Delhi High Court judgments and orders on Criminal Law

In J v. State of NCT of Delhi [77], the Court proceeded to cancel the bail of an accused in proceedings under Section 376 read with Section 313 of the Indian Penal Code, 1860 (‘IPC’) inasmuch as it found that the accused had been putting up status messages on social media which were threatening in nature and directed at the victim with a view to intimidate her.

In State v. Sumit Phogat [78], the Court held that an allegation of having established physical relations on a false promise of marriage under Section 376 of the IPC could not be said to have been substantiated when it was evident from the material on record that the parties had developed a strong and intimate friendship which was the reason for establishment of a physical relationship, and when it was the complainant’s own case that the accused had in fact taken her to a temple to get married and that she had declined the said offer.

While rejecting an application for re-calling of witnesses several years after their original testimony and cross examination, the Court in Jitender Kumar v. State of NCT of Delhi [79], observed that witnesses who are recalled in such a manner cannot be expected to rely on their memory after several years and, therefore, summoning them at this stage would not be in the interest of a fair trial.

In Bablu v. State [80], the Court reiterated that in the absence of a matriculation or equivalent certificate, a birth certificate or a certificate of date of birth from the school first attended, the age of the accused is required to be determined on the basis of a medical opinion to be conducted on the orders of the Juvenile Justice Board (‘JJ Board’).

In Javed v. State [81], the Court overturned a conviction for commission of offences under Section 392 and 397 of the IPC inter-alia on the ground that in the admitted case of the prosecution, the police officials had reached the scene of the offence on foot from their original location and considering the said distance being approximately 3 Kms., it was not possible to believe the case of the prosecution that the officials concerned had reached the scene of offence within a very short span of time of 5-7 minutes.

While reiterating that the mandate of Section 50 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’) could not be said to be violated in a case where a person was not searched before a gazetted officer/magistrate inasmuch as he/she had declined such an offer despite being specifically apprised of the right to be so searched, the Court in Md. Sarvar v. State [82], held that offering the appellant a choice between searching the police party before being himself/herself being subjected to a search on the one hand, and being searched before a magistrate or a gazetted officer on the hand, would not tantamount to specifically intimating the accused of his/her legal right and would amount to a violation of the statutory mandate enshrined under Section 50 of the NDPS Act.

In Letminjoy Haokip v. State [83], the Court observed that the accused being a university student on the date of commission of offence, lack of previous criminal antecedents and the fact that he had surrendered voluntarily before the police on the day of the incident without attempting to escape from the law would be mitigating factors for reducing the sentence imposed. The Court further held that when it was an undisputed position that the family of the deceased victim had been compensated as per the customary practice of the community to which both the accused and the victim belonged, then, the fine imposed on the accused could also be justifiably waived.

In Manak Kala v. Union of India [84], the Court observed that in order to bring home the offence under Section 9(1)(b) of the Foreign Exchange Regulation Act, 1973, it was mandatory to establish that the accused had received payments by order or on behalf of any person residing outside India and through any person without a corresponding inward remittance from any place outside India and that such a pre-requisite could not be established solely on the basis of a statement made by an employee of the accused and which statement had immediately thereafter been retracted. The Court further observed that the authority concerned had to specifically adjudicate and render a finding in such a situation as to whether the statement was voluntary in nature or not and in the absence of the same, no evidentiary value could be ascribed to the said statement.

In Chhedi Paswan v. State [85], the Court observed that a minor inconsistency as regards the manner of rescue of the child victim from the spot where the offence of rape was perpetrated upon her would be liable to be ignored considering her tender age of thirteen years, coupled with the fact that she had suffered immense trauma and was in a near unconscious condition when rescued.

In Guddo Devi @ Guddi v. Bhupender Kumar [86], the Court held that extending of a loan in cash in excess of Rs. 20,000/-, though might fall afoul of Section 269 SS of the Income Tax Act, 1961 and might attract the penalties under the said Act, but would not, however, render the debt unenforceable or preclude the lender from invoking Section 138 of the Negotiable Instruments Act, 1881 (‘NI Act’) to recover the same.

In State v. Sonal Sahani [87], the Court refused to condone an inordinate delay of over 300 days in a petition seeking leave to appeal against a judgment acquitting the accused of the offences under Section 376 and 406 of the IPC and Section 4 of the Dowry Prohibition Act, 1961 inasmuch as it found that the mere explanation premised on bureaucratic red tape and the permission for appeal purportedly having to be secured after passing through various channels could not be accepted.

In Suresh Chander v. State [88], the Court observed that a plea that the accused had lost control of the vehicle which resulted in an accident causing the death of a person because of some mechanical fault in the vehicle would be destructive of the plea by the accused that he was not involved in the accident in question. Further, the Court observed that the allegation as regards the existence of such a mechanical fault had to be specifically established by the accused who had taken such a plea.

In Gulfam @ Zahoor v. State [89], the Court observed that a paper-cutter would also be a deadly weapon within the meaning of Section 397 of the IPC inasmuch as it has a handle and a sharp blade similar to a knife and is capable of causing a fatal injury.

In Manoj v. State [90], the Court held that though an accused was guilty of committing rape within the meaning of Section 376 of the IPC inasmuch as he had sexual intercourse with the prosecutrix when she was below the age of eighteen at the material time, the same would not amount to establishment of the factum of forcible sexual intercourse, and this was a relevant factor to be kept in mind while determining the quantum of sentence.

In Logix Corporate Solutions Private Limited v. State of NCT of Delhi [91], the Court held that an order dismissing a complaint under Section 138 of the NI Act for default and non-appearance would have the effect of acquitting the accused and a petition under Section 378(4) of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’) seeking leave to appeal against the said judgment would be maintainable.

In Manish Wesley v. State of NCT of Delhi [92], the Court held that in the absence of any specific averment in the charge-sheet as regards the involvement of a real-estate broker in the alleged cheating of the complainant/buyer by the accused/seller, no offence of conspiracy would be said to be even prima-facie made out against the broker inasmuch as he was merely a conduit for arranging an introduction between the buyer and the seller and was not required as a matter of trade-practice to have undertaken any due diligence unless specifically asked to.

In State v. Raju [93], the Court observed that inasmuch as the punishment for offences under the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’) was extremely severe and if the offence alleged is of such a nature that there is no possibility of any medical or forensic evidence being available to shed light on the controversy, then it was all the more important that the testimony of the child victim should not suffer from material discrepancies and contradictions.

In State v. Md. Chand @ Fukan [94], the Court observed that considering the vital reformatory basis underlying the grant of probation under Section 6 of the Probation of Offenders Act, 1958, (‘PO Act’) it could not be said that a conviction for offences under the POCSO Act would ipso-facto obliterate the right to seek probation.

In Allaudeen v. State [95], the Court held that in addition to the consistent testimony of a child victim, her demeanor in Court after seeing the accused, wherein the victim had started weeping as also trembling with fear, was also a pointer to the involvement of the accused in the offence under Section 6 of the POCSO and Section 506 of the IPC.

In Court on its Motion v. State [96], the Court issued a series of guidelines for recording the testimony of the victims and witnesses who are foreign nationals, in matters involving sexual assaults.

In Gurmeet Singh @ Lucky v. The State (NCT of Delhi) [97], the Court observed that even where the recovery of the article in question had been made from a public place, if it was established that the article was hidden from public view on account of having been concealed, as in the instant case under a tree, then the said recovery could not be discarded.

In Indrwati v. State [98], the Court while observing that an FIR doesn’t amount to an 'encyclopedia’ of all the facts of a case, further held that the mere omission in the FIR to state that the deceased was last seen with the accused would not ipso-facto result in the non-application of the last seen theory. The Court further observed that a minor discrepancy in the measurement of the weapon used in the commission of the crime and duly recovered thereafter would not tantamount to a major contradiction and the recovery could not be discarded on this ground.

In Kanwar Pal Sharma v. State [99], the Court reiterated that in the case of multiple dying declarations having been made by the victim, the Court was required to carefully scrutinize the same and when the name of the accused figured in one of the dying declarations, but was completely absent in the other, then the Court would be more circumspect.

In Mehulbhai Rasikbhai Bhimani v. Union of India [100], the Court held that a long delay between the alleged illegal activity and the passing of the consequential detaining order passed under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (‘COFEPOSA Act’) would indicate complete absence of a proximate-link and the order would accordingly be liable for interference.

In Mohammad Najib Haidari v. Union of India [101], the Court held that upon the passing of a reasoned order by the Foreigners Regional Registration Officer imposing restrictions on the movement of the petitioner under the provisions of the Foreigners Act, 1946, a habeas-corpus petition would no longer be maintainable

In Mohd. Zakir v. State [102], the Court observed that inasmuch as the requirement of producing a certificate under Section 65-B of the Indian Evidence Act, 1872 (‘Evidence Act’) is a procedural requirement, its production can be waived or relaxed in appropriate circumstances when so required and justified in the interests of justice.

In Pradeep Kumar v. State [103], the Court held that the inability of the accused to explain the presence of his fingerprints at the scene of the crime in his testament under Section 313 of the Cr.P.C. would lead to an adverse inference.

In Tinku Singh v. State [104], the Court observed that the brutal act of beheading the body of the deceased would dispel the applicability of the fourth exception to the Section 300 of IPC inasmuch as one of the preconditions for invoking the same is that accused should not act in a cruel and unusual manner.

In State v. Akash [105], while upholding an order of acquittal in proceeding under Section 307 of the IPC, the Court observed that multiple contradictory opinions given by the medical officers in relation to the nature of the weapon of the offence and the origin of the injuries suffered by the victim would require that the benefit of doubt be given to the accused.

In State v. Sameer Ali [106], the Court held that in order to apply the presumption under Section 113B of the Evidence Act in dowry death cases it was required to be established that the cruelty complained of must have occurred soon before the time of death, and this would axiomatically imply that there should be no long gap or interval between the cruel act complained of and the death of the victim.

In State v. Sonu Singh [107], the Court upheld an order of acquittal in relation to an offence under Section 302 of IPC inasmuch as it observed that there were material discrepancies and contradictions in the testimony of various prosecution witnesses including on the aspect of the underlying motive of the accused for committing the crime in question

In Surender Shah v. State [108], the Court issued various directions to streamline the functioning of the police authorities and anti-human trafficking units in matters relating to missing children.

While reiterating that the Court was entitled to adjudicate the matter on the basis of the percentage of purity of the recovered contraband, the Court in Paramjeet Singh v. State [109], and in Raju Diwakar @ Pappu v. The State [110], held that if after applying the said percentage the quantity fell short of the commercial quantity of two hundred and fifty grams, then the embargo on granting bail under Section 37 of the NDPS Act would not be applicable.

In Chandan Sawhney v. State [111], the Court while adjudicating the issue as to whether the establishment of a physical relationship between the prosecutrix and the accused was a result of a false promise of marriage, held that it was necessary to keep in mind the age, educational qualifications and family and societal background of the prosecutrix and on a conspectus of the relevant facts held that an educated, socially-prominent and empowered individual could not be said to have been falsely induced by none other than her former husband of twenty years from whom she had gotten divorced in the past.

the offence of cheating could not be said to have been made out when the only grievance was that a settlement agreement which had admittedly been in existence when the divorce proceedings between the parties were finalized was breached subsequently by the former husband, and the appropriate remedy was for the aggrieved party to invoke civil remedies to seek enforcement of the settlement agreement.

Jyoti Sawhney v. State (Govt. of NCT of Delhi)

In Jyoti Sawhney v. State (Govt. of NCT of Delhi) [112], the Court observed that the offence of cheating could not be said to have been made out when the only grievance was that a settlement agreement which had admittedly been in existence when the divorce proceedings between the parties were finalized was breached subsequently by the former husband, and the appropriate remedy was for the aggrieved party to invoke civil remedies to seek enforcement of the settlement agreement.

In Union of India v. Vinay Sharma [113], the Court held that the words ‘appeal’ or ‘application’ referred to in Rule 834 of the Delhi Prison Rules, 2018 would only refer to a petition or similar proceeding pending before the Supreme Court and their meaning could not be extended to cover a mercy petition lodged before the President of India. The Court further held that when all the convicts had been dealt with together and the death penalty imposed upon them was confirmed by a common judgment of the Supreme Court, then the death warrants of the convicts were required to be executed simultaneously and not separately.

In Gaurav Mavi v. State [114], and Pulkit Rastogi v. State [115], the Court elaborated on the effect of the rationalization of the sentencing structure in the NDPS Act and the distinction drawn between the recovery of a ‘small quantity’ and a ‘commercial quantity’.

In Anup Joshi v. CBI [116], the Court rejected the contention that upon bail having been granted to the co-accused, the same result should flow in the case of the petitioner inasmuch as it noted that the role attributed to the petitioner was of a much more serious nature than the other co-accused.

In Laxmi Satyanarayana Dutt Tadikonda v. Union of India [117], the Court while directing the withdrawal of a lookout circular against an accused chartered accountant, noted that when there was no allegation of non-cooperation with the investigation, then, the issuance of a look-out notice was not justified particularly in light of its serious repercussions and the fact that it is usually issued only in relation to persons with terrorist links, belligerent foreigners and absconding persons.

In Gulam Reza v. ITPL Infrastructure Private Limited [118], the Court reiterated that inasmuch as in a proceeding under Section 138 of the NI Act, the defense of the accused is a matter which falls within the special knowledge of the accused, and, therefore, the primary onus and burden remain that of the accused.

In Rekha Chaturvedi v. State [119], the Court reiterated that even if all allegations made in a complaint disclose the commission of a cognizable offence, the magistrate concerned is not bound to direct investigation by the police under in exercise of power under Section 156(3) of the of the Cr.P.C. without application of mind, and in a given case a magistrate may well come to the conclusion that the complainant can prove the averments in the complaint without the assistance of the police and accordingly proceed under Section 200 of the Cr.P.C.

In Nitin Sharma v. State (Govt. of NCT of Delhi), [120] the Court observed that the mere fact that there was videographic evidence demonstrating the consumption of alcohol by the prosecutrix in the presence of the accused, and her exhibiting an otherwise cheerful disposition during the said period, would not in any manner indicate the absolute innocence of the accused so as to entitle him to bail when charged with the offence of rape.

In Faizan @ Salman v. State, [121] while upholding the conclusion of the JJ Board that the accused was a major, the Court further observed that in the absence of any lapse in the procedure adopted by the doctors appointed to determine the age of the accused, the Court could not enter into the merits of the determination which had been conducted by specialists in the field.

In Anita v. State [122], the Court reiterated that at the stage of framing of charge, the Court is only required to weigh the evidence for the limited purpose of ascertaining the existence of a prima-facie case and a detailed examination is not required to be undertaken as if a full-fledged trial was being conducted.

In Vaninath Uppalapati v. State [123], the Court reiterated that mere possession of a cartridge by itself would not constitute an offence in the absence of any intention to use the same. The Court further observed that there being no recovery of a corresponding weapon connecting the accused with the intention to use the cartridge would lead to the conclusion that no offence was made out under the relevant provisions of the Arms Act, 1878 (‘Arms Act’).

In Kapila Bhudhiraja v. Deepak Bhudhiraja [124], the Court permitted the transfer of a case under the Protection of Women from Domestic Violence Act, 2005, (‘PWDV Act’) from one district court to another inasmuch as it found merit in the contention of one of the parties that the advocates at the concerned original court had intimidated and threatened the concerned party, thereby, making it difficult to continue to attend proceedings in the future.

In Ganesh Pun v. Union of India [125], the Court observed that the mere grant of default bail on account of failure of the prosecution to file the charge-sheet within the requisite period in a connected case would not inure any right to the petitioner for grant of regular bail in the subject case.

In Priyanka Batra v. Sandeep Grover [126], the Court reiterated that the avoidance of conflicting decisions on issues which are in controversy in more than one case would be a germane factor for the transfer of a criminal case from one district court to another.

In Naveen Ramani v. State [127], the Court observed that the old age and related ailments are not a ground for transfer of a criminal case from one district court to another, and the appropriate remedy would be for the party concerned to approach the concerned court with an application for exemption.

In Gurbachan Singh v. The State (Govt. of NCT of Delhi) [128], the Court reiterated that if the essential elements of negligent and rash driving having resulted in a death were established, then even though there was no such intention to cause death, a conviction under Section 279 and 304-A of the IPC could be said to have been brought home.

In State v. Tejveer @ Guddu [129], the Court reiterated that in the absence of any doubt as to the authenticity and reliability of the school certificate of the accused, in terms of Section 94 of the Juvenile Justice Act, 2015 (‘JJ Act’), the JJ Board could not order a medical test to determine the age of the accused.

In Ashish Aggarwal v. Sushil Kumar [130], the Court reiterated that Section 145(2) of the NI Act obliges the Court in the usual course, upon an application being filed by the accused, to summon the person who has given evidence on affidavit in terms of Section 145(1) of the NI Act.

In Sukhdev Singh v. State [131], the Court reiterated that the power under Section 482 of the Cr.P.C. could not be exercised where the allegations are required to be duly proved before a court of law.

In Mauktika Energy Pvt. Ltd. v. Asia Pragati Capfin Private Limited [132], and in Sunita Verma v. Permanand Verma [133] the Court observed that inasmuch as a fair trial was fundamental to the criminal justice system, the right of the accused to adduce defense evidence is a valuable right which could not be brushed aside lightly.

In State (Govt. of NCT of Delhi) v. Raman Kumar [134], while upholding an order for discharge, the Court held that the mere fact that the accused was sitting on the passenger seat when the driver of the car/co-accused proceeded to run over the victim resulting in the death of the victim, he/she could not be imputed with common intention within the meaning of Section 299 of the IPC.

In Jitender Kumar v. State (Govt. of NCT of Delhi) [135], while ordering the release on probation of a convict convicted for the offences under Sections 428, 468, and 471 of the IPC, the Court elaborated upon the underlying reformative push which forms the basis of the PO Act and that if the release of the youthful accused would result in genuine reformation and reduction of the scope of turning into a hardened criminal, then the necessary discretion should be exercised in his/her favor.

In Shyam Bir v. State (NCT of Delhi) [136], the Court permitted the accused to be released for the short sentence of imprisonment already undergone for a conviction under Sections 279 and 338 of the IPC read with Sections 134 and 187 of the Motor Vehicles Act, 1988, (‘MVA’) in light of the fact that the accused had a young family to support and his conduct in jail was found to be satisfactory and that he had offered to pay additional compensation to the injured person.

In Sonu Sawarkar v. State [137], the Court held that when a video-clip of a forcible sexual act being committed upon the victim was recovered from the mobile phone of the co-accused who was demanding money from the victim on the basis of the same, and the said video-clip was identified by the victim as having been shot by the petitioner/main accused, then, even in the absence of any evidence that the video clip was transferred from the petitioner’s phone to that of the co-accused, the offence under Section 67-A of the Information Technology Act, 2000 (‘IT Act’) and Sections 384 and 34 of the IPC could be said to have been made out.

In State (GNCTD) v. Ombir [138], the Court noted that the inflicting of a superficial injury during a scuffle or quarrel would not be sufficient to attract Section 308 of the IPC in the absence of other relevant evidence in this regard.

In Inspector Ram Niwas v. Govt. of NCT of Delhi [139], the Court upheld an order directing a Station House Officer (‘SHO’) to deposit costs of Rs.10,000/- for cancellation of non-bailable warrants issued against him by the trial court inasmuch as it noted that the SHO concerned had consistently and flagrantly violated the orders of the court on various occasions.

In Sanjeev Kumar Chawla v. The State [140], the Court reiterated that in terms of Section 167(2) of the Cr.P.C., the accused can be detained in either police or judicial custody from time to time but the total period cannot exceed 15 days, even though the nature of custody may change from time to time.

In Manoj Tyagi @ Monu v. The State (Govt. of NCT of Delhi) [141], the Court held that inasmuch as the legislature had consciously provided for the commission of sexual assault, as defined in Section 7 of the POCSO Act, with a child below the age of twelve years as being an aggravated sexual assault, the sole submission that there was no penetration of any kind during the commission of the act would not detract from its seriousness.

In Pashupati Mukhiya v. State [142], the Court observed that different statements recorded at different points in time, maybe years apart, of a child victim who was subjected to sexual assault might naturally exhibit certain discrepancies, and any minor discrepancy as to the exact place where the assault occurred would not be sufficient to discredit her testimony.

In State of NCT of Delhi v. Parveen [143], while construing the scope of Section 31 of the NI Act dealing with enhanced punishment for a repeat offender, the Court observed that the same does not take away the discretion of the Court to award a sentence of imprisonment and the maximum term for the offence would not automatically be attracted. The Court further held that even as far as the amount of fine was concerned, though the statutory language employed therein would indicate that flexibility in this regard is limited, the discretion of the Court however, would not still be completely obliterated.

While returning a reference made to it under Section 395 of the Cr.P.C. as being premature and non-maintainable, the Court in Court on its Motion v. State [144], observed that a magistrate, at the stage of hearing arguments on charge, was not empowered to make a reference to the High Court by indulging in speculation as to the issues which could possibly arise for consideration, including conjecture as to the validity of any act or ordinance or regulation.

In State v. Jagat [145], the Court while upholding an order of acquittal under Section 377 of the IPC read with Section 6 of the POCSO Act, highlighted patent and serious contradictions within the testimony of the child victim, as also when considered in conjunction with the testimony of the father of the victim, coupled with complete lack of corroborative evidence and the established existence of financial disputes between the father of the victim and the accused.

In Amit Sherwat v. State [146], the Court reiterated the five basic principles which must be established in order to bring home a case based on circumstantial evidence viz.

“(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”

In Tej Singh v State [147], the Court reiterated that in heinous crimes such as rapes, economic or social status cannot be a mitigating factor for reducing the sentence.

In Umesh v. State [148], the Court held that merely because the witness could be shown to be related to the deceased, the same would not ipso-facto result in his/her testimony being discarded. The Court further observed that a related person could not be said to be axiomatically interested, and in order to demonstrate such interest, it was further necessary toestablish that he/she would benefit from seeing the accused person being punished.

In State v. Sandeep [149], the Court observed that only when an accused refuses to participate in a Test Identification Parade without any justification can an adverse inference be sought to be drawn, and on the contrary if the accused is able to demonstrate a justifiable and cogent reason for not participating in the same, then there can be no such adverse inference.

https://www.barandbench.com/columns/the-delhi-high-court-in-review-february-2020-part-i

Complaint Of Domestic Violence Can Be Filed Even After Divorce: Supreme Court

A woman can lodge a complaint under the domestic violence law against the excesses committed by her husband even after the dissolution of marriage, the Supreme Court has said.

The top court refused to interfere with the order of the Rajasthan High Court which held that the absence of subsisting domestic relationship in no manner prevents a court from granting relief to the aggrieved woman.

The high court had passed the order while adjudicating a matrimonial dispute.

A bench of justices Ranjan Gogoi, R Banumathi and Navin Sinha dismissed the appeal against the high court verdict, saying it was not inclined to interfere with the order in the facts of the case.

It was contented that husband-wife relationship often ends on an acrimonious note and if the provisions of the Act were allowed to be used retrospectively, then it would further increase the acrimony and rule out the possibility of any compromise.

He said that legislature's purposive interpretation has to be kept in mind while interpreting any provisions of the law.

The bench, however, refused to agree and declined to interfere with the high court order in the facts of the case.

The high court had held on October 30, 2013 that the subsistence of marriage or domestic relationship was not a condition precedent for an aggrieved person to invoke the protection orders and other reliefs under the provisions of the Act.

"If the aggrieved person had been in domestic relationship at any point of time even prior to coming into the force of the Act and was subjected to domestic violence, the person is entitled to invoke the remedial measures provided under the Act,

The high court had said cited an example saying that even after the dissolution of marriage between the parties, if an ex-husband attempts to commit an act of violence such as entering the place of employment of the divorced wife, trying to establish contact with her or causing violence to her dependents or other relatives, she is not precluded from seeking protection orders under the law.

If the divorced husband attempts to dispossess the woman from the shared household or property jointly owned, she can approach a court for appropriate relief.

https://www.ndtv.com/india-news/complaint-of-domestic-violence-cruelty-against-can-be-filed-even-after-divorce-says-supreme-court-1851293

persistent effort of the wife to constrain her husband to be separated from the family constitutes an act of ‘cruelty’ to grant divorce.

The Supreme Court of India in Narendra vs. K.Meena has held that persistent effort of the wife to constrain her husband to be separated from the family constitutes an act of ‘cruelty’ to grant divorce.

The Bench comprising Justice Anil R. Dave and Justice L. Nageswara Rao also held that leveling of absolutely false allegations with regard to extra-marital life and repeated threats to commit suicide would also amount to ‘mental cruelty’. The Supreme Court set aside a High Court judgment which had reversed the Trial court order granting divorce to the husband on ground of cruelty.

Repeated threats to commit suicide

Observing that repeated threats to commit suicide amounts to cruelty, the Court observed: “No husband would ever be comfortable with or tolerate such an act by his wife and if the wife succeeds in committing suicide, then one can imagine how a poor husband would get entangled into the clutches of law, which would virtually ruin his sanity, peace of mind, career and probably his entire life. The mere idea with regard to facing legal consequences would put a husband under tremendous stress. The thought itself is distressing.”

Forcing separation from parents

With regard to allegations of cruelty in wife forcing husband to get separated from his parents, the Bench observed: “In normal circumstances, a wife is expected to be with the family of the husband after the marriage. She becomes integral to and forms part of the family of the husband and normally without any justifiable strong reason; she would never insist that her husband should get separated from the family and live only with her…. If a wife makes an attempt to deviate from the normal practice and normal custom of the society, she must have some justifiable reason for that and in this case, we do not find any justifiable reason, except monetary consideration of the Respondent wife. In our opinion, normally, no husband would tolerate this and no son would like to be separated from his old parents and other family members, who are also dependent upon his income.”

Wild allegation of extra marital affairs

The Court also observed that to suffer an allegation pertaining to one’s character of having an extra-marital affair is quite torturous for any person – be it a husband or a wife.

Restoring the judgment of Trial court and setting aside the High Court judgment, the Bench said: “The behaviour of the wife appears to be terrifying and horrible. One would find it difficult to live with such a person with tranquility and peace of mind. Such torture would adversely affect the life of the husband.”

Supreme Court asks own: Are we being flexible with law in granting divorce?

Under Article 142, the Supreme Court has the authority to issue any order “for doing complete justice”.

A Supreme Court bench has decided to examine whether the top court should be granting divorce on the ground of irretrievable breakdown of marriage and without the mandatory 18-month period of separation.

For many years now, the Supreme Court, exercising its power under Article 142 of the Constitution, has been granting divorce even while the Hindu Marriage Act makes it mandatory for couples to stay apart for at least 18 months before parting with mutual consent.

While the government has informed the top court that there is no proposal to incorporate irretrievable breakdown of marriage as one of the conditions for grant of divorce in the Act, a bench of Justices Ranjan Gogoi and N V Ramana has decided to examine whether judges should be overriding the legislative will.

Under Article 142, the Supreme Court has the authority to issue any order “for doing complete justice”. Using this, the court has granted divorce in several cases, dispensing with the six-month waiting period after a judicial separation of one year — that makes it 18 months under Section 13B of the Act.

Adjudicating a clutch of petitions wherein couples wanted the waiting period to be curtailed since there was irretrievable breakdown of marriage, Justices Gogoi and Ramana wondered if they should exercise such power when the Act provides otherwise. They sought the views of Attorney General Mukul Rohatgi who said the legislature was not contemplating irretrievable breakdown of marriage as a ground for divorce.

On whether the court should dispense with the waiting period, Rohatgi said there have been dissenting views of different benches of the apex court between 1996 and 2010. Some judges were of the opinion that the six-month notice period should be relaxed while others said if legislature had a specific provision, couples should be sent to family courts for getting divorce as per law, he said.

Rohatgi said it may be proper to let a constitution bench decide whether divorce can at all be granted on the ground of irretrievable breakdown of marriage and also if the waiting period could be dispensed with.

The bench, however, noted that referring the issue to a constitution bench may not provide a solution since a decision by it would take long while such cases would keep coming up in quest of speedy disposal. It observed there could be “numerous peculiar situations” in a marriage and when “it is almost impossible to understand human beings, devising a thumb rule to grant divorce in such cases is very difficult”.

The bench appointed four amicus in the case — senior advocates V Giri, Dushyant Dave, Indira Jaising and Meenakshi Arora — and sought their assistance in finding legal answers to two questions it framed.

It sought to know whether the top court should exercise its power under Article 142 at all or whether it could be done on a case-to-case basis. Further, what could be the broad parameters for exercise of such power to dissolve a marriage without referring a couple to a family court to wait for the mandatory period.

http://indianexpress.com/article/india/india-others/supreme-court-asks-own-are-we-being-flexible-with-law-in-granting-divorce/2/

Alimony to husband by wife

In recent divorce cases, courts, deviating from the norm, have been denying maintenance to the wife if she is capable of earning or was earning in the past. There are also cases of the wife being asked to pay maintenance to the husband.

The husband paying maintenance to the wife is the textbook model for divorce proceedings. However, in a recently developed trend, the courts have been denying maintenance to the wife if she is capable of earning or was earning in the past. There have also been cases where the court, instead of going the conventional way, has told the wife to pay maintenance to the husband. Even the wives, in a hurry to end the marriage as soon as possible, are opting for out-of-court settlements and paying the husbands a permanent alimony.

Maintenance Plea by the wife rejected

In a recent judgement, a trial court in Delhi denied the plea of a woman seeking maintenance from her husband. It was reported that the trial court dismissed the woman's plea seeking residential maintenance from her estranged husband, and observed that no financial assistance can be provided to a woman if she earns as much as her husband. Anuradha Shukla Bharadwaj, additional sessions judge, observed, "In the era of gender equality, bias cannot be shown to one gender and discretionary relief of financial assistance cannot be granted to wives despite their capability to earn as much as their husbands."

The court, reportedly, said that rental maintenance would have been awarded to the wife had she proved that she was incapable of arranging an accommodation for herself. However, in this case, she was living with her mother.

Although uncommon, it is not the first time that a court has denied maintenance to the wife. There have been several cases where the court has supported the husband and denied the wife's plea for maintenance. In a case, "The husband was an NRI from the UK and the wife was working with a multinational bank here in Delhi, and she was drawing a salary of `60,000-70,000. They had a troubled marriage so the wife filed for divorce. She asked for maintenance under Section 125 of the Code of Criminal Procedure, 1973, from her husband, stating that he was quite rich. However, her plea for maintenance was rejected and the court ruled that since she was earning well, she didn't need her husband's money to survive, despite the fact that he was quite well-off."

"A trend has developed recently wherein the court is denying maintenance to the wife if she has capability, capacity and past employment." Citing a case, he says, "There was a case in which the wife was a dentist by profession and used to be employed. However, at the time of divorce, she wasn't working and asked for maintenance from her husband. But the court denied her maintenance because, in this case, she had the capability and capacity, and was working in the past. So, she could work again to support herself."

Family resource cake

It is not necessary that either of the party has to pay maintenance to the other in divorce cases. "In 2004, Justice Vikramjeet Sen of the Delhi High Court (as he then was) worked out a formula involving a 'family resource cake' in order to provide maintenance to even working wives. Justice Sen, in the said judgment, combined the income of both the spouses, calling it the 'family resource cake.' Half of the 'cake' was allocated to the husband to meet his expenses, and the other half to the wife and children, for their maintenance. This method has been widely followed by other courts in Delhi when awarding maintenance to either spouse."

Maintenance in favour of the husband

Although in most cases, the wife is awarded maintenance to enjoy the same lifestyle as that of the husband, there are also instances where the reverse happens. Not only is the wife refused maintenance, in many cases, she is also asked to pay maintenance to the husband.  In a case where the court granted maintenance to the husband, the Court granted maintenance in favour of the husband, who was suffering from a mental disorder, while the wife had a government job. The wife earned about `20,000, and the husband was granted a maintenance of `2,000." 

There was another case in which a court passed a judgment supporting the plea of a husband who, under Section 24 of the HMA, wanted maintenance from his wife. The trial court directed the wife to pay the husband `20,000 per month as maintenance, `10,000 as litigation expenses and also to provide a car for him. This judgment was later challenged in the High Court by the wife, but the HC also supported the judgment of the trial court. The wife was running a paying guest facility while the husband was unemployed.

The law which allows the husband to seek maintenance from his wife

Husband can only seek maintenance under Section 24 of the Hindu Marriage Act. "Section 24 of the Hindu Marriage Act, 1955, provides that the court, in case of either the wife or the husband having no independent income sufficient for her or his support, may, on the application of either of the spouses, order to pay to the petitioner the expenses of the proceedings and monthly expenses during the proceedings such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable. So, under this section, even the husband can file an application claiming maintenance pendent elite in the pending divorce case. But the only pre-requisite is that he should not have sufficient income to maintain and support self in consonance with the lifestyle and income of the wife. Assuming the wife is earning much more than the husband, the husband only in that eventuality shall have the locus to file for maintenance."

http://timesofindia.indiatimes.com/life-style/relationships/man-woman/Rich-wives-pay-alimony-to-hubbies-to-end-marriage-asap/articleshow/35114784.cms

Limitation Act - Time for Appeal

Law relating to limitation is incorporated in the Limitation Act 1963 which prescribes different periods of limitation for suits, petition or applications. The act applies to all civil proceedings and some special criminal proceedings which can be taken in the court of law unless its application is excluded by any enactment. The Act extends to whole of India except the state of Jammu and Kashmir. The statutes of limitation are based on the principles of public policy which diligence and to prevent oppression.

 

The Law of limitation bars the remedy in a court of law only when the period of limitation has expired, but it does not extinguish the right that it cannot be enforced by judicial process. Thus if a claim is satisfied outside the court of law after the expiry of period of limitation, that is not illegal.

 

The intention of the law of limitation is, not to give right where there is not one, but to interpose a bar after a certain period to a suit to enforce an existing right. The object is to compel litigants to be diligent in seeking remedies in court of law by prohibiting stale claims. It is to help the bona fide claimant and to prevent fraud being practiced by people upon innocent persons by keeping action hanging on them for a long time.

 

Computation of the period of Limitation

 

The Courts in India are bound by the specific provisions of the limitation Act and are not permitted to move outside the ambit of these provisions. The Act prescribed the period of limitation in Articles in schedule to the Act. In the articles of the schedule to the limitation Act. columns 1,2, and 3 must read together to give harmonious meaning and construction.

 

Bar of Limitation

 

Sec 3 of the Act provides that any suit, appeal or application if made beyond the prescribed period of limitation, it is the duty of the court not to proceed with such suits irrespective of the fact whether the plea of limitation has been setup in defence or not. The provision of sec 3 are mandatory. The court can suo  motu take note. The effect of sec 3 not to deprive the court of is jurisdiction. Therefore, decision of a court allowing a suit which had been instituted after the period prescribed is not vitiated for want of jurisdiction.

 

Extension of Time in Certain Cases

 

Doctrine of sufficient cause

 

Sec 5 allows the extension of prescribed period in certain cases on sufficient cause being shown for the delay. This is known as doctrine of “Sufficient cause” for condonation of delay which is embodied in sec 5 of the Limitation Act. 1963. Sec 5 provides that any application other than application under provision of order XXI of the code of civil procedure 1908 may admitted after the period of limitation if the appellant satisfies the court that he had sufficient cause for not preferring the appeal. However it must be a cause which is beyond the control of the party.

 

Person under legal disability

 

Section 6 is an enabling section to enable persons under disability to exercise their legal rights within a certain time. Section 7 supplements section 6,section 8 controls these section, which served as an exception  to sec 6 and 7. The combined effect of section 6 and 8 is that where the prescribed limit expires before the cessation of disability, for instance, before the attainment of majority, the minor will no doubt be entitled fresh period of limitation.

 

Computation of period of limitation:

i)  Section 12 to 24 deals with computation of period limitation. As per section 12 the day to be excluded in computing period is the day from which the period is to be reckoned and the time requisite for obtaining a copy of decree shall be excluded.

ii)  Time which leave to sue or appeal as a pauper is applied for also excluded.

iii)  The time which a suit or application stayed by an injunction and the continuance of the injunction and the time taken for obtaining sanction or consent.