Vinayak: January 2015

Saturday, January 31, 2015

4lakh compnsation +arrears +2lakh jwelery etc 2 CHARTD ACCNT wife livin away frm hubby !! Equality ...Equality .... Equality....

Chartered account wife living in Mumbai away from husband claims she was driven out of the house !! So the poor woman , ok the complainant in this case, gets compensation + +

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The Hon Court says and we quote ".........The first respondent/husband shall return Rs.2 lakhs as well as gold bracelet and gold ring within two months from the date of the order and shall pay compensation of Rs.4 lakhs within two months from today together with arrears payable from the date of the order in DVC No.20 of 2010, failing which the amount shall attract penal interest at 18% per annum from the date of the order in DVC No.20 of 2010 till payment............."

AND

"......the complainant, who is a Chartered Accountant working at Mumbai, is residing away from her husband, allegedly having been driven out of the matrimonial home in 2009. Where the complainant/wife admittedly is away from the first respondent/husband, I consider that the wife is entitled to seek for monetary order for return of the money given by her/on behalf of her to the respondents....."

*****************************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 or High court websites. 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 movement. SIF as a concept 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 Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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Andhra High Court

V.Chandrasekhar and 2 others.... Petitioners/(R.2 to R.4 in CrlRC.374/14)

K. Bhavana @ V. Bhavana, W/o. V. Chandrasekhar, and another....
Respondents/(Petitioner & R.1 in CrlRC.374/14)

Counsel for the Petitioners: Sri Vedula Srinivas Counsel for Respondent No.1:Sri B.Adinarayana Rao, Senior Counsel Counsel for Respondent No.2:Public Prosecutor <Gist:

HON'BLE Dr. JUSTICE K.G. SHANKAR Crl.R.C.Nos.261 and 374 of 2014 Date: 03.06.204 Crl.R.C.No.261 of 2014:

COMMON JUDGMENT:

Crl.R.C.No.261 of 2014 was filed by V.Chandrasekhar and his parents against K. Bhavana @ V. Bhavana, who is the wife of V. Chandrasekhar. Bhavana, wife of Chandrasekhar in her turn filed Crl.R.C.No.374 of 2014. In Crl.R.C.No.261 of 2014, the judgment in Crl. Appeal No.397 of 2012 on the file of the Additional Metropolitan Sessions Judge, Ranga Reddy District, Cyberabad at L.B. Nagar arising from the orders in DVC No.20 of 2010 on the file of the Judicial First Class Magistrate-cum-XI Metropolitan Magistrate, Cyberabad at L.B. Nagar is challenged. In Crl.R.C. No.374 of 2014 the judgment in Crl. Appeal No.170 of 2012 by the Additional Metropolitan Sessions Judge, Ranga Reddy Dsitrict, Cyberabad at L.B. Nagar arising from DVC No.20 of 2010 is challenged. Thus, the origin of these two revisions is orders in DVC No.20 of 2010 on the file of the XI Metropolitan Magistrate, Cyberabad at L.B. Nagar. I, therefore, consider it appropriate to dispose of both the revisions through this common order.

2. K. Bhavana @ V. Bhavana laid DVC No.20 of 2010 against her husband V. Chandrasekhar and against the parents of her husband. For brevity, I shall refer to the parties as they are arrayed in DVC No.20 of 2010.

3. DVC No.20 of 2010 was laid under Section 12 of the Protection of the Women from Domestic Violence Act, 2005 (DV Act, for short) seeking for protection order and compensation.

4. The marriage between the complainant and the first respondent was solemnized on 14.08.2008 at Hyderabad. The father of the complainant/wife, who was examined as PW.2, allegedly paid Rs.2 lakhs to the third respondent before the marriage through a cheque on demand by the respondents. The father of the complainant also paid Rs.50,000/- a few days before the marriage to enable the respondents to purchase gifts for distribution among their relatives. It is further alleged by the complainant that the first respondent was presented a gold bracelet and gold ring at the time of marriage and was also presented with money to purchase a flat.

5. The complainant further contended that after marriage, the first respondent used to lock up the complainant in a room in the house where they were residing and was not providing food to her. It also is suggested that the first respondent denied the marital obligations and demanded for additional dowry. The complainant consequently laid DVC No.20 of 2010 seeking for protection order and compensation.

6. The first respondent denied the contentions of the complainant. The first respondent claimed that he has been working as Senior Aircraft Technician (Avionics) in Engineering Department and that the contention of the complainant that the first respondent has been suffering from marital ill-health was not correct. He submitted that the complainant voluntarily deserted the matrimonial home. The first respondent indeed speaks about the purchase of the flat. The first respondent submitted that Rs.2 lakhs given by the father of the complainant was intended to purchase jewellery for the complainant herself. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

7. Sri Vedula Srinivas, learned counsel for the respondents submitted that the complainant filed C.C.No.304 of 2010 on the file of the XIV Metropolitan Magistrate, Cyberabad at L.B.Nagar u/s.498-A IPC, apart from laying DVC No.20 of 2010 and that on 18.09.2013, C.C.No.304 of 2010 ended in the acquittal of the first respondent. He further pointed out that the criminal Court held that there was no evidence of physical or mental harassment to the complainant. Admittedly, a Criminal Appeal arising from the judgment in C.C.No.304 of 2010 is pending.

8. However, Sri B. Adinarayana Rao, learned senior counsel representing the complainant/wife submitted that while the decision of the Criminal Court was on 18.09.2013, the orders in DVC No.20 of 2010 were passed earlier on 21.02.2012. He further submitted that the nature of evidence and nature of finding in DVC is quite distinct from the evidence in a criminal case and that the decision in C.C.No.304 of 2010 per se does not effect the fate of DVC No.20 of 2010. I agree with the contention of the learned senior counsel that the parameters in the appreciation of evidence in a criminal case are quite different from the parameters in the appreciation of evidence in a non-criminal matter. The preponderance of probabilities shall determine whether the case of the complainant is made out or otherwise in DVC No.20 of 2010, whereas the question was whether the complainant as wife had established the case beyond reasonable doubt before the trial Court in C.C.No.304 of 2010. I, therefore, do not agree that merely because the first respondent was acquitted in C.C.No.304 of 2010, it follows that the complainant would not be entitled to the relief sought for in DVC No.20 of 2010.

9. The learned counsel for the respondents questioned the evidence of complainant as PW.1 and the evidence of her father as PW.2 in DVC No.20 of 2010. The learned senior counsel for the wife/complainant submitted, on the other hand, that it might not be permissible for the husband to question the findings regarding the evidence of PWs.1 & 2 and the appreciation of evidence by the trial Court and by the appellate Court. Indeed, the learned counsel for the respondents has taken the stand that the findings of the trial Court and the appellate Court are perverse, so much so, the evidence can be scanned afresh. I am afraid that the evidence does not warrant drawing of any interference that the claim of the complainant was false.

10. The learned trial Judge observed that the complainant has been living with her parents since 2009 and that the evidence of PWs.1 & 2 was consistent and convincing. The Court referred to the fact that the husband admitted issuance of cheque for Rs.2 lakhs by the father of the complainant and also admitted withdrawing the same. He, however, contended that the amount was withdrawn for purchase of jewellery for the complainant. If the jewellery of the complainant is to be purchased, the father of the complainant could very well purchase the same, instead of handing over monies to the first respondent to purchase jewellery. I am not prepared to accept the contention of the first respondent that the husband of the complainant received Rs.2 lakhs from the father of the complainant to purchase jewellery for the complainant and that he in fact purchased jewellery for the complainant, as the same has not been established on the one hand and as the defence is illogical on the other hand. It may be recalled that the trial Court ordered return of Rs.2.50 lakhs received by the first respondent before the marriage and also return of gold ring and gold bracelet apart from payment of compensation at Rs.4 lakhs to the complainant towards domestic violence. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

11. So far as Rs.2.50 lakhs are concerned, the evidence of PWs.1 & 2 is that Rs.2 lakhs was given to the first respondent in the shape of a cheque and Rs.50,000/- in the shape of cash for purchasing gifts by the respondents. The first respondent indeed denied the same as RW.1. In view of the fact that RW.1 admitted receiving Rs.2 lakhs by way of cheque, the first respondent cannot now go back and claim that the amount of Rs.2 lakhs has not been received by him. So far as balance of Rs.50,000/- allegedly given by the father of the complainant to the respondents towards purchase of presents by the respondents is concerned, there is no documentary evidence such as withdrawing money by the father of the complainant. Further, there was no person to support the stand of the complainant that Rs.50,000/- was paid by PW.2 to the first respondent before the marriage. Consequently, I consider that the complainant failed in establishing that Rs.2.50 lakhs was paid to the respondents before the marriage and that the complainant is entitled for return of the same. It is, however, established that the complainant has given Rs.2 lakhs through a cheque to the first respondent and the first respondent has encashed the same also. Consequently, the complainant is entitled to seek for return of Rs.2 lakhs only.

12. The learned counsel for the complainant/wife inter alia submitted that it is improper to direct the respondents to return the gold ornaments as well as Rs.2 lakhs or Rs.2.50 lakhs as the case may be since the marriage has been subsisting. It would appear that the complainant and the first respondent have filed separate cases before the Family Court seeking for divorce and restitution of conjugal rights respectively. Be that as it may, as on today, the complainant, who is a Chartered Accountant working at Mumbai, is residing away from her husband, allegedly having been driven out of the matrimonial home in 2009. Where the complainant/wife admittedly is away from the first respondent/husband, I consider that the wife is entitled to seek for monetary order for return of the money given by her/on behalf of her to the respondents.

13. So far as the presentation of gold bracelet and gold ring are concerned, the learned counsel for the husband submitted that it would not be appropriate for anybody to ask for the return of the presentation. In the present case, the presentations were made with the expectation of matrimonial relationship. When the very matrimonial relationship is snabbed, the presentations create obligation on the part of receiver to return those to the person from whom he received the presentation. I, therefore, consider that the trial Court was perfectly justified in directing the refund of the gold ring and bracelet.

14. The learned counsel for the complainant/wife further submitted that there is no provision in DV Act for the relief of refund of gold ornaments received by the husband as presentation. Section 20 of DV Act grants monetary reliefs. As the learned senior counsel for the complainant/wife has pointed out, the definition is an inclusive definition. Section 20 adumbrates that the reliefs include but are not limited to the reliefs enumerated in Section 20 of DV Act. I am afraid that the learned counsel for the complainant/wife cannot contend that the reliefs granted in the order for return of gold bracelet and gold ring are beyond the powers conferred by Section 20 of DV Act.

15. So far as grant of compensation at Rs.4 lakhs is concerned, it is contended by the learned counsel for the complainant/wife that the trial Court has not assigned any reason for granting Rs.4 lakhs as compensation. As rightly submitted by the learned senior counsel for the complainant/wife, working out of compensation is only by approximation as there cannot be any mathematical precision for determining the quantum of compensation as in cases like motor accident claims. Where the wife is a Chartered Accountant and the husband himself is a Senior Aircraft Technician, award of compensation Rs.4 lakhs is certainly just and reasonable.

16. The complainant preferred Crl.R.C.No.374 of 2014 challenging the order of the appellate Court in reducing monetary claim from Rs.2.50 lakhs awarded by the trial court to Rs.2 lakhs. For the reasons already set out, there was no satisfactory evidence so far as payment of Rs.50,000/- for purchase of presents by the respondents. The appellate Court therefore was perfectly justified in reducing the monetary claim to Rs.2 lakhs, instead of Rs.2.50 lakhs, as awarded by the trial Court. Criminal Revision Case No.374 of 2014 is devoid of merits and is liable to be dismissed.

17. So far as Criminal Revision Case No.261 of 2014 is concerned, the order of the trial Court awarding monetary compensation Rs.2.50 lakhs, as modified to Rs.2 lakhs by the appellate Court, awarding of compensation at Rs.4 lakhs and directing to return the gold bracelet and gold ring are found to be justified for the reasons already set out. The revision questioning the order of the trial Court, as modified by the appellate Court, therefore, is liable to be dismissed.

18. Accordingly, both the revisions are dismissed. The orders of the appellate Court granting return of Rs.2 lakhs by the first respondent/husband to the complainant/wife and also return of gold bracelet and gold ring and to pay compensation of Rs.4 lakhs within two months from the date of the order are confirmed. The first respondent/husband shall return Rs.2 lakhs as well as gold bracelet and gold ring within two months from the date of the order and shall pay compensation of Rs.4 lakhs within two months from today together with arrears payable from the date of the order in DVC No.20 of 2010, failing which the amount shall attract penal interest at 18% per annum from the date of the order in DVC No.20 of 2010 till payment.

19. Miscellaneous Petitions, if any pending in both the revisions shall stand closed.

Dr. JUSTICE K.G. SHANKAR

Date: 03.06.2014

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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

MoU that hubby pay 8lakh 2 wife on wife getng dvorce frm court is against public policy not enforcble

Wife who is settled in USA and who left to USA on the day after marriage (meaning no joint living in India), divorces hubby in USA, returns to India and files DV cases In India to get Rs 5 lakhs compensation and Rs 20000 per month as maintenance !!!

* court throws out and MOU entered into between the parents of husband and wife on an MOU for Rs. 8 lakhs
* however NRI / US based wife gets 5 lakhs compensation and rs 20000 p.m. as maintenance !!
* wife HAS already obtained a divorce in USA !! still comes back to India to file DV !!

* wife's dad is a lawyer and argues her case

excerpts
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.......... The MoU was executed after the wife obtained divorce. Clause (2) of MoU reads that the money of Rs.8 lakhs should be paid to the wife after the wife obtains valid divorce. Admittedly, by the date of MoU, divorce has already been obtained. Neither the father of the wife nor the father of the husband can claim that they were not aware about the wife obtaining divorce. Even otherwise, the agreement entered into with a condition that a particular event may be performed in future becomes redundant if the said event had already been performed. The MoU envisages that the husband should pay Rs.8 lakhs to the wife if the wife obtains divorce. By the date of signing of MoU, the wife had already obtained divorce. I, therefore, consider that the MoU was redundant and was of no force. Even otherwise, I consider that an MoU that the husband should pay some consideration to the wife on the condition that the wife should obtain divorce from the appropriate Court is a contract which is against public policy and cannot be implemented. I, therefore, do not consider that the wife can seek for payment of Rs.8 lakhs from the husband on the basis of MoU.

27. Both the trial Court and the appellate Court did not consider about the validity of the MoU and about the redundancy of the MoU, as the MoU was entered into subsequent to grant of divorce by a competent Foreign Court in favour of the wife. When these factors are taken into consideration together with the question of public policy, I have no hesitation to hold that Ex.P.8-MoU is unenforceable both as redundant as well as opposed to public policy. The wife cannot seek for enforcement of the same. Consequently, the order of the trial Court as confirmed by the appellate Court directing the payment of Rs.8 lakhs in terms of MoU dated 11.05.2007 is bad and is liable to be set aside. As already pointed out, the order of granting compensation at Rs.5 lakhs and the order of granting legal expenses at Rs.20,000/- is perfectly justified and deserves to be confirmed.

However, also please note the Hon. court saying
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".....22. The learned senior counsel for the husband attacked the petition on the ground of absence of territorial jurisdiction. Admittedly, the Act is applicable in India and does not have extra territorial application. It is the contention of the learned senior counsel for the husband that the domestic relationship between the husband and the wife was never in India and that this petition seeking for reliefs under the provisions of DV Act is not maintainable in India. The wife laid DVC No.4 of 2009 on the ground of domestic violence. Domestic Violence has been elaborately defined in Section 3 of DV Act. There was no reference u/s.3 that the conduct of the husband or other relatives would be considered to be domestic violence within the meaning of Section 3 of the Act subject to the condition that the alleged conduct occurred within India only. In the absence of specific provision u/s.3 of the Act that the domestic violence ought to have been committed within India, I consider that any act of domestic violence, whether committed within the territorial jurisdiction of India or outside would nevertheless be a domestic violence within the meaning of Section 3 of DV Act....."

*****************************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 or High court websites. 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 movement. SIF as a concept 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 and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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Andhra High Court

A.Ashok Vardhan Reddy Petitioner

Smt.P. Saritha,and 2 others. Respondents

Counsel for the petitioner: Sri Vedula Venkataramana,
                              Senior counsel for petitioner

Counsel for the Respondents: Sri P. Krishna Reddy,
                              Counsel for R-1

Cases referred:
1.2012 CRI.L.J. 309
2.2010 LawSuit (Del) 3145
3.2012 CRI.L.J. 3462
4.2013 CRI.L.J. 3909

HONBLE Dr. JUSTICE K.G. SHANKAR

Crl.R.C.No.15 of 2014

Date:   15.04.2014

ORDER:

The revision is laid by the husband of the first respondent challenging the judgment in Criminal Appeal No.151 of 2013 on the file of the Additional Metropolitan Sessions Jude, Cyberabad. The first respondent, who shall be referred to hereinafter as the wife, filed Domestic Violence Case (DVC) No.4 of 2009 before the Judicial Magistrate of First Class, Special Mobile Court-cum-XI Metropolitan Magistrate, Cyberabad against the petitioner herein (the husband, for short) and the parents of the husband. The wife laid the case under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (DV Act, for short) read with Rule 6 (1) of the Rules seeking for a protection order and compensation. The trial Judge partly allowed the DVC No.4 of 2009. The husband and the father of the husband, who is the second respondent herein, were directed to pay Rs.8 lakhs to the first respondent herein (wife) along with interest at 12% per annum from 11.05.2007. Compensation at Rs.5 lakhs was awarded, which is payable by the husband within two months from the date of the order.

2. The husband preferred Criminal Appeal No.151 of 2013 before the Additional Metropolitan Sessions Judge, Cyberabad questioning the orders in DVC No.4 of 2009. The parents of the husband in their turn filed Criminal Appeal No.143 of 2013. A common judgment was pronounced by the learned Additional Metropolitan Sessions Judge, Cyberabad dismissing both the criminal appeals. The orders in DVC No.4 of 2009 stood confirmed. Aggrieved by the same, the husband preferred the present revision. Be it noted that the parents of the husband did not prefer any revision.

3. The marriage between the main parties was solemnized on 27.08.2005. On the date of marriage itself, the wife had to leave for United States of America (USA) where she was working and the visa and Green Card regulations required her presence in USA. The husband subsequently joined the wife at USA. The wife and husband had serious differences and failed to see eye-to-eye with each other. The wife complained that the husband was harassing her demanding additional dowry to a tune of Rs.25 lakhs to Rs.30 lakhs. It is also alleged that the wife was physically harassed by the husband in USA such as keeping her inside the house and bolting the door from outside. The wife claimed that she reported the matter to the Department of Public Safety in West Virginia University. The father of the wife also lodged a complaint in Saroornagar Police Station, Hyderabad, India on behalf of his daughter, which was registered as Crime No.1098 of 2006.

4. It is the case of the wife that the wife had no alternative but to seek for divorce. The wife filed a petition on 08.07.2006 in the Family Court, Monongalia County West Virginia University and obtained orders for divorce on 12.03.2007. Inter alia, the wife contends that she reserved her right to claim maintenance and distribution of assets. It is also the claim of the wife that the father of the husband later entered into a Memorandum of Understanding (MoU, for short) with the father of the wife on 11.05.2007 agreeing to pay Rs.8 lakhs, in case the wife consents for divorce and that the amount of Rs.8 lakhs was already deposited before the mediators. The wife complained that the husband and the father of the husband failed to honour their commitment in terms of MoU. Other allegations were also made which are not germane for the purpose of the present case.

5. The husband denied all the allegations of the wife including demanding for additional dowry at Rs.30 lakhs and receipt of Rs.5,25,000/- from the wife and his in-laws. The parents of the husband contended that the father of the wife forced the father of the husband to enter into an MoU, albeit the wife had already obtained divorce even by the date of MoU. They claimed that they never made any demands for dowry and contended that MoU is unenforceable.

6. The wife examined herself as PW.1 and examined her mother as PW.2. She also examined one of her cousins as PW.3. As against the evidence, the husband examined himself as RW.1. The father of the husband was examined as RW.2. After considering the case, the learned trial Judge ordered the husband to pay compensation of Rs.5 lakhs to the wife and also to pay Rs.20,000/- as legal expenses. It further directed the husband and the father of the husband to pay Rs.8 lakhs covered by MoU to the wife together with interest.

7. As already pointed out, questioning the same, the husband filed an appeal, whereas the parents of the husband filed another appeal. However, both the appeals were dismissed on 06.11.2013.

8. Sri P. Krishna Reddy is said to be the father of the wife. He is an advocate. He laid vakalat on behalf of the wife and conducted the case on behalf of his daughter who is the wife herein.

9. Sri Vedula Venkataramana, learned senior counsel for the petitioner-husband pointed out that Ex.P.8-MoU was entered into between RW.2 and the learned counsel for the wife (as the father of the wife) on 11.05.2007. The MoU contemplates that the husband should pay Rs.8 lakhs to the wife in the event the wife obtained divorce. However, Ex.P.4 copy of the decree of divorce shows that the wife obtained divorce on 12.03.2007 itself, whereas the MoU under Ex.P.8 was after the divorce. One of the terms of MoU is that the wife should obtain divorce as a condition precedent for payment of Rs.8 lakhs by RW.2.

10. The learned senior counsel inter alia submitted that once the matrimonial relationship between the wife and the husband was cut off through divorce, DVC case would not be maintainable. He also contended that there was no domestic relationship between the wife and the husband at any point of time in India, so much so, DV Act, which is applicable to the Indian territories only, is not applicable to the controversy in the present case. He also submitted that the husband and his parents did not commit any domestic violence and that as there was no domestic violence, the wife was not entitled to receive Rs.8 lakhs. Finally, the learned senior counsel for the husband submitted that DV Act did not provide for any compensation, since the very objective of the Act was to sustain domestic relationship.

11. In Inderjit Singh Grewal v. State of Punjab , the wife sought for compensation u/s.12 of DV Act. The wife sought for the custody of minor son, right of residence and restoration of domestic articles. The marriage stood dissolved by the date of the petition. The Supreme Court considered that Section 12 of DV Act would not apply unless the decree for divorce was set aside. In Vijay Verma v. State NCT of Delhi , a learned single Judge of Delhi High Court observed:

6. Domestic relationship continues so long as the parties live under the same roof and enjoy living together in a shared household. Only a compelled or temporarily going out by aggrieved person shall fall in phrase at any point of time, say, wife has gone to her parents house or to a relative or some other female member has gone to live with her some relative, and, all her articles and belongings remain within the same household and she has not left the household permanently, the domestic relationship continues. ..

On the basis of these two decisions, it is urged by the learned counsel for the husband that the very claim is not maintainable.

12. Sri P. Krishna Reddy, learned counsel for the wife placed reliance upon A. Ashok Vardhan Reddy v. Smt. P. Savitha . When the wife herein filed C.C.No.48 of 2008 on the file of the II Metropolitan Magistrate, Cyberabad at L.B. Nagar against the husband and the parents of the husband, a petition was filed by the husband and his parents seeking for quashment of C.C.No.48 of 2008. After an elaborate judgment, the Criminal Petition was dismissed. As the case was between the same parties, the learned counsel for the wife is placing heavy reliance upon this decision. He pointed out that the Court concluded that the divorced wife is entitled to maintenance under the provisions of DV Act so long as she did not contact another marriage. It was noted that the existence of any jural relationship of man and his wife between the petitioner-husband and the respondent-wife is not a sine qua non for maintaining a domestic violence case. Referring to grant of divorce by a Foreign Court, the Court observed that the cases under the provisions of DV Act would still operate if allegations are made out or otherwise proved.

13. The learned senior counsel for the husband contended that the allegations made by PWs.1 to 3 are bald, sweeping and general. He contended that there was no incidence of physical or mental cruelty.

14. Where divorce was already granted by a Foreign Court and where this revision is not for grant of maintenance as such, I consider that the Court need not go into the question of the merits of this revision. The trial Court and the appellate Court held that the domestic violence is made out. I go by the assumption that the DV Act has been made out. What should be the relief in such an event is the only question.

15. So far as granting of Rs.5 lakhs as compensation is concerned, there is no counter attack from the husband. Similarly, the award of Rs.20,000/- towards legal expenses is also not attacked by the husband. This revision deserves to be dismissed straightaway so far as legal expenses and so far as compensation are concerned.

16. Regarding the amount covered by MoU, the question is whether the wife can seek for an order to direct the husband to abide by terms of the MoU. The MoU was executed by the father of the husband as well as by the father of the wife. Neither the wife nor her husband is a party to the MoU. MoU between the parties with an understanding that the husband should pay some money to the wife and the wife should accept for divorce, I am afraid, is against the public policy. However, the MoU reads as if the husband agreed to pay Rs.8 lakhs to the wife towards the amount paid by the wife to the husband and the amounts spent by the wife towards the husband after their marriage. Such an MoU is sought to be implemented and was ordered to be implemented by the trial Court and confirmed by the appellate Court. The wife or the father of the wife is a party to the MoU perhaps would be entitled to file a suit seeking for specific performance of the MoU. I do not consider that the wife can seek for enforcement of MoU merely on the ground that the MoU was executed.

17. Ex.P.8-MoU recites that Rs.8 lakhs constitutes money paid to the husband by the wife. Regarding the question whether such money can be paid to the wife or not, the learned senior counsel for the wife submitted that the wife cannot seek for recovery of money through DV Act. However, Section 20 of DV Act is wide enough to engulf payment of money covered by the MoU.

18. The learned counsel for the wife tried to show that various provisions of DV Act empower the wife to seek the reliefs. So far as compensation of Rs.5 lakhs is concerned, the wife certainly is entitled to the same. Added to it, the learned counsel for the wife contended that a divorced wife is entitled to seek for reliefs under DV Act. In Ritesh Ratilal Jain v. Sandhya, w/o. Ritesh Jain , the Bombay High Court referred to Section 3 of DV Act in detail and observed that where prima facie case is made out, the petition cannot be questioned. However, the present petition is not for quashment, but for the implementation of MoU under Ex.P.8.

19. So far as MoU is concerned, ordinarily, it should have been a civil case. However, in view of Section 12 read with Section 20 of DV Act, a wife can seek for payment of the amount covered by MoU. The husband was not a party to the MoU. It may be noticed that the MoU was entered into between the father of the husband and the father of the wife on behalf of their respective children. I, therefore, assume that the MoU is unenforceable.

20. The learned senior counsel for the husband referred to domestic relationship within the meaning of DV Act. Section 2 (f) of DV Act defines domestic relationship as a relationship between two persons who have been living or have lived in a shared household, inter alia, through a relationship in the nature of marriage at any point of time. Section 2 (f) reads: domestic relationship means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.

21. From the very fact that the relationship between the parties being at any point of time u/s.2 (f) of DV Act, it would appear that the domestic relationship need not be enforced at the time of filing of the petition. The trial Court as well as the appellate Court are consequently justified in entertaining the application, albeit there was a valid divorce between the wife and the husband, having been granted by a Foreign Court on 12.03.2007. The contention of the learned senior counsel for the husband that the jural relationship of man and his wife must be in existence by the date of the petition and by the date of the order therefore is not justified. I have no reason to disagree with the view of the trial Court and the appellate Court that albeit the jural relationship was snapped between the wife and husband, the wife is entitled to file petition seeking for relief under the provisions of the Act.

22. The learned senior counsel for the husband attacked the petition on the ground of absence of territorial jurisdiction. Admittedly, the Act is applicable in India and does not have extra territorial application. It is the contention of the learned senior counsel for the husband that the domestic relationship between the husband and the wife was never in India and that this petition seeking for reliefs under the provisions of DV Act is not maintainable in India. The wife laid DVC No.4 of 2009 on the ground of domestic violence. Domestic Violence has been elaborately defined in Section 3 of DV Act. There was no reference u/s.3 that the conduct of the husband or other relatives would be considered to be domestic violence within the meaning of Section 3 of the Act subject to the condition that the alleged conduct occurred within India only. In the absence of specific provision u/s.3 of the Act that the domestic violence ought to have been committed within India, I consider that any act of domestic violence, whether committed within the territorial jurisdiction of India or outside would nevertheless be a domestic violence within the meaning of Section 3 of DV Act.

23. In the present case, the wife claimed that she had been harassed and was subjected to domestic violence which was supported by her mother and cousin. The learned counsel for the husband primarily considered that where the domestic violence alleged did not occur in India, the Act has no force. I am afraid that such a contention cannot be accepted. In the absence of contrary evidence and in view of the finding of the trial Court which was confirmed by the appellate Court that the wife was subjected to domestic violence, I am afraid that the finding cannot be interfered with in this revision, as the finding does not appear to suffer from perversion or any infirmity.

24. Be that as it may, the concrete question in this revision is whether an order can be passed for payment of Rs.8 lakhs covered by MoU. The learned senior counsel for the husband did not deal with the order of payment of compensation at Rs.5 lakhs and legal expenses at Rs.20,000/-, but emphatically questioned the direction of payment of Rs.8 lakhs covered by MoU.

25. There is no proof from the evidence of PWs.1 to 3 that they have spent Rs.8 lakhs over the husband which is liable to be returned by the husband. The Rs.8 lakhs referred to is only on the basis of MoU. The learned counsel for the wife also insisted upon the payment of Rs.8 lakhs which is covered by MoU.

26. The MoU was executed after the wife obtained divorce. Clause (2) of MoU reads that the money of Rs.8 lakhs should be paid to the wife after the wife obtains valid divorce. Admittedly, by the date of MoU, divorce has already been obtained. Neither the father of the wife nor the father of the husband can claim that they were not aware about the wife obtaining divorce. Even otherwise, the agreement entered into with a condition that a particular event may be performed in future becomes redundant if the said event had already been performed. The MoU envisages that the husband should pay Rs.8 lakhs to the wife if the wife obtains divorce. By the date of signing of MoU, the wife had already obtained divorce. I, therefore, consider that the MoU was redundant and was of no force. Even otherwise, I consider that an MoU that the husband should pay some consideration to the wife on the condition that the wife should obtain divorce from the appropriate Court is a contract which is against public policy and cannot be implemented. I, therefore, do not consider that the wife can seek for payment of Rs.8 lakhs from the husband on the basis of MoU.

27. Both the trial Court and the appellate Court did not consider about the validity of the MoU and about the redundancy of the MoU, as the MoU was entered into subsequent to grant of divorce by a competent Foreign Court in favour of the wife. When these factors are taken into consideration together with the question of public policy, I have no hesitation to hold that Ex.P.8-MoU is unenforceable both as redundant as well as opposed to public policy. The wife cannot seek for enforcement of the same. Consequently, the order of the trial Court as confirmed by the appellate Court directing the payment of Rs.8 lakhs in terms of MoU dated 11.05.2007 is bad and is liable to be set aside. As already pointed out, the order of granting compensation at Rs.5 lakhs and the order of granting legal expenses at Rs.20,000/- is perfectly justified and deserves to be confirmed.

28. Accordingly, the Criminal Revision Case is allowed in part. The order of the trial Court as confirmed by the appellate Court regarding payment of compensation at Rs.5 lakhs and legal expenses at Rs.20,000/- are confirmed. The order of the trial Court as confirmed by the appellate Court for payment of Rs.8 lakhs by the husband to the wife is set aside, as the MoU is found to be redundant and against public policy. Miscellaneous Petitions, if any pending in this revision shall stand closed.

K.G. SHANKAR, J

Date: 15.04.2013

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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

Friday, January 30, 2015

Husband, a hindrance for lovebirds, beaten to death by loverboy!! ; 2 children almost orphaned now !!

How illicit love is splitting families and standing young innocent children who are on the streets .... in many cases women use false cases ... in this instance it's a gruesome murder

News in Tamil from one-india dot come with brief non recourse translation

* 51 year old Mannagnkatti lived with his wife and two children

* In spite of being married and having two kids, his wife anjalAtchi had an illicit relationship with one Murugan

* The husband was a hindrance for the lovebirds

* One day when the husband did not return home

* Next day morning he was found murdered in a gruesome manner

* Some one had beaten him to death the earlier night

* On inquiry the illicit love and loverboy's murderous actions have come to life

அஞ்சலாட்சியை சந்திக்க இடையூறாக இருந்த மண்ணாங்கட்டி.. தலையில் அடித்து கொலை செய்த முருகன்!

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அஞ்சலாட்சியை சந்திக்க இடையூறாக இருந்த மண்ணாங்கட்டி.. தலையில் அடித்து கொலை செய்த முருகன்!

Posted by: Sutha Updated: Friday, January 30, 2015, 18:18 [IST]

விழுப்புரம்:

விழுப்புரம் அருகே தனது கள்ளக்காதலியைச் சந்தித்துப் பேசி சந்தோஷமாக இருப்பதற்கு அவரது கணவர் பெரும் இடையூறாக இருப்பதாக கருதிய வாலிபர், தனது கள்ளக்காதலியின் கணவரை தலையில் அடித்துக் கொடூரமாக கொலை செய்து தற்போது கைதாகியுள்ளார்.

விழுப்புரம் அருகே உள்ள நரையூர் கிராமத்தை சேர்ந்தவர் மண்ணாங்கட்டி (51), கொத்தனார். இவரது மனைவி அஞ்சலாட்சி (31). இவர்களுக்கு 2 மகள்கள் உள்ளனர்.

திருமணத்துக்கு பிறகு அஞ்சலாட்சியின் சொந்த ஊரான செஞ்சியை அடுத்த ஆதனூரில் கணவனும், மனைவியும் வசித்து வந்தனர். மண்ணாங்கட்டி தினசரி குடிப்பார். குடித்து விட்டுத்தான் வீடு திரும்புவார். கடந்த 27ம் தேதி இரவு வீட்டை விட்டு வெளியே சென்றார். ஆனால் வெகுநேரமாகியும் வீடு திரும்பவில்லை. இந்த நிலையில் அடுத்த நாள் அதே பகுதியில் பிணமாக சாலையில் கிடந்தார் மண்ணாங்கட்டி. விரைந்து வநத் போலீஸார் மண்ணாங்கட்டி உடலை மட்டு பிரேதப் பரிசோதனைக்கு அனுப்பினர். விசாரணை நடத்தி வந்தனர்.

முதலில் கீழே விழுந்து அடிபட்டு இறந்திருக்கலாம் என்று போலீஸார் சந்தேகித்தனர். ஆனால் பிரதேப் பரிசோதனையில் கொலை என்று தெரிய வந்தது. இதையடுத்து ஆதனூரில் போலீஸார் விசாரணையைத் தீவிரப்படுத்தினர். அப்போதுதான் அஞ்சலாட்சியின் கள்ளக்காதல் கதை தெரிய வந்தது. அவருக்கும் முருகன் என்பவருக்கும் கள்ளக்காதல் இருந்துள்ளது. ஆனால் அடிக்கடி தனிமையில் சந்திக்க முடியாத அளவுக்கு மண்ணாங்கட்டி நடுவில் இருந்திருக்கிறார். இதனால் இருவரும் தவித்துள்ளனர். இதையடுத்து மண்ணாங்கட்டியை காலி செய்து விட்டால் நமக்கு பிரச்சின இல்லை என்ற முடிவு செய்த முருகன், அடித்துக் கொலை செய்து விட்டார். இதுகுறித்து முருகன் கூறுகையில், அஞ்சலாட்சியை நான் சந்திக்க மண்ணாங்கட்டி இடையூறாக இருந்தார். எனவே அவரை தீர்த்து கட்டினால்தான் நிம்மதி என நினைத்தேன். அதற்கான சந்தர்ப்பத்துக்காக காத்திருந்தேன். கடந்த 27 ம்தேதி இரவில் மண்ணாங்கட்டி மட்டும் குடிபோதையில் தனியாக ரோட்டில் நடந்து சென்று கொண்டிருந்தார். அதனை கண்ட நான் அவருக்கு தெரியாமல் பின்தொடர்ந்து சென்றேன். இருளான பகுதியில் அவர் சென்றபோது அவரது தலையின் பின்புறத்தில் கையால் பலமாக தாக்கினேன். இதில் நிலைதடுமாறி அவர் கீழே விழுந்தார். எனினும் அவரை சரமாரியாக அடித்து உதைத்து கொலை செய்தேன். அவர் இறந்தது ஊர்ஜிதமானவுடன் தப்பி சென்றுவிட்டேன் என்று கூறியுள்ளார்.

Read more at: http://tamil.oneindia.com/news/tamilnadu/mason-murdered-his-wife-s-paramour-220010.html

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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

Monday, January 26, 2015

PAY 50% income as INTERIM children maint. Wife in adultry ?? we'll worry about that later !! Delhi Court

A dutiful wife files DV case. Case comes to court. Legal husband protests saying wife is living in adultery

Hon. court orders him to pay ONLY 50% of his income towards the minor children (50,000 PER MONTH out of the assessed income of 100,000 )

All in the name of justice

/////////////////////// NEWS from TOI ///////////////////

Dad must pay for upkeep of kids: Delhi Court

TNN | Jan 22, 2015, 04.08 AM IST

NEW DELHI: Children should not suffer for want of maintenance on account of disputes between their parents, a trial court said while directing a man to pay Rs 50,000 per month as interim maintenance of his minor sons in a case of domestic violence filed by his estranged wife, adding the man was duty-bound to maintain them.

However, the court denied maintenance amount to the woman, accepting the man's contention that she was living with her brother-in-law with whom she had illicit relations and hence not entitled to interim maintenance for herself.

Metropolitan Magistrate Mona Tardi Kerketta said while awarding the maintenance amount said that the man had admitted earning about Rs 55,000 per month by way of salary and rental income besides PPF, FDs and other means. It also noted that he had a godown and some properties in his name.

"It be observed that the respondent has claimed living separately, which goes on to suggest that he has no other liability except to maintain his wife and children. Income of the respondent (man) is assessed about Rs 1,00,000 per month. Accordingly, he is directed to pay a composite sum of Rs 50,000 per month as interim maintenance to the minor children," the court said. There's also a property case pending between the duo.

SOURCE : TIMES OF INDIA

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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

PAY 50% income as INTERIM children maint. wife living in adultry ?? we'll worry about that later !! Delhi Court

All in the name of justice

SOURCE : TIMES OF INDIA

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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

10yrs afr mariage 8yrs after kid NRI MAN wants 1 crore dowry. REALLY wanna believe dis? Best Republic day 2 u !!

Some 10 years or so after marriage and some 8 years of so after a kid was born, this NRI man is accused of seeking a 1 crore dowry

Biwi is back In India happily filing 498a against him and the police saying "........WE WOULD SPARE NO EFFORT IN BRINGING HIM BEFORE LAW......"

I saw this just today, so thought of posting this with my Best republic day wishes to you !!

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NRI husband demands Rs 1 crore from wife's family

Mrigank Tiwari,TNN | Jan 19, 2015, 09.46 PM IST

BAREILLY: An NRI man allegedly sent back his wife and eight-year-old daughter from Dubai after the woman's family failed to give him Rs 1 crore as dowry.

The man, working as a manager in a multi national company in Dubai sent his wife and daughter back to her parent's house in Bareilly and said he would take them back only after he received the sum. An FIR was lodged at Prem Nagar police station against him on Sunday.

In her complaint, the woman, Sunanda, resident of Kudesiya Phatak under Prem Nagar police station, said she was married to Kamal Anand, a resident of Alambagh, Lucknow in 2004.

Within a few months after their marriage, her father arranged for a job at a multinational firm in Dubai for his son-in-law and the two went and settled there.

In June 2006, Sunanda gave birth to a daughter named Anushka and the couple lived happily for the next two years. However, in 2008, Kamal made a demand of Rs 1 crore as dowry from the parents of his wife, who expressed their inability to do so.

Sunanda claimed in her statement that Kamal and his family members then started harassing her, forcing her to come to her parent's house in Bareilly in 2011.

The two families worked out a settlement after which Sunanda returned to her husband's house in Dubai along with her daughter. But in her complaint, she said that things did not improve thereafter and she was subjected to physical and mental abuse by her husband and in-laws once again as they continued to stick to their demand of Rs 1 crore as dowry.

She alleged that she was thrown out of the house in March 2014 after which she came to Bareilly once again. Her parents repeatedly tried to work out a settlement but the man's family refused to heed to their request, forcing Sunanda to file a complaint at Prem Nagar police station.

Talking to TOI, SP, city, Rajeev Malhotra said, "A case under Section 498A of Dowry Prohibition Act has been lodged against Kamal Anand and investigations are underway. In case he is found guilty, we would spare no effort in bringing him before law."

source : TOI

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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

Claims a telephone Nikkah !!, CLAIMS him friend since '06, claims forced sex & NOW complains blackmail & publishing nude photos !!

Claims a telephone Nikkah !!, CLAIMS him friend since '06, claims forced sex & NOW complains blackmail & publishing nude photos !!

Excerpts
************************
* "...The victim claimed that she had been friend of Rab since 2006, when she was in Intermediate...."
* and the MARRIAGE was ON TELEPHONE !!! ".... on February 16, 2014, her nikah was performed with Syed Abdul Rab, a Kuwait-based store-keeper from Jahanuma via telephone...."
* ".... in 2012, she claimed, he spiked her soft drink while they were having lunch at a resort in Golconda and then had sex with her....."
* "....by threatening to post the indecent video on the internet, Rab made me send him my naked photos..."

and she is STILL CALLED THE ...VICTIM !!!!!

Sunday, January 25, 2015

Delayed FIR, majr embellishments in case, prosecution verson shaken accused hubby & co freed !! A Police inspector's SIL falsely accused & hauled over coals 10 years !!

* Married woman dies due 2 to poisoning
* Sessions court acquits all accused as prosecution story is doubted
* STILL THE STATE goes on appeal & WASTES close to 9 years time, public money and husband's life !!

By the way "...father of the victim PW2 Hukam Chand is an Inspector in the police force ........ The sequence of events further shows that they chose to implicate the accused persons by improving upon and embellishing their versions from time to time ...... "

Long live Indian marriages !!

Important events
***************************
* on 28.5.2005 ASI Ishwar Dutt (PW11) reached AIIMS where the deceased (Hema) was admitted & given treatment.
* The deceased was declared unfit for statement by the doctors.
* On 30.5.2005 at 2.35 pm, information of the death of Hema was received
* Reason of death : poisoning due to aluminium phosphide ingestion
* the accused persons pleaded innocence and claimed that no demand of dowry was ever made by them
* deceased could not conceive and that is why she was in depression and under the influence of that depression, she committed suicide.
* The learned Sessions Judge accordingly found that there existed reasonable doubt about the genesis of the prosecution story due to the embellishments, infirmities and contradictions in the evidence on record going to the root of the matter, which were sufficient to shake the core of the prosecution case.
* The learned Trial Court also found that there was a reasonable possibility of the deceased having committed suicide as she could not conceive on account of which fact she was in depression.
* also deceased has left behind no dying declaration or any suicide note before consuming the tablets of aluminium phosphide
* in the MLC there is no mention of any external injuries on any body part of the deceased !!

*****************************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 or High court websites. 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 movement. SIF as a concept 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 and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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Delhi High Court

State vs Naresh & Ors on 10 February, 2014

Author: Reva Khetrapal

IN THE HIGH COURT OF DELHI AT NEW DELHI

CRL. L.P. NO.367/2012

STATE                                            ..... Petitioner
Through:          Mr. Narender Kumar Choudhry, APP.

versus

NARESH & ORS                                       ..... Respondents
Through:                 Mr. B.S. Rana and Mr. Vijender Bhardwaj, Advocates.

Date of Decision : February 10, 2014

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
HON'BLE MS. JUSTICE PRATIBHA RANI

JUDGMENT

REVA KHETRAPAL, J.

CRL. L.P. NO.367/2012

1. Leave granted.

2. Registry shall register and number the Appeal. Crl. A. No._______/2013

1. This Appeal is directed against the judgment of the learned Additional Sessions Judge dated 17.12.2011 in Sessions Case No.82A/2011 acquitting the Respondents Naresh, Suresh, Nirmala, Niyadher Singh and Harnandi for the offences punishable under Section 498A IPC and 304B read with Section 34 IPC. Aggrieved by the aforesaid judgment, the State has preferred the present Appeal.

2. Facts and circumstances giving rise to the Appeal are that on 28.5.2005, on receipt of DD No.14A, ASI Ishwar Dutt (PW11) reached All India Institute of Medical Sciences (AIIMS) where the deceased (Hema) was admitted and was being given treatment. The deceased was declared unfit for statement by the doctors.

3. On 30.5.2005 at 2.35 pm, information of the death of Hema was received in PS Sarojini Nagar and the same was recorded in DD No. 17A (Ex.PW4/A). ASI Ishwar Dutt (PW11) reached AIIMS and informed the SHO and the SDM. The SDM Sh. R. Chopra (PW8) conducted inquest proceedings and sent the dead body for postmortem. ASI Ishwar Dutt (PW11) recorded the statement of Smt. Rajrani (PW3) as Ex. PW3/A in the presence of the SDM Sh. R. Chopra who made endorsement Ex.PW8/C thereon. Thereafter, ASI Ishwar Dutt (PW11) scribed tehrir Ex.PW11/A and got registered FIR No.266/05 - Ex.PW6/A, under Sections 498A/304B/34 IPC. Post- mortem of the dead body of the deceased was conducted and Inspector Ashok Kumar (PW12) who conducted the investigation directed that viscera with sample seal collected by ASI Ishwar Dutt (PW11) be sent for chemical analysis. On receipt of Viscera Analysis Report, the Autopsy Surgeon PW1, Dr.Arvind Kumar gave subsequent opinion that the cause of death in the case was: "Pulmonary edema consequent upon poisoning due to aluminium phosphide ingestion".

4. On 30.5.2005, Sh. Hukam Chand (PW2), father of the deceased, gave his statement Ex.PW2/A in his own writing to the SDM, Sh. R. Chopra (PW8).

5. On 2.6.2005, Ms. Karuna (PW7), cousin of the deceased and Smt. Rajrani (PW3), mother of the deceased gave their written statements Ex.PW8/D and Ex.PW3/B respectively to the SDM.

6. The accused persons were arrested and their personal search was conducted. The disclosure statement of accused Naresh was recorded as Ex.PW11/E.

7. On completion of investigation, chargesheet was filed against all the accused persons for offences under Sections 498A/304B/34 IPC.

8. On 6.2.2007, charge for offences punishable under the aforesaid Sections was framed against the accused persons by the learned Sessions Court to which the accused pleaded not guilty and claimed trial.

9. In order to connect the accused with the offences charged, the prosecution examined 16 witnesses. Out of these witnesses, Shri Hukam Chand (PW2), Smt. Rajrani (PW3), Ms. Karuna (PW7) and Shri Pradeep Kumar (PW10) are the material witnesses. The evidence of the remaining witnesses is formal in nature.

10. The statements of all the accused persons were recorded under Section 313 Cr.P.C., in the course of which all the incriminating material in evidence was put to the accused persons. While denying the incriminating material against them, the accused persons pleaded innocence and claimed that no demand of dowry was ever made by them at any point of time during the lifetime of the deceased nor was the deceased harassed by any of them during her lifetime. Accused also stated that despite being treated, the deceased could not conceive and that is why she was in depression and under the influence of that depression, she committed suicide.

11. After appreciation of the evidence adduced by the prosecution, the learned Additional Sessions Judge found the accused not guilty. In the impugned judgment, reference was specifically made by the learned Trial Court to the inconsistencies and contradictory versions of the material witnesses, namely, PWs 2, 3, 7 and 10 with regard to the alleged ill-treatment of the deceased and demands for dowry made by the accused, the introduction of „coloured versions? of the prosecution witnesses and the concoction of facts belatedly made under legal advise by the material witnesses. The learned Sessions Judge accordingly found that there existed reasonable doubt about the genesis of the prosecution story due to the embellishments, infirmities and contradictions in the evidence on record going to the root of the matter, which were sufficient to shake the core of the prosecution case. The learned Trial Court also found that there was a reasonable possibility of the deceased having committed suicide as she could not conceive on account of which fact she was in depression.

12. We have scrutinized the evidence on record and considered the rival submissions made by learned counsel for the parties. At the outset, we note a glaring feature in this case which throws considerable suspicion on the prosecution version and which was pressed into service by Mr. B.S. Rana, learned counsel for the Respondents with all vehemence at his command. Mr. Rana contends that there was an inordinate delay in the registration of the First Information Report. There is no dispute as to the fact that PW2 and PW3, the parents of the deceased, as also PW7, the cousin of the deceased, and PW10, the uncle of the deceased were present in AIIMS when the deceased was admitted there on 28.5.2005. There is also no dispute to the fact that the father of the deceased PW2 Hukam Chand is an Inspector in the Delhi Police and PW7 Ms. Karuna and PW10 Shri Pradeep Kumar are both Head Constables in the Delhi Police and had knowledge of the requirement of prompt reporting of all offences to the authorities including the police and the SDM at the earliest possible point of time. Yet, not only on 28.5.2005 but also on 29.5.2005 and even on 30.5.2005 till the deceased expired at 2.35 pm on 30.5.2005, it was not found fit by any of the prosecution witnesses to complain to the authorities about the harassment being meted out to the deceased by her husband and in- laws. The learned counsel for the Respondents, Mr. Rana contends that there is an inherent improbability in such conduct of the near and dear ones of the deceased, for which no explanation has been rendered by the prosecution, let alone a plausible one. In such circumstances, the likelihood of the Respondents having been falsely implicated cannot be ruled out. [This becomes all the more significant in the light of the fact that the deceased has left behind no dying declaration or any suicide note before consuming the tablets of aluminium phosphide.] After her admission to AIIMS, she was declared unfit for statement as is apparent from the endorsements made by the concerned doctor on the application of the Investigating Officer, one of which endorsements was recorded at 11.15 a.m. on 28.5.2005, i.e., soon after the admission of the victim in the hospital at 10.05 a.m., then again at 5.00 p.m. on 28.5.2005 as well as on the following day, i.e., on 29.5.2005 (Ex.PW5/B) similar endorsements were recorded. Thus, we do not have the advantage of having before us the version of the victim herself nor is there any other writing placed on record by the victim during her lifetime complaining about harassment or demands for dowry made by her husband and in-laws.

13. Mr. Rana has also drawn our attention to the fact that in the MLC of the deceased (Hema) dated 28.5.2005, annexed as Mark A1 with the chargesheet, the arrival time at AIIMS is mentioned as 10.01 a.m. and there is also mention of the name of Mrs. Sushma, resident of 162, Humayupur, New Delhi as the name of the relative or friend accompanying her, which address is the same as the address at which the victim was residing with the accused persons. Therefore, it can safely be assumed that said Mrs. Sushma was a member of the family. Yet, said Mrs. Sushma was neither joined in the investigation nor cited or examined as a prosecution witness.

14. Yet another aspect of the case which deserves to be noted is that in the MLC there is no mention of any external injuries on any body part of the deceased. There is also no mention of the deceased being unconscious at that time. Even in the postmortem report (Ex.PW1/A), there is no mention of any fresh external injury seen over the body of the deceased except intravenous canula injection marks seen over left and right cubital region with slight bluish extravassation of blood in surrounding tissue.

15. Mr. Narender Kumar Choudhry, learned Additional Public Prosecutor strongly contended that the learned Trial Court had patently erred in appreciating the evidence of PW2, PW3, PW7 and PW10 and the impugned judgment suffers from the vice of the perversity. Mr. Choudhry has taken us through the testimonies of the aforesaid witnesses, who are stated to be the material witnesses for bringing home the guilt of the Respondents/accused persons.

16. Mr. Hukam Chand (PW2), father of the victim, deposed that sufficient articles were given in dowry in the marriage of his daughter. Yet, after marriage, the accused persons used to comment that nothing was given in the marriage and taunt about why a car had not been given in dowry in place of motorcycle. When his daughter Hema visited her parental home for the second time after the marriage, she conveyed demand of ` 51,000/- alongwith a gold bracelet on behalf of the accused persons. When she left after this visit for her matrimonial home, she was given clothes and other articles worth ` 60,000/-. However, accused persons kept on harassing his daughter on account of dowry. He further deposed that in August, 2002 his younger brother Pradeep (PW10) had visited Hema and met accused persons. On his visit, Pradeep (PW10) was told by Hema that accused persons used to give her beatings on account of dowry. On this occasion, the accused persons sent Hema (the deceased) along with her brother Pradeep (PW10) back to their parental house where she remained for about one year.

On 18th July, 2003, he alongwith other relatives visited the house of accused persons and in that meeting the accused persons promised to mend their behaviour and thereafter Naresh (husband of Hema) took Hema to her matrimonial home on 20.7.2003. On 23.5.2005, Hema was sent to attend the marriage of the daughter of her father?s brother by the accused persons on the condition that a demand of ` 20,000/- will be met by her family. However, that much amount could not be arranged by her family and she was sent with PW10 Pradeep (her paternal uncle) to her matrimonial home, with a sum of ` 5,000/-. On 28.5.2005, he (PW2) received a call from ASI Ishwar Dutt (PW11) from PS Sarojini Nagar informing him that Hema was admitted at AIIMS Hospital.

17. PW2 Shri Hukam Chand was confronted with his statement made before the SDM (Ex.PW2/A) in respect of the demand of ` 51,000/- along with gold bracelet as no such fact had been stated by him to the SDM. He was also confronted with his statement Ex.PW2/A before the SDM in respect of his assertion that when his daughter left after her visit for her matrimonial home, she was given clothes and other articles worth ` 60,000/-, where it was not so stated by him. Even for the allegation made by him that his younger brother Pradeep (PW10) visited Hema and met accused persons at their house and on this visit Pradeep was told by Hema that accused persons used to give her beatings on account of demand of dowry, he was confronted with his statement made before the SDM as no such fact had been mentioned therein. He was also confronted with his statement recorded before the SDM that on 18.7.2003, he alongwith his other relatives visited the house of the accused persons and in that meeting accused persons promised to mend their behavior and thereafter accused Naresh took Hema to her matrimonial home on 20.7.2003, as he had not stated all these facts before the SDM. He was further confronted with his statement before the SDM that on 23.5.2005 there was a marriage of the daughter of his brother which was not attended by any of the accused persons, but instead Hema was sent with the condition that the demand of Rs.20,000/- would be met by her parents and that on the next day of the marriage his brother Pradeep (PW10) had gone to the matrimonial home of Hema, as none of these facts were narrated by him before the SDM.

18. We advert next to the statement of PW3 Rajrani, the mother of the victim, on whose statement the First Information Report (Ex.PW6/A) was registered after the death of the victim. Rajrani (PW3) deposed that her daughter Hema had got married with accused Naresh in the month of February, 2002 and had come back on 18.2.2002 first time from her matrimonial home and started weeping. She (Hema/deceased) told her that the accused persons were harassing her on account of money and they used to comment "tere baap ne kya diya hain, aise kangle hamare palle pad gaye". However, she (Rajrani) pacified her and sent her back to her matrimonial home. Thereafter, a fresh demand was made by the accused persons of bracelet and ` 60,000/- in cash. Upon this, they (Hema?s parents) visited her matrimonial home and accused persons promised that such things will not happen again. However, harassment of her daughter for dowry continued and her sister-in- law (jethani), her mother-in-law, her husband and her brother-in- law (jeth) gave her beatings. She (PW3) further deposed that her brother-in-law Pradeep (PW10) also visited Hema and she also wept before him telling him that accused persons did not give her anything to eat and used to lock the phone. However, her brother-in-law (PW10) brought back Hema from the house of the accused and thereafter, she stayed at their house for about one year. Thereafter, they (parents of Hema) sent their relatives to the accused persons? house and finally Hema was taken in, but behaviour of the accused persons remained the same. Hema visited her parental house on the occasion of the marriage of the daughter of her (PW3?s) jeth and on that occasion she demanded a sum of ` 20,000/- in order to give the same to the accused persons. She was not having that much money but a sum of ` 5,000/- was given to her. On one occasion, Hema was also given beatings by accused persons when she (PW3, mother of Hema) alongwith her husband and son visited Hema. Later the accused persons promised that such things will not happen again. However, harassment of Hema continued. PW3 then deposed that on 28.5.2005 she received a call from the police that her daughter was admitted at AIIMS. PW3 further stated that Hema died on 30.5.2005. The statement of PW3 was recorded by the SDM Ex.PW3/A. Subsequently, another statement of PW3 was also recorded being Ex.PW3/B

19. In her cross-examination, PW3 Smt. Rajrani was confronted with her statement Ex.PW3/A recorded before the SDM with regard to the demand of ` 60,000/- and bracelet where it was not so recorded. She was also confronted with her statement recorded before the SDM that Pradeep (PW10) had visited Hema and Hema had wept before him telling him that the accused persons did not give her anything to eat and used to lock the phone. To be noted that this finds mention in her subsequent statement Ex.PW3/B dated 02.06.2005. To be also noted that the SDM Shri R. Chopra (PW8) in his testimony categorically stated that on the said date, i.e., on 02.06.2005 Smt. Karuna (PW7) and Smt. Rajrani (PW3) gave him their "already written statements" which were signed by them before him (Ex.PW3/B and Ex.PW8/D). In cross-examination, PW8 (the SDM) further clarified that on 2.6.2005 Smt. Karuna and Smt. Rajrani had come to his office and they gave him their written statements which they had signed before him.

20. It is deemed appropriate at this stage to reproduce the relevant part of the cross-examination of PW3 Smt. Rajrani to enable proper appreciation of her evidence:-

    "It is correct that I had not stated in my statement dated 30.05.2005 to the SDM regarding the demand of Rs.60,000/- and a bracelet. It is correct that I had not stated in my statement dated 30.05.2005 to the SDM regarding the visit of Pradeep at the matrimonial home of my daughter and regarding the fact that she wept before Pradeep and stated that her in-laws are not even giving her food to eat. I had stated before the SDM that Pradeep had brought my daughter from her in-laws house to my house. It is correct that I had not stated in my statement dated 30.05.2005 to the SDM regarding that my daughter demanded Rs.20,000/- in order to give the same to accused persons. I do not remember if I had stated to the SDM in my statement dated 30.05.2005 that on one occasion Hema was also given beatings by accused persons when I along with my husband and son visited her. Confronted with the statement Ex.PW3/A, where it is not so recorded. It is wrong to suggest that accused persons had never gave any beatings to my daughter Hema and so I did not state this fact before the SDM on 30.05.2005. I do not remember if I stated to the SDM in my statement dated 30.05.2005 that accused persons had promised that such things will not happen again. Confronted with the statement Ex.PW3/A, where it is not so recorded. It is wrong to suggest that my daughter was not beaten by the accused persons so I did not state these facts before the SDM on 30.05.2005. I do not remember if I stated to the SDM in my statement dated 30.05.2005 that when I visited AIIMS Hospital my daughter told me that she was being poisoned by the accused persons. Confronted with the statement Ex.PW3/A, where it is not so recorded. I do not remember if I stated to the SDM in my statement dated 30.05.2005 that my daughter told me that accused persons also got her stomach washed at Mahindra Hospital prior to her admission to AIIMS Hospital. Confronted with the statement Ex.PW3/A, where it is not so recorded."

21. As regards PW7 Ms. Karuna, this witness in her testimony stated that on 23.5.2005, Hema had come to attend the marriage of her younger sister Shabnam and Hema told her that she was still not living well with her husband and her in-laws, i.e., mother-in-law, father-in- law, jeth and jethani, who were harassing her and were demanding more money from her parents, like ` 5,000/- and ` 10,000/-. She (Hema) further told her (PW7) that she was beaten up by her husband Naresh and by her mother-in-law about 20/25 days earlier and her parents had also gone to her in-laws house in this regard and thereafter she was being harassed more by her husband and in-laws. With regard to the incident, she (PW7) first stated that when she went to see Hema in the hospital on 28.5.2005, she came to know that Hema was made to eat "some medicine", but subsequently stated that she had come to know that Hema had consumed some medicine of her own. Yet again, she stated that Hema was made to eat medicine. In the course of her (PW7) cross-examination, however, she admitted that she did not tell the facts narrated by her in her examination-in-chief to any person including the parents of Hema. She also did not give any statement to the police or SDM on 28.5.2005 when she went to see Hema at the AIIMS Hospital. She denied the suggestion that she had brought her statement Ex.PW8/D already written by her from her house to the office of the SDM (it may be noted that as per the SDM, the statement was brought to him at his office in writing and only signed in his presence).

22. PW10 Shri Pradeep Kumar (uncle of the deceased) deposed that on the next day after her marriage, when Hema returned to her parents? house, she informed that she was made to hear a lot of bad things on account of dowry given in the marriage by her husband and other family members. Later on, after about 1-2 months of marriage, his brother Shri Hukam Chand (PW2) informed him that the in-laws of Hema were again harassing her for dowry. Thereafter about 5-6 months from the date of marriage, he (PW10) along with his brothers Shri Hukam Chand (PW2), Shri Narayan Singh and two or three more relatives had gone to the house of accused persons to talk to them regarding harassment of Hema and were assured that they would not give any further chance of any complaint in future. In the year 2003, he (PW10) had taken articles meant for „Teej? festival to the matrimonial house of Hema, when she told him that her husband, mother-in-law, father-in-law, jeth and jethani had beaten her for bringing insufficient dowry, after which he (PW10) took her back to his brother?s house at Timar Pur. After some days, his brother told him that Naresh (husband of Hema) had come and had taken her back after tendering unconditional apology. On 28.5.2005, he received a call from his brother (PW2 Hukam Chand) that Hema was admitted in the ICU at AIIMS. In cross-examination, he admitted that he did not know the date, month and year when his brother told him about the harassment to Hema or when he had gone with his relatives to the matrimonial home of Hema. He also did not remember the date, month and year when he took „Teej? to Hema?s matrimonial home.

23. A careful analysis of the testimonies of the prosecution witnesses unequivocally establishes that although PW2, PW3, PW7 and PW10 were informed about the incident on 28 th May, 2005 and promptly reached AIIMS Hospital where the victim was admitted in ICU, they did not lodge any complaint with the police or the SDM till after the death of the victim on 30.5.2005. This despite the fact that the father of the victim PW2 Hukam Chand admittedly is an Inspector in the police force while PW7 Ms. Karuna and PW10 Pradeep Kumar are Head Constables and are thus fully aware of the fact that prompt reporting of the incident was required. No explanation has been given by them as to why they chose to remain silent till the victim breathed her last. The sequence of events further shows that they chose to implicate the accused persons by improving upon and embellishing their versions from time to time. For instance, the story that the accused persons had conveyed a demand of ` 51,000/- along with the gold bracelet does not find mention in the initial statement given by PW3 Rajrani before the SDM nor it finds mention in the statement made by PW2 Hukam Chand before the SDM and is quite obviously an afterthought. Then again, PW2 Hukam Chand categorically stated that to meet the said demand they had given clothes and other articles to the victim worth ` 60,000/-, which fact too was not stated by him in his statement recorded before the SDM nor it finds mention in the statement of his wife PW3 Rajrani. PW3 Rajrani has also given three different versions - one before the SDM recorded on 30th May, 2005 (Ex.PW3/A), the other in her written statement given in the office of the SDM (Ex.PW3/B) and the third before the Court. All three versions fall foul of each other. Significantly, she nowhere deposed that PW7 Ms. Karuna had told her (PW3) that the victim had told her (PW7) that her in-laws were harassing her for demand for dowry when she came to attend the marriage in the family on 23rd May, 2005. So far as PW7 is concerned, she did not give a statement before the SDM even on 30.5.2005. Rather, she gave her written statement in the office of the SDM much later, i.e., on 2nd June, 2005 and appears to us to have been introduced as a prosecution witness as an afterthought. The same applies with equal force to PW10 Shri Pradeep Kumar, who neither gave his statement before the police nor before the SDM on 30th May, 2005 and has given his statement for the first time in the office of the SDM on 2nd June, 2005.

24. The learned Trial Judge in the impugned judgment has disbelieved the statements of the prosecution witnesses and has given detailed reasoning for the same, which is not being repeated by us in order to avoid prolixity. Suffice it to state that the improvements, embellishments and concoctions made by the material prosecution witnesses after due deliberation have rendered the entire prosecution case doubtful.

25. It is trite that general and vague allegations of dowry demands and beatings given to the deceased without detailing specific instances, vague and inconsistent statements of interested witnesses such as parents, brothers and sisters of the deceased, bald statements made by prosecution witnesses which fall short of evidence to prove that the victim committed suicide on account of cruelty and harassment to which she was subjected just prior to her death, and improved versions of statements made by prosecution witnesses for the first time in Court disclosing things not disclosed during investigation, are liable to be viewed with suspicion and the presumption of dowry death cannot be raised therefrom, and the accused cannot be convicted on the strength of such statements [see Jagdish & Ors. vs. State, 2010 (28.5.2005) JCC 943; Sunil Bajaj vs. State of M.P., AIR 2001 SC 3020; Nepal Singh vs. State of Haryana, AIR 2009 SC 2913 and Durga Prashad & Anr. vs. State of M.P., 2010 (3) JCC 1852].

26. In the case of Sham Lal vs. State of Haryana, 1997 Crl.L.J. 1927, it was held that when after resolving of disputes the wife is taken back to the nuptial home and there is no evidence that she was treated with cruelty or harassment in the context of dowry during the period between her being taken back to the nuptial home and her tragic end, the presumption of dowry death cannot be raised and accused cannot be convicted under Section 304B IPC. We are noting this law laid down by the Supreme Court for the reason that none of the prosecution witnesses have deposed that the deceased was treated with cruelty on account of dowry "soon before" her death except PW7 Ms. Karuna, the cousin sister of the deceased, who, as we have noted above, gave her statement for the first time to the SDM in written form on 2nd June, 2005 to the effect that she had met the deceased at a wedding where the deceased had disclosed to her that she was being harassed by her in-laws for dowry. This witness, however, admitted that she did not communicate this information even to the mother of the deceased nor the mother of the deceased has professed knowledge of the same. The improbability of this when the mother of the deceased and PW7 Ms. Karuna were together not only at the wedding but also at AIIMS Hospital where the deceased was admitted renders the testimony of this witness unworthy of credence.

27. In the case of Naraini Devi vs. State, DRJ 1992 22, which is a case identical to the present one immediately after the death of the victim, the brothers of the deceased and her mother reached the spot and when they reached there the police officials were already present but none of them made any complaint or report to the police officer about the harassment by the accused or their persistent demand of dowry which led to the incident. The Supreme Court opined that the long and unexplained delay in recording of the FIR casts grave doubt on the credibility and truthfulness of the prosecution version.

28. Reference may also be made to the judgment of the Supreme Court in Thulia Kali v. The State of Tamil Nadu, 1972 CAR 280 (SC), where the Supreme Court observed that in a criminal case FIR is a very vital document and very often delay in lodging the FIR results in embellishment which is a creature of afterthought. The relevant headnote is as under:-

    "First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eyewitnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or connected story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained."

29. As stated above, in the present case no explanation has been given for the delay in lodging in the FIR, let alone a satisfactory one. Even otherwise, even if the prosecution story is believed in its entirety and the improved versions are also believed, it was only on her first and second visit to her parental home that demand for dowry was made, which was nowhere near the date of her death. There is not even an allegation that there was any demand for dowry "soon before" the death.

30. To conclude, we are of the considered opinion that in the instant case there has not only been considerable delay in the lodging of the FIR but there have been major improvements/embellishments in the prosecution case, which cannot be brushed aside for the reason that the substratum of the prosecution version has been shaken. We thus hold that the Respondents have been rightly given the benefit of doubt and uphold the impugned judgment of the Trial Court. Resultantly, the Appeal fails and is dismissed.

REVA KHETRAPAL JUDGE
PRATIBHA RANI JUDGE
February 10, 2014
km

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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

Delayed FIR, majr embellishments in case, prosecution verson shaken accused hubby & co freed !! A Police inspector's SIL falsely accused & hauled over coals 10 years !!

Long live Indian marriages !!

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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