’s subjective satisfaction that the evidence would assist it to deal effectually with the dispute.”

Divorce petition was filed by the husband/respondent on 26th September, 2012 seeking dissolution of marriage on the ground of cruelty under Section 13(1)(ia)of the Hindu Marriage Act, 1955.

As evidence, husband filed a Compact Disc (CD) in which he had recorded how the wife was talking a friend of hers about the husband’s family which clearly was derogatory, defamatory and constituted cruelty.

Recording of ‘private’ conversation without the knowledge or consent of wife is in breach of her fundamental right to privacy.

Wife while objecting to the said evidence stated that since the evidence comprised in the CD was collected in breach of her fundamental right to privacy, the same is not admissible in a court of law.

She further argued that a person is entitled to criticise someone and not share the criticism with the world; and that a person has a right to all thoughts and behavioural patterns within one’s zone of privacy.

Additionally it has been urged that the husband’s action of surreptitiously and clandestinely recording the wife’s telephone conversation with her friend also amounts to an offence under Section 354-D of the Penal Code 1860, whereby the very act of recording such conversation is a criminal offence, punishable in law.

Family Court’s opinion on the CD as evidence:

“This court is of the opinion that the conversation between the respondent and her friend, wherein, she has allegedly spoken about the petitioner/ his family and the status of the matrimonial life would, certainly assist the court in effectively deciding the dispute between the parties. Such a piece of evidence is certainly relevant.”

One of the earliest, leading decisions on the question of admissibility of tape-recorded conversations is Regina v. Maqsud Ali, (1966) 1 QB 688 where a secretly tape-recorded conversation was the only incriminating piece of evidence implicating the accused persons for murder.

Analysis and Conclusion

While a litigating party certainly has a right to privacy, that right must yield to the right of an opposing party to bring evidence it considers relevant to court, to prove its case.

Since no fundamental right under our Constitution is absolute, in the event of conflict between two fundamental rights, as in this case, a contest between the right to privacy and the right to fair trial, both of which arise under the expansive Article 21, the right to privacy may have to yield to the right to fair trial.

In High Court’s opinion,

Legislature could not have enunciated it more clearly than to say that the Family Court “may receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872.”

“…What credence, value or weightage is to be given to the evidence so received is discretionary upon the judge, when finally adjudicating the dispute.”

Without at all denigrating the importance of ethical and moral considerations, in the opinion of this court, to say that a Family Court should shut-out evidence at the very threshold on the basis of how it is collected, would be

(i) in breach of Section 14 which unequivocally expresses the intention of the Legislature ;

(ii) in breach of settled principles of evidence ; and

(iii) in breach of the enunciation by the Supreme Court that though the right to privacy is a fundamental right, it is not absolute and must be placed in the context of other rights and values.

Bench further observed that, in most cases that come before the Family Court, the evidence sought to be marshalled would relate to the private affairs of the litigating parties.

Thus, if Section 14 is held not to apply in its full expanse to evidence that impinges on a person’s right to privacy, then Section 14 may as well be effaced from the statute.

In context of the present matter, Court stated that conversation between the wife and her friend, which is the subject matter of recording on the CD, in which she is alleged to have spoken about the husband and his parents, would be a ‘relevant fact’ as understood in law, upon a combined reading of Sections 5, 7 and 8 of the Evidence Act. To that extent therefore, the contents on the CD are relevant for purposes of the divorce proceedings.

Though Court added to its conclusion that, if the right to adduce evidence collected by surreptitious means in a marital or family relationship is available without any qualification or consequences, it could potentially create havoc in people’s personal and family lives and thereby in the society at large.

While law must trump sentiment, a salutary rule of evidence or a beneficent statutory provision, must not be taken as a license for illegal collection of evidence.

In view of the above, no infirmity is found in Family Court’s decision. [Deepti Kapur v. Kunal Julka, 2020 SCC OnLine Del 672 , decided on 30-06-2020]

Case Briefs High Courts

Cal HC | Harassment by in-laws for woman’s black complexion is cruelty under S. 498-A IPC; Husband convicted for murdering wife over her black complexion

Calcutta High Court: A Division Bench of Sahidulla Munshi and Subhasis Dasgupta, JJ., upheld the conviction of accused-husband under Section 498-A IPC for the offence of cruelty to woman and under Section 302 for the murder of his wife. At the same time, the Court acquitted the accused-mother-in-law of the charge under Section 302 for murder while maintaining her conviction under Section 498-A IPC.

Emergence of Appeal

Present appeal was filed against the judgment and order of conviction and sentence passed by Additional Sessions Judge wherein accused/ appellants were convicted under Sections 498 A, 302, 34 of Penal Code, 1860.

Factual Scenario

Deceased in the present matter being the second daughter of the de-facto complainant/father was put to suffer death in her in-laws’s house by hanging.

After visiting to her in-law’s house, deceased victim was put to suffer cruelty, oppression and ill-treatment by her in-law’s members, including her accused husband for her black complexion.

Deceased was frequently abused and threatened by her in-laws .

The in-law’s members while causing ill-treatment upon victim made her understand just three days after her marriage for staying in a cow shed, expressing their dissatisfaction on the ground of her black complexion.

Deceased victim reported everything to her parents about the torture and cruelty, she received in her in-law’s house, when she visited her paternal house on several occasions.

Deceased’s father after persuading her to withstand such torture inflicted upon her, for her future benefit upon realisation of weak financial condition of her father.

Later, de-facto complainant/father of the deceased was informed by his on in law that the victim daughter had been put to suffer death by hanging.

Decision & Analysis

Court observed that the cause of inflicting torture was the black complexion of deceased victim which lead the in-law’s members of the victim including her accused husband to cause physical cruelty upon her.

Victim received threat from in-law’s members for her husband’s second marriage after driving her out from matrimonial home. So long victim remained alive and visited her paternal house, she expressed her extent of torture and cruelty inflicted upon her by her in- law’s members, and all the times the de-facto complainant persuaded his daughter to return to her in-law’s house for her future prospect, keeping in view the poor condition of de-facto complainant/father.

On observing the above, Court stated that causing cruelty to deceased victim for her black complexion even after her marriage by the in-law’s members would definitely attract Section 498 A/ 34 IPC against the in law’s members including husband.

Whether the victim suffered homicidal or suicidal death?

Autopsy Surgeon stated categorically in his evidence that if any person is pressed by telephone chord on his throat, then there could be ligature mark, as he found in the instant case, which might have caused the death of deceased victim.

Thus, noticing such continuous ligature mark Autopsy Surgeon opined in absence of poison in the viscera of deceased that it was a case of homicidal death, and ante-mortem in nature.

Whether non-production of weapon in a murder trial will lead to rejection of testimony of autopsy surgeon or not?

Court on noting the facts and circumstances along with the evidence stated that it is an established fact that there was an unnatural death of deceased in the in-laws’s house of the deceased victim after 7 months of her marriage.

Sufficient evidence was placed to show that the victim received oppression, ill- treatment, torture, cruelty in her in-law’s house by her in-law’s members for her black complexion.

Accused husband having failed to offer any explanation for the injuries caused to his wife, the failure would lead to the conclusion that the death of the deceased had occurred in the custody of accused husband as they both shared the same room after marriage.

Non-production of offending weapon in the absence of any explanation may be an error or latches on the part of prosecuting agency, but such error or omission would not itself discard the testimony of Autopsy Surgeon.

Hence, facts and circumstances would thus unerringly point to the guilt of accused husband/appellant for causing homicidal death to deceased/wife by strangulation for his non-satisfaction over the black complexion of his wife, which led to give birth his motive to cause death of his wife.

Commission of cruelty upon the deceased though proved against the mother-in-law under Section 498A read with Section 34IPC, but she should not have been held convicted for causing homicidal death of deceased victim under the behest of Section 302/34 IPC. on the simple ground that death of the victim was held in her matrimonial home.

Bench modified the conviction and sentence of accused mother-in-law under Section 498 A/34 IPC and deserves to be favoured with an order of acquittal for offence under Section 302/34 IPC.

Thus, the appeal was dismissed and accused mother-in-law be set free from correctional authority forthwith upon completion of sentence awarded against her under Section 498A/34 IPC.[Mazidul Miah v. State of W.B., 2020 SCC OnLine Cal 1077 , decided on 25-06-2020]

Case Briefs High Courts

Gau HC | Refusal to wear “sakha & sindoor” is clear intention that a hindu wife is unwilling to continue conjugal life: Divorce decreed to husband

Gauhati High Court: A Division Bench of Ajai Lamba, CJ and Soumitra Saikia, J., granted a decree of divorce to the appellant-husband on the grounds of cruelty by the respondent-wife.

Background of the Case

Appellant husband lived with his mother, sister and brother, After his marriage bother respondent wife and appellant husband started their conjugal life in the matrimonial house of the appellant.

After about a month of their marriage, respondent wife demanded to reside separately with the appellant husband away from the husband’s relatives in a separate house. Appellant being a contractual labourer was not able to sustain separate accommodation for him and his wife as he was required to render service at a place away from his matrimonial house.

Appellant husband in the face of persistent demands by the respondent wife for separate accommodation also attempted to take the respondent wife to his place of work by arranging separate accommodation away from the matrimonial home. However, the respondent wife continued to resort to frequent quarrels with the appellant and started blaming him for the couple not being able to have a child after marriage. The respondent wife alleged that the appellant husband was medically unfit.

Later, respondent wife declared that she was not willing to continue her matrimonial life with the appellant and further insisted on going back home. Respondent wife also filed a case under Section 498(A) Penal Code, 1860.

Appellant husband contended that the respondent wife compelled the appellant to execute a written agreement to the effect that the couple will stay in a separate rental house together away from the joint family of the husband and further that the appellant/husband’s family members will not visit them or maintain any relations with them.

In view of the above agony faced by the husband, he filed a divorce case against the wife.

Respondent wife contended that she was subjected to extreme cruelty by the appellant’s step-mother, sister-in-law, brother and his two sisters.

According to the respondent, the family members of the appellant tortured her physically and mentally by demanding various cash and kinds from her as dowry and also declined to provide her the bare necessities of life. She further stated that the respondent declined to provide her medical treatment, wearing apparels, adequate food and medicine etc. which are provided to her by her brother. She further stated that she was assaulted and sent back to her brother’s house by the appellant and his family members demanding her to bring money from her house.

Upon due consideration of the evidence, the court below came to the finding that there was no cruelty extended to the appellant husband and his family members or that they were neglected by the respondent wife and accordingly rejected the petition for divorce by the husband.

High Court noted that respondent wife did not dispute on the fact that there was an agreement wherein appellant was required to provide separate accommodation to the respondent wife, where appellant’s family members were not permitted.

Under the custom of Hindu Marriage, a lady who has entered into marriage according to Hindu rituals and customs, and which has not been denied by the respondent in her evidence, her refusal to wear ‘sakha and sindoor’ will project her to be unmarried and/or signify her refusal to accept the marriage with the appellant. Such categorical stand of the respondent points to the clear intention of the respondent that she is unwilling to continue her conjugal life with the appellant.

In view of the above, it can be said that the wife inflicted cruelty upon the appellant and his family members.

Family Court erred in evaluating the evidence in the proper perspective. Acts of lodging criminal cases on unsubstantiated allegations against the husband and/or the husband’s family members amounts to cruelty.

Bench also cited a Supreme Court Decision — Rani Narasimha Sastri v. Rani Suneela Rani, 2019 SCC OnLine SC 1595, wherein it was held that

filing of criminal cases like case under Sections 498(A) IPC etc. against the husband and the family members and which are subsequently dismissed/rejected by the Family Court, is sufficient to be construed as an act of cruelty by the wife.

Adding to its conclusion, Court also stated that under the “Maintenance and Welfare of Parents and Senior Citizens Act, 2007 children shall mandatorily be required to maintain parents and senior citizens.

Thus, it is evident that the lower Court completely ignored the fact that the respondent compelled and prevented the appellant from performing his statutory duties towards his aged mother.

Hence, the above stated is sufficient to construe as an act of cruelty leading to punishment or imprisonment as well as fine.

Impugned judgment of the Family Court be overturned in view of the discussions rendered. Divorce decree is allowed and marriage between the appellant husband and respondent wife is dissolved.[Bhaskar Das v. Renu Das, 2020 SCC OnLine Gau 2954 , decided on 19-06-2020]

COVID 19 Hot Off The Press News

Cruelty | NHRC notice to U.P. Government over reported dumping of a body in a garbage bin

The National Human Rights Commission has taken suo motu cognizance of media reports that the body of a man, who died near a government office in Utraula block of Balrampur District in Uttar Pradesh was being dumped in a garbage van by the Municipal workers while some Police personnel stood mute bystanders.

Reportedly, after a video went viral, the Balrampur district administration has placed four municipal workers under suspension and three police personnel. The Commission has issued notices to the Chairman, Municipal Corporation Balrampur and the Director General of Police, Uttar Pradesh calling for a detailed report in the matter in four weeks.

Issuing the notices, the Commission has observed that going by the contents of the media reports, it is not expected from the public servants to show such disregard to the body of a deceased. They appear to have acted in a very shameful and inhuman manner. Body of a deceased human being always deserves a dignified treatment. The approach adopted by the police as well as the municipal workers cannot be accepted in a civilised society. They have not only failed to do their duty but also crossed the limits of the sickening cruelty. This is a serious issue of violation of human rights.

The Chief Secretary, Government of Uttar Pradesh is expected to issue necessary guidelines to all the district and municipal authorities immediately that the bodies of the deceased persons and people in need of immediate medical care found on the roads, are attended to promptly and treated with dignity. The State government is also expected to identify cremation grounds or burial places for the patients died of Covid infection, so that unnecessary harassment to the relatives of the deceased by locals could be avoided.

According to the media reports, carried today on the 12th June,2020, a Sub-Inspector and two constables could be seen in the video standing as mute spectators while the body of the deceased man was being loaded by the municipal workers in a vehicle meant to carry garbage. The district police authorities of Balrampur have reportedly stated that it was an insensitive incident. The Superintendent of Police, Balrampur has prima-facie found one Sub Inspector and two constables guilty in the matter.

NHRC

Press Release dt. 12-06-2020

Case Briefs High Courts

Del HC | Adultery can only be committed after marriage, allegation of having relationship before marriage cannot be a ground of adultery; Divorce petition dismissed

Delhi High Court: A Division Bench of Hima Kohli and Asha Menon, JJ., while addressing a matrimonial appeal filed on behalf of the husband, held that,

Adultery can only be committed after marriage, allegation of having relationship before marriage cannot be a ground of adultery.

Petitioner being aggrieved by the Family Court’s decision of dismissal of his petition wherein he sought dissolution of his marriage with respondent 1 under Section 13(1)(i) and (ia) of the Hindu Marriage Act, 1955, filed the present appeal.

It has been alleged that right after the marriage wife of the petitioner had started showing her disinterest in the marriage, he states that respondent 1/ wife had allegedly abused the appellant/husband and his family members and proclaimed that she had no interest in the marriage.

Further she even disclosed of having a love affair with respondent 2 and that she desired to marry him.

Late after a few months, she left with all the valuables and leaving a letter in which she stated that she will not return back and preferred to live her life with respondent 2.

However, respondent 1/wife was brought back by her brother but appellant/husband did not allow her to enter the house.

Thus, in view of the above facts, petition for divorce was filed.

Respondent’s Stand

Wife/Respondent 1 while opposing the divorce petition admitted that she had disclosed about her previous affair but claimed that it was only after long discussions with her husband and his family members.

Further she submitted that the husband’s family had started harassing and torturing her for dowry and pressurised her to bring a luxury car which she could not fulfill.

Withe regard to above letter mentioned, she submitted that her sister-in-law had compelled her to write whatever husband’s family members forced her to write and sign.

On one incident, an actual attempt was also made to kill her by pressing her neck and she was saved only because neighbours had gathered on hearing her cries.

Her in-laws hatched a conspiracy to kill her by suffocating her with a pillow. During the said incident, she had received injuries on various parts of her body. The appellant/husband and his family members thought that she might die and so, she was thrown near her parental village.

A complaint against the appellant/husband and his family members under Section 498-A, 307, 504 and 506 of Penal Code, 1860 had been filed.

Analysis and Decision

Bench while analysing the the matter noted that the appellant failed to prove his entitlement to divorce in the grounds of adultery under Section 13(1)(i) of the Act.

Further the Court observed that,

Cruelty is no doubt, not measurable as a tangible commodity, but the standard for determining as to whether a particular conduct amounts to cruelty or only to normal wear and tear of marriage, has been the subject matter of several decisions of the Supreme Court.

Cruelty

Court also relied on the Supreme Court case: V. Bhagat v. D. Bhagat, AIR 1994 SC 710, wherein the following was held:

Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together.

As per the incidents stated by the appellant none of them, if at all committed, amount to “cruel” conduct.

To the above, bench stated that, a new bride would be hesitant in her new surroundings in the matrimonial home.

It is always for the husband’s family to make the new bride feel at home and accepted as a family member. Therefore, such conduct of the respondent 1/wife of being interested in remaining in her room or not showing initiative in doing household work can by no stretch of imagination be described as cruel behaviour.

Thus, in Court’s opinion, Family Court’s conclusion including the observation of accusation of adultery being heaped by the appellant/husband on respondent 1/wife are without any proof.

Thus the present appeal of the husband was dismissed in the above view. [Vishal Singh v. Priya, 2020 SCC OnLine Del 638 , decided on 12-06-2020]

Case Briefs High Courts

[S. 125 CrPC] Bom HC | Wife cannot be denied maintenance on ground of having a source of income

Bombay High Court: N.J. Jamdar, J., while addressing a revision application with regard to maintenance under Section 125 of Code of Criminal Procedure, 1973 held that,

Statutory right of wife of maintenance cannot be permitted to be bartered away or infringed by setting up an agreement not to claim maintenance.

Wife cannot be denied maintenance on the ground of having a source of income.

Family Court’s Judgment was challenged in the present revision application whereby, Order for payment of Rs 15,000 per month to wife under Section 125 of Code of Criminal Procedure, 1973, was passed.

Applicant claimed that since inception of marital life applicant faced extreme cruelty and was subjected to harassment.

Respondent after leaving the applicant to her parental home at Satara did not come to fetch back the applicant due to which police intervention was allowed, after which applicant started reside separately.

To avoid harassment from respondent, applicant signed the documents for presenting a petition for obtaining divorce by mutual consent, accordingly a decree of divorce was obtained. Despite the same, respondent continued to visit applicant’s apartment and had marital relations as well.

Respondent had not made ay provision for the maintenance and livelihood of the applicant and applicant also had no source of income.

Hence, applicant was constrained to prefer application for award of maintenance under Section 125 CrPC.

Family Court had held that

“Applicant being a wife, despite being a divorcee, within the meaning of Explanation (b) to Section 125(1) of the Code, the agreement to reside separately from the Respondent does not disentitle her from claiming maintenance.”

Bench while addressing the present application observed that,

“There is no material on record to indicate at any point of time till the filing of the instant Petition for award of maintenance the Applicant had ever raised any grievance about the decree of divorce having been obtained by fraud.”

Supreme Court in the case — Rohtash Singh v. Ramendri, (2000) 3 SCC 180, considered the question whether a wife against whom a decree of divorce has been passed on account of her deserting the husband can claim maintenance allowance under Section 125 of Code of Criminal Procedure?

To the above, Supreme Court held that,

woman after divorce becomes destitute. If she cannot maintain herself and remains unmarried, the man who was once her husband continues to be under a duty and obligation to provide maintenance to her.

Statutory right of wife of maintenance cannot be permitted to be bartered away or infringed by setting up an agreement not to claim maintenance. Such a clause in the agreement would be void under Section 23 of the Indian Contract Act, being opposed the public policy.

Further the Court observed that,

The decree of divorce by mutual consent was passed in the year 2007. The application for award of maintenance came to be preferred in the year 2016. The Applicant was indubitably running a business under the name and style of “Kalyani Beauty Parlor and Training Institute” when the decree of divorce was passed in the year 2007.

Time lag of almost 9 years in approaching the Court with a claim that the Applicant was unable to maintain herself assumes critical significance in this context.

Family Court was of the view that the claim of the Applicant that she had no source of income was reliable and trustworthy and though the Applicant had the necessary qualification and experience, there was nothing to show that the Applicant was running the business of beauty parlor, in praesenti.

In High Court’s opinion in the backdrop of the material on record, the claim of the Applicant that she had no source of income ought to have been accepted by the Judge, Family Court with a pinch of salt.

High Court observes that,

the fact that the wife carries on some business and earns some money is not the end of the matter. Neither the mere potential to earn nor the actual earning, howsoever meager it may be, is sufficient to deny the claim of maintenance.

Supreme Court in the case of Sunita Kachwa v. Anil Kachwa, III 2014 (DMC) 878 S.C., held that:

“In any event, merely because the wife was earning something, it would not be a ground to reject her claim for maintenance.”

Thus the Applicant is entitled to maintenance from the Respondent even if the Applicant still carries on the business of Kalyani Beauty Parlor and Training Centre and earns some income out of the said business.

In this era of inflationary economy, where the prices of commodities and services are increasing day by day, the income from the business of beauty parlor, which has an element of seasonality, may not be sufficient to support the livelihood of the Applicant.

Impugned order is required to be interfered with to the extent of the quantum of maintenance. The Revision Application, thus, deserves to be partly allowed to this extent.

Hence, Respondent-husband shall pay maintenance to the Applicant at the rate of Rs 12,000/- per month from the date of the Petition i.e. 17th June, 2016.[Sanjay Damodar Kale v. Kalyani Sanjay Kale, 2020 SCC OnLine Bom 694, decided on 26-05-2020]

Case Briefs High Courts

Ker HC | Wife’s persistent effort to separate husband from family amounts to cruelty: Divorce granted in favour of husband

Kerala High Court: A Division Bench of A.M. Shaffique and Mary Joseph, JJ., granted a decree of divorce in favour of husband on the ground of cruelty by the wife.

Decree for dissolution of marriage was sought by the petitioner but declined by Family Court and the same is in challenge.

Background

Marital relationship of petitioner and respondent did not last long due to the quarrelsome nature of respondent who found pleasure in quarelling with petitioner and his mother.

Later she started declaring that she would commit suicide. She used to call the petitioner ‘dog’ and ‘shameless creature’. She used to undermine his person stating that he is not a fit person to be her husband and insult him by beating him in front of his relatives.

Thus transpiring from the above, Original petition seeking for a decree for dissolution for marriage was filed wherein, allegations of cruelty were denied by the respondent. It was further urged that petitioner was a drunkard, who is in the habit of coming home late in the house in intoxicated state, he used to assault her and the child and also destroyed the tea – poy.

On perusal of the circumstances, in family court’s opinion there was no basis for the petitioner to contend that reunion was impracticable due to irrecoverable break down of the marriage.

Thus, the present appeal was filed and dissolution of marriage was sought on ground of cruelty.

Petitioner’s counsel submitted that dislike of respondent towards his mother often resulted in quarrels, which impacted loss of peace and tranquility in their life.

Decision

Court found that respondent has no case that petitioner was a drunkard when he married her. Evidence indicates that the respondent and the petitioner’s mother were not cordial and clashes were frequent.

It is natural for a wife in that scenario to make persistent effort to constrain her husband to be separated from the family life and that would undoubtedly be tortuous for him.

In the case on hand the petitioner’s turning to be a drunkard can only be taken as the natural outcome of the pressure exerted on him by the respondent to have a separate residence to the exclusion of petitioner’s mother.

No family is totally devoid of clashes among members constituting it. It is common for elders to scold and sometimes abuse youngsters. Making a daughter in law to do the house hold/domestic work is also not something unusual.

Thus in Court’s opinion, Family Court’s decision was highly unjustified it took role of a councilor rather than an adjudicator.

Hence in the opinion of the present bench, evidence as discussed above is satisfactory to take a view that the respondent has treated the petitioner with cruelty sufficient enough to grant a decree for dissolution of marriage in his favour.

Judgment of the Family Court under challenge deserves to be reversed. [Ranjith P.C. v. Asha Nair. P, 2020 SCC OnLine Ker 1751 , decided on 20-05-2020]

Case Briefs High Courts

Cruelty & Desertion |Del HC | A typical case that showcases as to what would amount to cruel behaviour on part of one spouse to utter detriment of other

Delhi High Court: A Division Bench of Hima Kohli and Asha Menon, JJ., while addressing a matrimonial application stated that,

“Marriage is no doubt a sacrament, but it cannot be a one sided affair.”

Present appeal has been preferred against the Judgment of Family Court wherein the marriage between the appellant/respondent and respondent/petitioner was dissolved as the same was sought on grounds of cruelty and desertion within the meaning of Section 13(1)(i–a) and (i–b) of Hindu Marriage Act.

Facts

Respondent/Petitioner alleged that the conduct of the appellant/respondent was extremely cruel and he possessed a callous and indifferent attitude since the initial years of marriage.

It was also discovered that he had many personality and behavioural problems, wife time and again tried to cope up with husband’s shortcomings an tried to help him acquire stability and status in life, many times forgiving his violence.

On repeated occasions, she found to her consternation, that the appellant/respondent made no effort to either settle down in his job or contribute to the household including taking care of their child’s educational needs.

Things reached a breaking point when despite the request of the respondent/petitioner not to invite his parents to their transit accommodation at Jawahar Lal Nehru University which had limited space and to request them to stay with his sister who was residing in Gurgaon, the appellant/respondent threw a tantrum and left the house in October 2011 without understanding that the reason for the said request was only the pre- board exams of their daughter.

Premised on the above-stated facts, respondent/petitioner filed for divorce.

Appellant/respondent preferred the present appeal on the ground that the petition for divorce has been filed by the respondent/petitioner after nearly 20 years of the marriage and therefore, it ought to have been dismissed.

Counsel for the appellant contended that, language used by respondent/petitioner in her letters does not demonstrates any hard feelings between the couple and thus the story of cruelty was just a figments of imagination of respondent/petitioner on which marriage could not have been dissolved.

Analysis and Decision

A drowning man clutching on to a straw

It is quite evident from the letters written by the respondent/petitioner that while she was doing her very best to preserve the marriage, there was no reciprocation from the appellant/respondent.

“I have been writing to you every week regularly. There is no reply from you? I have left 4-5 inlands in our room letter holder. Pick one of them and write back soon.” In the letter dated 29.07.2000, once again, it starts “how are you? There is yet no letter from you.” Therefore, to submit that these letters disclose a ‘happy family’ scenario, is to blink at the truth.

Bench while noting the log list of instances of cruelty, stated that,

repeated onslaught on her emotions even subsequent to these instances took a toll on the physical and mental health of the respondent/petitioner.

All the relevant events that have continuously occurred in the lives of the parties, reflect a one sided relationship where the appellant/respondent took everything for granted, with no sense of responsibility, while the entire burden of trying to keep the marriage alive was left for the respondent/petitioner to shoulder.

Court also added that, this is a typical case that showcases as to what would amount to cruel behaviour on the part of one spouse to the utter detriment of the other.

Material on record goes to amply demonstrate the sincere efforts made by the respondent/petitioner to salvage the marriage and show that she did more than what was her duty, to preserve it.

Thus in light of the above observations, Family Court’s decision is upheld. [Venkatesh Narasimhan v. V. Sujatha, 2020 SCC OnLine Del 571 , decided on 01-05-2020]

Case Briefs High Courts

Bom HC | “Easy to accuse somebody of ill-treatment after someone dies, but not wise to convict somebody based on general statements”; Every Cruelty is not an offence under S. 498A IPC

Bombay High Court: K.R. Shriram, J., while deciding the appeal filed impugning the order and judgment passed with regard to acquittal for offence punishable under Sections 498A (Husband or relative of husband of a woman subjecting her to cruelty) and Section 306 (Abetment of suicide) of Penal Code, 1860, observed that,

“Cruelty must be of such a degree as contemplated by the Section, i.e., it must be wilful conduct of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb and health of the woman.”

Prosecution case was that complainant’s daughter Sunita was married to the respondent (accused). Respondent used to ill-treat Sunita and under the influence of alcohol he used to beat her while insisting to bring cash amount of Rs 20,000 from her father (complainant) so that he could start a business.

After sometime respondent started to sell fruits and in the meanwhile Sunita conceived and gave birth to a daughter. On or about 18-09-2001, it was informed that Sunita had committed suicide by jumping in front of a running train.

In view of the above circumstances, PW-1 had lodged the complaint for offences punishable under Sections 498A and 306 IPC.

Supreme Court in its decision, Muralidhar v. State of Karnataka, (2014) 5 SCC 730, held that

“…unless the conclusions reached by the trial court are found to be palpably wrong or based on an erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, Appellate Court should not interfere with the conclusions of the Trial Court.”

Citing the above, Court stated that, it must be kept in mind that there is a presumption of innocence in favour of respondent and such presumption is strengthened by the order of acquittal passed by the trial court.

In Ramesh Babulal Doshi v. State of Gujarat, 1996 SCC (Cri) 972, Supreme Court held that,

“…If Appellate Court finds that there was nothing wrong or manifestly erroneous with the order of the trial court, the Appeal Court need not eve re-appraise the evidence and arrive at its own conclusions.”

Thus, High Court while analysing the present set of facts and circumstances stated that it does not find anything wrong, manifestly erroneous or demonstrably unsustainable in the impugned judgment.

Court noted that,

PW-1 (Complainant) stated that the accused was not doing any work and under the influence of liquor, used to beat Sunita and was insisting her to bring cash from parents for doing some business.

PW-1 admits that in his statement before the police, he has not mentioned that Sunita had gone to his house for delivery and after her delivery she resided with him for 15 days. He also admits that in his statement to the police, he has not mentioned that during that stay Sunita had informed him about the ill-treatment and demand for cash by accused.

DW-1 in whose quarters Sunita and accused were residing stated that in her presence no dispute took place between Sunita and accused, nobody used to visit their house and Sunita never complained about accused.

On perusal of the above, Court stated that apart from the general statements by PW-1, there was nothing on record to show that accused used to beat Sunita under the influence of alcohol.

Stating the above, bench gave another point of significance in such cases that,

“.. It is to be kept in mind that it is easy to accuse somebody of ill-treatment after someone dies, but it will not be wise to convict somebody based on such general statements.”

“It is settled law that under Section 498A of IPC, every cruelty is not an offence.”

With regard to abetment, Court stated that, in order to amount abetment, there must be mens rea or community of intention. Without knowledge or intention, there can be no abetment and the knowledge and intention must relate to the act said to be abetted, i.e. suicide, in this case. To constitute ‘abetment by instigation’, there must be a direct incitement to do the culpable act.

Thus, in Court view, no evidence is found to suggest that Sunita committed suicide because of ill-treatment or cruelty by the accused. There is also no evidence whatsoever that the accused by their acts intended Sunita to commit suicide.

In view of the above, order of acquittal need not be interfered with. [State of Maharashtra v. Shri Balu Ravji Abhang, 2020 SCC OnLine Bom 307, decided on 20-02-2020]

Case Briefs High Courts

Bom HC | Person committing offence under S. 494 IPC, must have married another woman or man during subsistence of his or her first marriage; Court invokes power under S. 482 CrPC to meet ends of justice

Bombay High Court: A Division Bench of Madhav J. Jamdar and Sunil B. Shukre, JJ., while invoking its power under Section 482 of Code of Criminal Procedure, 1973 observed that,

“Essential requirement of Section 494 of Penal Code, 1860 is that the person committing the offence must have married another woman or man during subsistence of his or her first marriage.”

Applicant sought quashing of proceedings for offences punishable under Sections 498A and 494 read with Section 34 of Penal Code, 1860 at a Police Station, Nagpur on the basis of the complaint filed by Respondent 2.

Counsel for the applicant, S.V. Sirpurkar submitted that none of the above-stated offences can be constituted by accepting the entire contents of the complaint filed by respondent 2.

Additional public Prosecutor, T.Z. Mirza submitted that ingredients necessary for constituting the offences of cruelty and marrying again during lifetime of the husband or wife respectively punishable under Sections 498A and 494 of IPC are a matter of record.

Point of observation in the present case is that the dispute is not that applicant is a woman who had married for the first time with the husband of respondent 2. From the viewpoint of the applicant, this is not a case wherein she could be alleged to have married again during the lifetime of her husband. Therefore, offence under Section 494 IPC could not be said to be constituted in the present case as against the applicant.

High Court stated that on perusal of the complaint and material available, it is to be noted that

“…there is not even a whisper of allegation of cruelty made against the applicant.”

The allegation that can be found is that she performed marriage with the husband of respondent 2 during the subsistence of her marriage with Jitendra and for the said allegation no offence punishable under Section 494 of IPC can be constituted.

Hence, the bench considered the present case to be appropriate to invoke its powers under Section 482 of CrPC to prevent abuse of process of law. [Rekha v. State of Maharashtra, 2020 SCC OnLine Bom 291, decided on 13-02-2020]

Case Briefs High Courts

Bom HC | Allegations of Cruelty and Harassment, in absence of specific details, would not attract ingredients of Ss. 304B and 498-A IPC

Bombay High Court: A Division Bench of S.S. Shinde and V.G. Bisht, JJ., dismissed the criminal appeal on finding the trial court’s decision which was challenged to be in consonance with evidence on record.

A criminal appeal was filed by the deceased’s father (Informant) against the judgment and order that acquitted the respondents of the offence punishable under Sections 498-A, 304B, 302 read with 34 of Penal Code, 1860.

Deceased (Ambavva) was married to accused 2 and during the settlement of their marriage, the informant had agreed to give an amount of Rs 10,000 and one tola gold to the accused 2. As per custom, informant went to the accused persons house to take back Ambavva for a ceremony but was refused to go. After about 12 days when no message was received from Ambavva, informant again went to see her but accused persons did not allow meeting him.

Ambavva once had informed the informant that she was subjected to mental cruelty and insulting treatment by the accused persons.

One of the daughters of the informant informed that Ambavva had left the house of the accused persons without informing anybody and on that event informant along with his family went to the police station to report the same and were informed by the police that Ambavva had died.

Thereafter, informant when went to the accused persons house found in the adjoining land of their house, dead body of Ambavva floating on the well water.

In view of the above, informant lodged a complaint against the accused persons and a report was lodged by complainant offences punishable under Sections 498-A, 306 of Penal Code.

Trial Court had acquitted the respondents from all the charges and hence the present appeal was filed.

Trial Court had relied on the medical evidence and opined that in case of a homicidal death, there would have been some injuries on the persons of Ambavva, but there were none.

Conclusion

High Court on noting the facts and evidence placed by the prosecutions stated that the evidence of the witnesses suffers from non-disclosure of specific details of alleged cruelty and harassment to Ambavva at the hands of the accused.

Mere allegations of harassment and cruelty, in absence of mentioning specific-time, date and specific overact qua accused would not attract any ingredients of Section 304B of IPC. Prosecution failed to establish that there was cruelty and harassment to Ambavva by the accused.

Further, the Court stated that even to attract the ingredients of Section 498-A of IPC, prosecution must have shown specific acts of the accused suggesting cruelty and harassment.

Thus on vague and general allegations, it is not possible to base the conviction of the accused thereby reversing the well-reasoned order of acquittal passed by the trial court. [State of Maharashtra v. Basveshwar Kallapa Patne, 2020 SCC OnLine Bom 219, decided on 03-02-2020]

Case Briefs High Courts

Bom HC | A fatal impulse or an ill-fated thought of the deceased cannot fray the fabric of S. 306 IPC; Acquittal of in-laws for abetting suicide of woman upheld

Bombay High Court: K.R. Shriram, J., dismissed an appeal filed against the order of the trial court whereby the respondent-accused were acquitted of the offences under Section 498-A (husband or relative of a woman subjecting her to cruelty) and Section 306 (abetment of suicide) read with Section 34 (acts done by several persons in furtherance of common intention) of the Penal Code.

The case of the prosecution was that prior to date of incident, the accused (husband and in-laws of the deceased), in furtherance of their common intention, subjected the deceased to cruelty and abetted a suicide. The accused were chargesheeted and tried for the offences under Sections 498-A and 306 read with Section 34 IPC. However, they were acquitted of all the charges by the trial court. Aggrieved thereby, the State filed the instant appeal.

Regarding the offence under Section 498-A, the High Court observed: “Law on what would amount to an offence under Section 498-A, has been well discussed in catena of judgments. It is settled law that under Section 498-A IPC, every cruelty is not an offence. The cruelty must be of such a degree as contemplated by this Section, i.e. it must be willful conduct of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb, and health of the woman.” It was noted by the Court that the allegations made against the accused regarding demand of money, ill-treatment due to inability to cook, cruelty due to not conceiving, were general allegations and no details were mentioned. In such circumstances, it was held that the allegations under Section 498-A were not proved.

Coming to the offence under Section 306, the High Court noted that this was a case of abetment by instigation. It was observed: “In order to constitute ‘abetment by instigation’ there must be a direct incitement to do the culpable act.” After referring to a catena of decisions on the subject and considering the facts of the instant case, the Court stated: “It is nobody’s case that the accused intended Aarifa to commit suicide. A fatal impulse or an ill-fated thought of the deceased, however unfortunate and touchy it may be, cannot fray the fabric of the provision contained in Section 306 IPC. In short, it is not what the deceased ‘felt’, but what the accused ‘intended’ by their act which is more important in this context.”

In light of what has been mentioned above, the High Court concluded that the opinion of the trial court could not be held to be illegal or improper or contrary to law. The order of acquittal, in Court’s view, required no interference. [State of Maharashtra v. Nabab Mohammad Shaikh, 2020 SCC OnLine Bom 290, decided on 04-02-2020]

Case Briefs High Courts

Del HC | Conviction under S. 498-A does not automatically render the accused liable to be held guilty under S. 306 IPC

Delhi High Court: Sanjeev Sachdeva, J., set aside the order of the trial court challenged by the appellant, whereby the appellant was convicted for the offences punishable under Section 498-A (husband or relative of husband of a woman subjecting her to cruelty) and Section 306 (abetment of suicide) of the Penal Code.

The wife of the appellant had committed suicide and left behind a suicide note stating that the appellant had an affair with some other lady and that he had beaten her on the day when she committed suicide. The appellant was tried and convicted by the trial court as mentioned above. Aggrieved thereby, he filed the instant appeal.

Firstly, regarding conviction under Section 498-A IPC, the High Court noted that the facts alleged in the suicide note were not proved by the prosecution. None of the prosecution witnesses supported the allegation and the appellant was having an affair with some other lady outside his marriage. Also, the parents and relatives of the deceased denied having made a statement about any demand or harassment for dowry. Furthermore, the post mortem report of the deceased showed that there was one mark of a slap, which did not prove the allegation in her suicide note that the appellant has beaten her a lot that day.

Observing that the prosecution was unable to prove that there was any harassment of the deceased, it was held that the trial court erred in convicting the appellant under Section 498-A Accordingly, the High Court set aside appellant’s conviction under Section 498-A.

Now, considering the conviction for abetment of suicide under Section 306, the High Court noted that the trial court further held that since the appellant has committed the offence under Section 498-A, he can also be convicted for the offence punishable under Section 306 IPC.

The Court relied on the decision of the Supreme Court in Gurjit Singh v. State of Punjab, 2019 SCC OnLine SC 1516, wherein it was held that merely because an accused is found guilty of an offence punishable under Section 498-S of the IPC and the death has occurred within a period of seven years of the marriage the accused cannot be automatically held guilty for the offence punishable under Section 306 of the IPC by employing the presumption under Section 113-A of the Evidence Act. Unless the prosecution established that some act or illegal omission by the accused has driven the deceased to commit suicide, the conviction under Section 306 would not be tenable.

Noting that there was no evidence in that the appellant treated the deceased with cruelty immediately prior to committing suicide, the Court held that the order of the trial court convicting the appellant of the offences under Sections 498-A and 306 IPC was liable to be set aside. The appellant was acquitted of all the charges. [Kunwar Pal v. State, 2020 SCC OnLine Del 8, decided on 07-01-2020]

OP. ED.

Are we becoming intolerant, retrograde towards our own people – A Critical evaluation of the Juvenile Justice Amendment Act, 2015

Introduction

Children are always cherished everywhere as embodiment of innocence, virtue, sheer beauty perhaps the only closer embodiment of Him. They are future citizens of the world, the true torch-bearer of a nation and entitled to the equitable principles of intergenerational equity, a rightful candidate of the peaceful world, pollution-free ambience and righteous society. Along with other laws, criminal law is often employed to protect innocent children from the attack of the depraved mind. Criminal law also decides on the age group of children for fixing the immunity/liability of the children depending upon their mental maturity. The criminal laws of various countries usually treat children below seven years age as Doli Incapax, who are completely excusable from crime; due to lack of mental maturity or absence of guilty mind — the mens rea. Children above seven and up to 12 are presumed to be innocent of an offence, unless sufficiently mentally mature to understand the nature of the act or omission. These are the provisions (Sections 82 and 83) of the main substantive Criminal Code of the land — the Penal Code, 1860[1]. Procedural criminal law, Criminal Procedure Code, 1973 in Section 360 provides for a separate trial for child offenders with special reformative aim of bringing them back to the mainstream of the society. The Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter mentioned as “JJ Act”), a special law was enacted to reform criminal justice system for children keeping in view India’s international obligation to the Convention on the Rights of the Child adopted in UN General Assembly in 1989. India ratified it in 1992. In the body of the JJ Act, 2000 under Section 2, the juvenile has been defined as a person who has not completed 18 years of age. Two important terms “juvenile in need of care and protection” and “juvenile in conflict with law” have been coined. Juvenile in conflict with the law means a person who has committed an offence under a criminal statute and is punishable under it. “Juvenile in need of care and protection” means a person who are street children, without any guardian, are neglected, are in danger of being abused by any guardian, terminally ill or abandoned, etc. Juveniles cannot be given the death penalty as per hitherto provision of Section 15 of the JJ Act, 2000; they can be kept under observation by a special official up to a maximum of three years. In other situations, they can be released after admonition by a Juvenile Justice Board and in some cases, if the juvenile is over fourteen years and earning has to pay fine or their guardian has to pay fine.

In 2013, in Delhi the brutal gang rape of a paramedic student “Nirbhaya” happened in a moving bus; where a juvenile was also a member of the ghastly assembly. It is said that he was the cruelest perpetrator and because of his age treated leniently under the scheme of the JJ Act, 2000. And was released after being confined for three years of supervision. This incident created a fear psychosis in the mind of the masses and there was a demand for speedy, ultimate preventive, disutility ? capital punishment. In this emotional backdrop the JJ Amendment Act, 2015 was enacted.[2]

Now three issues can be raised and dealt in the next paragraphs:

Should a juvenile sometimes be tried as an “adult” as per Section 19 of the provision of the JJ Amendment Act, 2015?
Are we aware of the rule/standard dichotomy?
Whether societies’ expectation of capital punishment for a juvenile guilty of a heinous crime shall be met irrespective of the evil consequence to the concept of rule of law in a civilised country like India?

We try to analyse the issues one by one:

In our Constitution under Article 15(3) children are given a special status along with women. The Scheme of JJ Act, 2000 was in consonance with the International Convention on the Rights of the Child passed in the UN General Assembly in 1999. Thus the whole scheme of the JJ Act, 2000 was reformative and the aim is to bring a juvenile to the mainstream of the society as a useful contributor towards the State. While passing the JJ Amendment Act, 2015, it was laid down that the heinous juvenile offender of sixteen to eighteen may be tried as an adult. Now the question is, what a heinous crime is. Is the benchmark — the quantum of punishment prescribed in substantive Criminal Law Code of IPC or other laws or the Judge’s sense of repulsion to the crime committed or requirement of further prevention of crime based on social investigation report of a juvenile? We know that it is not possible to efficiently measure the societies’ reactions in a cost-effective way. If a juvenile destroys authority to adopt or adoption deed under Section 477 of the Penal Code or defame a State official under Section 499 IPC, based on the quantum of punishment — are these offences meritorious enough to be treated as heinous as an adult offender?

Then we can also pose a rider when a juvenile is termed as a heinous offender from a perspective of a reasonable common man? If the answer is always from the retributive instinct of vengeance, then the solution is capital punishment for a juvenile. Reflecting on it, it is irrational itself, because practically a child is born innocent and he picks the deviant values from the peers, the society where he lives. Crime sometimes a learned process and society is also responsible for it. Deviant behaviour of juveniles often results from lack of self-esteem, education, economic, social and political status, feeling of alienation, and insensitive treatment by adults and a result of discouraging environment.[3]

Society should try to reform a child but if there is hardly a chance of reform. Only in rare cases, he is a threat to society and he may be condemned to life imprisonment with hard labour with limited chance of commutation and remission. This decision also shall not hurt the society economically, as the juvenile shall contribute positively through hard labour for the community. Juveniles cannot be detained under Preventive Detention Acts as their detention is only with the aim of there formative relocation to the society as per Section 1(4)(i) of the JJ Amendment Act, 2015.

The rule/standard dichotomy always creates a problem for rule-based society.[4] As for example, the rule of a certain age for ascertaining a minority shall leave an escape route to the sufficiently mature minor, a prospective juvenile. We still believe exception proves the rule and to achieve justice as it protects — a majority of the minor population who are not sufficiently mature enough. Even the law recognises this mental immaturity and minors’ contract are treated as void, incapable of enforcement as declared in Privy Council ruling in Mohori Bibee v. Dharmodas Ghose[5] (1903, Privy Council). In property laws unborn person, until they reach legal maturity are not full-grown owner, always under the lawful control of a guardian.

If we opt for a standard element in law like “good faith”, “mala fide”, “reasonableness” these are open to evil of multitude of subjective conjectures.

The solution to these problems of dichotomy is perhaps promoting the flexible rules with scope of making sufficient discretion, the limited exceptions with preventive screening like life imprisonment with hard labour — which is nothing but disutility or preventive measure.

There is an economic analysis of the criminal law that, human being are rational choice maker, thus always calculate profit and loss of any act or omission. Thus criminal law imposes enough cost or disutility in the form of punishment for the volitional act of rational human being. Universal Declaration of Human Rights in Article 1, explains that “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” If this declaration is indeed true, then separate convention for children is not required at all. Children are special constitutional class, who most of the time a victim of the situation, which determines their fate. They are hardly their own master in the sense that they follow intentionalist discourse. Their choice is not reasoned free and not liable to be dealt with harsh disutility.

One can argue that there are enough safeguards under Section 3 of the JJ Amendment Act, 2015 as for example, it is laid down that, the Central Government, the State Governments, the Board and other agencies, as the case may be, while implementing the fundamental principles, namely:

Principle of presumption of innocence, (up to the age of eighteen years from criminal act or omission).
Principle of dignity and worth, (all human being are equal in worth and dignity).
Principle of participation, (children shall be heard in proceeding and due regard shall be given depending upon the mental maturity of the children).
Principle of best interest, (children’s best interest shall be the only consideration for the growth of the child’s full potential).
Principle of family responsibility, (the primary responsibility for the care and protection of the children shall be the biological family, or adoptive or foster family).
Principle of safety, (children in contact with care system shall not be maltreated or abused and it has to be seen that he is not abused even after).
Positive measures, (the resources of the family and community shall be utilised in such a way that in an encouraging environment there shall be all-round development of the child and the requirement of the intervention by the Act is lessened).
Principles of non-stigmatising semantic, (adversarial and accusatory words are not to be used against the child in any proceeding).
Principles of non-waiver of right, (any rights or fundamental rights of children cannot be waived even by non-exercise by the children, Board or any authority).
Principle of equality and non-discrimination, (there shall not be discrimination based on sex, caste, ethnicity, place of birth, access to resource and equality of the opportunity).
Principle to right to privacy and confidentiality, (throughout the judicial process children’s privacy and confidentiality shall be protected).
Principle of institutionalisation as a measure, of the last record, (a child shall be taken under institutionalised care after reasonable enquiry).
Principle of repatriation and restoration, (any child under the scheme of the JJ Act shall be reunited with the family at the earliest and given the same socio-economic status to him before he came under the Act and unless it is not against his interest).
Principle of a fresh start, (all the past records of the juvenile under the Act shall be erased unless there is a demand of special circumstance).
Principle of diversion, (children in conflict with the law shall be dealt with other than judicial proceeding if it is not against the interest of the society).
Principles of natural justice, (in a judicial proceeding concerning children fair hearing shall be given, rule against bias shall be applied by all persons and bodies).

But these principles are mere magic words[6], explained as — prospective spouses are made to go through marriage ceremonies and the rituals make them and other onlookers made to believe that the couple is now altogether different from the position before marriage. For children because as like other powerless groups hardly they have any meaningful impact on the powerful State officials like judiciary, police or probation officers. We can easily imagine even a juvenile of eighteen years age may not make a beneficial rational choice for meaningful consultation from a lawyer as enshrined under Article 22(1) of the Constitution, simply because of his mental immaturity. Neither he is able to prepare his defence if he gets to know the ground of arrest or detention. These principles are like directive principles of the Indian Constitution creating moral values for the State officials. The fair trial principle simply gets vitiated if a juvenile is treated as an adult who often lacking mental maturity. Juveniles usually cannot assert their rights properly.

Criminal Law (Amendment) Ordinance, 2018[7] provides the death penalty even for juveniles in some cases when gang rape is committed against the person of a minor below twelve years of age. We know in Bachan Singh v. State of Punjab[8], the Supreme Court has laid down that life imprisonment is the rule, death penalty as an exception. Thus Judges in most cases shall be reluctant to impose death penalty and needs to cite a special reason. Moreover, the death penalty is not thought to be a deterrent for crimes committed under sudden passion or grave provocation, or motivated offender. Rape and murder shall not decrease by passing the death penalty and offenders shall try to obliterate evidence. The conviction rate of crimes in India is hovering around (46.90)% in 2015, which is satisfactory compared to the previous era and thus we can stress on reformatory institutional care based approach for children[9].

Influence of the Mental Health Act, 2017 on the Juveniles

This Act was enacted in India, inconsonance with India’s international obligation to the Convention on the Rights of Persons with Disabilities held in United Nations Headquarter in 2006. This Act replaces the previous Mental Health Act, 1987. In this Act, minor has been defined as who have not completed 18 years. The definition of mental illness has been given as, (s) “mental illness” means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence. Unfortunately, in India legal insanity described in Section 84 of the Penal Code still follows the archaic M’Nanghten rules. Here a person is criminally liable if his cognitive faculty is working, that is, he knows the nature of his act and it is wrong or contrary to law. He will not get any “diminished responsibility”[10] relief for mood swings, impaired behaviour, impaired mental or physical condition unlike in England. In India, there are about 3000 psychiatrists for 120 crore people. Juvenile with mental illness often indulges in crime. State can detain their liberty, and keep them in Government and private institutions. But the Act is silent about the expenditure to be incurred in private institutions. Juveniles with mental illness cannot get admission to hospitals immediately like other patients. The doctor has to examine and verify that his illness requires admission and his decision is coming out of free will. This examination period is for 7 days which can expose the juvenile to danger. Despite statutory declaration mental persons are treated in India with cruelty due to lack of ignorance of the general population. This Act imposes a heavy burden on families to give care to the mentally ill persons, like admitting them in health care institutions. This caused resentment in the mind of mentally ill persons towards the family members. Crime in many situations is result of mental illness which can be cured with timely psychiatric intervention. The Mental Health Act, 2007 provisions are declaring noble human rights, but practically there are a lot of gaps in the Act.

Conclusion

Legislators are not immune to the emotional pressure created by the people. But they are armed with resources, like skilled criminologists, Judges, lawyers, and police force. They can reflect over any policy they make and its impact in the future. Rationality is the benchmark of the rule of law in a democratic country like India. One can suggest that, there cannot be any deviance from the concept of the “categorical imperative” of Immanuel Kant, even when the majority do not want it. According to Kant, human beings occupy a special place in creation, and morality can be summed up as an imperative or ultimate commandment of reason, from which all duties and obligations derive. He defined an imperative as any proposition declaring a certain action or inaction to be necessary. “Act only according to that maxim whereby you can, at the same time will that it should become a universal law.” Thus barring a few, mere good is subjective but right is always desired as per community legal and moral standard. The children turned juveniles in most of the situations are more amenable to reform. Making juveniles criminally liable as adults without any rationality; expose the society to graver consequences, dogmatic insensitiveness.

† Assistant Professor, SLS, Pune, e-mail: bibhabasumisra@gmail.com.

[1] K.D. Gaur, Textbook on the Indian Penal Code, Fifth Edition, Universal Law Publishing Co., 2014 at p. 117.

[2] <http://uphome.gov.in/writereaddata/Portal/Images/j-j-act.PDF> visited on 5-10-2018.

[3] Larry J. Siegel, Criminology: The Core Fourth Edition, Social Process Theories p.173.

[4] Lloyd’s Introduction to Jurisprudence, Seventh Edition, Sweet and Maxwell p.1041.

[5] 1903 SCC OnLine PC 4.

[6] Hagerstrom’s concept of magic in legal or in language: Lloyd’s Introduction to Jurisprudence at p. 858. He explains that as prospective spouses are made to go through marriage ceremonies and the rituals make them and other onlookers made to believe that the couple is now altogether different from the position before marriage.

[7] <www.prsindia.org/ordinances/The20%criminal%20> visited on 5-10-2018.

[8] Bachan Singh v. State of Punjab, (1980) 2 SCC 684

[9] Source: <www.ceicdata.com>.

[10] Diminished responsibility in England is a partial defence under S. 2(2) of the Homicide Act, 1957.

OP. ED.

P&H HC | No illegality in quashing criminal proceedings in a matrimonial dispute if parties have entered into a settlement

Punjab and Haryana High Court: Hari Pal Verma, J. allowed the petition filed for quashing of FIR under Section 482 of Code of Criminal Procedure, 1973 on the ground that the matrimonial dispute had been resolved by mediation.

An FIR was filed against the petitioner’s husband accusing him of cruelty and breach of trust against her under Sections 498-A, 406 and 120-B of the Indian Penal Code, 1860. The parties were directed for the process of mediation and they further decided to compromise before the Mediation and Conciliation Center, Barnala. The complainant agreed upon the settlement agreement and stated that she had no objection on quashing of the all the proceedings against the petitioner.

The present court directed the learned Chief Judicial Magistrate, Barnala to get the statements recorded and send its report in order to check the genuineness of the compromise. Further the same was received by the Court and it stated that it was unnecessary to continue the proceeding before the trial court.

Relying on the decision of Supreme Court in Gold Quest International (P) Ltd. v. State of Tamil Nadu, (2014) 15 SCC 235 which held that under matrimonial or civil property disputes of criminal nature if the parties have entered into settlement then it is legal to quash the proceeding under Section 482 of Code of Criminal Procedure along with Article 226 of the Constitution of India; this Court allowed the petition for quashing of FIR and all subsequent proceedings as per compromise entered between the parties. [Sheenu Gupta v. State of Punjab, 2019 SCC OnLine P&H 1399, decided on 02-08-2019]

Case Briefs High Courts

Gau HC | Unproved allegations maligning character of partner amount to cruelty as contemplated in S. 13(1)(ia) HMA; divorce decree granted to husband

Gauhati High Court: A Division Bench of Arup Kumar Goswami, Acting CJ and Manish Choudhary, J. allowed an appeal filed by the appellant-husband against the order of the Family Court whereby his petition under Sections 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 seeking dissolution of his marriage with the respondent-wife was dismissed.

Levelling several allegations, the husband had alleged that the respondent treated her with cruelty, both physically and mentally, which was beyond the limit of tolerance, and had made it impossible for him to continue marital relationship any longer as it had become unsafe and dangerous to the risk and health of the appellant. In her written statement, the respondent denied the allegations and alleged that in fact, it was the husband was having an illicit relationship with another woman.

The High Court noted that the allegations made by the respondent-wife against the husband (of the extra-marital affair) were unsubstantiated. Reliance was placed on Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, (2003) 6 SCC 334 and K. Srinivas Rao v. D.A. Deepa, (2013)5 SCC 226, the High Court observed that the entire allegations of character assassination by the respondent of her husband have remained in the realm of allegations only. Such allegation of an illicit relationship left the husband with grave assault on his character, honour, reputation, status and health. Such kinds of sustained conduct and behaviour of the respondent have the effect of causing a lasting adverse impact in the mind of the appellant leaving him with feelings of deep humiliation and neglect. For such mental pain, agony and sufferings inflicted on the appellant, it could not be reasonably expected of him to still believe that he could continue to live together with the respondent. Such reasonable apprehension of the appellant that it would be harmful and injurious for him to live with the other spouse definitely constitutes mental cruelty, as contemplated in Section 13(1)(ia) of the Act.

In such view of the matter, the Court allowed the appeal and directed the decree of divorce to prepare accordingly.[Debashish Choudhary v. Smiti Nibedita Choudhary, 2019 SCC OnLine Gau 4415, decided on 24-09-2019]

Case Briefs High Courts

Bom HC | High Court upheld the decision of trial court in light of no evidence to hold the charge of “cruelty” under S. 498-A IPC

Bombay High Court: Sandeep K. Shinde, J. dismissed an appeal filed by the State against the order of acquittal by the trial court in respect to the matter pertaining to Sections 498-A and 306 of Penal Code, 1860.

State preferred the present appeal under Section 378(1) of CrPC, 1973 against the order of acquittal passed by Additional Sessions Judge.

In accordance with the prosecution case, the deceased suffered suicidal death due to acute cardiorespiratory arrest caused due to 100% burns at her matrimonial house. Deceased’s brother filed the complaint against deceased’s brother-in-law (accused 1) and wife of accused 1 (accused 2) along with sister-in-law of deceased (accused 3), for ill-treating the deceased and for abetting to commit suicide.

Thus, a crime under Section 498-A and 306 read with Section 24 of the Penal Code, 1860 was registered,

Deceased suffered unnatural death within a period of 7 years from the date of her marriage. Trial Court acquitted the accused, having found the prosecution could not establish that the accused ill-treated and caused cruelty to deceased within the meaning of Explanation Clause-a to Section 498-A of the Penal Code, 1860.

Settled Law:

“Cruelty for the purpose of Section 498-A Penal Code, 1860 means any “willful conduct” which is of such a nature as is likely to drive a women to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman or harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security is on account of failure by her or any person related to her to meet such demand.”

The question involved in the present case is,

“Whether prosecution has established that the “willful conduct” of the accused was of such a nature which drove Shaheeda (deceased) to commit suicide?”

On the date of the incident, a quarrel ensued between the deceased and accused 2, during the course of the same, deceased inflicted injury on the forehead of accused 2 by a stick. It is disclosed that when accused 1 had gone to the police station to report about the assault by deceased on his wife (accused 2), he was informed that the deceased had set herself on fire.

It was reported to the police that there were recurring disputes between the deceased and her in-laws on account of supply and electricity and water.

Thus upon assessing the evidence of deceased’s brother, it cannot be said that “willful conduct” of the accused amounts to cruelty and such alleged conduct drove her to commit suicide. There is no specification laid out as to what kind of ill-treatment or harassment was meted out to the deceased.

High Court on noting the facts and circumstances of the case, held that there is no evidence or rather, it is not the case of the prosecution that the deceased was physically harassed or tortured by the accused. Equally, there is no dependable evidence to hold that, accused were mentally torturing the deceased.

Therefore, by relying on the Supreme Court’s decision in Pawan Kalyan v. State of Haryana, (1998) 3 SCC 309, Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618 and Mohd. Hoshan v. State of A.P., (2002) 7 SCC 414, Court held that the trial court is consistent with the evidence which cannot be faulted with and hence no interference is called for. The appeal, therefore, fails and is dismissed. [State of Maharashtra v. Ibrahim Ruknuddin Bagkari, Criminal Appeal No. 1267 of 2003, decided on 11-09-2019]

Case Briefs High Courts

Bom HC | Reiteration by husband of cruelty inflicted by mother-in-law held sufficient to quash acquittal for offence under S. 498-A IPC

“There is pain in being a woman, yes but there is pride in it too.”

-Marry Pauline Lowry

Bombay High Court: A Division Bench of Pradeep Nandrajog, C.J. and Bharati Dangre, J., while addressing a criminal appeal explained the agony that was suffered by the deceased – Vaishali in the present case by mentioning the quote above and further stated that,

“Vaishali suffered the pain but did not survive to experience the pride of being a woman – a creator, born to create and before this, she exited the world by extinguishing the flame of her life.”

In the present case, young girl Vaishali ended her life by consuming Dunet methanol in the form of an insecticide and succumbed to the same. PW-1 (deceased’s father) lodged a complaint on the very same day that Vaishali ended her life. PW-1 alleged that his daughter had complained about cruel treatment inflicted on her by her mother-in-law, sister-in-law and her husband (Dinesh).

Further it has been stated that, she was subjected to harassment by her mother-in-law on account of the fact that she intended to marry her son to a girl from her parental side and in turn wanted her daughter Rupali to be married into her maternal family but on account of the marriage of the deceased with her son Dinesh, the relationship contemplated was not fructified. Mother-in-law had also raised a demand of Rs 2 lakhs and on account of such demand deceased was subjected to cruelty both physical and mental.

Reference was made to the incident where Vaishali (deceased) was admitted to a hospital and was found in an unconscious condition. Husband of the deceased stated that Vaishali had consumed insecticide on having a verbal altercation with the mother in law. Therefore based on the above stated, FIR under Sections 498-A, 304-B and 306, Penal Code, 1860 was registered.

Matter was committed to Additional Sessions Judge, Pune who framed the charges against the accused persons under Section 498-A read with Section 34 IPC and he also framed a charge under Section 302 read with Section 34 IPC, in the alternative, a charge under Section 306 and 304-B IPC.

Conclusion

High Court, with the assistance of Counsel for the accused Sanjiv Kadam and learned APP, perused the evidence adduced before the Sessions Court.

Within a period of 6 months of her marriage, deceased committed suicide. Harassment was in the form of taunts and her unacceptability in the house. It also speaks of the deceased being ridiculed by the mother-in-law and her behaviour was reiterated by other members of the family including the husband of the deceased.

“Deceased who was unhappy on account of the harassment could see no hope and she took the desperate step to escape the unbearable suffering and pain which she was subjected to in an attempt not to put an end to her life but to end the traumatic ordeal which she had to undergo within a short span of her marriage life.”

Court added that, Section 498-A came to be inserted to suitably deal not only with the cases of dowry death but also cases of cruelty to a married woman by her in-laws. Raison d’etre of Section 498-A being to prevent the torture being inflicted on a married woman by her husband or his relations and it is not restricted to only in relation to the demands of dowry but it also intended to deal with cruelty inflicted upon a woman in the form of a willful conduct which drives a woman to commit suicide.

Therefore, on perusal of the judgment of the Trial Court, it is noted that the Sessions Judge grossly erred in not considering the evidence brought on record against the deceased’s husband (Dinesh) who was also party to the ill-treatment inflicted to the deceased.

Prosecution witnesses of the deceased have, in unequivocal terms, deposed that Vaishali categorically stated that she was subjected to harassment at the hands of her husband, who also joined in the choir,

“Husband, the only son to whom Vaishali was married played a positive role in the harassment of Vaishali which drove her to commit suicide and this wilful conduct of the husband has escaped the attention of learned Sessions Judge, who has acquitted him of the offence punishable under Section 498-A IPC.”

Object of introducing stringent provision in the IPC in the form of Section 498-A being to deal with such willful conduct, which led to the death of Vaishali, according to the Court should not escape the clutches of law and such conduct as also the persons who inflict such conduct actuating a young married women to end her life, needs to be penalised particularly when the evidence brought on record establishing such a conduct.

In view of the above, the conviction and sentence of the mother-in-law of the deceased is upheld and a notice is issued to Dinesh (husband of the deceased) who was erroneously acquitted by the trial court of the offence punishable under Section 498-A by affording him an opportunity of hearing.[Mandakini Balasaheb Kalbhor v. State of Maharashtra, 2019 SCC OnLine Bom 1774, decided on 04-09-2019]

Case Briefs High Courts

Utt HC | Voluntarily depriving husband of wife’s company and comfort of matrimonial life amounts to cruelty; Divorce granted

Uttaranchal High Court: A Division Bench of Sudhanshu Dhulia and Narayan Singh Dhanik, JJ. contemplated the special appeals preferred against the judgment of Family Court, where the divorce petition was filed under Section 13 of Hindu Marriage Act, 1955 and was subsequently dismissed but the counterclaim of the wife-respondent for the right of residence was decreed in the favor of the respondent.

Facts giving rise to the instant appeal were that the appellant and respondent were married. After the marriage, matrimonial discord occurred between the parties and the appellant ultimately filed suit for divorce on the ground of cruelty. The Court below framed certain issues such as, ‘whether behavior of the respondent had been cruel, relief available to the appellant, whether the respondent had the right to reside in the residence of the appellant and whether, in lieu thereof, she was entitled to get the decree for residence right in the disputed property where she was residing?’ Hence, the Court below examined the evidences, dismissed the suit for divorce and decreed the counter-claim of the respondent for the right of residence. The Court had opined that the act of the respondent did not qualify as ‘Cruelty’ so the appellant was not entitled to a divorce.

The Court observed that the efforts were made to mediate between the parties but no fruitful outcome was possible. In terms of the compromise, the appellant had to pay an amount of rupees seventeen lakhs and fifty thousand, as permanent alimony, to the respondent and after the payment of the said amount, the respondent agreed to vacate the residence in question and both the parties agreed for dissolution of their marriage, with appropriate petition to be filed later before the Family Court. The respondent, however, now had a second thought about the matter as she contended that the amount decided was not enough to get her a decent accommodation in Dehradun.

The High Court further observed that reasons given by the Court below for dismissing the suit for dissolution of marriage was not sustainable and the finding of the Court below that there was no cruelty on the part of the respondent was perverse. The evidence was placed before the trial court and scrutinized. The appellant in his deposition had said that the respondent often used to quarrel with his daughter and eventually started then living in a separate room in the same house and stopped talking to any of the members of the family. It was further contended by the appellant that she used to cook food only for herself, and that too separately, she frequently hurled abuses on her husband and even threatened to implicate him in a false case of dowry.

The Court found that the appellant in his evidence had narrated in detail; the incidents of alleged cruelty suffered by him and as a cumulative effect of the same, any reasonable man would find his life unbearable with his/her spouse. “Cruelty can be both physical as well as mental. Since we are dealing here with human beings and human emotions, cruelty or even “legal cruelty” cannot be precisely defined. What we can say, however, is that cruelty or cruel treatment is something which makes the life of other spouses unbearable. We are convinced that based on the allegations and the evidence submitted by the appellant before the Family Court, a case of cruelty was made out.” The entire body of evidence led before the trial court, had to be evaluated in the light of the conduct of the wife. The conduct of a person has an important bearing in terms of Section 8 of the Evidence Act, 1872. Hence, the appeals were allowed and divorce was granted with an order of permanent alimony. [Raghuveer Kaintura v. Meera Kaintura ,2019 SCC OnLine Utt 718, decided on 07-08-2019]

Family Court’s opinion on the CD as evidence:

Analysis and Conclusion

Emergence of Appeal

Factual Scenario

Decision & Analysis

Whether the victim suffered homicidal or suicidal death?

Whether non-production of weapon in a murder trial will lead to rejection of testimony of autopsy surgeon or not?

Background of the Case

Analysis and Decision

Cruelty

Statutory right of wife of maintenance cannot be permitted to be bartered away or infringed by setting up an agreement not to claim maintenance.

Wife cannot be denied maintenance on the ground of having a source of income.

Statutory right of wife of maintenance cannot be permitted to be bartered away or infringed by setting up an agreement not to claim maintenance. Such a clause in the agreement would be void under Section 23 of the Indian Contract Act, being opposed the public policy.

Background

Decision

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