Wednesday, June 25, 2014

Suprm court decreed that Live-in w-out marriage can file 498a !! Still liv ins file RAPE cases more than 498a. why ? more moolah in Rape cases ? more shock value in rape cases?


supreme court has decreed that Live in w-out marriage can file 498a !! Still liv ins file RAPE cases more than 498a. Why ? more moolah in Rape cases ? or more shock value in rape cases ?


quotes
"....It would be appropriate to construe the expression `husband' to cover a person who enters into marital relationship and under the colour of such proclaimed or feigned status of husband subjects the woman concerned to cruelty or coerce her in any manner or for any of the purposes enumerated in the relevant provisions - Sections 304B/498A, whatever be the legitimacy of the marriage itself for the limited purpose of Sections 498A and 304B IPC...."

....and ... quoting other cases the Honble Lordships have stated

"....when once you get to this, namely, that there was a marriage in fact, there would be a presumption in favour of there being a marriage in law..."

"....So also where a man and woman have been proved to have lived together as husband and wife, the law will presume, until contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage. ..."


*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
 
******************************************************************
CASE FROM JUDIS / INDIAN KANOON WEB SITE
******************************************************************
http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com


Supreme Court of India
Koppisetti Subbharao @ ... vs State Of A.P on 29 April, 2009
Author: . A Pasayat
Bench: Arijit Pasayat, Asok Kumar Ganguly

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 867 OF 2009

(Arising out of SLP (Crl.) No. 4496 of 2006)
http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

Koppisetti Subbharao @ Subramaniam ...Appellant Versus

State of A.P. ...Respondent JUDGMENT

Dr. ARIJIT PASAYAT, J.

1 Leave granted.

2. Challenge in this appeal is to the order passed by a learned Single Judge of the Andhra Pradesh High Court dismissing the petition filed under Section 482 of the Code of Criminal Procedure, 1973 (in short the `Code'). The prayer in the petition was to quash the proceedings in C.C.No. 440 of 1999 and CC No.325 of 2001 on the file of 3rd Additional Judicial First Class Magistrate, Kakinada.

3. Background facts in a nutshell are as follows: A case was registered against three accused persons including the present appellant for alleged commission of offence punishable under Section 498-A read with Section 34 of the Indian Penal Code, 1860 (in short the `IPC'). Initially, the presence of A-1 could not be secured and therefore court separated the case against A-1 and proceeded the trial against A-2 and A-3. In the said case A-2 and A-3 were acquitted. Thereafter, the present application was filed before the High Court taking the stand that the complainant was not be the legally wedded wife of the appellant as he was already married and, therefore, Section 498-A has no application to the facts of the case.

The High Court dismissed the application on the ground that disputed questions of fact are involved.

4. Learned counsel for the appellant submitted that in view of the acquittal of the co-accused persons the proceedings against the appellant should not proceed.

5. Learned counsel for the respondent-State on the other hand submitted that whether there was valid legal marriage subsisting qua the appellant is a question of fact and, therefore, the High Court was justified in dismissing the application under Section 482 of Code.
http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

6. Parties to a marriage tying nuptial knot are supposed to bring about the union of souls. It creates a new relationship of love, affection, care and concern between the husband and wife. According to Hindu Vedic philosophy it is sanskar - a sacrament; one of the sixteen important sacraments essential to be taken during one's lifetime. There may be physical union as a result of marriage for procreation to perpetuate the lineal progeny for ensuring spiritual salvation and performance of religious rites, but what is essentially contemplated is union of two souls. Marriage is considered to be a junction of three important duties i.e. social, religious and spiritual. A question of intricate complexity arises in this appeal where factual scenario has to be also considered.

7. Stand of the appellant was that it was required to be shown that the victim-woman was the legally married wife of the accused. Since victim claim to have married during the lifetime of the appellant, prosecution has failed to establish that it stood dissolved legally. Prosecution having failed to bring any material record in that regard, Section 498-A has no application.
http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

8. The marriages contracted between Hindus are now statutorily made monogamous. A sanctity has been attributed to the first marriage as being that which was contracted from a sense of duty and not merely for personal gratification. When the fact of celebration of marriage is established it will be presumed in the absence of evidence to the contrary that all the rites and ceremonies to constitute a valid marriage have been gone through. As was said as long as 1869 "when once you get to this, namely, that there was a marriage in fact, there would be a presumption in favour of there being a marriage in law". (See Inderun Valungypooly v. Ramaswamy (1869 (13) MIA 141.) So also where a man and woman have been proved to have lived together as husband and wife, the law will presume, until contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage. (See Sastry Velaider v. Sembicutty (1881 (6) AC 364) following De Thoren v. Attorney General (1876 (1) AC 686) and Piers v. Piers (L.R.(2) H.L.C. 331). Where a marriage is accepted as valid by relations, friends and others for a long time it cannot be declared as invalid. In Lokhande's case (supra), it was observed by this Court "The bare fact that man and woman live as husband and wife it does not at any rate normally give them the status of husband and wife even though they may hold themselves before the society as husband and wife and the society treats them as husband and wife". These observations were cited with approval in Surjit Kaur v. Garja Singh and Ors. (AIR 1994 SC 135). At first blush, it would seem that these observations run counter to the long catena of decisions noted above. But on closer examination of the facts of those cases it is clear that this Court did not differ from the views expressed in the earlier cases. In Lokhande's case (supra), this Court was dealing with a case of prosecution for bigamy. The prosecution had contended that second marriage was gandharva form of marriage and no ceremonies were necessary and, therefore, did not allege or prove that any customary ceremonies were performed. In that background, it was held that even in the case of gandharva marriages, ceremonies were required to be performed. To constitute bigamy under Section 494 IPC, the second marriage had to be a valid marriage duly solemnized and as it was not so solemnized it was not a marriage at all in the eye of law and was therefore invalid. The essential ingredient constituting the offence of Bigamy is the "marrying" again during the lifetime of husband or wife in contrast to the ingredients of Section 498A which, among other things, envisage subjecting the woman concerned to cruelty. The thrust is mainly "marrying" in Section 494 IPC as against subjecting of the woman to cruelty in Section 498A. Likewise, the thrust of the offence under Section 304B is also the "Dowry Death". Consequently, the evil sought to be curbed are distinct and separate from the persons committing the offending acts and there could be no impediment in law to liberally construe the words or expressions relating to the persons committing the offence so as to rope in not only those validly married but also any one who has undergone some or other form of marriage and thereby assumed for himself the position of husband to live, cohabitate and exercise authority as such husband over another woman. In Surjit Singh's case (supra) the stand was that the marriage was in Karewa form. This Court held that under the custom of Karewa marriage, the widow could marry the brother or a relation of the husband. But in that case the man was a stranger. Further even under that form of marriage certain ceremonies were required to be performed which were not proved. Dealing with the contention relating to presumption, reference was made to Lokhande's case (supra). As the parties had set up a particular form of marriage which turned out to be invalid due to absence of proof of having undergone the necessary ceremonies related to such form of marriage, the presumption of long cohabitation could not be invoked.
http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

9. The presumption may not be available in a case, for example, where the man was already married or there was any insurmountable obstacle to the marriage, but presumption arises if there is strong evidence by documents and conduct. Above position has been highlighted in Mayne's Hindu Law and Usage.

10. The question as to who would be covered by the expression `husband' for attracting Section 498A does present problems. Etymologically, in terms of the definition of "husband" and "marriage" as given in the various Law Lexicons and dictionaries - the existence of a valid marriage may appear to be a sine qua non for applying a penal provision. In Smt. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and Anr. (AIR 1988 SC 644) a woman claimed maintenance under Section 125 of the Code of Criminal Procedure, 1973 (in short the `Cr.P.C.'). This Court applied the provision of the Marriage Act and pointed out that same was a law which held the field after 1955, when it was enacted and Section 5 lays down that for a lawful marriage the necessary condition that neither party should have a spouse living at the time of the marriage is essential and marriage in contravention of this condition therefore is null and void. The concept of marriage to constitute the relationship of `husband' and `wife' may require strict interpretation where claims for civil rights, right to property etc. may follow or flow and a liberal approach and different perception cannot be an anatheme when the question of curbing a social evil is concerned.
http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

11. The question of origin of dowry or dos has been the subject of study by theoreticians. Mayne says that it was a contribution by the wife's family, or by the wife herself, intended to assist the husband in bearing the expenses of the conjugal household (Mayne on "Early History of Institution" page 319). While dos or dowry previously belonged to husband, his right over it being unrestricted, all the property of the wife not included in the dowry was called her "paraphra" and was her absolute property over which her husband had no control. (See Banerjee on `Marriage and Stridhan' 345) In Pratibha Rani v. Suraj Kumar and Anr. (AIR 1985 SC 628) after tracing out the history of stridhan it was held that wife is the absolute owner of such property under Section 27 of the Marriage Act. Property presented to the husband and wife at or about the time of marriage belongs to them jointly.

12. The Dowry Prohibition Act, 1961 (in short the `Dowry Act') was introduced to combat the ever-increasing menace of dowry. The avowed object is prohibition on giving and taking of dowry. Section 2 defines "dowry". Section 4 provides the penalty for demanding "dowry", while Section 5 is a significant provision making agreement for giving or taking dowry to be void. Section 6 is another provision which reflects statutory concern for prevention of dowry, be it taking or giving. It is provided therein that pending transfer of the dowry, the person who received the dowry holds it in trust for benefit of the woman. Amendment to Section 2 by Amendment Act 43 of 1986 has made the provision clear and demand made after the marriage is a part of dowry, in view of addition of words "at or before or after the marriage". (See State of H.P. v. Nikku Ram (AIR 1996 SC 67).
http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

13. The definition of the term `dowry' under Section 2 of the Dowry Act shows that any property or valuable security given or "agreed to be given" either directly or indirectly by one party to the marriage to the other party to the marriage "at or before or after the marriage" as a "consideration for the marriage of the said parties" would become `dowry' punishable under the Dowry Act. Property or valuable security so as to constitute `dowry' within the meaning of the Dowry Act must, therefore, be given or demanded "as consideration for the marriage."
http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

14. Section 4 of the Dowry Act aims at discouraging the very "demand" of "dowry" as a `consideration for the marriage' between the parties thereto and lays down that if any person after the commencement of the Act, "demands", directly or indirectly, from the parents or guardians of a `bride' or `bridegroom', as the case may be, any `dowry' he shall be punishable with imprisonment or with fine or within both. Thus, it would be seen that Section 4 makes punishable the very demand of property or valuable security as a consideration for marriage, which demand, if satisfied, would constitute the graver offence under Section 3 of the Act punishable with higher imprisonment and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry whichever is more.
http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

15. The definition of the expression `dowry' contained in Section 2 of the Dowry Act cannot be confined merely to be `demand' of money, property or valuable security' made at or after the performance of marriage. The legislature has in its wisdom while providing for the definition of `dowry' emphasized that any money, property or valuable security given, as a consideration for marriage, `before, at or after' the marriage would be covered by the expression `dowry' and this definition as contained in Section 2 has to be read wherever the expression `dowry' occurs in the Act. Meaning of the expression `dowry' as commonly used and understood is different than the peculiar definition thereof under the Act. Under Section 4, mere demand of `dowry' is sufficient to bring home the offence to an accused. Thus, any `demand' of money, property or valuable security made from the bride or her parents or other relatives by the bridegroom or his parents or other relatives or vice-versa would fall within the mischief of `dowry' under the Act where such demand is not properly referable to any legally recognized claim and is relatable only to the consideration of marriage. Marriage in this context would include a proposed marriage also more particularly where the non-fulfilment of the "demand of dowry" leads to the ugly consequence of the marriage not taking place at all. The expression "dowry" under the Dowry Act has to be interpreted in the sense which the statute wishes to attribute to it. The definition given in the statute is the determinative factor. The Dowry Act is a piece of social legislation which aims to check the growing menace of the social evil of dowry and it makes punishable not only the actual receiving of dowry but also the very demand of dowry made before or at the time or after the marriage where such demand is referable to the consideration of marriage. Dowry as a quid pro quo for marriage is prohibited and not the giving of traditional presents to the bride or the bridegroom by friends and relatives. Thus, voluntary presents given at or before or after the marriage to the bride or the bridegroom, as the case may be, of a traditional nature, which are given not as a consideration for marriage but out of love, affection or regard, would not fall within the mischief of the expression `dowry' made punishable under the Dowry Act.

16. Aryan Hindus recognised 8 forms of marriage, out of which four were approved, namely, Brahma, Daiva, Arsha and Prajapatya. The dis-approved forms of marriages were Gandharva, Asura, Rakshasa and Paisacha. In the Brahma form of marriage, some amounts had to be spent by father/guardian, as the case may be, to go ultimately to the spouses. The origin of dowry may be traced to this amount either in cash or kind.
http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

17. The concept of "dowry" is intermittently linked with a marriage and the provisions of the Dowry Act apply in relation to marriages. If the legality of the marriage itself is an issue further legalistic problems do arise. If the validity of the marriage itself is under legal scrutiny, the demand of dowry in respect of an invalid marriage would be legally not recognizable. Even then the purpose for which Sections 498A and 304B-IPC and Section 113B of the Indian Evidence Act, 1872 (for short the `Evidence Act') were introduced cannot be lost sight of. Legislations enacted with some policy to curb and alleviate some public evil rampant in society and effectuate a definite public purpose or benefit positively requires to be interpreted with certain element of realism too and not merely pedantically or hyper technically. The obvious objective was to prevent harassment to a woman who enters into a marital relationship with a person and later on, becomes a victim of the greed for money. Can a person who enters into a marital arrangement be allowed to take a shelter behind a smokescreen to contend that since there was no valid marriage the question of dowry does not arise? Such legalistic niceties would destroy the purpose of the provisions. Such hairsplitting legalistic approach would encourage harassment to a woman over demand of money. The nomenclature `dowry' does not have any magic charm written over it. It is just a label given to demand of money in relation to marital relationship. The legislative intent is clear from the fact that it is not only the husband but also his relations who are covered by Section 498A. Legislature has taken care of children born from invalid marriages. Section 16 of the Marriage Act deals with legitimacy of children of void and voidable marriages. Can it be said that legislature which was conscious of the social stigma attached to children of void and voidable marriages closed eyes to plight of a woman who unknowingly or unconscious of the legal consequences entered into the marital relationship. If such restricted meaning is given, it would not further the legislative intent. On the contrary, it would be against the concern shown by the legislature for avoiding harassment to a woman over demand of money in relation to marriages. The first exception to Section 494 has also some relevance. According to it, the offence of bigamy will not apply to "any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction". It would be appropriate to construe the expression `husband' to cover a person who enters into marital relationship and under the colour of such proclaimed or feigned status of husband subjects the woman concerned to cruelty or coerce her in any manner or for any of the purposes enumerated in the relevant provisions - Sections 304B/498A, whatever be the legitimacy of the marriage itself for the limited purpose of Sections 498A and 304B IPC. Such an interpretation, known and recognized as purposive construction has to come into play in a case of this nature. The absence of a definition of `husband' to specifically include such persons who contract marriages ostensibly and cohabitate with such woman, in the purported exercise of his role and status as `husband' is no ground to exclude them from the purview of Section 304B or 498A IPC, viewed in the context of the very object and aim of the legislations introducing those provisions.
http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

18. In Chief Justice of A.P. v. L.V.A. Dixitulu (1979 (2) SCC 34), this Court observed:

"The primary principle of interpretation is that a constitutional or statutory provision should be construed "according to the intent of they that made it" (Coke).

Normally, such intent is gathered from the language of the provision. If the language or the phraseology employed by the legislation is precise and plain and thus by itself proclaims the legislative intent in unequivocal terms, the same must be given effect to, regardless of the consequences that may follow. But if the words used in the provision are imprecise, protean or evocative or can reasonably bear meanings more than one, the rule of strict grammatical construction ceases to be a sure guide to reach at the real legislative intent. In such a case, in order to ascertain the true meaning of the terms and phrases employed, it is legitimate for the Court to go beyond the arid literal confines of the provision and to call in aid other well-recognised rules of construction, such as its legislative history, the basic scheme and framework of the statute as a whole, each portion throwing light, on the rest, the purpose of the legislation, the object sought to be achieved, and the consequences that may flow from the adoption of one in preference to the other possible interpretation.

19. In Kehar Singh v. State (Delhi Admn.) (AIR 1988 SC 1883), this Court held:

"....But, if the words are ambiguous, uncertain or any doubt arises as to the terms employed, we deem it as out paramount duty to put upon the language of the legislature rational meaning. We then examine every word, every section and every provision. We examine the Act as a whole. We examine the necessity which gave rise to the Act. We look at the mischiefs which the legislature intended to redress. We look at the whole situation and not just one-to-one relation. We will not consider any provision out of the framework of the statute. We will not view the provisions as abstract principles separated from the motive force behind. We will consider the provisions in the circumstances to which they owe their origin. We will consider the provisions to ensure coherence and consistency within the law as a whole and to avoid undesirable consequences.

20. In District Mining Officer v. Tata Iron & Steel Co. (JT 2001 (6) SC 183), this Court stated:

"The legislation is primarily directed to the problems before the legislature based on information derived from past and present experience. It may also be designed by use of general words to cover similar problems arising in future. But, from the very nature of thing, it is impossible to anticipate fully in the varied situations arising in future in which the application of the legislation in hand may be called for the words chosen to communicate such indefinite referents are bound to be in many cases, lacking in charity and precision and thus giving rise to controversial questions of construction. The process of construction combines both literal and purposive approaches. In other words, the legislative intention i.e. the true or legal meaning of an enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed".

21. The suppression of mischief rule made immortal in Heydon's case (3 Co Rep 7a 76 ER 637) can be pressed into service. With a view to suppress the mischief which would have surfaced had the literal rule been allowed to cover the field, the Heydon's Rule has been applied by this Court in a number of cases, e.g. Bengal Immunity Co. Ltd., v. State of Bihar and Ors. (AIR 1955 SC 661), Goodyear India Ltd. v. State of Haryana and Anr. (AIR 1990 SC 781), P.E.K. Kalliani Amma and Ors. v. K. Devi and Ors. (AIR 1996 SC 1963) and Ameer Trading Corporation Ltd., v. Shapporji Data Processing Ltd. (2003 (8) Supreme 634).

22. In Reserve Bank of India etc. etc. v. Peerless General Finance and Investment Co. Ltd. and others etc. etc. (1987 (1) SCC 424) while dealing with the question of interpretation of a statute, this Court observed: "Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statue is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at in the context of its enactment, with the glasses of the statute- maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place."
http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

23. In Seaford Court Estates Ltd. v. Asher (1949) 2 All ER 155 (CA), Lord Denning, advised a purposive approach to the interpretation of a word used in a statute and observed:

"The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticised. A Judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the Judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears, a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give `force and life' to the intention of the legislature......A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in this texture of it, they would have straightened it out? He must then do so as they would have doe. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases."
(underlined for emphasis)

24. These aspects were highlighted by this Court in S. Gopal Reddy v. State of A.P. (1996 (4) SCC 596) and Reema Aggarwal v. Anupam (2004 (3) SCC 199.

25. The High Court was justified in holding that disputed questions of fact are involved and the application under Section 482 of Code has been rightly rejected. We do not find any scope for interference with the order of the High Court. However, we make it clear that we have not expressed any opinion on the merits of the case.

26. The appeal is dismissed.

........................................J.

(Dr. ARIJIT PASAYAT)

........................................J.

(ASOK KUMAR GANGULY)

New Delhi,

April 29, 2009


http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com


*****************

FOLLOW http://twitter.com/ATMwithDick on twitter or http://vinayak.wordpress.com/ on wordpress or http://evinayak.tumblr.com/  FOR 100s of high court and supreme court cases
  
  
regards
  
Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn't given up, Male, activist
  
  

USA wants MOU with India on Rapes! That is when New York has MORE rapes than Mumbai percapita !! tell me should India EVEN talk to these jokers ??

USA wants MOU with India on Rapes! That is when New York has MORE rapes than Mumbai percapita !! tell me should India EVEN talk to these jokers ??

A mediator angel props up every time a woman files A CASE against a man !! this time a lawyer mediating between Ness Wadi and Preity Zinta !!!


A mediator angel props up every time a woman files A CASE against a man !! this time a lawyer mediating between Ness Wadi and Preity Zinta !!! why mediation ? why NOT justice, full and fair justice ?

Lawyer trying to mediate between Ness Wadia, Preity Zinta

by Aparna Mudi
Last Updated: Wednesday, June 25, 2014, 19:35
  


Zee Media Bureau

New Delhi: The Ness Wadia-Preity Zinta molestation case is taking new turns every day. Ness has been absent since the the actress lodged a complaint against him and given only some preliminary statements. It might be a deliberate decision to avoid circumstances turning worse than they already are for the business scion.


In the aftermath of Preity lodging an FIR against him, Wadia said in a statement, "I am shocked at the complaint and the allegations made against me are totally false and baseless." But not much has been heard from the Ness`s side after that. Here may be the reason why.

According to sources, a well known lawyer is trying to mediate between Ness and Priety. This might be the rationale why Ness Wadia camp is not reacting to the press or on social media and waiting for the outcome of this mediation.

The hope is that if everything works in the mediation process, both parties may approach the High Court and opt for settlement and not go ahead with the proceedings in the case.

The news is also that the police is aware of mediation from its own sources, so it is waiting for a few days and delaying any further involvement to avoid embarrassment.

The incident supposedly took place on May 30 during an Indian Premier League (IPL) match at the Wankhede stadium in South Mumbai. The match was between Chennai Super Kings and Kings XI Punjab.

Police sources say, "Wadia's trouble are going to increase."


source

http://zeenews.india.com

*****************

FOLLOW http://twitter.com/ATMwithDick on twitter or http://vinayak.wordpress.com/ on wordpress or http://evinayak.tumblr.com/  FOR 100s of high court and supreme court cases
  
  
regards
  
Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn't given up, Male, activist
  
  

as if existing courts are NOT enough, Maneka G to give NCW teeth & make it par with civil court !

"..The National Commission for Women (NCW) is all set to be elevated to the status of a civil court with jurisdiction over Jammu and Kashmir too. Every proceeding before the commission will have the status of a judicial proceeding and it will have the power to issue arrest warrants if the summons are not heeded to.."

NCW to get civil court status

Written by Abantika Ghosh | New Delhi | June 25, 2014 3:01 am

maneka-main Ministry of Women and Child Development under Maneka Gandhi.

Summary

Draft of the amended Act extends panel's jurisdiction to Jammu and Kashmir.

The National Commission for Women (NCW) is all set to be elevated to the status of a civil court with jurisdiction over Jammu and Kashmir too. Every proceeding before the commission will have the status of a judicial proceeding and it will have the power to issue arrest warrants if the summons are not heeded to.

These are some of the changes the Ministry of Women and Child Development under Maneka Gandhi is including in an amended version of the NCW Act, 1990. Maneka Gandhi, according to sources in the ministry, wants to give teeth to the commission and make it a body at par with the National Human Rights Commission.

Soon after the new government took over, the ministry sent feelers to NCW chairperson and members that it would like to reconstitute the body. However, chairperson Mamta Sharma, a Congress politician from Rajasthan, refused to budge without written orders.

The government will now wait for her tenure to end — which is in August. The draft of the amended Act will soon be circulated for comments from ministries before placing it in the Cabinet.

"We are working on the amendments to the NCW Act to extend its jurisdiction to Jammu and Kashmir on all matters listed in the central and concurrent list of the Seventh Schedule of the Constitution.  This would mean that like NHRC the commission too can take up matters in the state. The commission will be deemed to be a civil court with powers to issue arrest warrants in case summons are ignored. They can fine up to Rs 5,000 for non-appearance and also call for information from Central or any state government," said an official in the ministry. It can also approach the Supreme Court or concerned High Court for directions, orders or writs, according to the draft.

Rules will be framed for appointment of chairperson and members to do away with political discretion and each one of them will have a fixed tenure of three years. In case of a vacancy because of death or resignation, it will be filled within 90 days but the new incumbent will only get to serve the remaining term and not a full one. It will also have powers to recommend to the appropriate government or authority to initiate prosecution if its own inquiry reveals violation of women's rights either by a public servant or a private person.

Maneka Gandhi, sources said, has expressed her displeasure with the working style of the commission and the fact that the full commission meets at best only once a week. She wants the commission to meet on a daily basis and take up matters with urgency instead of choosing arbitrary issues relating to celebrities like Preity Zinta and Rakhi Sawant


source :

http://indianexpress.com/article/india/india-others/ncw-to-get-civil-court-status/


*****************

FOLLOW http://twitter.com/ATMwithDick on twitter or http://vinayak.wordpress.com/ on wordpress or http://evinayak.tumblr.com/  FOR 100s of high court and supreme court cases
  
  
regards
  
Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn't given up, Male, activist
  
  

The teacher who was caught having sex with a 9th standard (15 ~ 16 year old) student !!


A school's management ran to the police station saying a 9th standard student (15 ~ 16 year old girl ) was missing. Police tried to track the girl / minor using cell phone tower info. She was found to be with a male somewhere in Thiruppur, Coimbatore area. The man was her own class TEACHER !! The police brought the duo to the station and the male teacher was addressed "properly". He cried out saying "saheb" I am not the culprit, it's this girl who has been compelling me to have sex with her. else she has been threatening me that she will file false cases on me !! Further investigations and cell phone records of the girl showed that the KID WAS IN TOUCH WITH MORE THAN 30 MEN !!!!

What did the police do ??? They gave that girl some good advise and sent her away !!

****************

இவள் வேற மாதிரி!

'9-ம் வகுப்புப் படிக்கும் பள்ளி மாணவியைக் காணவில்லை' என்று அந்தப் பள்ளி நிர்வாகமே புகார் கொடுக்க... செல்போன் டவர் கொண்டு ஆராய்ச்சியில் இறங்கியது போலீஸ். திருப்பூர், கோவை ஏரியாக்களில் இருப்பதாக டவர் காட்டிக்கொடுக்க... அந்தப் பெண்ணையும் அவருடன் இருந்த நபரையும் போலீஸார் தூக்கிக்கொண்டு வந்தனர். விசாரணையில்தான், அந்தப் பெண்ணோடு இருந்தது அவரது ஆசிரியர் என்று தெரிய வந்தது.

அவரை நையப் புடைத்து விசாரித்தபோது, ''அந்த மாணவிதான் என்னை மிரட்டி செக்ஸ் வைத்துக்கொள்கிறார். அவர் அழைக்கும்போது போகவில்லை என்றால், போலீஸில் புகார் செய்வேன் என்று மிரட்டுகிறார்'' என்று பரிதாபமாகச் சொல்ல... ஆடிப்போய்விட்டனர் போலீஸார். இதுபற்றி விசாரணையில் இறங்க... அந்தப் பெண் செல்போன் மூலம் 30-க்கும் மேற்பட்ட ஆண்களிடம் பேசிவருவது தெரிய வந்துள்ளது. இவருக்கும் புத்திமதி சொல்லி அனுப்பி வைத்துள்ளனர் போலீஸார்.

இந்தச் சம்பவங்களை எல்லாம் உற்று கவனிக்கும் சமூக ஆர்வலர்களோ, ''குழந்தை வளர்ப்பில் குறைபாடு உள்ளதுதான் இந்தப் பிரச்னைகளுக்கெல்லாம் காரணம். என்ன செய்கிறோம் என்று தெரியாத இரண்டாங்கெட்ட வயசு பதின்ம வயது. அப்போது பெற்றோர் கண்காணிப்பில் குழந்தைகள் இல்லாவிட்டால், இதுபோன்று வழிதவறி போய்விட வாய்ப்பு உள்ளது. படிக்கும்போது பல வசதிகள் கொண்ட ஸ்மார்ட் போன்கள் பயன்படுத்தும்போது, நல்ல விஷயங்களைவிட கெட்ட விஷயங்கள் அதிகம் கற்றுக்கொள்கிறார்கள். இப்போது நடைபெற்ற அனைத்து சம்பவங்களின் பின்னணியிலும் செல்போன் இருப்பதைப் பார்த்தாலே இது புரியும்'' என்கிறார்கள்.

பாசத்தோடு கண்டிப்பும் தேவை!


source

http://www.vikatan.com/new/article.php?module=magazine&aid=96203#.U6qJjxDAszs.facebook



*****************

FOLLOW http://twitter.com/ATMwithDick on twitter or http://vinayak.wordpress.com/ on wordpress or http://evinayak.tumblr.com/  FOR 100s of high court and supreme court cases
  
  
regards
  
Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn't given up, Male, activist
  
  

Tuesday, June 24, 2014

acche din aagaye !! Tax sops for WOMEN in Modi Ji's first budget !! Ab Ki baar ....

Women should be completely exempted from Tax. Let the men pay. what else are men there for ? IF men can't even pay taxes, defend borders, die fighting fires and change light bulbs , why do they exist ?

Tax sops for women likely in Modi govt's first budget

HT Correspondent, Hindustan Times  New Delhi, June 24, 2014

First Published: 00:19 IST(24/6/2014) | Last Updated: 13:44 IST(24/6/2014)

Finance minister Arun Jaitley may have some good news for salaried women in the budget with the government reportedly examining a proposal for higher income tax exemption limit for women.

This marks the return to an earlier practice when women were offered a higher tax relief after the 2012-13 budget fixed a Rs. 200,000 exemption limit for both women and men.

Moreover, a proposal to reduce the age for tax exemption for senior citizens to 60 years from 65 years is also under consideration.

The move, sources said, could be part of plans to overhaul India's tax regime by restructuring tax slabs and increasing the minimum income tax exemption limit for men from the existing Rs. 200,000 to more than Rs. 300,000 —a move that would leave more money in the hands of people.

The exemption limit—the threshold income below which individuals are not liable to pay taxes—for women could be fixed at between Rs. 3,25,000 to Rs. 3,50,000.

The proposed move will enhance people's disposable income, boosting consumption spending and savings, while helping households manage their monthly budgets better.

The government is negotiating through a maze of thorny issues ahead of this year's budget amid faltering demand and rising prices that have hit growth in the broader economy.

Jaitley is also considering a rejig in income tax slabs, details of which are being currently examined.

At present, there are three tax slabs. Those with an income of less than Rs. 2 lakh a year are exempt from paying taxes. Those earning between Rs. 2 lakh and Rs. 5 lakh annually are taxed at 10%, those between Rs. 5 lakh and Rs. 10 lakh at 20% while anybody earning more than Rs. 10 lakh pays a tax of 30%.

In addition, last year's budget also saw the introduction of an additional surcharge of 10% on "relatively prosperous" persons with a taxable income of more than R1 crore. There were supposedly only 42,800 of such people in the country.

Sources also said that the government is examining whether some proposals of the draft Direct Taxes Code (DTC) Bill 2013 including a tax on "super-rich" can be introduced in this year's budget, likely on July 10. The draft DTC Bill had proposed a higher 35% tax for the super-rich -- who earn more than Rs. 10 crore a year -- and a wealth tax on host of assets such as expensive paintings.




http://www.hindustantimes.com/business-news/tax-sops-for-women-likely-in-modi-govt-s-first-budget/article1-1232837.aspx



*****************

FOLLOW http://twitter.com/ATMwithDick on twitter or http://vinayak.wordpress.com/ on wordpress or http://evinayak.tumblr.com/  FOR 100s of high court and supreme court cases
  
  
regards
  
Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn't given up, Male, activist
  
  

33% reservation for women in Gujarat Police; soon other parts of India WILL BE RESERVED


Gujarat CCM Anadiben patel has announced 33% reservation for women claiming that "....It is necessary to empower women for their up-liftment in society....." ;

Further Mrs. Patel said "Our Prime Minister Narendra Modi stressed on strengthening 'Raksha Shakti'(Defence Power) of the state. Thus, we are now having three dedicated universities working in that direction, including Raksha Shakti University, Forensic Science University and Law university,"

I expect Honourable Shri Narendra Modi Saheb to introduce this in an all India level.

It would be great to see how Pakistnais react to 33% armed forced as and when that happens

****************

Gujarat CM announces 33 per cent reservation for women in police force

By PTI | 24 Jun, 2014, 01.51PM IST


Gujarat's first woman Chief Minister Anandi Patel today announced a 33 per cent reservation for women in the state police force.

GANDHINAGAR: Gujarat's first woman Chief Minister Anandi Patel today announced a 33 per cent reservation for women in the state police force.

"It is necessary to empower women for their up-liftment in society. Thus, my government has decided to provide 33 per cent reservation to women in the police recruitments," announced Patel without elaborating.

She was interacting with media after attending the passing out parade of 97 armed Police Sub Inspectors (PSIs) and 39 Intelligence ..





*****************

FOLLOW http://twitter.com/ATMwithDick on twitter or http://vinayak.wordpress.com/ on wordpress or http://evinayak.tumblr.com/  FOR 100s of high court and supreme court cases
  
  
regards
  
Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn't given up, Male, activist
  
  

Newly married woman elopes with boyfriend, is CAUGHT by police & THEN FILES dowry case !!

20 year old married woman ran away with her boyfriend taking all her Jewels JUST 1 week after marriage. Based on Husband's complaint police traced the woman and her boyfriend at a lodge !! When brought to the station the woman said she was NOT interested in the husband but wanted to only live with the loverboy .. Police let both parties go away after taking a written undertaking . .. Now in an EXPECTED turn of events, the woman has appraoched higher police with a DOWRY complaint against the original husband !!!

=============================

Newly wedded woman leaves 'balding' husband and elopes

Bangalore Mirror Bureau | Jun 22, 2014, 02.00 AM IST


Barely a week after their wedding, a 20-year-old woman left her husband and allegedly ran away with a boyfriend. Acting on a missing complaint filed by the husband, who was unaware that she had run away, police traced the girl and the boyfriend to a lodge in Madikeri. But now, a month after the incident, the case has taken a different turn, leaving the police chagrined.

Umesh, 32, a senior software engineer with an IT major in city, was sent to Australia for a project. He had come to India a week before his wedding with Hamsavani, a BBM student, in Kothanur Dinne on May 8 this year. Less than a week later (May 14), his wife went missing under mysterious circumstances. Since gold ornaments were also found missing, her husband suspected foul play and filed a missing complaint with the Subramanyapura police.

Umesh was unaware that his wife had deserted him and had eloped with her boyfriend. Tracking her mobile phone, police found her in a lodge with her boyfriend. It is alleged that after deserting her husband, Hamsavani married the boyfriend, identified as Nanda Kumar. The police, however, are yet to ascertain if she did indeed marry the boyfriend.

The girl was brought to the city and police called the members of the two families to station for counselling. Hamsavani told police that she was not interested in staying with Umesh as he was 12 years older than her and had also started balding. She also claimed that Umesh was extremely suspicious of her and did not like her talking to men. She claimed that Umesh fought with her "for a whole day" after she had spoken to her former classmate in a shopping mall.

Since the families were unable to come to any sort of agreement, the police let them go after taking an undertaking from them. It was decided that Hamsavani would return all the gold ornaments she had taken from her husband's house. Subramanyapura police say Umesh's family had allegedly spent nearly Rs 20 lakh on the wedding.

Hamsavani returned to her parents' house in Vinakaya Nagar. But in a strange turn of events, she approached the office of the state police chief on Friday and filed a complaint against Umesh, accusing him of harassing her for dowry. The DG&IGP's office has forwarded the case to the same police for further investigation.

"We have summoned both the families again," said a police officer from the station. "The case is being probed. We had tried to reconcile them through counselling, but now we are not sure if we get them back together again."



*****************

FOLLOW http://twitter.com/ATMwithDick on twitter or http://vinayak.wordpress.com/ on wordpress or http://evinayak.tumblr.com/  FOR 100s of high court and supreme court cases
  
  
regards
  
Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn't given up, Male, activist
  
  

MAX 1month arrest Sec125 default ! still, poor hubby in cooler for 3.5 yrs, finally rescued by HC !!


MAX 1 month arrest for Sec 125 default !! Case of poor hubby in cooler for 3.5 years !!!


"...The petitioner- husband had been arrested on 7.8.1995 in execution of warrant of arrest issued on 1.8.1995 by the Judicial Magistrate for default in payment of maintenance amount and its' arrears. Since then, after every 14 days he was being remanded to judicial custody and continuously for three and half years he was in custody. ......"

Finally matter reached the Honble Patna High court which decided as follows ".........Since the condition for keeping in custody as provided under Sub-section (3) of Section 125 Cr.P.C. has not been observed by the principle Judge, Family Court, the detention of petitioner beyond one month's period cannot be held to be legal....."


*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
 
******************************************************************
CASE FROM JUDIS / INDIAN KANOON WEB SITE
******************************************************************


IN THE HIGH COURT OF JUDICATURE AT PATNA

CR. WJC No.810 of 2010

http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

MANOJ KUMAR PATEL @ MANOJ PATEL SON OF JOKHI PATEL, RESIDENT OF MOHALLA NONIA TOLA, CHAKKI PAKRI, P.S. SHIKARPUR, DISTRICT-WEST CHAMPARAN, BETTIAH------PETITIONER .

Versus

1. STATE OF BIHAR THROUGH HOME SECRETARY, BIHAR, PATNA.

2. MUNITA DEVI WIFE OF MANOJ KUMAR PATEL, D/O MADAN PD. PATEL

3. RAMBABU @ SONI

4. SHYAM KISHORE, BOTH SONS OF MANOJ KUMAR PATEL ALL ARE RESIDENTS OF SAGAR POKHARA, P.S. BETTIAH TOWN, DISTRICT-WEST CHAMPARAN-----RESPONDENTS..

******************************

http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

For the petitioner:- Mr. R.S.Sahay & Mr. J.J.Sahay,Advs.
For the State:- Mr. Kaushal Kishore Jha,

SC- 18 5

16 .09.2010

Petitioner is the husband of Respondent no.2 Munita Devi and father of respondent Nos. 3 and 4. Respondent no.2 and her children, respondent nos. 3 and 4 were deserted by the petitioner; as such she filed a petition under Section 125 of the Code of Criminal Procedure for maintenance of herself as well as her two children, from the petitioner. The case was registered as Maintenance case No. 308M/2005 and heard by Principal Judge, Family Court, West Champaran, Bettiah. The case, on contest was decided in favour of respondent nos. 2 to 4 and vide order dated 16.12.2009 the petitioner was directed to pay maintenance of Rs. 1000/- Per month to all three (respondent nos. 2 to 4) from the date of filing of maintenance case i.e. 27.9.2005. The order passed by the Family Court granting maintenance in favour of respondent nos. 2 to 4 was challenged by the petitioner by filing Criminal Revision No. 248 of 2010 which is still pending in the High Court. However, despite the fact that there was no stay order passed in favour of the petitioner, he did not pay a single penny to his legally wedded wife and children. He has also filed matrimonial suit (Divorce No. 188 of 2007) which is pending for adjudication. Since the monthly maintenance amount was not being paid to the respondents, as such respondent no.2 filed a petition before the Principal Judge, Family Court, West Champaran, Bettiah in order to get the maintenance order complied. Notice was issued to the petitioner to show cause, as such he appeared before the Court and made a prayer for staying the operation of the order passed in the maintenance case or for a direction that the petition be considered along with matrimonial divorce case.
http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

On perusal of the order-sheet of the maintenance case No. 308M/2005, it transpires that in response to show cause notice, the petitioner appeared before the Principle Judge, Family Court, West Chmparan and on 20.4.2010 the petitioner as well respondents were heard. One months time was allowed to the petitioner either to bring stay order or to make payment of entire arrears amount as well as month to month maintenance amount to the respondents. On 22.5.2010, when again the matter was taken up, both the parties were heard. Since, no stay order could be obtained by the petitioner from the High Court, as such the petitioner was asked to deposit the entire arrears of maintenance amounting to Rs. 1,65,000/-. Petitioner showed his reluctance in making payment, as such warrant of arrest was issued against the petitioner and in exception of it he was taken into custody. The matter was again directed to be listed on 5.6.2010. On 22.5.2010 petitioner has filed a petitio for staying the operation of order dated 16.12.2009, passed in maintenance case allowing maintenance in favour of respondents, but that was rejected and an order for taking the petitioner into custody was passed as provided under Section 125(3) of the Code of Criminal Procedure.
http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

On 2.6.2010 again the matter was taken up and the petition filed by the petitioner challenging the order taking into custody was taken up for consideration. Petitioner had challenged the order stating that he could not have been ordered to be imprisoned without taking recourse to the procedure for recovery of fine as provided under Section 421 of the Code of Criminal Procedure. There should have been a proper order of sentencing, before taking him in custody.

However, the Principal Judge, Family Court, West Champaran, Bettiah, rejected the plea taken by the petitioner stating that Section 125(3) of the Code of Criminal Procedure in itself is a complete provision which provides that in case of failure to comply with the order for payment of maintenance amount warrant of arrest can be issued, till the realization of the amount. There is no necessity to follow the procedure provided for levying fines. The person may be sentenced for the whole or any part of each month's non payment of maintenance amount in execution of the warrant. For unpaid maintenance amount the person concerned may be imprisoned for a term of one month or until payment is sooner made. Only required for issuance of warrant for the recovery of any amount due under this section is that there must be an application filed by the aggrieved wife / children before the court for realization of such amount within a period of one year from the date on which it became due. The Court if satisfied that there is just ground for not making payment of such amount was on filing such application, no warrant can be issued. Since, there was no ground available in favour of the petitioner and he refused to make payment the maintenance amount without there being any reasonable ground for it, the provision under Section 125(3) was applicable. Section 125 (3) Cr.P.C. provides jurisdiction to the court for issuance of warrant of arrest and for taking into custody in execution of it.
http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

Counsel appearing for the petitioner submits that on simple reading of the provision under Section 125(3) Cr.P.C., it is apparent that before issuance of warrant of arrest or taking the defaulter into custody, he should be given proper opportunity to show the reason for non-payment and only in case the Court is satisfied that without any obvious reason the direction of the Court has been flouted, any order regarding issuance of warrant of arrest could have been passed. The period of imprisonment in any case could not have been exceeded beyond one month as for each period of default; there should have been fresh application and fresh order of custody for the unpaid maintenance amount for each month.
http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

In this regard the counsel for the petitioner placed reliance on a decision reported in the case of Ashok Prasad Vs. State of Bihar (2000 (1) PLJR 578) and also in the case of Shahada Khatoon and others vs. Amjad Ali and others (1999 (5) SCC 672).

However on perusal of the impugned order, it transpires that the Court below has placed reliance on a decision of the Apex Court reported in the case of Kuldip Kaur vs. Surinder Singh (AIR 1989 SC 232), wherein it has been held that a person cannot be released from the custody till he makes the payment.

In the decision reported in (1999) 5 SCC 672, the short question which arose for consideration was whether the single Judge of Patna High Court has correctly interpreted the provision under sub-section (3) of Section 125 Cr.P.C., by directing the Magistrate that he can only sentence for a period of one month or until payment, if sooner made. The Apex Court held that the language of sub-section (3) of Section 125 Cr.P.C. is quite clear and it 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. This power of the Magistrate cannot be enlarged and therefore the only remedy would be after expiry of one month. For breach of non-compliance with the order of the Magistrate the wife can approach the Magistrate again for similar relief. By no stretch of imagination can the Magistrate be permitted to impose sentence for more than one month. In that view of the matter, the High Court was fully justified in passing the impugned order and we see no infirmity in the said order to be interfered with by this Court.
http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

Counsel for the petitioner placing reliance on a decision of Division Bench of Patna High has submitted that the provision of sub- section (3) of Section 125 Cr.P.C. has been considered in the reported decision 2000 (1) PLJR 578. The facts in the reported decision were identical to the facts of the present case. Petitioner of that case had also filed a petition for his release and for holding that his detention in the custody is illegal. The petitioner- husband had been arrested on 7.8.1995 in execution of warrant of arrest issued on 1.8.1995 by the Judicial Magistrate for default in payment of maintenance amount and its' arrears. Since then, after every 14 days he was being remanded to judicial custody and continuously for three and half years he was in custody.

The Division Bench while interpreting the jurisdiction of the Court under Section 125(3) Cr.P.C. held as follows:-

" From a reading of Section 125(3) Cr. P.C. it is clear that if any person who has been ordered to pay maintenance under section 125(1) Cr.P.C. fails without sufficient cause to comply with the order, the Magistrate may take such steps for realization of amount which are provided for levying fines and after execution of distress warrant it is found that any amount has remained unpaid the Magistrate may sentence such person for the whole or any part of each month's allowance remaining unpaid to imprisonment for a term which may extend to one month or until payment, if sooner made. So it is clear that the Magistrate has first to satisfy that the order has not been complied by a person without sufficient cause and if he finds that there is failure of the compliance of the order without sufficient cause he will issue a distress warrant for levying the amount due for every breach of the order in the manner provided for levying fines. It is further provided that after execution of distress warrant if the Magistrate finds that any amount has remained unpaid he may sentence such person for the whole or part of each month?s allowance remaining unpaid to imprisonment for a term which may extend to one month or until payment whichever is earlier. The manner provided for levying fines is prescribed under section 421 Cr.P.C. So, two conditions before sentencing a person to imprisonment for non-payment of maintenance allowance are required. First the Magistrate must be satisfied that the person without any sufficient cause is not paying the maintenance and violating the order and secondly to issue warrant for levying the amount due in the manner provided for levying fines and after its execution to ascertain the amount which has remained unpaid. If any amount is found to have remained unpaid the Magistrate may sentence such persons to imprisonment for a period of one month for the whole or any part of each month?s allowance remaining unpaid. In other words, if after issuance of warrant for levying the amount due in the manner provided for levying fine it is found that no amount has remained due, the question of sentencing the persons to imprisonment does not arise. So the Magistrate, has to see the result of execution of warrant issued for levying amount due."

We find that the Court below has placed reliance on a decision reported in the case of Smt. Kuldip Kaur Vs. Surendra Singh and another ( AIR 1989 SC 232). But the question for consideration before the Apex Court in the matter was whether, in case of person refusing to comply the order of the Court to maintain his neglected wife or children, without reasonable cause, will be absolved of his liability, merely because he prefers to go to jail. Considering every aspect of the provisions under Sub-section (3) of Section 125 Cr.P.C., it was held that sentencing a person to jail is "mode of enforcement" and not "mode of satisfaction". The liability can be satisfied only by making actual payment of arrears. The Supreme Court directed the defaulting husband be put in jail till he makes the payment of maintenance allowance. However, there is no finding whether this period can be only one month or more than one month.

On the other hand, counsel appearing for the State has raised objection regarding maintainability of the application of habeous corpus challenging legality of the detention, stating that since the petitioner is detained in jail for flouting the order of the Court under Section 125(3) Cr.P.C. and there is a provision for issuance of warrant of arrest under sub-section 3 of Section 125 Cr.P.C. for issuance of warrant of arrest and taking into custody, due to non-payment of arrears as well as monthly maintenance amount, the detention cannot be considered as illegal detention and writ of habeous corpus is not maintainable.
http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

Counsel for the State has submitted, at best, the petitioner can challenge the legality of the order by filing criminal revision application before the appropriate forum. He has placed reliance on a decision reported in the case of Kanu Sanyal Vs. District Magistrate, Darjeeling (AIR 1974 SC 510), where the finding has been recorded as follows;- "Where a person is committed to jail custody by a competent Court by an order which prima facie does not appear to be without jurisdiction or wholly illegal."

On consideration of different decisions on which reliance has been placed by the parties and the provision under Section 125(3) Cr. P.C., we find that the issue has been settled by the Apex Court in (1999) 5 SCC 672 and by decision reported in 2000(1) PLJR 578.

The Principle Judge, Family Court, after taking the petitioner in custody has not passed any fresh order for extension of the period in custody for fresh default of each month. Since the condition for keeping in custody as provided under Sub-section (3) of Section 125 Cr.P.C. has not been observed by the principle Judge, Family Court, the detention of petitioner beyond one month's period cannot be held to be legal. Once it is held that the detention is illegal, there cannot be any question regarding maintainability of the writ application. Keeping in view that the petitioner has remained in custody beyond one month's period, in the facts and circumstances of the case, his detention is illegal. Accordingly direction is being issued for release of the petitioner forthwith in connection with Maintenance Case No. 308M/2005, if not wanted to remain in custody in any other case.

The writ application stands allowed.

(Mridula Mishra,J.)

(Dharnidhar Jha,J.)

Akumar



http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com



*****************

FOLLOW http://twitter.com/ATMwithDick on twitter or http://vinayak.wordpress.com/ on wordpress or http://evinayak.tumblr.com/  FOR 100s of high court and supreme court cases
  
  
regards
  
Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn't given up, Male, activist
  
  

You rape me, I rape you!! : How FAKE RAPE FIRs make Indian men _look_like_ Rapists !!


Now the world is thinking we (Indian men) are all rapists, roaming the streets to catch hold the next available poor thing female and rape her.... It is portrayed in some sections, as if we do not have any culture, we do not have sisters or mothers to think of, all that we can is about how to rape

To support this view, rape statistics is often thrown around. do you know one girl is raped every .... days .. ?

But where does this Rape statistics come from ?

Of course it includes a LIBERAL dose of FAKE rape cases like the one below where MATRIMONIAL feud between parties is converted to rape !!!

Read and decide !!!!


Kin of couple lodge cross-FIRs of rape

Jun 24, 2014, 02.21AM IST TNN[ Shalabh ]

LUCKNOW: They came together more than 18 months back and families were on board. But things between the couple, both in late 30s, went horribly wrong. In a peculiar situation for Gomtinagar police, a cross case under rape charges was lodged on Sunday.

Such a trend is noticed usually in rural areas where female members of warring families lodge cross rape cases, generally to settle scores. Around 11am, an MBA accused her husband, father-in-law and father-in-law's brother of forcing her to have unnatural sex with them. Within hours, the husband's sister reached the police station and lodged an FIR under rape charges against the complainant's father and brother. The man and his wife are now baying for each others' blood. The man is a BTech and employed by a private firm. He was suffering from asthma and gave up his job early this year. Along with his wife, he stayed at his parent's house in Vijay Khand. His father retired as manager of Uttar Pradesh Matsya Vikas Nigam Ltd.

Trouble began between the couple in May, said police. "While charges are being probed, prima facie, it seems the couple had off late been suffering from financial crisis. Instead of sticking together during the crisis, they decided to part ways and ultimately traded rape charges. Both are well educated and have gone to reputed schools and colleges," said the sub-inspector who tried to counsel the two.

On June 17, the couple had an argument that turned violent. The girl informed her father and brother who arrived at the house from Sarojininagar and took her away. The woman's father is in a private job. Cops asked the wife to reconsider her decision but she submitted complaint against the man and her in-laws on Sunday. After she left the police station, the man's sister lodged a case against his in-laws alleging they raped her on June 17 at the Vijay Khand house.






*****************

FOLLOW http://twitter.com/ATMwithDick on twitter or http://vinayak.wordpress.com/ on wordpress or http://evinayak.tumblr.com/  FOR 100s of high court and supreme court cases
  
  
regards
  
Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn't given up, Male, activist
  
  

Crpc125. No arrest b4 execution proceedings on defaulter's property. collect arrear similar to fines


Crpc125. No arrest b4 execution proceedings on defaulter's property. Court may collect arrears u/s 125 in a manner similar to collection of fines. Only IF amount remains unpaid after such effort, should defaulter be arrested !!

Notes :
*********************
Sec 125 of the Criminal procedure code and Sec 488 of the old Criminal procedure code clearly state the means of recovery of dues in case of default.

Sec 125(3) states "....(3) If any Person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any part of each month's 4[ allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case be,] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:....."

The procedure for levying fines is contained in Section 421 of the Code which states as follows : "........
421. Warrant for levy of fine :
(1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may-
(a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender;
(b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter: Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under section 357.
......"

Quoting the Honourable HC "...... Thus, it is clear that there are two modes for issuing warrant for levying fine, one being by attachment and sale of moveable property belonging to the offender, the other being issuance of a warrant to the Collector of the district authorising him to realise the amount as arrears of land revenue from the moveable or immoveable property or both of the defaulters. It is further provided that the recovery of fine can be made by either or both of these modes. Thus, there is no doubt that under Sub-section (3) of Section 125, the legislature intended that the personal liberty of the defaulter can be curtailed by sending him to imprisonment in default of payment of such arrears if any amount remains unpaid after the execution of the warrant ...."


*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
 
******************************************************************
CASE FROM JUDIS / INDIAN KANOON WEB SITE
******************************************************************


Sethi Singh vs Jass Kaur And Anr. on 11 May, 1990
Equivalent citations: II (1992) DMC 249, (1990) 98 PLR 271
Author: J S Sekhon
Bench: J S Sekhon

JUDGMENT

Jai Singh Sekhon, J.

1. Through this petition filed Under Section 482 of the Code of Criminal Procedure, the petitioner seeks quashment of the order dated 20.7.1988 of the Judicial Magistrate 1st Class, Mansa and the order dated 5.4.1989 of the Sessions Judge, Bhatinda, inter-alia, on the ground that the Magistrate having not resorted to the realisation of the arrears of maintenance allowance by attachment and sale of the property of the petitioner as envisaged Under Section 125(3) of the Code of Criminal Procedure, 1973, hereinafter referred to as the Code, the impugned order of confining the petitioner to civil prison in liew of arrears of maintenance allowance was illegal and void in the eye of law.

2. The fact of the case are that in proceedings Under Section 125 of the Code, Judicial Magistrate 1st Class, Mansa, vide his order dated 3.10.1983 awarded maintenance allowance to the tune of Rs. 200/- per month to Smt. Jass Kaur wife of Sethi Singh petitioner and at the rate of Rs. 50/- each to Mit Kaur and Rani, minor daughters with effect from 27.1.1982, the date of filing application Sethi Singh failed to pay arrears of maintenance allowance upon which Smt. Jass Kaur on behalf of herself and on behalf of two minor daughters filed a petition for execution of the above referred order regarding arrears of maintenance allowance from 27.1.1982 to 26.11.1983. Notice of this application was issued to Sethi Singh who refused to accept service on 1.2.1984. Thereafter warrants of attachment of his property were issued on 18.3.1985, 17.5.1985, 25.7.1985 and 25.9.1985.
http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

3. The execution of these warrants was resisted by Sethi Singh and other members of his family on 17.8.1985 and 27.10.1985. The bailiff attached to the Court of Sub-Judge 1st Class, Dawali, executing these warrants then sought the police help for execution of these warrants. Thereafter, warrants of attachment of the property were issued for 16.1.1986, 7.2.1986, 15.3.1986, 26.4.1986,26.5.1986,26.7.1986,26.9.1986, 25.10.1986. 13.12.1986, 23.1.1987, 3.3.1987, 6.6.1987 and 6.7.1987. On 9.4.1986, Smt. Jass Kaur filed an application that in order to avoid the realisation of the maintenance allowance, her husband Sethi Singh had alienated his entire property. The Trial Court vide order dated 10.4.1986 issued a conditional warrants of arrest of the petitioner. On 13.3.1987, Smt. Jass Kaur filed an affidavit to the effect that her husband owns a tractor along with his brothers and the same could not be attached and that the amount be got realised from her husband by sending him to jail. It appears that Sethi Singh was sent to jail since 16.3.1988, but no steps were taken Under Section 421 of the Code for realisation of the arrears of maintenance allowance. Accordingly, the learned Magistrate vide impugned order dated 20.7.1988, directed the petitioner to undergo simple imprisonment for one year and ten months for arrears of similar period from 27.1.1982 to 26.11.1983 with the direction that he should be released forthwith on deposit of the maintenance allowance.
http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

4. The petitioner then filed revision petition before the learned Sessions Judge, Bhatinda, which was dismissed on 5.4.1989 in the absence of the Counsel for the petitioner Sethi Singh by holding that there was no illegality or infirmity in the impugned order of the Magistrate. Mr. R.K. Battas, the learned Counsel for Sethi Singh petitioner, contends that Under Section 125(3) of the Code, a person could be imprisoned for arrears of maintenance allowance if some amount remains unpaid after the execution of the warrant. Reliance in this regard has been placed on the decisions of this Court in Dalip Singh v. Smt. Balwinder Kaur and Others, 1973 (1) C.L.R. 162; Karnail Singh v. Gurdial Kaur, 1974 Cr.L.J. 38 and Raj Kumar v. Smt. Krishna Kumari and Another, 1984 (2) C.L.R. 396. The learned Counsel for the respondents, on the other hand, maintains on the strength of the Division Bench decision of the Calcutta High Court in Moddari Bin v. Sukdeo Bin, A.I.R. 1967 Calcutta 136 that in those cases where the distress warrant remained unexecuted, there is no bar in sending the defaulter to civil prison.

5. The provisions of Section 125(3) reads as under :

"(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issued a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment is sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due;

"Provided further that if such person offers to maintain his wife on condition of her living with him, and she refused to live with him, such Magistrate may consider any grounds of refusal stated by her and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation : If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him."

A bare perusal of the same leaves no doubt that if any person fails to comply with the order of payment of maintenance allowance awarded under Sub-section (1) of Section 125 without sufficient cause then the Magistrate for every breach of the order would issue a warrant levying the amount due in the manner provided for levying fines and may sentence such person to imprisonment for the whole or any part of each month remaining unpaid after execution of the warrant. The procedure for levying fines is contained in Section 421 of the Code. There are two modes for issuing warrant for levying fine, one being by attachment and sale of moveable property belonging to the offender, the other being issuance of a warrant to the Collector of the district authorising him to realise the amount as arrears of land revenue from the moveable or immoveable property or both of the defaulters. It is further provided that the recovery of fine can be made by either or both of these modes. Thus, there is no doubt that under Sub-section (3) of Section 125, the legislature intended that the personal liberty of the defaulter can be curtailed by sending him to imprisonment in default of payment of such arrears if any amount remains unpaid after the execution of the warrant. So has been the consistent view of this High Court. In Dilip Singh's case (supra), a similar construction was put on the provisions of Section 488(3) of the old Code by holding that issuance of a warrant of attachment is a condition precedent to the issuance of a warrant of imprisonment. Again in Karnail Singh's case (supra), a similar view was reiterated by relying upon Jagannath Patra v. Purnamashi A.I.R. 1968 Orissa 35. In Raj Kumar's case (supra), the provisions of Section 125(3) of the new Code were interpreted by a Single Bench of this Court to a similar effect.

6. The ratio of the Division Bench decision of the Calcutta High Court in Moddari Bin's case (A.I.R. 1967 Calcutta 136) regarding this controversy cannot be said to be contrary to the view taken by this Court, as in paragraph 17 it was held that there is no doubt that the Magistrate cannot sentence the defaulter before the execution of the warrant but on facts of that case, it was found that the distress warrant had been executed, as the successful execution of the warrant in this case does not only mean successful execution of the warrant but would also include unsuccessful execution of the warrant yielding no fruits. The relevant observations in paragraph 17 read as under : "No doubt before the execution of the warrant the Magistrate cannot sentence the defaulter. But on the facts as we have already recorded the distress warrant has been executed. Execution of the warrant in this case does not mean successful execution of the warrant. It also includes unsuccessful execution of the warrant yielding no fruits. If the execution of the warrant was always successful then obviously there would be no further question "of sentencing the defaulter. Besides, the sentence can be awarded by the Magistrate Under Section 488 Cri.P.C. which expressly provides for the case even if the whole amount remains unpaid after the execution of the warrant. That must necessarily contemplate a case where the whole of the amount due remains unrealised after unsuccessful execution of the distress warrant or the other warrant Under Section 386(1)(b) of the Code of Criminal Procedure. On the facts we have come to the conclusion as already indicated that the distress warrant issued in this case has been unsuccessfully executed and was infructuous. Therefore the Magistrate had the right to order a sentence of imprisonment."
http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

7. The Division Bench further observed that as the provisions of Section 386(1)(b) of the old Code (corresponding to the provisions of Section 421 of the new Code) provided either of the above-referred modes for levying the fine and thus it was not necessary to have sent the warrant for execution to the Collector for recovery of the fine as arrears of land revenue.

8. In the case in hand, the perusal of the file of the Executing Court shows that on 17.8.1985 and 27.10.1985, the bailiff attached to the Court of the Sub-Judge 1st Class, Dawali had gone to attach the property of the husband, but there was resistence and, therefore, he had to report that the attachment be made with the help of the police. It appears that during this period, the husband alienated his entire property and, therefore, Smt. Jass Kaur filed an application to a similar effect and requested for issuing of conditional warrant for imprisonment of the husband and the order was passed on 19.4.1986. The impugned order of the Judicial Magistrate also reveals that the distress warrant for attachment and sale of the property of the defaulter remained unexecuted due to reasons beyond the control of the Court. Thus, the order of imprisonment of the defaulter under. Section 125(3) of the Code appears to be well justifiable in the circumstances of the case.
http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

9. However there is considerable force in the contention of the petitioner that the defaulter could be sentenced to imprisonment for a period of one year at the most as the wife or the other persons entitled to maintenance allowance are required to file an application within a period of one year from the date on which the amount becomes due. In the case in hand, the amount of the maintenance allowance from the date of application i.e. 27.1.1982 to 26.1.1983 became due only when the Judicial Magistrate passed the parent order on 3.10.1983. The application for execution having been filed on 15.10.1984, is certainly barred by time in view of the provisions of proviso (i) to Sub-section (3) of Section 125 of the Code. Although in this application the arrears from 27.1.1982 to 26,11.1983 had been claimed, the petitioner could have claimed arrears of maintenance allowance from 15.10.1983 onwards. Thus, the order of the Trial Court in sentencing the petitioner to imprisonment for one year and ten months is certainly illegal being violative of the above-referred mandate of the legislature contained in proviso (i) to Sub-section (3) of Section 125 of the Code. Consequently, the impugned order is partly set aside by accepting this petition to the extent that the petitioner would be liable to undergo imprisonment for one year only for arrears of maintenance allowance from 15.10.1983 to 14.10.1984.

10. The petition stands disposed of in these terms at the motion stage itself.

http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com


*****************

FOLLOW http://twitter.com/ATMwithDick on twitter or http://vinayak.wordpress.com/ on wordpress or http://evinayak.tumblr.com/  FOR 100s of high court and supreme court cases
  
  
regards
  
Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn't given up, Male, activist