Case BriefsHigh Courts

Punjab and Haryana High Court: In a matter with regard to mental cruelty, the Division Bench of Ritu Bahri and Ashok Kumar Verma, JJ., observed that, even if the husband and wife were staying together and the husband stopped talking to the wife, it would cause mental cruelty and a spouse staying away by sending vulgar and defamatory letters or notices by initiating a number of judicial proceedings could make the life of other spouse miserable.

Appellant-wife came up in the present appeal against the decision of the Family Court by the respondent-husband under Section 13 of the Hindu Marriage Act, 1955 seeking dissolution of marriage by a decree of divorce was allowed and he had been granted a divorce.

As per the husband, when he filed a petition under Section 13 of the HMA, the behaviour of the respondent was very cruel, barbaric, rude and crude towards the respondent from the very beginning.

It was stated that, the wife had tried to take forcible possession of the agricultural land owned and possessed by the respondent and a civil suit against the appellant was pending in the District Courts, Karnal.

Further, it was alleged that the appellant was living in adultery with some person in the year 2012 and she forcibly turned out the respondent along with his four children from the house.

When the marriage of the husband and wife was fixed by the respondent, husband had requested the appellant to join the marriage, but she taunted that she had no concern with the respondent and his children.

In view of the above, a divorce petition was filed.

Analysis, Law and Decision

High Court expressed that, even if husband and wife are staying together and the husband does not speak to the wife, it would cause mental cruelty and a spouse staying away by sending vulgar and defamatory letters or notices or filing complaints containing indecent allegations or by initiating a number of judicial proceedings can make the life of other spouse miserable.

The Bench stated that in the present case, after the acquittal in the FIR and dismissal of the domestic violence complaint, enough mental cruelty had been caused to the husband.

Hence, the appellant’s counsel was unable to point out any illegality or infirmity in the impugned judgment.

In view of the above, the appeal was dismissed. [Harbans v. Joginder Pal, FAO-M-272 of 2017, decided on 6-5-2022]


Advocates before the Court:

Mr. Avtar Singh Sandhu, Advocate, for Mr. A.S. Rai, Advocate, for the appellant-wife.

Mr. R.S. Budhwar, Advocate, for the respondent-husband.

Case BriefsHigh Courts

Allahabad High Court: Brij Raj Singh, J., while discussing the matter with regard to providing maintenance to a wife, noted that the Court below had made observations on being influenced by factual aspects which were not proved.

The instant revision was preferred to set aside the decision of the Family Court in a criminal case under Section 125 of the Criminal Procedure Code and to direct the OP to pay at least Rs 10,000 as monthly maintenance.

Background

The wife submitted that she was married to OP 1 prior to 40 years and out of the wedlock three children were born. The OP 2 had provided maintenance to her till 1983, but thereafter it was stopped by him. Further, she stated that she was dependent on her brother who used to provide financial assistance but suddenly had gone missing. She had filed the application as she has no source of income, and hence needed maintenance from her husband.

Point Wise Discussion

  • Revisionist stated that the OP 2 had performed second marriage and had deserted her, but the said fact was not dealt with by the lower Court and the finding had been recorded that she was unable to show why she was living separately.
  • The fact that some property was sold by the revisionist and out of that money she was maintaining her children, could not be inferred that the revisionist had lost her opportunity for grant of maintenance under Section 125 CrPC.
  • The finding that revisionist was unable to state as to whether her children were literate or illiterate or how much they were educated, would be a perverse finding for determination of maintenance under Section 125 CrPC.
  • The court below has further recorded a finding that all the three children were settled by her; thus, she was having means to sustain herself. If some income was received by her out of sold property, it does not mean that she would sustain throughout life.
  • The court below has further recorded a finding that the opposite party 2 stated the fact that revisionist had illicit relation with Ram Singh @ Manjeet Singh and the said fact was not denied by her. The said finding is also perverse because statement of fact cannot be relied on because it will have serious repercussions unless it is proved.

In Court’s opinion, the lower Court had rejected the application without application of mind, hence the matter was remanded to the Court below to take a fresh decision. [Krishna Devi v. State of U.P., 2022 SCC OnLine All 303, decided on 4-5-2022]

Case BriefsDistrict Court

Saket Courts, Delhi: While addressing a maintenance matter, Anuj Agrawal, Additional Sessions Judge-05, expressed that, it can not be believed that a person who was capable of supporting a family by getting married, would all of a sudden become devoid of all sources of income.

A complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 was filed by the respondent/wife against the appellant/husband on the ground that she had been subjected to domestic violence by the husband and his father. The said complaint was accompanied with an application under Section 23 of the DV Act seeking interim maintenance, which was disposed of by the Trial Court.

Analysis, Law and Decision

The Court stated that while fixing interim maintenance, Court has to take a prima facie view of the matter and need not critically examine the claims of parties regarding their incomes and assets because for deciding the same, the evidence would be required.

“…an aggrieved person cannot be rendered to lead a life of a destitute till completion of trial.” 

The Bench expressed that for computing the maintenance, a test had been laid by the Supreme Court in Jasbir Kaur Sehgal v. District Judge, Dehradun, (1997) 7 SCC 7.

Wife Well Qualified

The Court while citing the Supreme Court decision in Rajnesh v. Neha, 2020 SCC OnLine SC 903 reiterated that,

The Courts have held that if the wife is earning, it cannot operate as a bar from being awarded maintenance by the husband.

Husband’s Income

In the present matter, the respondent/wife claimed that the monthly income of the respondent was Rs 1.5 lakhs, however, the said claim of the respondent/wife was not supported by any material on record.

The Bench stated that it came on record that the appellant/husband was a well-qualified person having qualification of BUMS and was in the profession of ‘Hakim’, hence even is his income was NIL, but his earning capacity could not be lost sight of.

Further, the Court added that, it could not be believed that a person who was capable of supporting a family by getting married, would all of a sudden become devoid of all sources of income. Hence, the Trial Court’s approach while assessing the monthly income of the husband was correct.

Settled Law

A wife is entitled to the same status and lifestyle that she was enjoying prior to severing the relationship.

Therefore, interim maintenance has to be commensurate with her needs as well as the income of her husband.

On finding no impropriety in the impugned order, the appeal filed by the husband stood dismissed. [Amjad Ali v. Sufia Chaudhary, 2022 SCC OnLine Dis Crt (Del) 13, decided on 5-5-2022]

Case BriefsHigh Courts

Allahabad High Court: Rahul Chaturvedi, J., noted that a lady soon after coming to know that her husband got married in clandestine way with some other lady, committed suicide.

The deceased during her lifetime, lodged an FIR against the husband and all his family members under Sections 323, 494, 504, 506, 379 of the Penal Code, 1860 with the allegation that her husband was already married with some other lady and having two children from her and without divorcing her, rather without disclosing the said fact, he got married with the deceased.

Further, after enticing the informant, who was married lady again solemnized marriage with the consent of both.

The family members after getting to know the above-stated started misbehaving, torturing and abusing her and made her life miserable, the atrocities crossed all the limits when her husband under the pressure of his family members virtually deserted her and kept a new lady.

After lodging the FIR, the deceased consumed some poisonous substance on the same day.

In view of the above circumstances, the deceased took the extreme step by consuming some poisonous substance and committed suicide.

Analysis and Decision

In the present matter, the husband of the deceased was going to marry third time.

High Court opined that the FIR for all the practical purposes could be considered as her dying declaration as the deceased herself was the author of the FIR. After lodging the FIR, she committed suicide just the next day after its lodging.

“No Indian lady is ready to share her husband at any cost. They are literally possessive about their husband.” 

“It would be biggest jolt for any married woman that her husband is being shared by some other lady or he is going to marry some other lady.”

In view of the above, Bench stated that it would be impossible to expect any sanity from them.

High Court found the husband to be the main culprit, and to be tried for the offence under Section 306 IPC.

Bench directed the trial Court to frame the charge as early as possible and initiate the trial of the accused persons. [Sushil Kumar v. State of U.P., 2022 SCC OnLine All 279, decided on 7-4-2022]


Advocates before the Court:

Counsel for Revisionist :- Shailesh Kumar Tripathi

Counsel for Opposite Party :- G.A.

Case BriefsHigh Courts

Delhi High Court: In a matter of dissolution of marriage, the Division Bench of Vipin Sanghi, ACJ and Jasmeet Singh, J., expressed that husband and wife together can deal with any situation, if one gets weak or breaks, the whole crashes down.

Husband preferred an appeal under Section 19 of the Family Courts Act, 1984 to quash and set aside the judgment passed by the Family Court.

On grounds of continuous acts of cruelty, the divorce petition was preferred by the wife and the family Court had allowed the said petition against the husband by the impugned judgment.

Husband stated that the issues which require adjudication in the present matter are as follows:

(i) Whether the Family Court was right in striking off the defence of the appellant?

(ii) Whether the respondent/wife was able to prove the charge of cruelty with cogent evidence against the appellant/husband before the Family Court?

Analysis and Discussion


High Court noted while rejecting the plea of the husband that fresh documents cannot be filed at the stage of evidence and are required to be filed along with a reply or written statement.

Order 8 Rule 1A (1) of Civil Procedure Code, 1908 (hereinafter referred to as CPC) mandates the defendant to file the documents in his possession at the time of filing the written statement. In case the defendant fails to file such documents at the time of presenting the written statement, then the same shall not be allowed to be received in evidence on behalf of the defendant.

Section 14 of the Family Courts Act, 1984 empowers the Family Court to receive any evidence, whether or not the same is relevant or admissible under the Indian Evidence Act if, in its opinion the same would assist it to deal effectually with the dispute before it. 

The Bench stated that, the appellant failed to comply with various orders of this Court, as well as of the Supreme Court, and the Family Court qua payment of the maintenance and preferred to indulge in frivolous litigations instead of paying the outstanding maintenance amount. The appellant was directed by this Court to deposit the maintenance amount.

In Court’s opinion, the Family Court was justified in striking off the defence of the appellant.

High Court cited the Supreme Court’s decision in V. Bhagat v. D. Bhagat, (1994) 1 SCC 337, wherein it was dealing with the divorce petition filed by the husband which he amended later from adultery to cruelty.

The Family Court in the present matter had granted divorce to the respondent under Section 13(1)(ia) of the HMA solely relying on the ground of “mental cruelty‟.

Remarking that “Husband and wife are two pillars of the family”, High Court held that, when one pillar gives up and puts all the burden on the other pillar, then it cannot be expected that one pillar will single-handedly hold the house together.

Hence, Court upheld the observation of the Family Court on noting that the husband had put the entire burden on the wife to manage the house, her job, and look after the children and he failed to discharge his duties as a husband and especially as a father.

Lastly, the High Court found that the bond between the parties has irretrievably broken down and wife was subjected to repeated harassment by the husband. Therefore, the wife had well established the ground of mental cruelty by the husband in light of Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511.

In view of the above, the present appeal was dismissed. [Sunil Kumar Sharma v. Preeti Sharma, 2022 SCC OnLine Del 1263, decided on 2-05-2022]


Advocates before the Court:

For the Appellant:

Md. Azam Ansari, Advocate with Mr Ashfaque Ansari, Advocate

For the Respondent:

Mr Gaurav Goswami with Mr Tarun Goomber and Mr Pankaj Mendiratta, Advocates

Case BriefsHigh Courts

Delhi High Court: While addressing a matter with regard to a wife’s right to maintenance Chandra Dhari Singh, J., expressed that, only continuous and repeated acts of adultery and/or cohabitation in adultery would attract the rigours of the provision under Section 125(4) CrPC.

Factual Matrix


A criminal petition was filed seeking to set aside the decision by Family Court.

Instant petition had been filed against the order of the Additional Principal Judge filed by the respondent under Section 125 of the CrPC, whereby the Additional Principal Judge granted maintenance.

Petitioner impugned the order dated 31-7-2020, which enhanced the maintenance amount.

Analysis, Law and Decision


In the present matter, the maintenance order was challenged on the grounds of cruelty, adultery, desertion without reason as well as the fact that the wife was capable enough of maintaining herself.

Various Supreme Court and High Court decisions have established the position of payment of maintenance holding that the ground of cruelty does not disentitle the wife of her right to maintenance. In fact, in cases where divorce is granted on the ground of cruelty, Courts have awarded permanent alimony to the wife.

Hence,

Ground of cruelty and harassment do no stand ground for non-payment of the maintenance amount.

The Bench expressed that the codified law and judgments of various High Courts settle the position with respect to the bar of adultery for grant of maintenance in favour of the wife.

Law mandates that in order to extract the provision under Section 125(4) CrPC the husband has to establish with definite evidence that the wife has been living in adultery, and one or occasion acts of adultery committed in isolation would not amount o ‘living in adultery’.

The Bombay High Court decision in Pandurang Bakru Nathe v. Leela Pandurang Nathe, 1997 SCC OnLine Bom 264 made an observation with regard to the provision under Section 125(4) CrPC was relied on by the Court.

Another decision of the Kerala High Court in Sandha v. Narayanan, 1999 SCC OnLine Ker 64 was also relied on.

High Court found that the law as interpreted by the High Courts, evinces that only continuous and repeated acts of adultery and/or cohabitation in adultery would attract the rigours of the provision under Section 125(4) CrPC.

The petitioner could not establish prima facie that the respondent was living in adultery, hence the respondent was not entitled to any maintenance.

Concluding the matter, Court declined to allow the instant petition, since the petitioner had failed to show any ground for challenging the order under the revisional jurisdiction of this Court.

Therefore, Bench did not find any cogent reason to interfere with the impugned order and judgment. [Pradeep Kumar Sharma v. Deepika Sharma, 2022 SCC OnLine Del 1035, decided on 13-4-2022]


Advocates before the Court:

For the Petitioner:

Annu Narula, Vishal Singh, Ravi Kumar and Shiva Chauhan, Advocates

For the Respondent:

Shamikh, Advocate

Case BriefsHigh Courts

A man is a man; an act is an act; rape is a rape, be it performed by a man the “husband” on the woman “wife”

Karnataka High Court: M Nagaprasanna J. dismissed and disposed of WP Nos. 48367 of 2018, 12976 of 2017, 10001 of 2018 and partly allowed 50089 of 2018.

Factual Background

The facts of the case, as according to the narration of the victim, clearly indicates as to how brutally the petitioner used to have sex, anal sex with the complainant/wife in the presence of his daughter who was 9 years old at that point in time and later used to touch the private parts of the daughter and also indulged in sexual acts against the daughter. The complaint was filed by the victim wife and the charge sheet was filed by the Police for offences punishable under Sections 498A, 376, 354, 506 of the Penal Code, 1860 i.e. IPC and Section 5(m) and (l) of the Act. The petitioner, on filing of the final report, filed an application under Section 216 of the Criminal Procedure Code i.e. Cr.P.C seeking a prayer to drop the first charge framed under Section 376 of the IPC, as the offence would not get attracted in the case of the petitioner who is the husband of the complainant which was rejected by the Sessions Court in terms of its order dated 16-10-2018. Thus the petitioner knocked the doors of the instant Court in the subject petition in the garb of calling in question the Constitutional validity of clauses of presumption under Sections 29 and 30 of POCSO Act.

Issues:

(i) Whether cognizance being taken against the petitioner-husband for offence punishable under Section 376 of IPC is tenable in law?

(ii) Whether the allegation against the petitioner for other offences is tenable in law?

(iii) Whether the prosecution notwithstanding the presumption under Sections 29 and 30 of the Act has to prove the foundational facts beyond all reasonable doubt?

(iv) Whether the designated Court to try the offences under the Act has jurisdiction to try both the offences under the IPC and the Act in the facts of this case?

(v) Whether charge sheet against the petitioner should be altered to include addition of the offence punishable under Section 377 of IPC?

(vi) Whether proceedings under the POCSO Act against the petitioner need to be interfered with?

Issue 1

History of Section 375 Penal Code, 1860

The genesis of Section 375 of the IPC and its exception has its roots in the Code propounded by Macaulay in 1837. It is Macaulay’s Code that becomes the basis for the Indian Penal Code of 1860, which governs the penal provisions even as on date with certain changes on certain occasions. Exception to Section 375 has existed in the IPC since the time of its enactment by the British in the year 1860. Exception-2 then was guided by the laws that were existent in all the countries where the British had their foot on. They were several decades ago. It was founded and remained on the premise of a contract in the medieval law that husbands wielded their power over their wives. In the Victorian era women were denied the exercise of basic rights and liberties and had little autonomy over their choice. Their statuses were nothing beyond than that of materialistic choices and were treated as chattels.

Post Republic, India is governed by the Constitution. The Constitution treats woman equal to man and considers marriage as an association of equals. The Constitution does not in any sense depict the woman to be subordinate to a man. The Constitution guarantees fundamental rights under Articles 14, 15, 19 and 21 which are right to live with dignity, personal liberty, bodily integrity, sexual autonomy, right to reproductive choices, right to privacy, right to freedom of speech and expression. Under the Constitution, the rights are equal; protection is also equal.

Justice JS Verma Committee: Recommendations

79. We, therefore, recommend that:

i. The exception for marital rape be removed.

ii. The law ought to specify that:

a. A marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation;

b. The relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity;

c. The fact that the accused and victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape.

80.We must, at this stage, rely upon Prof. Sandra Freedman of the University of Oxford, who has submitted to the Committee that that “training and awareness programmes should be provided to ensure that all levels of the criminal justice system and ordinary people are aware that marriage should not be regarded as extinguishing the legal or sexual autonomy of the wife”.

Section 375 of the IPC came to be amended with effect from 10-05-2013 after introduction of Criminal Law Amendment Bill before the Parliament, pursuant to the constitution of J.S.Verma Committee for suggesting amendments to criminal law.

The Exception to pre-amendment reads as follows:

“Exception.—Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

The Exception to post-amendment reads as follows:

Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

 The Court thus remarked, “a woman being a woman is given certain status; a woman being a wife is given a different status. Likewise, a man being a man is punished for his acts; a man being a husband is exempted for his acts. It is this inequality that destroys the soul of the Constitution which is Right to Equality. The Constitution recognizes and grants such equal status to woman as well.”

The Court observed that the Code practices discrimination. Under the Code every other man indulging in offences against woman is punished for those offences. But, when it comes to Section 375 of IPC the exception springs. Thus, the expression is not progressive but regressive, wherein a woman is treated as a subordinate to the husband, which concept abhors equality.

Therefore, the situation now emerges is equality pervades through the Constitution, but inequality exists in the Code qua – Exception-2 to Section 375 of the IPC.

The Court held “I find no error committed by the learned Sessions Judge in taking cognizance, framing the charge under Section 376 of the IPC and also rejecting the application to drop the said charge.”

Issue 2

The Court held “Other offences alleged against the petitioner, the ones punishable under Sections 498A, 354, 506 of the IPC are clearly brought out in the complaint and in the charge sheet. This is again a matter of trial” 

Issue 3

The Court relied on GS Venkatesh v. State of Karnataka, (2020) 3 KCR 2276 wherein it was observed “In a case where an offence is committed against a child, having regard to the very nature of the offence where it is difficult for the prosecution to prove the facts and circumstances in which the offence had taken place, the Act has cast the burden on the accused to prove the facts within his knowledge as it is easier for the innocent accused to produce evidence contrary to the case proved by the prosecution. This is called reverse burden whereby the burden is shifted to the accused to disprove the facts established by the prosecution. The question of discharging the reverse burden by the accused would arise only when the initial burden cast on the prosecution is discharged to the satisfaction of the Court. Therefore it follows that without the proof of basic facts constituting the offence charged against the accused, the accused cannot be called upon to disprove the case of the prosecution.”

The Court thus held the prosecution has to prove the foundational facts beyond all reasonable doubt and cannot rest its case on preponderance of probability, merely because the statute imposes reverse burden upon the accused on proving innocence in place of the prosecution proving the guilt.

Issue 4

The Court relied on judgment Vivek Gupta v. CBI, (2003) 8 SCC 628 and held “I am of the considered view that the trial that is now sought to be held before the POSCO Court by the Sessions Judge can also try the offences alleged under the Code. Therefore, the point that has arisen for consideration is answered against the petitioner.” 

Issue 5

The Court observed and held that the finding that when the allegations made against the husband attracts Section 376 of the IPC and a charge is also framed in respect of the said offences, question of considering the request to frame a charge under Section 377 of the IPC does not arise, is erroneous. The allegations clearly make out an offence punishable under Section 377 of the Code which deals with unnatural sex. Therefore, the order under challenge is to be set aside allowing the application filed by the prosecution under Section 216 of the Cr.P.C. with a direction to the trial Court to frame the charge for the offence punishable under Section 377 of the IPC as well.

Issue 6

The Court held Allegations against the petitioner-husband for offences punishable under the POCSO Act for alleged sexual acts on the daughter cannot be interfered with. It is yet again a matter of trial.”

[Hrishikesh Sahoo v. State of Karnataka, 2022 SCC OnLine Kar 371, decided on 23-03-2022]


Appearances:

For petitioner: Mr. Hashmath Pasha and Mr. Ranjan Kumar

For respondent: Mrs. Namitha Mahesh., R D Renukaradhya, Mr. Madanan Pillai, and A D Ramananda


Arunima Bose, Editorial Assistant ahs reported this brief.

Case BriefsHigh Courts

Delhi High Court: While addressing a matter surrounding the issue of cruelty by wife, the Division Bench of Vipin Sanghi, ACJ and Dinesh Kumar Sharma, J., expressed that,

“It has repeatedly been held that accusations of unchastity or extra marital relationship is a grave assault on character, status, reputation as well as health of the spouse against whom such allegations were made.”

Appellant invoked this Court’s jurisdiction under Section 19 of the Family Courts Act, 1984 assailing the impugned judgment whereby Family Court granted a decree of divorce in favour of respondent/husband under Section 13(1)(ia) of the Hindu Marriage Act, 1995.

Background


Husband had filed a divorce petition on the ground of cruelty and on the basis of the same, Family Court had granted divorce decree.

Husband’s allegations were with regard to wife’s lifestyle, attitude and strange behaviour towards his parents.

Appellant/wife in her defense stated that she was tortured and harassed by her in-laws on account of their dowry demands and father-in-law had also sexually assaulted her. She added that the husband used to force her to commit suicide, for which she had filed a complaint.

In furtherance to the above, the appellant stated that she wanted to continue with the matrimonial alliance, and thus she filed the petition under Section 9 of the HMA.

Analysis and Decision


In Court’s opinion, the Family Court had correctly appreciated the evidence and rightly found that the appellant by making unfounded allegations amounting to character assassination against the husband inflicted mental cruelty upon the husband.

Further, the Court expressed that, accusations of unchastity or extra marital relationship causes mental pain, agony suffering and tantamount to cruelty.

The allegations of extra marital affairs in relationship are serious allegations, which have to be made with all seriousness. The tendency of making false allegations has to be deprecated by the Courts.

While concluding the matter, the High Court held that there was no material on the record to upset or set aside the order of the Family Courts.

The marriage is solemn relation and it’s purity must be maintained for a healthy society.

In view of the above, the matter was dismissed. [Jyoti Yadav v. Neeraj Yadav, 2022 SCC OnLine Del 795, decided on 21-3-2022]


Advocates before the Court:

For the Petitioner: Mr Rajeev Pratap Singh, Adv. with appellant in person.

For the Respondent: Ms Zubeda Begum, Ms Sana Ansari and Ms Ishita Mohanty, Advocates

Case BriefsHigh Courts

Rajasthan High Court: Dinesh Mehta, J.,  dismissed the petition.

The facts of the case are such that the petitioner and the respondent, who got married on 17-02-1976, have been living separately since 1986. The instant petition was filed under Section 482 Criminal Procedure Code i.e. CrPC challenging order dated 06-01-2022, whereby the Gram Nyayalay, Aspur, District Dungarpur partly allowed the application for interim maintenance filed by the respondent (wife) and directed the petitioner to pay a sum of Rs 5,000/- per month as interim maintenance.

Counsel for the petitioner submitted that the present petition under Section 125 of CrPC that has been filed in the year 2021, is clearly an abuse of the process of law. It was further submitted that the Court has treated petitioner’s income to be Rs 1,00,000/- whereas his return of income tax shows that his income is approximately Rs 40,000/- per month.

The Court observed that an order under Section 125 of CrPC is in the nature of interim maintenance and husband, who admittedly earns Rs 40, 000/- per month cannot be absolved of his obligation to pay interim maintenance, merely because the respondent – wife has chosen to file the application after 36 years of marriage.

The Court held “This Court does not find any reason to interfere in the present petition, particularly when the petitioner has failed to point out any jurisdictional error or apparent error on the face of record and when a meagre sum of Rs.5,000/- has been ordered to be paid.”

[Chandrakant Jain v. Veermati Jain, S.B. Criminal Misc(Pet.) No. 986/2022, decided on 11-03-2022]


Appearances:

For Petitioner(s): Mr. Mohit Singhvi

For Respondent(s): Mr. Mahipal Bishnoi


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsDistrict Court

Saket Courts, New Delhi: Sonu Agnihotri, Additional Sessions Judge – 03, addressed a matter, wherein a wife using improper means procured the information of bank accounts of father-in-law and mother-in-law but it was noted that her intention was not dishonest.

A criminal revision under Section 397/399 of the Code of Criminal Procedure was preferred by the accused against the impugned order passed by the Metropolitan Magistrate whereby the order of framing of charge under Section 72A of the IT Act and Section 409 of Penal Code, 1860 was passed against the accused.

Complainants were the father-in-law and mother-in-law of the petitioner and due to issues between their son and daughter-in-law, the son left the company of his wife and started living at his matrimonial home.

Petitioner had filed a complaint under Section 12 of the PWDV Act against the son of the complainant wherein she sought maintenance from her husband.

It was stated that 12 Court proceedings have been pending between the petitioner and son of the complainants with regard to matrimonial disputes.

Vide the impugned order, the charge had been ordered to be framed against the petitioner under Section 72A of the IT Act and Section 409 of Penal Code, 1860

Analysis, Law and Decision

Section 72 A of the Information Technology Act provides as:

Punishment for disclosure of information in breach of lawful contract. -Save as otherwise provided in this Act or any other law for the time being in force, any person including an intermediary who, while providing services under the terms of lawful contract, has secured access to any material containing personal information about another person, with the intent to cause or knowing that he is likely to cause wrongful loss or wrongful gain discloses, without the consent of the person concerned, or in breach of a lawful contract, such material to any other person, shall be punished with imprisonment for a term which may extend to three years, or with fine which may extend to five lakh rupees, or with both.

Section 409 IPC:

Criminal breach of trust by public servant, or by banker, merchant or agent.—Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 

Further, Section 405 IPC defines Criminal Breach of Trust.

Whether Section 72 of the IT Act will be attracted in the present case?

Petitioner was the daughter-in-law of the complainants who was working with ICICI Bank and as per the case of prosecution, petitioner while misusing her position accessed bank accounts and FDR details of complainants with ICICI Bank and used the said details in an application filed before MM in a complaint filed by her under provisions of Domestic Violence Act.

Complainants further alleged that the petitioner in connivance with ICICI Bank jeopardized the safety and security of property and person of the complainants who were senior citizens.

Though the allegations were against both the petitioner and ICICI Bank, surprisingly, the charge-sheet was silent about any investigation made qua role of higher officials of ICICI Bank.

In Court’s opinion, without proceeding against ICICI Bank was obligated to maintain secrecy regarding the financial information of the complainants, the petitioner could not have solely proceeded.

It was noted that the petitioner used her ID to access the financial information of the complainants.

High Court expressed that,

Manner of bringing the information before Court of law may not be morally right but it cannot be said by this act of petitioner that, petitioner caused or intended to cause any wrongful loss to petitioners or to cause wrongful gain to herself as merely by disclosing this information, no pecuniary benefit is stated to have been received by petitioner and if any maintenance or any other amount is granted by Court of law, that cannot be termed to be wrongful gain to petitioner.

 In view of the above observation, the petitioner’s act did not fall within the definition of wrongful gain or wrongful loss as defined under Section 23 of the Penal Code, 1860.

The second limb of ingredients of an offence under Section 72 A of the IT Act was that the petitioner was in breach of lawful contract divulged financial information of complainants to any other person.

Bench stated that, breach of lawful contract if any was made by ICICI Bank and not by the petitioner directly. So, the act of the petitioner does not satisfy the ingredients of the offence under Section 72A of the IT Act.

With respect to framing of charge under Section 409 IPC is concerned, the commission of a criminal breach of trust by the banker is a must.

As per Section 405 IPC, it requires entrustment of property or with any dominion over property coupled with dishonest misappropriation or conversion to one’s use that property or disposal of the property in violation of the direction of law prescribing the mode in which such trust is to be discharged or of any legal contract, expressed or implied which the person has made touching discharge of such trust or willfully suffers any other person so to do.

In the instant case, the petitioner was not directly entrusted with property which was bank accounts and FDR information pertaining to complainants. Hence no dishonest misappropriation or conversion to petitioner’s use of the information pertaining to complainants bank accounts by use of same in judicial proceedings, as by bringing the said information before the Court she wanted to bring before the conduct of complainants’ son

There can not be said to be any dishonest use or disposal of information pertaining to bank accounts of complainants and their FDRs.

Therefore, in view of the above discussion, it was noted that the trial court failed to meet the parameters of the law and required the impugned order to be set aside. [Chavi Anurag Goyal v. State, Criminal Revision No. 19 of 2021, decided on 24-2-2022]

Case BriefsHigh Courts

Chhattisgarh High Court: The Division Bench of Goutam Bhaduri and Rajani Dubey, JJ., expressed that,

“If the husband keeps another lady; gives shelter to her; and proceeds to have child with the said lady and for that reason if the first wife has to leave the matrimonial home because of physical and mental torture meted out to her it cannot be presumed as a desertion on the part of wife.”

Husband was rejected decree of divorce on the ground of desertion by the Family Court’s order, but the said decision has been challenged.

Factual Matrix

Husband/Appellant was married to respondent/wife prior to 26 years from the filing of the suit. He submitted that for the last 25 years the wife had been living in the village and had deserted him without any lawful cause, in view of which he was entitled to get a divorce decree.

Whereas, the wife pleaded that she was subjected to physical and mental torture, she also added that the husband kept one lady as his wife and asked the wife to go away and stay at her parental village.

Analysis

It was noted that the appellant came to know on 10-1-2014 that the respondent’s name i.e. his wife is recorded in the service book though she left him 25 years back and was residing at a different place.

Wife submitted that the husband had kept one concubine, which led to the family dispute and forced the respondent to stay at her parental village along with her three children, she maintained the stand that she had not deserted the husband and because of the fact that she was mentally and physically tortured she was forced to stay separately.

Another pleading was that in proceedings under Section 125 CrPC an amount of Rs 500 was granted towards her maintenance.

The Bench remarked, when the marriage was solemnized 26-27 years back and three children were born thereafter, how it can be presumed that the wife deserted the husband for 25 years i.e. immediately after marriage.

Husband also admitted the fact that he kept Urmila as second wife and out of that relationship he was blessed with two children.

Therefore, it was clear that during the subsistence of the first marriage, husband kept another lady as his wife and as per the provisions of the Hindu Marriage Act, 1955 keeping another lady during subsistence of first marriage is illegal, however, Court denied to deliberate on the said issue.

Decision

High Court held that the wife was subjected to mental and physical cruelty and was forced to leave her matrimonial home as the husband had kept one concubine, hence the said was a reasonable cause for the wife to stay at the village of her parents though she was not intending to do so and hence the same cannot be stated that the desertion was made by the wife.

In Court’s opinion, no ground for desertion was made out by the husband, therefore the lower Court’s decision warranted no interference. [Uttamram v. Kayaso Bai, 2022 SCC OnLine Chh 255, decided on 7-2-2022]


Advocates before the Court:

For Appellant Mr. Parag Kotecha, Advocate

For Respondent Mr. Sachin Singh Rajput, Advocate

Op EdsOP. ED.

The headlines reporting of a judgment rendered by the Gauhati High Court concerning a matrimonial wedlock dissolution can be cited as a prime example of click bait journalism. The learned authors of the various columns are making a rather fervent effort to superimpose upon general public their interpretation of the judgment rather than what the Court has apparently held. The headlines of some leading newspapers read; Gauhati High Court Grants Divorce to Man After Woman Refuses to Wear “Sindoor”[1], “Shakha”[2],[3] Gauhati High Court Grants Divorce for Woman’s Refusal to Wear “Sindoor”, “Shakha”.[4] The instant reaction to such tit-bits infuriates a progressive and liberal mind, while at the same time, can soothe the orthodox and make them feel entitled to such a judicial dicta.

            The author’s attempt herein is merely to disillusion the mist of myriad traversing over the subject, out of an ingeniously erroneous interpretation, which may evoke a legally instructed mind rather disdainfully.

            A fresh law school entrant would not find it difficult to read the 12 page judgment of the Gauhati High Court[5] and any indiscrete eye would rather assimilate its sentiment in true valour, yet an extreme distortion of the judgment may be paving new opportunities for tyrants. The moot question before the High Court was:

  1. Whether the respondent wife subjected the appellant husband to cruelty and deserted him?
  2. Whether the appellant husband is entitled to a decree of divorce?

The brief facts of the case, leading to the appeal before the High Court has been encapsulated  at the very opening of the judgment in the following manner:

“3. The case of the appellant husband …  is that he is a contractual labourer … He lives with his mother, sisters and brother in Digboi. His marriage with the respondent wife was solemnised on 17-2-2012. After marriage, the appellant and the respondent started their conjugal life in the matrimonial house of the appellant. After about a month into their marriage, the respondent wife demanded to reside separately with the appellant husband … However, the appellant being a contractual labourer was not able to sustain separate accommodation … Around the month of June 2013, the respondent wife declared that she was not willing to continue her matrimonial life with the appellant. As a consequence, the respondent wife insisted on going back to her parental home … contrary to her assurance, instead of returning back to the matrimonial house, she filed a case under Section 498-A[6] IPC before Digboi Police … The appellant husband further 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 relation with them.

4. The respondent wife contested the case … she stated that she was subjected to cruelty to meet illegal demands of dowry in the form of cash and kind….

                           *                                     *                                          *

  1. During her cross, she maintained the evidence adduced by her in her evidence-in-chief. She stated that she had filed three cases against the appellant. She further stated that she does not want to stay with the appellant or compromise with the appellant. She also admitted to the existence of the agreement entered by and between the appellant and the respondent pursuant to filing of the FIR although she denied that the agreement stipulated that the appellant will live separately with her in a rented house and that no one from his family members can come and meet them. It is also evident from her cross-examination that she had categorically stated that either the appellant will come to Dibrugarh to live with her or fulfil her demands i.e. monetary demands or only then she will divorce him….

                           *                                  *                            *

  1. The Family Court below has accepted the evidence of both the parties that there were indeed criminal cases filed by the respondent wife under Section 498-A IPC besides two other cases. In the case lodged under Section 498-A IPC, the SDJM (Margherita) acquitted the appellant husband, his stepmother and his sisters. However, the criminal cases filed under Sections 471/420[7] IPC and under Section 125[8] CrPC are presently pending disposal….[9]

            In an uncanny manner, the entire thrust of media reports was on certain observations (obiter dicta) made by the Court at para 15 of its judgment; projecting it in a manner, as done and by reading it out of context and de hors the facts; without even glancing over the preceding paragraphs, resulting in distortion of the court’s verdict. It is elementary jurisprudence that one cannot pick or choose a line from the judgment to buttress their claim; a judgment must be read as a whole. The observations made by the Court were in the backdrop of facts obtaining in the case which have been transcribed in the text of the judgment. The judgment reproduces the testimony of the lady/wife/respondent at para 13 wherein she categorically states:

“That I am not wearing/putting sindoor right now because I do not consider him as my husband.”

It is only after considering such categorical statement of the lady/wife/respondent that the Court observes/remarks at para 16 that:

  1. … 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 “shakha 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. Under such circumstances compelling the appellant-husband to continue to be in matrimony with the respondent wife may be construed to be harassment inflicted by the respondent upon the appellant and his family members.[10]

The Court finds and observes that the conduct of wife; refusal to adhere with such custom, voluntarily and in an unambiguous manner; arising out of loss of relationship, as above, reflects her will. She is not being lambasted for denying to follow a custom. It is merely a reflection of her will and desire i.e. to come out of wedlock. The Court finds that, in the facts and circumstances of the case at hand, the wife’s refusal to wear the sindoor amounts to her not wanting to continue with the marriage which stands corroborated by her statement during the cross-examination.

            The judgment is in no way suggestive or accords sanction to a man, that he may walk up to a court of law and ask for divorce if his wife does not wear the customary sindoor. The decision is liable to be understood and confined to the facts of the case.

            It is important to note that ratio decidendi (legal grounds/reasons of rendering a judgment) of the case is NOT “divorce to be decreed upon wife’s refusal to wear sindoor and the shakha” as projected in the media reports. Rather, the fact of non-observance of custom i.e. refusal to wear sindoor and the shakha, is only indicative of wife’s will in context of the surrounding facts of the case. She considers the particular custom sacred and the court also takes note of the fact that she is unwilling to follow the custom as she wants to exit the wedlock. The sanctity and enforceability of custom is a question of fact in each case. In the set of facts present before the court in the instant case, the court finds that the wife’s unwillingness to remain married is demonstrated by the omission to follow the particular custom and to force the parties to remain in wedlock “may” amount to harassment to the husband/appellant and his family.

            The Court clearly observes that this overt act demonstrates the wife’s unwillingness to be part of the matrimonial home, in the facts of the case. The Court does not return a finding that the act of omission; refusal to wear sindoor and shakha, amounts to legal cruelty entitling the husband for divorce. All that the judgment holds is that this categorical statement in cross-examination, of non-observance of custom; demonstrating the wife’s will to detach herself from the wedlock, was not looked into by the Family Court while refusing the divorce petition of the appellant-husband.

            Now consider a scenario where the wife wants to apply the sindoor, shakha, mangalsutra, etc., as per the Hindu customs, but the husband forbears her from doing so or where husband refuses to wear the customary wedding ring. Will the wife be entitled for divorce on the ground of cruelty on part of the husband in such circumstances; citing the instant judgment as a precedent? The answer would be a resounding no. To follow a custom or not is NOT  the determinative test for constituting legal cruelty under matrimonial laws. For a court of law to reach to a conclusion that an act complained off amounts to legal cruelty requires satisfaction of separate parameters.

            It is only when custom has been identified and acknowledged as a legally binding principle, based on various factors, that its non-adherence can result in a legal wrong. A distinction needs to be understood between social customs and legal customs, both have acknowledgement in law, but for separate purposes. While the former’s non-observance may result in social sanctions, the disobedience of the latter attracts legal consequences. Irrespective, since the same was not a moot question before the court, the judgment simply refers to the overt act of the party to the dispute, in an attempt to decipher the empirical desire of the couple. Non-adherence with such custom had no bearing, per se, on the matrimonial wedlock, but was reflective and indicative of will of the parties. Not following a custom or not allowing someone else to follow the same, ipso facto, does not translate into legal cruelty under matrimonial laws.

            Legal cruelty in a matrimonial home is the creation of such circumstances, by either or both party/s, which makes it absolutely impossible for the other party to cohabit. Thus, constantly nagging the other spouse to follow or not follow a particular ritual or custom can amount to mental and legal cruelty, depending on the factual matrix of each case.[11] Even in such cases, it is the act of consistent, grave and weighty interference that may amount to legal cruelty and NOT the observance or non-observance of a particular custom. To hold that an act amounts to legal cruelty, each case is considered individually as there is no conduct which can be said always to amount to legal cruelty.[12]

            What the Court has, in fact and in law, held as legal cruelty in this present case is the act of lodging unsubstantiated FIR under Section 498-A IPC; clean acquittal of the appellant husband. The Court has placed reliance on the decision of the Supreme Court in Rani Narasimha Sastry v. Rani Suneela Rani[13], wherein it was held that filing of frivolous criminal cases like case under Section 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 wife.

            Another aspect considered by the Court in granting divorce to the appellant husband was that the Family Court completely ignored that the respondent compelled and prevented the appellant from performing his statutory duties towards his aged mother under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007[14]. Such evidence is sufficient to construe an act of cruelty as the non-compliance/non-adherence to the provisions of the 2007 Act has criminal consequences leading to punishment or imprisonment as well as fine.

            The decision of the High Court was challenged in a review petition, apparently based on such media reports, on inter alia the ground that, “not wearing or refusal to wear ‘sindoor’ by wife cannot constitute cruelty so as to justify dissolving the marriage.[15] The review petition was dismissed and the Court held that the act of the wife and her statement on oath, about the sindoor, only demonstrates her unwillingness to remain in the wedlock and it would be considered as an incident of cruelty, however might not be sufficient in itself, and in isolation as a ground of cruelty for grant of divorce. The Court also points out and observes that, the review application has been argued as if this was the only ground considered by the Court for dissolving the marriage, however as explained hereinabove it is not so. The Court granted divorce in the instant case on settled legal principles as opposed to some dogmatic cultural ideals, which have been attempted to be projected. Ironically, there was no reporting about the dismissal of the review petition nor did any of the legal reporters found it right to acknowledge their misreporting in the first instance.

            It is disheartening to see such news reports in an era where the press is considered as the fourth pillar of democracy. The news reports suggest that courts still consider such customs and practices as unshakable norms and any deviation therefrom is frowned upon which is diametrically opposed to the sentiments expressed by the judiciary. The Bombay High Court, while deciding a matrimonial appeal, highlights and observes that, in 21st century, a man would not be entitled to seek a divorce solely on the grounds that his wife does not cover head with the pallu or sometimes removes mangalsutra and sindoor.[16] In contemporary times, courts are proactive to eliminate any obsolete and redundant practices which reek of high-handedness and try to achieve parity between the sexes.

            As a word of caution, it is felt necessary that before a decision is reported, much restraint be exercised to avoid mischief; judgments having force of law. It is not a matter to be lightly inferred. The present case had so many facts which have been overlooked while creating headlines resulting in misleading and incomplete communication.

            In a growing democracy like ours, the press should be mindful of the way they present a news item, specially a judgment of the highest court of law in a State. Projecting the courts as orthodox and opinionated only results in people loosing faith in the judicial institution. It is hoped that the news reporters will be mindful of their cardinal duty of reporting unbiased facts while engineering sensational headlines in the future.


Junior Research Fellow, Faculty of Law, University of Allahabad, former Law Clerk-cum-Research Assistant,  Supreme Court of India. Author can be reached at bhavna1988@gmail.com.

[1] Vermillion.

[2] A conch shell bangle.

[3] Available at <https://economictimes.indiatimes.com/news/politicsandnation/gauhatihighcourtgrantsdivorcetomanafterwomanrefusestowearsindoorshaka/articleshow/76705018.cms>.

[4] Available at  <https://thewire.in/law/gauhatihcgrantsdivorceforwomansrefusaltowearsindoorshaka>.

[5] Bhaskar Das v. Renu Das, 2020 SCC OnLine Gau 2954.

[6] Penal Code, 1860, S. 498-A.

[7] Penal Code, 1860, Ss. 471 and 420.

[8] Criminal Procedure Code, 1973, S. 125.

[9] Bhaskar Das v. Renu Das, 2020 SCC OnLine Gau 2954.

[10] Bhaskar Das v. Renu Das, 2020 SCC OnLine Gau 2954.

[11] Boparai, Harinder, “The Expansion of Matrimonial Cruelty”, 23 JILI 87 (1981), available at <http://14.139.60.114:8080/jspui/handle/123456789/16723> (last visited on 11-10-2020).

[12] Boparai, Harinder, “The Expansion of Matrimonial Cruelty”, 23 JILI 87 (1981), available at <http://14.139.60.114:8080/jspui/handle/123456789/16723> (last visited on 11-10-2020) at 57.

[13] 2019 SCC Online SC 1595.

[14]  Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

[15] Renu Das v. Bhaskar Das, 2020 SCC OnLine Gau 4971.

[16] Anurag v. Sarita, 2017 SCC OnLine Bom 10126.

Case BriefsHigh Courts

Bombay High Court: Stating that, in the moment of anger spouses almost forgot about the two children who were hardly three years old at the time of incident, the Division Bench of Sadhana S. Jadhav and Prithiviraj K. Chavan, JJ., found that the case of a husband killing wife with a knife was a case of culpable homicide not amounting to murder.

Court also remarked that,

“The mother died, and the father was thrown to the gallows by his own act.”

In the present matter, appellant was convicted under Section 302 of the Penal Code, 1860 and sentenced to life imprisonment and a fine of Rs 1,000 by the lower Court. On being aggrieved with the same, present appeal was filed.

Background

Pravin Khimji Chavan had visited Police Station with blood-stained clothes on his person and informed PW2 that he suspected the character of his wife and on that count due to quarrel he killed his wife by assaulting her with a knife.

The informant led the police to his house and upon entering the house they saw the dead body of his wife in a pool of blood with injuries all over the body.

It was submitted that the accused has seen a stranger leaving his house hurriedly on 23-4-2011 and on inquiring about the same, his wife lost temper and started abusing him. Later she started creating ruckus and brought a knife while directing it towards his husband. Handing over the knife to husband, she started challenging him to show as to whether he had the courage to assault her and that was the juncture when the husband lost his mental balance resulting into mounting assault with the knife.

After the above episode, he went to the police station and informed them of the said incident.

Analysis, Law and Decision

High Court noted that the present matter was a case of custodial death.

Open and Shut Case

The Bench found that at the time of the incident, the accused, as well as the deceased, had consumed alcohol. It was true that the Police had not investigated the statement of accused, as if to say that it was an open and shut case.

In the accused’s view, he maintained his cool for quite sometime, however, he lost it when she brought the knife from the kitchen and provoked him to hurt her if he could.

The Court stated that “Probably the chauvinism in him had risen.”

Further, the deceased wife expressed disgust and abhorrence at his very manliness and had forgotten for a moment that he was the father of their two daughters.

The Bench stated that it is rightly said that,

“If you are patient in one moment of anger, you will escape hundred days of sorrow.”

High Court remarked that, 

“The statement of the accused recorded by the police would show that he was left with a feeling of mortification. According to him, he was left with a wounded pride, which resulted in the brutal death of his wife.”

Elaborating further, the Court expressed that in a very alternative case wherein murder of the wife at the hands of the husband was the subject, it was in a moment of the grave and sudden provocation by the wife resulting in husband violently attacking the wife.

“There is physical violence, there is sexual violence, however, this sort of physical violence is less seen amongst women even in a moment of anger and in all probabilities, it is the mother in a woman which supersedes her element of physical violence.”

In view of the facts and circumstances of the case, High Court expressed that the Indian Penal Code would define the above act not as murder but as culpable homicide not amounting to murder, as the offence was committed in a heat of passion, but the accused had acted in a cruel and unusual manner.

Therefore, appeal was partly allowed and the conviction of the appellant for the offence punishable under Section 302 IPC was quashed and set aside and the appellant was convicted for the offence punishable under Section 304(I) of the IPC with imprisonment for 10 years. [Pravin Khimji Chauhan v. State of Maharashtra, 2022 SCC OnLine Bom 309, decided on 15-2-2022]


Advocates before the Court:

Ms. Farhana Shah, Advocate for the Appellant.

Mr. Arfan Sait, APP for the Respondent – State.

Case BriefsHigh Courts

Karnataka High Court: H.P Sandesh, J. rejected bail as at this stage no offence can be attracted and the same is left to trial.

The factual matrix of the case is that on 20.09.2021, this petitioner assaulted his wife, when she victim was washing clothes. On account of injuries, she succumbed to the injuries. The police have investigated the matter and filed the chargesheet invoking the offences punishable under Sections 302 and 201 read with Section 34 of IPC. This petition is filed under Section 439 of CrPC seeking regular bail of the petitioner/accused No.1 in Crime No.86/2021 of Tavarekere Police Station, Sira Rural Circle, Tumakuru, for the offences punishable under Sections 302 and 201 read with Section 34 of IPC.

Counsel for petitioner submitted that petitioner has not used any weapon and it is the case of the petitioner that she fell down on the stone while washing clothes and sustained injuries. At the most, the incident attracts the offence under Section 302 of IPC and not 304 Part-II of IPC.

Counsel for respondent submitted that PM report is clear that on account of injury sustained to head, she succumbed to the injury and opinion of the doctor is clear that due to hemorrhage and shock on account of severe head injury, she passed away and at this stage, this Court cannot come to a conclusion whether it attracts the offence under Section 302 of IPC or 304 Part-II of IPC.

The Court observed that the Court has granted bail in Crl.P.No.8138 of 2021 in favour of accused 2, wherein observation is made that accused No.2 only facilitated in concealing the offence of murder committed by accused No.1 and hence, granted bail in favour of accused No.2 and the said order will not come to the aid of this petitioner.

The court observed that based on the factual aspect the Court cannot decide whether it attracts the offence under Section 302 of IPC or 304 Part-II of IPC and the same is a matter of trial.

The Court thus rejected bail. [Dinesh T v. State of Karnataka, Criminal Petition No. 611 of 2022, decided on 01-02-2022]


Appearances:

For petitioners: Mr. Manjunath B R

For respondents: Mr. Vinayaka VS


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Allahabad High Court: Dr Yogendra Kumar Srivastava, J., while addressing a matter regarding recovery of maintenance amount, expressed that,

“Sentencing to jail can only be seen as a means of recovering the amount of arrears and not a mode of discharging liability.” 

High Court also observed that, scope of Sections 125(3) and 128 of the Code being different and the first proviso to Section 125(3) creating an interdict only on issuance of warrant for recovery under Section 125(3), the said period of limitation of one year cannot be held to create a fetter on the right to claim enforcement under Section 128.

An application under Section 482 of the Code of Criminal Procedure, 1973 was filed to quash the proceedings of Execution Case under Section 128 of the Code passed by Additional Principal Judge, Family Court.

Factual Matrix

An application under Section 125 of the Code was filed by OP 2 and it was allowed by means of an ex parte order with a direction to make payment of a monthly allowance of Rs 1,000 for life to the OP 2 and a monthly allowance of Rs 500 each to OPs 3,4,5 and 6 till they attain majority.

Proceedings for enforcement of the aforesaid order of maintenance under Section 128 of the Code were initiated pursuant to an application registered as Execution Case wherein a prayer was made for recovery of the amount.

Pursuant to a recovery warrant issued in the execution proceedings, the applicant appeared before the court and filed an application expressing his willingness to deposit fifty per cent of the amount due and order was passed directing that 50% of the amount due be deposited and the remaining amount be deposited in instalments. Subsequently, order in respect of recovery of balance amount was also passed.

In view of the above background, the present application had been filed seeking quashing of the subsequent orders and the entire proceedings of the execution case.

Crux of the matter

Order under Section 125(1) CrPC having been passed, the proceedings for enforcement of the order initiated under Section 128 of the Code pursuant to the application would be barred by limitation being beyond the period of one year from the date of order under Section 125(1).

Question for consideration

Whether the limitation prescribed under proviso to Section 125(3) would be applicable in respect of proceedings under Section 128 of the Code?

Analysis and Discussion

High Court noted that in Supreme Court’s decision of Kuldip Kaur v. Surinder Singh, (1989) 1 SCC 405, considered the distinction between the mode of enforcing recovery on the one hand and effecting actual recovery of the amount of monthly allowance which had fallen in arrears on the other, in the context of Sections 125(3) and 128 of the Code.

In the above-referred decision, it was held that,

“…sentencing a person to jail as per terms of Sections 125(3) of the Code is a ‘mode of enforcement’ and not ‘mode of satisfaction’ of the liability, which can be satisfied only by making actual payment of the arrears.” 

The provisions contained under Section 125(3) of the Code and the first proviso thereto again came up for consideration in Poongodi v. Thangavel, (2013) 10 SCC 618, and it was held that the first proviso to Section 125(3) does not create any bar or fetter on claiming arrears of maintenance and it neither extinguishes nor limits entitlement to arrears of maintenance.

High Court observed that,

The proceedings for maintenance under Section 125 of the Code are of a summary nature and the purpose and object of the same is to provide a simple and speedy remedy, and to ensure that the deserted wife, children and parents are not left destitute and without any means for subsistence.

Further, the Court added that,

The provisions contained under Section 125(3), as aforesaid, would indicate that the issuance of warrant or the imprisonment of the person concerned, is only a mode of recovery of the amount due in terms of the order made under sub-section (1) to Section 125 for payment of monthly allowance. The mode of recovery by issuance of a warrant or by imprisonment of the person as per terms of Section 125(3), has been held distinct from actual satisfaction of the liability. 

Mode of Enforcing has been held to be not a Mode of Satisfaction

The purpose of imprisonment would not be to wipe out the liability which a person has refused to discharge; the imprisonment of the person concerned being in no way a substitute for the recovery of the amount of monthly allowance which has fallen in arrears.

Further, elaborating the provision, Court added that Section 125(3) of the Code circumscribes the power of the Magistrate to impose imprisonment for a term which may extend to one month or until the payment, if sooner made. The first proviso to Section 125(3) prescribing limitation of one year to seek recovery of arrears of maintenance, is only in respect of the procedure for recovery of maintenance as per terms of the sub-section, by construing the same to be a levy of fine.

Section 128 of the Code provides for enforcement of the order of maintenance against the person against whom the order of maintenance has been made.

Limitation

The entitlement to claim enforcement of the order of maintenance under Section 128 by seeking discharge of the liability as per terms of the order of maintenance granted under Section 125, therefore cannot be held to be extinguished in terms of the one-year limitation prescribed under the first proviso to Section 125(3), High Court noted.

The Bench further referred to the decision of Dwarka Prasad v. Dwarka Das Saraf, (1976) 1 SCC 128, with regard to the scope of a proviso as an internal aide to the interpretation of statutes. In the said decision it was held that a proviso must be limited to the subject matter of the enacting clause and must be read and considered in relation to the principal matter to which it is a proviso.

“Section 125 (3) of Code would have to be held to be confined to the Section which precedes it.”

Hence, the limitation of one year provided in terms thereof would have to be read in relation to issuance of a warrant for recovery of an amount due in terms of an order of maintenance passed under sub-section (1) of Section 125. The aforesaid limitation of one year under the proviso to Section 125 (3) cannot be held to travel beyond or stretch to an extent so as to being within its ambit the powers relating to enforcement of an order of maintenance under Section 128 of the Code. 

Therefore, concluding the decision, Court held that the proceeding for the enforcement of the order under Section 128 cannot be assailed on the ground that the same would be barred by limitation as provided under the proviso to Section 125(3) of the Code

In view of the above discussion, present application failed and was dismissed. [Mohammad Usman v. State of U.P., 2021 SCC OnLine All 640, decided on 31-8-2021]


Advocates before the Court:

Counsel for Applicant: Triloki Nath

Counsel for Opposite Party: G.A.

Case BriefsHigh Courts

Allahabad High Court: Noting the brutality with wife a 22-year-old lady and mother of a one year’s infant child in causing her death, beating her cruelly by “her husband” Vikas Kunvar Srivastav, J. held that the said act was not only grave in nature but heinous also.

In the present matter, bail application was moved on behalf of the accused applicant involved in a crime under Sections 498-A, 304-B, 201 of Penal Code, 1860 and Section ¾ of Dowry Prohibition Act.

The investigating officer found out that the victim, the daughter of the complainant was burnt, and her dead body was buried at a secret place by the accused applicant and his family members for vanishing of the evidences.

The office of District Magistrate Lucknow issued a letter for permission to excavate the place of burial and exhume the dead body of the deceased. The dead body was exhumed from the place of burial and inquest proceedings was done before the witnesses. The dead body was exhumed from the place of burial and an inquest proceeding was done before the witnesses.

As per the facts and substances on record, it was noted that the deceased was married about 3 years ago from the date of the incident with the present accused applicant. Just after the marriage was solemnized, the in-laws of the deceased began to insist on additional dowry and to transfer a considerable amount of money from the deposits of the father.

Since the demand could not be fulfilled by reason of poverty and indigency of the father, the daughter was subjected to beatings. The complainant even requested the in-laws not to commit cruelty with his daughter as it was beyond his capacity to pay additional dowry by reason of his poverty.

On being convinced that the complainant would not be able to pay additional dowry, the in-laws of the decease collusively killed the daughter of the complainant and secretly cremated her body.

High Court observed that the facts that the accused-applicant was found to have committed willingly the death of his wife after beating her brutally in view of the demand of dowry soon before the death of the complainant’s daughter was prima facie established.

The dead body was burnt and buried at a secret place was also prima facie established, moreover, no information of death was given to the father and other family members of the deceased which reflected the criminal mens rea of the accused.

High Court remarked that,

“…the brutality with wife a 22 year old lady and mother of a one year’s infant child in causing her death, beating her cruelly by the present accused applicant “her husband” is not only grave in nature but heinous also, and is evident of callous greed of a heartless husband and self-centered irresponsible father of the infant child.”

Further, the Bench expressed that the cruel nature and instinct of the applicant in case of his release on bail would certainly adversely affect the witnesses.

Hence the bail application was rejected. [Bablu v. State of U.P., 2022 SCC OnLine All 76, decided on 27-1-2022]


Advocates before the Court:

Counsel for the Applicant: Neeta Singh Chandel

Counsel for the OP: G.A.

Case BriefsHigh Courts

Madras High Court: Expressing that, a convict cannot enjoy all the liberties as are available to a common person, otherwise there would no difference between a law-abiding citizen and a law-violating prisoner, the Division Bench of Munishwar Nath Bhandari, ACJ and Pushpa Sathyanarayana and P.D. Audikesavalu, JJ., held that,

The leave for a specific purpose which may be for undergoing infertility treatment, as such, may not be considered for having conjugal relationship in common parlance, but for extraordinary reason, thus we (High Court) can safely hold that the 1982 Rules itself protect the rights of the prisoner guaranteed under Article 21 of the Constitution of India to the extent it is required.

Background

A Division Bench had passed an order referring the following two questions for consideration by a Larger Bench:

(i) Whether the denial of conjugal rights to a convict prisoner would amount to denial of such a right to his/ her spouse and thereby, violative of Article 21 of the Constitution of India? and

(ii) Whether the State can be directed to favourably consider the request of a convict prisoner for emergency leave or ordinary leave for the purpose of having conjugal relationship with his/her spouse, though the Tamil Nadu Suspension of Sentence Rules, 1982 does not envisage this?

The questions were referred to in view of the order of Division Bench granting temporary leave for a period of two weeks to the convict. The said petition was preferred by the wife of the detenu, to grant leave to the convict for 30 days to have conjugal relationship, as they were not having a child from the wedlock and the petitioner was advised to have infertility treatment along with her husband.

The Division Bench had granted temporary leave to the convict and the sentence was suspended for the said period and accordingly, the respondents were directed to release the husband subject to certain conditions.

Later the petitioner filed a fresh petition to seek 6 weeks of leave to her husband for which Division Bench noticed that there was no provision in the Tamil Nadu Suspension of Sentence Rules, 1982 for grant of emergency or ordinary leave for a convict to have a conjugal relationship with spouse.

In view of the above circumstances, the matter was referred to Larger Bench.

Analysis and Discussion

Whether the denial of conjugal rights to a convict would amount to the denial of rights guaranteed under Article 21 of the Constitution of India?

It is no doubt true that Article 21 of the Constitution of India guarantees protection of life and personal liberty. In the present matter, the petitioner’s husband was tried in a criminal case and had been convicted for life imprisonment.

As per the facts of the case, the petitioner’s husband was granted leave for a period of two weeks, which he availed and further filed a petition seeking 6 weeks leave for undergoing the infertility treatment.

The Punjab and Haryana High Court, in Jasvir Singh v. State of Punjab, 2014 SCC OnLine P&H 22479, had considered the issue of conjugal rights of the convict and had made a reference to the provisions of the Prisons Act, 1894 and the Supreme Court decision in Sunil Batra v. Delhi Admn., (1978) 4 SCC 494. Further, the petition was decided holding conjugal rights of the prisoner to be a fundamental right guaranteed under Article 21 of the Constitution of India.

High Court expressed that the provisions of the 1982 Rules do not provide leave for having a conjugal relationship with spouse.

“…if a provision for leave to have conjugal relationship is provided, the prisoner may ask for the leave invariably on that ground and, that too, time and again.”

The Bench added that, it cannot, however, mean that under all circumstances except those specified in Rule 20(i) to (vi) and Rule 20(viii) of the 1982 Rules leave can be denied, rather Rule 20(vii) of the 1982 Rules provides for grant of leave for any other extraordinary reasons, which can be of the nature referred in this case, i.e., for undergoing infertility treatment. However, leave on that ground cannot be sought time and again.

Whether the wife of the convict can seek to leave to enable her, and the convict husband undergo infertility treatment to beget a child and whether it would fall under the category of extraordinary reasons?

High Court opined that petitioner’s request to undergo infertility treatment in a circumstance when the convict had no child from the wedlock forms and extraordinary reason for grant of leave.

Therefore, petitioner case fell under Rule 20(vii) of the 1982 Rules.

If leave for having conjugal relationship is recognized to be a right under Article 21 of the Constitution of India, the prayer of similar nature can be made by the accused or his/her spouse time and again to have conjugal relationship.

Answers to the Questions referred:

(i) The denial of conjugal relationship of the convict for specific purpose may amount to denial of the fundamental right guaranteed under Article 21 of the Constitution of India. The specific purpose may be infertility treatment or some similar reason, but it should not be construed to be a fundamental right for having conjugal relationship as a course. This would make a difference between the law abider and violator in regard to rights guaranteed under Article 21 of the Constitution of India.

(ii) The State can be directed to consider the request of convict for emergency leave or ordinary leave for the purpose given while answering the question No. (i). The emergency leave or ordinary leave would be for the purpose given under the 1982 Rules and if any extraordinary reason exist, then the State need to consider the aforesaid as and when a request is made by the convict or his relative for grant of ordinary leave for extraordinary reasons. The emergency leave or ordinary leave cannot be claimed as a right for having conjugal relationship without an exceptional reason. This demarcation is necessary as the curtailment of some rights of a prisoner on account of his conviction to the extent indicated above does not offend Article 21 of the Constitution of India.[Meharaj v. State, 2022 SCC OnLine Mad 381, decided on 20-1-2022]


Advocates before the Court:

For the Petitioner: Mr R.Narayanan

For the Respondents: Mr Shunmugasundaram Advocate General assisted by Mr A. Damodaran Addl. Public Prosecutor for 1st respondent

: Mr Hasan Mohamed Jinnah State Public Prosecutor assisted by Mr S. Santhosh Government Advocate (Criminal Side) for respondents 2 to 4

:Mr Avinash Krishnan, CGSC for 5th respondent

: Mr N. Dilip Kumar Amicus Curiae

Case BriefsHigh Courts

Allahabad High Court: Syed Aftab Husain Rizvi, J., addressed a revision petition filed by the husband who claimed that the Family Court could not have granted maintenance to wife under Section 125 CrPC when divorce was already granted in his favour under Section 13 of Hindu Marriage Act.

Instant criminal revision was directed against the decision of the Family Court. By the said impugned order, maintenance application under Section 125 CrPC of OP 2 was allowed and a maintenance amount of Rs 25,000 was awarded.

OP 2 submitted that she was mentally and physically tortured and later was left at her maternal house with her father. Opposite Party started ignoring her and not maintaining her, in fact deserted her. Further, she added that she had no source of income while the opposite party was Squadron Leader in Air Force, and his salary was Rs 80,000 per month. Hence, OP 2 had claimed a maintenance allowance of Rs 40,000.

Jurisdiction

High Court stated that, an application under Section 125 CrPC can be moved at a place where the applicant was temporarily residing. It had been alleged in counter affidavit that applicant was temporarily residing at Gautam Budh Nagar and pursuing a course in J.P. Institute of Information Technology at Gautam Budh Nagar. Hence, the ground that Court at Gautam Budh Nagar lacked jurisdiction had no force.

Permanent Alimony

The revisionist husband contended that Family Court, Meerut in divorce petition under Section 13 of Hindu Marriage Act had granted divorce decree in favour of the revisionist and had also awarded Rs 25 lacs as permanent alimony under Section 25 of the Hindu Marriage Act while passing the decree of divorce and hence, no maintenance under Section 125 CrPC could be awarded and application was not maintainable.

Hence, OP 2 had Rs 25 lakhs at her disposal and it could not be said that there were no financial resources and there was no question of non-sustenance.

The Court below lost its sight in not considering the legal proposition that a divorced wife can claim maintenance under Section 25 of the Hindu Marriage Act and not under Section 125 CrPC. 

When a divorce decree under Section 13 of the Hindu Marriage Act is passed the wife of such annulled marriage can claim maintenance under Section 25 of Hindu Marriage Act.

It is only such court which passed the divorce decree who is alone competent to grant maintenance under Section 25 of the Hindu Marriage Act.

Therefore, the impugned order was absolutely illegal, arbitrary and against the said principles of law.

As per the Supreme Court’s decision in Rajnesh v. Neha, (2021) 2 SCC 324, a wife can make a claim for maintenance under different statutes and there was no bar to seek maintenance both under the protection of Women against Domestic Violence Act, 2005 and Section 125 of CrPC or under Hindu Marriage Act.

Bench noted that, in the present set of facts, it was clear that the wife did not accept the alimony as she had challenged the divorce decree and the same was pending and in those circumstances, she could not have accepted the amount of alimony.

In view of the above, she had no source of income and financial support to maintain her and hence came under the category of destitute. Therefore, the impugned order did not suffer from any illegality or infirmity.

Since no infirmity was found in the order of the Court below, the revision was liable to be dismissed. [Tarun Pandit v. State of U.P., 2022 SCC OnLine All 38, decided on 6-1-2022]


Advocates before the Court:

Counsel for Revisionist:- Amit Krishna

Counsel for Opposite Party :- G.A., Siddharth Khare

Case BriefsDistrict Court

Saket Courts, New Delhi: Anuj Agrawal, Additional Sessions Judge –05 while addressing case wherein the maintenance sought by wife, held that,

“It cannot be believed that a person who was capable of supporting a family by getting married, would all of a sudden become devoid of all sources of income.”

Factual Background

The Complaint under Section 12 of the Domestic Violence Act was filed by the respondent stating that she was the legally wedded wife of the appellant and was not working. Respondent was a divorcee and her second marriage got solemnized with the appellant. As per the respondent/wife due to physical, verbal, emotional, economic and domestic violence committed by the appellant and his mother, she had been living separately from him since November 2017.

Respondent/wife is stated to be living in rented accommodation and sustaining herself with great hardship as she was having no source of income.

Hence the complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 was filed.

Trial Court assessed the monthly income of the appellant as Rs 1 lakh per month and awarded monthly interim maintenance o Rs 30,000 including rent for alternate accommodation in favour of the complainant.

Appellant/husband was aggrieved with the impugned order and assailed the same.

Analysis, Law and Decision

Firstly, the Court observed that while fixing an interim maintenance court has to take a prima facie view of the matter and need not critically examine the respective claims of the parties regarding their respective incomes and assets because for deciding the same the evidence would be required.

Adding to the above, Court stated that an aggrieved person cannot be rendered to lead a life of a destitute till completion of the trial.

Further, Court cited the decision of the Supreme Court in Jasbir Kaur Sehgal v. District Judge, Dehradun, (1997) 7 SCC 7, wherein the test for computing maintenance was laid down.

Plea of the husband that the complainant was a well-qualified woman and was capable of earning and rather she was earning by running a high-end fashion clothing company in the name and style of ‘Allure’ in partnership with her mother as well as from her consultation job.

Court reiterated the settled law that simply because the wife was earning, her claim for maintenance cannot be rejected. Point to be considered is whether the amount the wife is earning sufficient to meet her creature comforts; to keep her body soul together; to keep the wolf from the door; and to keep the pot boiling.  

Supreme Court’s decision in Rajnesh v. Neha,(2021) 2 SCC 324 was also considered in the present matter.

Therefore, the plea of the appellant/husband that respondent/wife was earning was without any merit.

With regard to the territorial jurisdiction of the trial court, the present appeal is barred by limitation.

Further, since the domestic violence report is already on record, the same as an important bearing as far as the question of territorial jurisdiction of the trial court and summoning of appellant/husband was concerned.

Bench opined that the plea of appellant/husband that trial court had no territorial jurisdiction to entertain the complaint filed by respondent/wife was without merit and the same stood rejected.

Husband before the trial court claimed to be a Businessman but having NIL monthly income and sustaining himself on charity and borrowing from relatives and friends. Further, he claimed that his monthly expenditure was Rs 27,360 ad had no resources and was surviving on loans and charity.

Bench on perusal of record noted that the appellant was a qualified person having qualification of MBA as well as having directorship of various companies and even if the income of the appellant was assumed to be NIL on the date of filing of his income affidavit before the trial court, but his earning capacity could not be lost sight of.

Further, it was found that the appellant/husband had concealed certain entries from his bank statement, and he had no explanation for the same.

In Court’s opinion, appellant opted not to file the bank statement for the period 2018 and thereby leaving no doubt that he was not coming up and with full truth with respect to his economic capacity.

Court also took judicial notice of the fact that appellant/husband’s company was one of the manufacturers of the brand ‘Too Yum’ and the brand ambassador of the said brand was ‘Virat Kohli’, hence it looked highly improbable that a company which is running into great losses was in a position to afford a celebrity of such stature for the advertisement of its product.

Hence,

“…appellant/husband is a man of means having vast business and appears to be impersonating himself as a ‘pauper’ so as to defeat the legitimate claim of the respondent/wife for the maintenance.”

Concluding the matter, Court held that the trial court’s assessment of the maintenance was fully justifiable and could not be faulted with. [Rebala Sudhir Reddy v. State, Criminal Appeal No. 151 of 2020, decided on 3-1-2022]

Case BriefsHigh Courts

Jammu and Kashmir High Court: In a case alleging dowry death, Rajnesh Oswal, J., clarified the scope and applicability of Jammu and Kashmir Dowry Restraint Act 1960. Observing that the Trial Court had conducted mini trial at the stage of framing of charge, the Bench expressed,

 “The trial court was considering issue with regard to framing of charge under section 304-B RPC but the trial court got swayed by the definition of dowry as defined under the Act of 1960 forgetting the legislative intent behind making the amendment, more when the definition was elastic even for the purpose of Act of 1960 by the use of expression “In this Act unless the context otherwise requires”.

The instant petition had been filed by the mother of the deceased against the impugned order of the Trial Court by which the respondents were discharged of offence under section 304-B RPC and instead charges were framed for offences under sections 306 and 498-A/34 RPC.

Background

The allegations against the respondents were that they used to demand dowry and a car from the deceased and although the amount of two lakhs was paid by the petitioner, neither the atrocities against the deceased came to an end nor the demand for dowry. The allegation was levelled that the husband, father in law, mother in law and brother in law had started beating the deceased and they also snatched her phone which had compelled the deceased to take her own life and she committed suicide.

The grievance of the petitioner was that the Trial Court had altered the charge from 304-B RPC to 306 and 498-A/34 RPC despite the fact that there was abundant evidence on record for framing of charge under section 304-B RPC.

Question of Law

Whether the definition of the dowry as defined under the J&K Dowry Restraint Act 1960 is entirely different vis-a-vis dowry as defined under the Dowry Prohibition Act, 1961 that is applicable to the whole of the India excluding the then State of Jammu and Kashmir?

The controversy had arisen because the definition of the dowry as contained in the Dowry Restraint Act, 1960 as was applicable in the erstwhile State of J&K, was very restrictive in its application whereas the definition of a dowry as contained in the Dowry Prohibition Act, 1961 as applicable in rest of the India except the erstwhile State of Jammu and Kashmir was of wider amplitude.

Observations of the Trial Court

As per definition of dowry as defined under the Dowry Restraint Act, 1960, dowry means any property transferred or agreed to be transferred as a part of any betrothal, marriage, pre-betrothal, post-marriage ceremony and other ceremonies such as Thaka, Rophera, Duphera, Phirsal, Phersuzen and like ceremonies.

The section contemplates the transfer of a property or agreement for transfer of a property as a part of contract in connection with the ceremonies. The Trial Court discharged the respondents on the premise that there was no such contract between the parties as such offence under section 304-B RPC was not made out and further that there was no evidence that the deceased was subjected to cruelty by the accused in relation to the demand of the dowry or a car soon before her death.

Analysis and Findings

Opining that the reasons furnished by the Trial Court for non-applicability of section 304-B RPC just because there was no contract within the meaning of section 2 of Dowry Restraint Act, 1960 were not convincing, the Bench clarified, the section 2 of the Dowry Restraint Act, 1960 begins with expression “In this Act unless the context otherwise requires” meaning thereby that the definition of “Dowry” used in the Act 1960, cannot be put in to straight jacket formula and if the Act of 1960 necessitates or requires, then the word “dowry” can contemplate other situations/persons as well.

If the interpretation of the trial court is accepted, then none other than the husband, his father and mother can be proceeded against under section 304-B RPC and it would do violence not only to the statue but also the legislative intent behind it.

Section 304-B RPC contemplates the death of woman with in the period of 7 years and also the persons who can be proceeded against under section 304-B i.e. husband and his relatives where as the section 2 of the Act 1960 contemplates persons to be proceeded against as party to the marriage or betrothal and father, mother and guardian of the party. The Bench expressed,

“Section 2 of the Dowry Restraint Act, 1960 begins with expression “In this Act unless the context otherwise requires” meaning thereby that the definition of “Dowry” used in the Act 1960, cannot be put in to straight jacket formula and if the Act of 1960 necessitates or requires, then the word ‘dowry’ can contemplate other situations/persons as well.”

Therefore, the Bench concluded that the definition of dowry under the Act, 1960 cannot be given stricter meaning so as to defeat the very purpose of the statute. On the issue, whether there was any evidence on record to justify framing of charge under section 304-B RPC with regard to the demand of dowry, the Bench cautioned that the court is not supposed to hold mini trial at this stage (framing of charges).

Considering that the deceased died because of suicide within the seven years of marriage and the presumption of dowry death was wrongly rejected by the Trial Court on the ground that there was no evidence that the deceased was subjected to cruelty by the accused in relation to the demand of the dowry or a car “soon before her death”, the Bench cited Satbir Singh v. State of Haryana, (2021) 6 SCC 1, to remind the Court that when the legislature used the words, “soon before” they did not mean “immediately before”.

Conclusion

In the light of above, the petition was allowed and the impugned order was set aside with the direction to the Trial Court to frame the charges for commission of offences under Section 304-B, 498-A/34 RPC against the respondent 2 to 4. [Shakuntla Devi v. Union Territory of J&K, 2021 SCC OnLine J&K 1002, decided on 10-12-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: Ajay Bakshi, Advocate

For the UT of J&K: Aseem Sawhney, AAG

For Respondents: Satinder Gupta, Advocate