Saturday, February 28, 2015

Father looses custody of Kid < 5 years old

Sad to see warring couple fight for custody of a kid.  Mother alleged to have Bi polar disorder. But, finally @ Supreme court, the Father looses custody of kid to the mother

Hon court refers to HMG act, mother's superior qualifications, father earning lesser, not being an Income Tax assessee etc etc.

Also a social worker supervising visits casts indirect aspersions of the dad ! Mother restrained from moving out of India to avoid father loosing visiting rights


Married men beware
!!


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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. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr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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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 1966 OF 2015

(Arising out of SLP © No. 31615 of 2014)

ROXANN SHARMA    .….. APPELLANT

Vs.

ARUN SHARMA     .…..RESPONDENT

WITH CIVIL APPEAL No. 1967 OF 2015

(Arising out of SLP © No. 32581 of 2014)

J U D G M E N T VIKRAMAJIT SEN, J.

1 Leave granted in both the Special Leave Petitions.

2 Civil Appeal of 2015 arising out of SLP(C) No.31615 of 2014 assails the Judgment dated 2nd August, 2014 passed by the High Court of Bombay at Goa in Writ Petition No.79 of 2014, which in turn questioned the Order dated 31.1.2014 passed by the IInd Additional Civil Judge, Senior Division at Margao, Goa (hereafter also referred to as the Civil Judge) in Matrimonial Petition No. 15/2013/II filed on 18.5.2013 before us, by the Respondent, Shri Arun Sharma (hereafter referred to as 'Father') under Section 6 of the Hindu Minority and Guardianship Act, 1956. In this petition the Father has prayed inter alia that (a) the custody of the minor child, Thalbir Sharma be retained by him and that (b) by way of temporary injunction, the Appellant before us (hereinafter referred to as the Mother) be restrained from taking forcible possession of the minor child Thalbir from the custody of the Applicant. These proceedings were initiated and are pending in Goa at the instance of the father; at that time when all three persons were residents of Goa. After a detailed discussion of facts, as well as of law, the IInd Additional Civil Judge, Senior Division Margao, Goa ordered that "pending final disposal of the petition on merits, the respondent, Roxann Sharma is granted interim custody of minor child Thalbir Sharma. The applicant shall have visitation rights to the child. He shall inform about his visit to the child in advance to the respondent upon which she shall allow applicant to visit the child". A reading of this order discloses that the learned Civil Judge favoured the opinion that the custody of Thalbir, a child of tender years should remain with the Mother and thereby the child's paramount interests would be subserved and safeguarded; that the Mother holds a Master of Arts degree from Howard University, Washington D.C. and is a Tenured College Professor in Los Angeles Mission College, California; that the allegation of her suffering from Bi-polar disorder had not been persuasively proved and in any event, did not disqualify her to the custody of her son; that the Father is allegedly an alcoholic and a drug-addict who had joined a drug rehabilitation clinic, and was also a member of Narcotics Anonymous (N.A); that Father had been previously married; and that he was not gainfully employed. The Impugned Order is also a detailed one in which the facts have been noted and the statutory laws as well as precedents, have been discussed.

3. However, in sharp divergence to the conclusion arrived at by the learned Civil Judge, the learned Single Judge of the High Court of Bombay at Goa has opined that "it cannot be disputed that for upbringing the child, love of the petitioner as well as the respondent who is the mother is very much essential for the healthy growth of such child. In such circumstances, though the custody would continue with the petitioner nevertheless, the respondent being the mother would definitely have frequent visitation rights of the minor child. Such visitation rights shall tentatively be for at least 3 days in a week. The parties are at liberty to fix such days before the learned Judge at a mutual agreeable place preferably within the jurisdiction of the Court". The Court, we must immediately underscore is located in Goa and not in Mumbai. These directions have attained finality against the Father; the Mother would have been entitled to visitation rights for at least three days and equally importantly in Goa.

4 Before us, it has been narrated by the Mother that consequent upon her frantic searches for her son, Thalbir, she had came to learn in August, 2013, that the Father along with Thalbir was in Mumbai. She filed Criminal Writ Petition No.87 of 2013 which had been disposed of by Orders dated 26.8.2013 noticing that proceedings under the Hindu Minority and Guardianship Act, 1956 (HMG Act) were pending in Goa and directing that the Mother should have access to Thalbir in Mumbai at a place near the residence of the Father. Thereafter, as already mentioned above on 31.1.2014, the Order by which the arrangement was reversed in the Impugned Order, came to be passed by the learned Civil Judge, Senior Division, Margao granting custody to the Mother and visitation to the Father in Goa.

5 We shall consider the import and amplitude of the legal concept of Guardianship on first principles. Black Law Dictionary 5th Edition contains a definition of Guardianship which commends itself to us. It states that - "A person lawfully invested with the power, and charged with the duty, of taking care of the person and managing the property and rights of another person, who, for defect of age, understanding, or self control, is considered incapable of administering his own affairs. One who legally has the care and management of the person, or the estate or both, of a child during its minority". Thereafter there are as many twelve classifications of a guardian but we shall reproduce only one of them, which reads - " a general guardian is one who has the general care and control of the person and estate of his ward; while a special guardian is one who has special or limited powers and duties with respect to his ward, e.g., a guardian who has the custody of the estate but not of the person, or vice versa, or a guardian ad litem". Black's Law Dictionary also defines 'Custody' as the care and control of a thing or person. The keeping, guarding, care, watch, inspection, preservation or security of a thing, carrying with it the idea of the thing being within the immediate personal care and control of the person to whose custody it is subjected. Immediate charge and control, and not the final, absolute control of ownership, implying responsibility for the protection and preservation of the thing in custody. In terms of Black's Law Dictionary, Tenth Edition, 'Visitation' means a non-custodial parent's period of access to a child. Visitation right means a non-custodial parent's or grandparent's Court ordered privilege of spending time with a child or grandchild who is living with another person, usually the custodial parent. A visitation order means an order establishing the visiting times for a non-custodial parent with his or her children. Although the non-custodial parent is responsible for the care of the child during visits, visitation differs from custody because non-custodial parent and child do not live together as a family unit. In our opinion, visitation rights have been ascribed this meaning - In a dissolution or custody suit, permission granted to a parent to visit children. In domestic relations matters, the right of one parent to visit children of the marriage under order of the court.

6 Several other statutes also contain definitions of 'guardian' such as The Juvenile Justice (Care & Protection) Act, 2000 which in Section 2(j) states that "guardian", in relation to a child, means his natural guardian or any other person having the actual charge or control over the child and recognized by the competent authority as a guardian in course of proceedings before that authority." Since the Juvenile Act is principally concerned with the welfare of the juvenile the accent understandably and correctly is on the "person" rather than the estate. The Tamil Nadu Elementary Education Act, 1994 defines the term guardian as - "any person to whom the care, nurture or custody of any child falls by law or by natural right or by recognized usage, or who has accepted or assumed the care, nurture or custody of any child or to whom the care, nurture or custody of any child has been entrusted by any lawful authority".

7 The Guardianship postulates control over both the person as well as the assets of a minor or of one and not the other. This is obvious from a reading of the definitions contained in Section 4 (2) of the Guardians & Wards Act, 1890 (G&W Act) and Section 4(b) of the HMG Act which clarifies that "Guardian" means a person having the care of the person of a minor or of his property or of both his person and property. Section 9 contemplates the filing of an application in respect of the guardianship of the person of the minor and Section 10 specifies the form of that application. Section 12 deals with the power to make interlocutory order for protection of the minor and interim protection of his person and property. Section 14 is of importance as its tenor indicates that these controversies be decided by one court, on the lines of Section 10 of the CPC which imparts preference of jurisdiction to the first court. Section 17 gives primacy to the welfare of the minor. Sub section 2 thereof enjoins the court to give due consideration to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor. Since Thalbir is of a very tender age, the advisability of determining his wishes is not relevant at the present stage; he is not old enough to form an intelligent reference. Section 25 covers the custody of a ward being removed from the custody of the guardian of his person, and adumbrates that if the Court is of the opinion that it will be for the welfare of the ward to return to the custody of his guardian shall make an order of his return.

8 Section 26 is of special significance in that it casts an omnibus embargo even on a guardian of a person appointed or declared by the Court from removing the ward from the limits of its jurisdiction. This is because when a dispute arises between the parents of a minor, the court steps in as parens patriae and accordingly appropriates or confiscates to itself the discretion earlier reposed in the natural parents of the minor. This provision appears to have been violated by the Father. These provisions continue to apply in view of the explicit explanation contained in Section 2 of the HMG Act.

9 Section 3 of the HMG Act clarifies that it applies to any person who is a Hindu by religion and to any person domiciled in India who is not a Muslim, Christian, Parsi or Jew unless it is proved that any such person would not have been governed by Hindu Law. In the present case, the Mother is a Christian but inasmuch as she has not raised any objection to the applicability of the HMG Act, we shall presume that Thalbir is governed by Hindu Law. Even in the proceedings before us it has not been contested by the learned Senior Advocate that the HMG Act does not operate between the parties. Section 6 of the HMG Act is of seminal importance. It reiterates Section 4(b) and again clarifies that guardianship covers both the person as well as the property of the minor; and then controversially states that the father and after him the mother shall be the natural guardian of a Hindu. Having said so, it immediately provides that the custody of a minor who has not completed the age of 5 years shall ordinarily be with the mother. The significance and amplitude of the proviso has been fully clarified by decisions of this Court and very briefly stated, a proviso is in the nature of an exception to what has earlier been generally prescribed. The use of the word "ordinarily" cannot be over-emphasised. It ordains a presumption, albeit a rebuttable one, in favour of the mother. The learned Single Judge appears to have lost sight of the significance of the use of word "ordinarily" inasmuch as he has observed in paragraph 13 of the Impugned Order that the Mother has not established her suitability to be granted interim custody of Thalbir who at that point in time was an infant. The proviso places the onus on the father to prove that it is not in the welfare of the infant child to be placed in the custody of his/her mother. The wisdom of the Parliament or the Legislature should not be trifled away by a curial interpretation which virtually nullifies the spirit of the enactment.

10 We shall now consider the relevance of the precedents cited before us by the learned Senior Counsel for the Father. In Sarita Sharma vs. Sushil Sharma (2000) 3 SCC 14, in defiance of the orders passed by the Jurisdictional Court in the U.S., the mother, Sarita, had returned to India with two children from their matrimonial relationship. The High Court viewed that the divorce decree and custodial directions having emanated from a competent Court deserve to be honoured, and accordingly allowed the Habeas Corpus Petition and directed the mother to return the custody of the children to the father, Sushil. This Court was not persuaded that further consideration by Courts in India as to whether the interests of the children, which were paramount, stood foreclosed and could not be cogitated upon again. As regards Section 6 of the HMG Act, it opined that although it constitutes the Father as a natural guardian of a minor son it could not be considered as superseding its paramount consideration as to what is conducive to the welfare of the minor. These observations were reiterated and this Court reversed the decision of the High Court holding that the interests and welfare of the children dictated that the custody should be with their mother. This case, therefore, militates against the legal and factual position which the Father seeks to essay before us. It is also important to underscore the fact that both the children were over the age of five, a fortiori, the custody should not have been reversed in the case in hand by the High Court from the Mother to the Father since Thalbir was then around one year old and is presently still less than three years old.

11 Learned Senior Counsel has next drawn our attention to Mausami Moitra Ganguli vs. Jayant Ganguli, (2008) 7 SCC 673. In this case also, this Court was confronted with the custody conflict over 10 year male child. We must be quick to point out that the Court did not consider Section 6 of the HMG Act after detailing the factors which were indicative of the position that the welfare of the child lies with continuing the custody with the father, this Court dismissed the mother's appeal. The facts are totally distinguishable. The ratio continues to be that it is the welfare of a minor which has paramount importance.

12 The HMG Act postulates that the custody of an infant or a tender aged child should be given to his/her mother unless the father discloses cogent reasons that are indicative of and presage the livelihood of the welfare and interest of the child being undermined or jeopardised if the custody retained by the mother. Section 6(a) of HMG Act, therefore, preserves the right of the father to be the guardian of the property of the minor child but not the guardian of his person whilst the child is less than five years old. It carves out the exception of interim custody, in contradistinction of guardianship, and then specifies that custody should be given to the mother so long as the child is below five years in age. We must immediately clarify that this Section or for that matter any other provision including those contained in the G&W Act, does not disqualify the mother to custody of the child even after the latter's crossing the age of five years.

13 We must not lose sight of the fact that our reflections must be restricted to aspects that are relevant for the granting of interim custody of an infant. The Trial is still pending. The learned Single Judge in the Impugned Order has rightly taken note of the fact that the Mother was holding a Tenured College Professorship, was a post-graduate from the renowned Haward University, receiving a regular salary. Whether she had a Bi-polar personality which made her unsuitable for interim custody of her infant son Thalbir had not been sufficiently proved. In the course of present proceedings it has been disclosed that the Father has only passed High School and is not even a graduate. It has also not been denied or disputed before us that he had undergone drug rehabilitation and that he was the member of Narcotics Anonymous. This is compounded by the fact that he is not in regular employment or has independent income. As on date he is not an Income tax assessee although he has claimed to have earned Rupees 40,000 to 50,000 per month in the past three years. We must again clarify that the father's suitability to custody is not relevant where the child whose custody is in dispute is below five years since the mother is per se best suited to care for the infant during his tender age. It is for the Father to plead and prove the Mother's unsuitability since Thalbir is below five years of age. In these considerations the father's character and background will also become relevant but only once the Court strongly and firmly doubts the mother's suitability; only then and even then would the comparative characteristic of the parents come into play. This approach has not been adopted by the learned Single Judge, whereas it has been properly pursued by the learned Civil Judge.

14 In the course of the hearings before us temporary visitation rights were granted to the Mother under the provision of a social worker who had been appointed by the Maharashtra State Legal Service Authority. We have had the advantage of perusing her very diligent and detailed Reports which vividly recount the initial reluctance and antipathy of Thalbir to his Mother, which very quickly came to be naturalised because of the maternal affection of the Mother. The Reports of the Social Worker lucidly indicate that at present Thalbir is extremely comfortable and happy in the company of his Mother but becomes agitated at the sight of his Father when he has to return to him. The Social Worker has also fervently pleaded that her Reports should be kept sealed for fear of the Father. This is extremely disturbing to us just as we expect it should be to the Father also.

CIVIL APPEAL No. 1967 OF 2015
(Arising out of SLP © No. 32581 of 2014)


15 After the passing the Impugned Order in WP 79 of 2014, the Mother filed an application dated 20.08.2014, for grant of visitation rights. Her suggestion was that she should have custody of Thalbir from Monday to Friday at Dona Paula, Goa, to be returned to the Father on Fridays at 5.00 pm; thereafter, custody of Thalbir be restored to the Mother at 10.00 A.M. on Monday morning in the Trial Court. The Father resisted the application by stating that he had no objection to the Mother visiting the child on three continuous days in each week between 4.00 p.m. and 5.00 p.m. However, he pleaded that since June, 2013, he along with Thalbir were residing in Flat No.2, Aashirvad Building, Sidhi Sadan Colony, Borivali West, Mumbai. By Orders dated 6.9.2014, the Trial Court ordered that Thalbir should be brought to the Court every Saturday at 9.30 A.M. to be handed over to the Mother who would in turn produce the child in the Court at 5.00 p.m. on the following Monday. It is this Order which was challenged in W.P.No. 576 of 2014. The second learned Single Judge has undertaken a discussion on meaning of 'frequent', concluding that it cannot be continuous; that the previous Order could not have meant that Thalbir would remain exclusively with his Mother for three days. On this dialectic the second learned Single Judge found error in the Trial Court's Orders dated 6.9.2014. The Impugned Order goes on to note that the Mother has no permanent residence in India and that she had not disclosed any fixed address in Goa and the Mother was suffering from Bi-polar disorder. Inexplicably, the second learned Single Judge found fault with the Order granting weekend visitation to the Mother, ignoring the reality that Trial Court was only implementing the directions given by the previous learned Single Judge. It seems plain to us that it was not open to the Trial Court to venture afresh on the question of the welfare of Thalbir when the matter stood concluded against the Father who had not filed any Appeal against the Order of the previous learned Single Judge. All that the Trial Court was expected to do was to allocate three days custody for the Mother. In effect the second learned Single Judge has given his own understanding and meaning to the previous Order of a coordinate Bench of the High Court, which we find to be diametrically opposite to what stood articulated by the High Court in the previous writ proceedings. In paraphrasing the Order, the learned Single Judge in the Impugned Order has added the word "preferably" within the jurisdiction of the Court, but the word "preferably" has not been used in the previous Order. The Impugned Order also appears to lose sight of the fact that all three persons were residing in the United States and have only recently shifted to Goa which was, therefore, at that time, the only abode of the parties. It has also not given due weightage to the asseverations of the Mother that she had invested her savings in purchasing property in Goa, as well as in Mumbai in the joint names. Keeping in view the fact that Father has not been able to satisfactorily show that he had any income, prima facie, the Mother's statement has credibility. Most importantly, it was the Father who initiated proceedings in Goa, which jurisdiction has not been opposed by the Mother and, therefore, to hold against the Mother at the initial stages is neither just nor proper. Given the protracted litigation which has already transpired between the parties it seems to us that the second learned Single Judge was derelict in not deciding the issues and instead merely setting aside the Order dated 6.9.2014 assailed before him for an adjudication de novo. The directions previously passed by a coordinate Bench have been nullified and miscarriage of justice has resulted.

16 The learned Single Judge in Writ Petition 79 of 2014 has categorically ordered that whilst the custody of Thalbir shall continue with the Father, the Mother shall get "visitation rights" which he temporarily fixed at least three days in a week "at a mutual agreeable place preferably within the jurisdiction of the Court," situate in Goa; the Trial is continuing in Goa. We fail to locate or appreciate any reason or justification for the intervention of the High Court in Writ Petition 576 of 2014 which is the subject matter of Civil Appeal of 2015 arising out of SLP (C) 32581 of 2014 by a different learned Single Judge. We have already noticed the intendment of Section 14 of the G&W Act which acknowledges the salutary necessity of only one court in dealing with the guardianship or custody disputes pertaining to the minor. This petition challenged the proprietary of the Order dated 6.9.2014 passed by the learned Civil Judge which in turn was in compliance with the Order dated 2.8.2014, which it may be recalled granted visitation rights to the Mother for at least three days in a week within the jurisdiction of the Court. The annals of the turbulent marriage of the parties, the IVF conception of Thalbir etc., have been duly noted by the first learned Single Judge and the learned Civil Judge. The learned Single Judge has then questioned the very applicability of HGM Act as well as G&W Act in the State of Goa, an aspect which had not been agitated by either the Mother or the Father in any of the earlier proceedings. There can be no cavil that when a Court is confronted by conflicting claims of custody there are no rights of the parents which have to be enforced; the child is not a chattel or a ball that is bounced to and fro the parents. It is only the child's welfare which is the focal point for consideration. Parliament rightly thinks that the custody of a child less than five years of age should ordinarily be with the Mother and this expectation can be deviated from only for strong reasons. The need to have a continuity in adjudication ought to have persuaded the second learned Single Judge to have recused himself in preference to his learned Brother who decided the previous Writ Petition.

17 We also take serious note of the Father, without notifying or taking the permission of the Civil Judge, leaving its jurisdiction along with Thalbir. Prima facie this undermines the authority of the Court and it may even tantamount to contempt of court. Section 26 of the G&W Act has been violated and that too by a person who has not been appointed as the guardian. Relocation is now a well known legal concept. Since movement of persons from one place to another or one State to another State of the Country or even from one Country to another Country of the Globe is no longer a rarity. Very often it becomes necessary because the parent having custody of the child finds a more suitable employment somewhere else. The entitlement of the left behind spouse has, therefore, to be jurally investigated. The Mother may want to relocate to the United States where she can be very gainfully employed as against the Father who has not been able to disclose any income or sources of regular income. But this is not the case or stage before us. Here, the Father ought not to have left the jurisdiction of Court in Goa which was discharging its duties as parens patirae. This seems to have been completely lost sight of and instead the learned Single Judge has given premium to the unauthorised relocation. We have already mentioned the Criminal Petition 87/2013 which was disposed of by permitting the Mother to meet Thalbir; but keeping in view the pendency of proceedings in Goa, the Court rightly did not interfere with or alter or modify any of the Orders passed by the Court in Goa. Forum shopping or Court shopping requires to be firmly dealt with. The second learned Single Judge ought to have kept in mind that it was the Father who has started proceedings in Goa where the Mother was then also residing having, prima facie, been constrained to give up her employment in the Calfornia, U.S to be in a position to look after her infant son Thalbir. Co-ordinate Benches must respect prior orders.

18 We shall abjure for making any further observations as the Trial is still pending. Keeping in mind the facts and circumstances which have been disclosed before us, we set aside the impugned Order dated 18.09.2014. It is not in consonance with the previous order of a co-ordinate Bench and in fact severely nullifies its salient directions. We set aside the impugned Order dated 2nd August, 2014 inter alia for the reason that it incorrectly shifts the burden on the Mother to show her suitability for temporary custody of the infant Thalbir and, therefore, runs counter to the provisions contained in Section 6 of the HMG Act. We clarify that nothing presented by the Father, or placed on the record discloses that the Mother is so unfit to care for the infant Thalbir as justifies the departure from the statutory postulation in Section 6 of the HMG Act. Visitation rights succinctly stated are distinct from custody or interim custody orders. Essentially they enable the parent who does not have interim custody to be able to meet the child without removing him/her from the custody of the other parent. If a child is allowed to spend several hours, or even days away from the parent who has been granted custody by the Court, temporary custody of the child stands temporarily transferred.

19 We also have taken due note of the Reports filed by the Social Worker and have heard the Counsel for the parties in this regard. We record our appreciation for the diligence with which she has performed her duties. In the event that her fees/ expenses have not been defrayed by the Father, the remainder shall be paid by the Maharashtra State Legal Services Authority.

20 We transfer the temporary custody of Thalbir to the Appellant/Mother with the direction that both of them shall reside in the address given by her, viz, House No.80, Magnolia, Ground Floor, Bin Waddo, Betalbatim, Goa and will not leave that territorial jurisdiction of the Trial Court without prior leave. We further direct that the Respondent/Father shall have visitation rights between 2.30 p.m. and 6.00 p.m. on every Tuesday and Thursday, and from 2.30 p.m. to 9.00 p.m. on Saturdays. These Orders are purely temporary in nature. The Civil Judge should decide the Petition/application pending before him with expedition, as directed by the High Court, without being influenced by any observations made by us hereinabove.

21 After carefully reading the Reports of the Social Worker, Mrs. Deepali Ajay Satpute, we find it necessary to direct Mr. Arun Sharma, Father to neither directly nor indirectly through any member of his family or his friends, to communicate in any manner or to meet the Social Worker, Mrs. Deepali Ajay Satpute. This is in deference to the apprehensions that she has felt and expressed to the Court as a consequence of conversations of the Respondent and his Mother with her pertaining to her as well as the safety of her own son. In the event of the Social Worker seeking Police Protection to her and family, the Station House Officer of the concerned Police Station shall immediately provide the same and we direct so.

22 The Appeals are allowed in these terms. The parties shall bear their respective costs.

*********J [VIKRAMAJIT SEN]

*********J [C* NAGAPPAN]

New Delhi;

February 17, 2015.?

After the pronouncement of this Judgment it has been pointed out to us that the passports of both the parties have been deposited in this Court. The Thalbir's passport is with the Trial Court in Goa. These will not be released to any of the parties without the explicit leave of the Court. It also transpires that House No.80, Magnolia, Ground Floor, Bin Waddo, Betalbatim, Goa has been sold by the Father-Respondent. The Petitioner- Mother will, therefore, stay in Goa, as already indicated, until explicitly permitted by the Competent Court. The said address will be mentioned to the Civil Court.




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PDF uploaded to http://1drv.ms/1AIMvbn

 








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Any demand made by husband, in-laws is dowry: SC


Any demand made by husband, in-laws is dowry: SC

Amit Choudhary,TNN | Mar 1, 2015, 01.14 AM IST


Supreme Court has said that any demand made by the husband or his relatives before or after the marriage would come within the definition of dowry.

 

NEW DELHI: Putting an end to the judicial tendency to interpret dowry in a narrow sense, the Supreme Court has said any demand made by the husband or his relatives before or after the marriage would come within the definition of dowry.

Expanding the ambit of dowry, the court overruled its earlier verdicts in which it had said that demand for money for meeting some urgent domestic expenses could not be termed as dowry demand.

A bench of Justices T S Thakur, R F Nariman and Prafulla C Pant said dowry must be given a pragmatic interpretation to fulfill the objectives of the Dowry Prohibition Act.

"Any money or property or valuable security demanded by any of the persons mentioned in Section 2 of the Dowry Prohibition Act, at or before or at any time after the marriage which is reasonably connected to the death of a married woman, would necessarily be in connection with or in relation to the marriage unless, the facts of a given case clearly and unequivocally point otherwise," it said.


Writing the judgement, Justice Nariman said dowry is a social evil practiced against the women of this country for centuries and the judiciary must give a broad interpretation so that anyone demanding dowry could be brought to justice.

"Given that the statute with which we are dealing must be given a fair, pragmatic, and common sense interpretation so as to fulfill the object sought to be achieved by Parliament, we feel that the judgment in Appasaheb's case followed by the judgment of Kulwant Singh do not state the law correctly," it said.

In Appasaheb's case, SC had given a narrow interpretation of dowry and held that a demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry.

Justice Nariman also clarified that in order to book the husband or in-laws in a dowry death case, it was not necessary for dowry demand to be made immediately before the death of a woman.

"Days or months are not what is to be seen. What must be borne in mind is that the word soon does not mean immediate. A fair and pragmatic construction keeping in mind the social evil that has led to the enactment of Section 304B (dowry death) would make it clear that the expression is a relative expression. Time lags may differ from case to case. All that is necessary is that the demand for dowry should not be stale but should be the continuing cause for the death of the married woman under the section," it said.

Source

TIMES OF INDIA


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Thursday, February 26, 2015

Trial court acquittal means double presumption of innocence


Trial court acquittal means double presumption of innocence in favour of accused. Hubby and family acquitted by sessions court / fast track court and confirmed by HC even when there is a dying declaration

 

"... Though evidence can be re appreciated by appellate court, … If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court..."

 

"...Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below...."

 

Note: This is a 1994 suicide / case that is decide 21 years later at the HC !!

 

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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. 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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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

 

CRIMINAL APPEAL NO. 1959 of 2004

 

FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE K.J.THAKER

 

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STATE OF GUJARAT....Appellant(s)

Versus

VALIBEN,W/O.VIJANAND AAHIR, & 1....Opponent(s)/Respondent(s)

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Appearance:

MS CM SHAH APP for the Appellant(s) No. 1

PARTY-IN-PERSON for the Opponent No. 2, absent though served

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CORAM: HONOURABLE MR.JUSTICE K.J.THAKER

 

Date : 23/02/2015

 

R/CR.A/1959/2004   JUDGMENT

 

ORAL JUDGMENT

 

1. The present appeal, under section 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 29.7.2004, passed by the learned Second Fast Track Judge, Gondal in Sessions Case No. 202/1995, whereby, the learned trial Judge acquitted the original accused - the respondent s herein, of the charges for the offence punishable under Section 498-A, 306 read with section 114 of IPC.

 

2. The brief facts of the prosecution case are that deceased Ramaben Karshanbhai had married with accused no. 2 Karshanbhai Vijanand prior to one year from the date of incident and she was residing with accused persons. It is further the case of the prosecution that accused no. 1 is the mother-in-law of the deceased and she was also residing with deceased Ramaben. It is further the case of prosecution that after her marriage she was subjected to cruelty by the accused persons on petty matter with regards to household work. It is further the case of prosecution that her husband and her mother-in-law have also stopped to talk with deceased Ramaben and therefore she was feeling insulted by members of the house, not only that, accused no. 2 has also told not to go to the house of her relatives and thereby created terror upon the deceased by the respondents. It is further the case of the prosecution that as the ill-treatment and harassment from respondents was beyond the control of her tolerance, she had committed suicide on 17.2.1994 by pouring kerosene on her body. Therefore, the complaint was lodged. The statements of other witnesses are also recorded by police. Necessary investigation was carried out and statements of several witnesses were recorded. During the course of investigation, respondents were arrested and, ultimately, charge-sheet was filed against them. The case was committed to the Court of Sessions, and numbered as Sessions Case No. 202/1995. The trial was initiated against the respondents.

 

3. To prove the case against the present accused, the prosecution has examined witnesses and also produced documentary evidence.

 

4. At the end of trial, after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned trial Judge acquitted the respondents of all the charges leveled against them by judgment and order dated 29.7.2004. http://evinayak.tumblr.com http://vinayak.wordpress.com http://fromvinayak.blogspot.com

 

5. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the trial Court the appellant State has preferred the present appeal.

 

6. It was contended by learned APP Ms. Shah that the judgment and order of the trial Court is against the provisions of law; the trial Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself it is established that the prosecution has proved all the ingredients of alleged charges against the present respondents. Ms. Shah learned APP has strenuously urged that the dying declaration speaks about the specific allegations against the present accused. There were mental harassment meted out to the deceased and that she had taken the extreme step of committing suicide. Ms. Shah has taken this Court through the evidence and submitted that the finding of fact regarding dying declaration is against the principle annunciated by the Apex Court and the recent decision of the Apex Court, wherein, the Apex Court has held that the dying declaration is such on which reliance can be placed and conviction should be recorded. Learned APP has also taken this court through the oral as well as the entire documentary evidence and submitted that the present appeal deserves to be allowed.

 

7. The principles which would govern and regulate the hearing of an appeal by this Court, against an order of acquittal passed by the trial Court, have been very succinctly explained by the Apex Court in catena of decisions. In the case of "M.S. NARAYANA MENON @ MANI VS. STATE OF KERALA & ANR", (2006) 6 S.C.C. 39, the Apex Court has narrated the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under;

 

"54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well settled principles of law that where two view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below."

 

8. Further, in the case of "CHANDRAPPA Vs. STATE OF KARNATAKA", reported in (2007) 4 S.C.C. 415, the Apex Court laid down the following principles;

 

"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge;

 

[1] An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.

 

[2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

 

[3] Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.

 

[4] An appellate Court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.

 

[5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court."

                          

9. Thus, it is a settled principle that while exercising appellate powers, even if two reasonable views / conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court.

 

10. Even in the case of "STATE OF GOA Vs. SANJAY THAKRAN & ANR.", reported in (2007) 3 S.C.C. 75, the Apex Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision, the Court has observed as under;

 

"16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with."

 

11. Similar principle has been laid down by the Apex Court in cases of "STATE OF UTTAR PRADESH VS. RAM VEER SINGH & ORS.", 2007 A.I.R. S.C.W. 5553 and in "GIRJA PRASAD (DEAD) BY L.R.s VS. STATE OF MP", 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled.

 

12. In the case of "LUNA RAM VS. BHUPAT SINGH AND ORS.", reported in (2009) SCC 749, the Apex Court in para 10 and 11 has held as under;

 

"10. The High Court has noted that the prosecution version was not clearly believable. Some of the so called eye witnesses stated that the deceased died because his ankle was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the postmortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in running condition.

 

11. Considering the parameters of appeal against the judgment of acquittal, we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on the evidence."

 

13. Even in a recent decision of the Apex Court in the case of "MOOKKIAH AND ANR. VS. STATE, REP. BY THE INSPECTOR OF POLICE, TAMIL NADU", reported in AIR 2013 SC 321, the Apex Court in para 4 has held as under:

 

"4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be reappreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [Vide State of Rajasthan vs. Sohan Lal and Others, (2004) 5 SCC573]"

 

14. It is also a settled legal position that in acquittal appeals, the appellate Court is not required to rewrite the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of "STATE OF KARNATAKA VS. HEMAREDDY", AIR 1981, SC 1417, wherein it is held as under;

 

"...This Court has observed in Girija Nandini Devi V. Bigendra Nandini Choudhary (1967) 1 SCR 93:(AIR 1967 SC 1124) that it is not the duty of the Appellate Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice."

 

15. In a recent decision, the Hon'ble Apex Court in "SHIVASHARANAPPA & ORS. VS. STATE OF KARNATAKA", JT 2013 (7) SC 66 has held as under;

 

"That appellate Court is empowered to re- appreciate the entire evidence, though, certain other principles are also to be adhered to and it has to be kept in mind that acquittal results into double presumption of innocence."

 

16. Thus, in case the appellate court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence is not necessary.

 

17. I have gone through the judgment and order passed by the trial court. I have also perused the oral as well as documentary evidence led by the trial court and also considered the submissions made by learned APP for the appellant-State. On going through the entire evidence, it cannot be said that the provisions of section 498A and 306 of IPC can be attracted in the facts of this case. I do not find any infirmity in the order passed by the learned trial Judge so as to interfere in this case. The judgment and order of acquittal passed by the learned trial Judge is just and proper. The testimony of the prosecution witnesses do not establish that there was any harassment meted out to the deceased. Learned APP Ms. Shah has tried to convince this Court that at least accused no. 1 has been named by the deceased in her dying declaration and the so-called complaint Exh. 64 was also very specific that her husband and mother-in-law both were threatening her. Her mother-in-law was taunting her time and again. Her mother-in-law and her husband had stopped talking with her and therefore she had felt so much grieved that she set herself ablaze. Even while perusing Exh. 67, it is very clear that her husband never give her any threat. Even her dying declaration did not point out anything about the dowry or harassment and hence, I am unable to accept the submission of Ms. Shah learned APP that this is a case where I would like to up-turn the judgment of the learned trial Judge which is a well reasoned judgment, and there is no perversity in the same. The evidence of the witnesses also will not permit this Court to take a different view than the one taken by the trial Court. Even if dying declaration is believed, this is not a case where the deceased has imparted cruelty on the husband and mother- in-law, and therefore, even believing the dying declaration to be true and truthful, this Court cannot accept the submission of Ms. Shah learned APP. The finding of fact on the touch-stone of the decision of the Apex Court will not permit this court to upturn the judgment of the trial Court. Even apart from the dying declaration, the prosecution has not proved that there was any cruelty which leading to abetment of committing suicide by wife. In the case of Mangat Ram vs. State of Haryana, reported in (2014) 12 SCC 595, the Apex Court has defined he term cruelty, and therefore, in this case, the evidence nowhere goes to show that there was cruelty to abetment of suicide of the deceased. I have appreciated the evidence on record and the view of the trial court cannot be said to be so perverse that this court requires to convict the accused. The alleged cruelty did not lead to any household work which led to committing suicide by the deceased. There was no alleged cruelty established, and therefore, when the prosecution has not succeeded in establishing the offence under section 498A and 306 of IPC, this Court cannot upturn the judgment of the trial court and taking into consideration all aspects of the matter, the prosecution has not succeeded in establishing the offences under Section 498A and 306 IPC against the respondents-accused. However, on the touch-stone of the dying declaration, I do not think that the judgment of the trial court is perverse. I am further supported in my view by the decision of the Apex Court in the case of Kuldeep Kaur v. State of Uttarakhand, reported in (2014) 10 SCC 584, and therefore, the acquittal cannot be interfered with and the present appeal requires to be dismissed. Even in the present appeal, nothing is produced or pointed out to rebut the conclusion of the trial Court. Even looking to the evidence on record, ld. APP is not able to bring home the charge levelled against the accused and persuaded this Court to take a different view than that taken by the learned trial Judge in view of the catena of decisions of the Apex Court and the latest decision of the Apex Court in the case of State of Punjab v. Madan Mohan Lal Verma, reported in (2013) 14 SCC 153. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt. http://evinayak.tumblr.com http://vinayak.wordpress.com http://fromvinayak.blogspot.com

 

18. In the above view of the matter, I am of the considered opinion that the trial court was completely justified in acquitting the respondents of the charges leveled against them. I find that the findings recorded by the trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. I am, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the court below and hence find no reasons to interfere with the same.

 

19. In the result, the present appeal is hereby dismissed. R & P to be sent back to the trial Court. Bail and bail bond, if any, stands cancelled. Surety also, if any given, stands discharged.

 

(K.J.THAKER, J)

 

mandora

 

 

PDF uploaded to http://1drv.ms/1EvgpBt

 

 



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Wednesday, February 25, 2015

No execution for maint older than 12 months under Sec 125(3)

 

Wife cannot accumulate maintenance for more than 12 months and claim recovery by arresting husband. No execution for maint older than 12months in 125(3).AP HIgh court

 

 

In this case, in reply to a question "…Whether under Section 125(3), Cr.P.C. the wife can seek imprisonment of the husband for non-payment of maintenance accumulated beyond a period of 12 months ?.." the Hon AP High court has ordered as follows and we quote

"... wife the maintenance-holder cannot accumulate the maintenance for a period beyond 12 months. No application for execution of the maintenance order can be entertained for a period exceeding 12 months immediately preceding the date of application..."

and

"...In view of my finding on point No. 2, the maximum period for which she can claim maintenance under the procedure contemplated under S. 125(3) is one year...."

 

Request : IF any of you have decisions contrary to the above from a larger bench or the Apex court, please let us know

 

 

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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. 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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Andhra High Court

 

Jangam Srinivasa Rao vs Jangam Rajeswari And Anr. on 31 March, 1989

 

Equivalent citations: 1990 CriLJ 2506

 

Bench: D J Raju

 

ORDER

 

1. This is a petition filed under Section 482, Cr.P.C. to quash the order D/- 21-7-88 passed by the II Addl. Judicial First Clause Magistrate, Machilipatnam in Crl.M.P. No. 397/88 in M.C. No. 18/84 which was confirmed by the Sessions Judge, Machilipatnam in Crl.R.P. 94/88 on 14-11-88.

 

2. The facts pertinent for decision of this petition are that Jangam Rajeswari the wife filed M.C. No. 18/84 claiming maintenance against her husband J. Srinivasarao. That petition was allowed on 8-10-85 and she was granted maintenance at the rate of Rs. 130/- p.m. from the date of the application i.e. 7-12-83. The husband did not pay the maintenance and hence the wife filed Crl.M.P. No. 2386/85 for realisation of the maintenance amount by arresting and sending the petitioner to jail. By an order D/- 23-7-86 the Magistrate dismissed the application on the ground that the wife refused to join her husband without any valid grounds. The Magistrate found that there was sufficient cause for not complying with the provisions of Section 125(3), Cr.P.C. Against that order revision petition No. 1/87 was filed in the Court of the Sessions Judge. In the meanwhile immediately after the dismissal of the petition i.e. Crl.M.P. No. 2386/85, the wife filed Crl.M.P. 1088/86 for realisation of the maintenance amount by attachment of 1/3rd salary of the husband. This petition was also dismissed on 3-10-86 on the ground that as the earlier application was dismissed and the maintenance order was cancelled this petition is not maintainable. Subsequently the Sessions Court allowed Crl.R.P. No. 1/87 and set aside the order dismissing Crl.M.P. No. 2386/85. No revision was filled against the dismissal order of Crl.M.P. No. 1088/86.

 

3. Subsequent to the revision being allowed by the Sessions Court, the wife filed Crl.M.P. No. 397/88 for realisation of maintenance due to her. The Magistrate by an order d/- 21-7-88 sentenced the petitioner to undergo R.I. for one week for each month's default and as there was default in payment of maintenance for a period of 50 months, he sentenced the husband to undergo R.I. for a total period of 350 days. Crl.R.P. 94/88 filed against this order was dismissed on 14-11-88 and the Magistrate's order was confirmed. Now the present petition is filed to quash the order in Crl.M.P. No. 397/88 which was confirmed in Crl.R.P. No. 94/88 on 14-11-88. http://evinayak.tumblr.com http://vinayak.wordpress.com http://fromvinayak.blogspot.com

 

4. In these proceedings Sr. C. Padmanabha Reddy raised three arguments viz. (1) the order in Crl.M.P. No. 1088/86 clearly indicates that the order of maintenance in M.C. No. 18/84 has been cancelled. That order has not been challenged in revision and it has become final and hence the order in M.C. No. 18/84 no longer subsists. Hence the present petition Crl.M.P. 397/88 is not at all maintainable. (2) Assuming for a moment that the order of maintenance is subsisting under the Criminal P.C. no petition can be filed under Section 125(3), Cr.P.C. for realising the arrears accumulated for more than one year. The first proviso to Section 125(3), Cr.P.C. clearly puts an embargo on a wife accumulating arrears of maintenance beyond a period of 12 months. (3) The last argument is that during the pendency of these proceedings as result of the orders in Crl.M.P. No. 2707/88 the husband paid Rs. 3,250/-. This payment has necessarily to be appropriated to the amount that can be realised or collected by way of the warrant. Hence the petitioner is not entitled to any more amount by pursuing Crl.M.P. No. 397/88.

 

5. On behalf of the respondent it is contended that in a petition for arrest of the maintenance-payer there is no limit of 12 months and the court is justified in sentencing the petitioner for imprisonment for 350 days at the rate of one week for each default. It is further contended that the order of maintenance cannot be cancelled either in Crl.M.P. No. 2386/85 or in Crl.M.P. 1088/86. Those are applications under Section 125(3), Cr.P.C. and unless the order is cancelled in exercise of powers under Section 125(4), 125(5), or under Section 127, Cr.P.C. The Sessions Judge and the Magistrate are perfectly justified in holding that the order of maintenance in M.C. 18/84 is subsisting. The last argument is that there is default in payment of 50 months maintenance. The amount of Rs. 3,250/- paid by reason of the order d/- 8-12-88 will be appropriated to the first 25 months maintenance and for the subsequent months, the present petition for arrest is maintainable. There are no merits in the present petition under Section 482, Cr.P.C. The proceedings in Crl.M.P. 397/88 and Crl.R.P. 94/88 cannot be quashed.

 

6. The points for determination in these proceedings are

(1) whether the order of maintenance passed in M.C. No. 18/84 stood cancelled ?

(2) Whether under Section 125(3), Cr.P.C. the wife can seek imprisonment of the husband for non-payment of maintenance accumulated beyond a period of 12 months ?

(3) Whether the payment of Rs. 3,250/- paid as per the directions of this court can be appropriated to the maintenance due for the first 25 months as claimed by the wife ?

 

7. Point No. 1 : In these proceedings the Magistrates who dealt with Crl.M.P. 1088/86 passed orders which are beyond their powers. When petition for execution of maintenance order was filed under Section 125(3), Cr.P.C. one fails to understand how the Magistrate could cancel the order maintenance though he might be justified in refusing the execute it while exercising his powers under Section 125(3) Cr.P.C. As can be seen from the Sessions Judge's order the Magistrate dismissed Crl.M.P. 2386/85 which was filed for arrest but he also passed an order cancelling the maintenance order. Of course that order of the Magistrate passed on 23-7-86 was set aside by the Sessions Judge in Crl.R.P. No. 1/87 on 4-1-88. In between 23-7-86 and 4-1-88 another peculiar order was passed when the 2nd Addl. Judl. First Clause Magistrate Sri. Y. Prabhakara Sarma dealt with Crl.M.P. No. 1988/86 which was filed under Section 125(3), Cr.P.C. for attachment of 1/3rd salary of the husband. The Magistrate came to the conclusion that as the earlier application was dismissed and as the earlier application cancelled the maintenance order, the present petition i.e. Crl.M.P. No. 1088/86 is not maintainable and he further added in the end portion of the order that is is clear that the maintenance order is cancelled under Section 125(5), Cr.P.C. and, therefore, once again in this Crl.M.P. No. 1088/86 the order of maintenance in M.C. 18/84 d/- 8-10-85 is cancelled in view of my findings as stated in the above paras. If the Magistrate had seen the provisions of the Code this sort of mistakes would not have arisen. Section 125(3), Cr.P.C. does not give any powers to the Magistrate to cancel an order of maintenance which he is asked to execute. At best acting under the second proviso to Section 125(3), Cr.P.C. he may refuse to execute the order if he finds that the grounds of refusal to live with the husband given by the wife are not satisfactory. Only sub Section (5) of Section 125, Cr.P.C. gives the power to the Magistrate to cancel the order of maintenance. Similarly while exercising powers under Section 127, Cr.P.C. he can cancel the order of maintenance. Under Section 125(4), Cr.P.C. the wife is only disentitled to receive maintenance if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if she is living separately by mutual consent. Even Section 125(4) does not strictly give a right to cancel the maintenance order. If only disentitles the wife to receive maintenance under specified circumstances. If judicial authority is needed for this proposition, we have the pronouncement of the Supreme Court in Bhupinder Singh v. Daljit Kaur, . The Supreme Court observed at page 443 (of AIR) : (at p. 199 of Cri LJ) as follows :

 

"We are concerned with a Code which is complete on the topic and any defence against an order passed under Section 125, Cr.P.C. must be founded one provision in the Code. S. 125 is a provision to protect the weaker of the two parties, namely, the neglected wife. If an order for maintenance has been made against the deserter it will operate until vacated or altered in terms of the provision of the Code itself. If the husband has a case under Section 125(4), (5), or Section 127 of the Code it is open to him to initiate appropriate proceedings. But until the original order for maintenance is modified or cancelled by a higher court or is varied or vacated in terms of S. 125(4) or (5) or Section 127, its validity survives. It is enforceable."

 

Judged in the light of this decision the order passed by the Magistrate in Crl.M.P. No. 1088/86 is non est and it need not be set aside by any higher court. In fact while dealing with Crl.M.P. No. 397/88 the Magistrate rightly remarked in paragraph No. 6 of his order as follows : "It is very much doubtful whether this court can cancel the order of maintenance granted by it is the application filed by the petitioner for execution of the maintenance order". The Magistrate further remarked that the order in Cr.M.P. 1088/86 is based upon the findings recorded in the earlier application Crl.M.P. No. 2386/85 and hence when one the order in Crl.M.P. 2386/85 is set aside in Crl.R.P. 1/87 the cancellation of maintenance order in Crl.M.P. No. 1088/86 also is deemed to be set aside. Assuming for a moment that the order in Crl.M.P. No. 1088/86 is not set aside by canvassing it in revision, even then as it is an order passed without jurisdiction it is non est in the eye of law. The learned Magistrate who delay with Crl.M.P. No. 397/88 and the learned Sessions Judge who dealt with Crl.R.P. 94/88 correctly appreciated the situation. I hold point No. 1 against the petitioner. http://evinayak.tumblr.com http://vinayak.wordpress.com http://fromvinayak.blogspot.com

 

8. Point No. 2 : S. 125(3) P.C. contemplates issue of a warrant for every breach of the order and it also contemplates sentencing the defaulter to imprisonment of non-payment of each month's allowance. The term for each month's default may extend upto one month or until payment if sooner made. The fist proviso to sub-section 3 of Section 125, Cr.P.C. reads as follows :

 

"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"

 

Sri Padmanabhareddy contends that this proviso applies both for the issue of the warrant for collecting the amount as well as for sending the defaulter to prison under the later limb of sub-section 3 of Section 125, Cr.P.C. As rightly pointed out by Mr. Padmanabhareddy there is a conflict of views regarding the interpretation of this proviso. The decision reported in Moddari Bin v. Sukdeo Bin, dealt with this question. The Division Bench dealing with the scope of S. 488(3) of the Code which is identical with the present Section 125(3), Cr.P.C. observed at page 139 that the order in this case under Section 488, Cr.P.C. is an order for maintenance and it is not an order for fine at all. Section 488(3) dealing with the enforcement of the order of maintenance only provides that the procedure laid down for warrants for levy of fine under Chapter XXVIII of the Cr.P.C. relating to execution should be followed. It is realisable only in the manner provided for levying fines. At page 140 in paragraph No. 14 dealing with the quantum of sentence the court observed as follows :-

 

"The maximum of one month, in our view, in this context and on proper interpretation of the language of the section is relatable to a period of the arrear for one month. In order words, default of one month is punishable by one month's imprisonment and no more. If the default is more than one month then the imprisonment can be for as many months of default subject to a maximum of 12 months .... .... That would indicate that at the most the wife could only accumulate twelve months' maintenance and no more and the Magistrate could give in such case at most twelve months' imprisonment and no more. The whole idea is to provide a speedy and expeditious remedy. The idea is not to permit unnecessary accumulation of maintenance for the simple reason that maintenance is a current necessity and is not to be used for making a claim in lump after a long delay."

Their Lordships quoted a number of decisions in support of their view.

 

A single Judge of the Patna High Court gave a contrary interpretation and in the decision in Iftekhar Husain v. Hameeda Begum, 1980 Cri LJ 1212 (All) Sri P. N. Bakshi, J. observed as follows :

"The proviso to sub-section (3) of S. 125, Cr.P.C. places a restriction upon the issue of warrant for the recovery of any amount due and that restriction is that the application should be made to the Court within a period of one year from the date it becomes due".

Then His Lordship observed at page 1213 as follows :

"In other words recovery by attachment and sale of the movable and immovable property of the applicant can only be made to satisfy the claim of arrears of maintenance for a period of one year prior to the filing of the application .... But there is no such limitation prescribed in sub-section (3) of Section 125 Cr.P.C. which limits the power of the Magistrate to sentence the defaulter 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 months or until payment if made sooner. In other words, though the property of the defaulter can be attached and sold for the realization of arrears of maintenance for a maximum period of one year from the date of application, yet the defaulter can be sentenced to imprisonment for recovery of arrears, which may extend beyond this period."

From a reading of the decision it is quite clear that the decision reported in Moddari Bin v. Sukdeo Bin, (1967) Cri LJ 335) (Cal) was not brought to the notice of His Lordship.

 

9. With utmost respect I may also indicate that the first proviso to Section 125(3), Cr.P.C. would apply to both the limbs or both the methods of recovery contemplated under sub-section 3 of Section 125, Cr.P.C. It cannot be said that the proviso would apply to the first mode of recovery i.e. by issue of a warrant for levying fines and that it would not apply too the 2nd mode of execution viz., by arresting and sending him to jail. A harmonious construction and interpretation requires that the proviso should be applied to both the limbs of Section 25(3), Cr.P.C. http://evinayak.tumblr.com http://vinayak.wordpress.com http://fromvinayak.blogspot.com

 

10. The decision in G. Pratap Reddy v. G. Vijayalakshmi, (1982) 1 APLJ (HC) 461 : (1982 Cri LJ 2365) is a single Judge's decision of A. P. High Court where His Lordship Jayachandrareddy following the decision in K. R. Chawda v. State of Bombay, a Full Bench decision, sentenced the defaulter to serve imprisonment at the rate of 9 days for default of each month and imposed a total sentence of 180 days where there is a default of payment of maintenance of 20 months. There is no discussion regarding the effect of the proviso to sub-section 3 of Section 125, Cr.P.C. The Bombay Full Bench decision upheld the order of the Magistrate sentencing the husband to the imprisonment for a term of 15 days in respect of each month for which the allowance remained unpaid. From a reading of the decision we do not know whether the total period of default was more than 12 months or not in the Bombay case. In the decision reported in Kirparam v. Smt. Kalibai, a single Judge dealing with the scope of proviso to Section 488(3), Cr.P.C. observed that a second application made for recovery of arrears of maintenance when the first application was dismissed for default has to be treated as a continuation of the original application and the Judge observed as follows (paras 4 and 5) :

"The dismissal for default in appearance of an application praying for issue of a warrant cannot, in my opinion, render the application non-existent even for the purposes of satisfying the condition as to limitation laid down in the aforesaid proviso. All subsequent application must, in my opinion, be deemed, for the purpose of the question of limitation, to be in continuation of the first."

Therefore, the 3rd application which took the default for more than one year was ordered.

 

11. Considering the different views expressed by the various High Courts I prefer to follow the Division Bench decision of the Calcutta High Court reported in Moddari Bin v. Sukdeo Bin, (1967 Cri LJ 335). The other decisions are judgments or single Judges. In my humble opinion the contraction put forward by the Division Bench of the Calcutta High Court is harmonesus construction and interpretation of the proviso making the proviso applicable to both the limbs of procedure contemplated under sub-section 3 of Section 125, Cr.P.C. I hold on point No. 2 that the wife the maintenance-holder cannot accumulate the maintenance for a period beyond 12 months. No application for execution of the maintenance order can be entertained for a period exceeding 12 months immediately preceding the date of application. I hold this point in favour of the petitioner. In this context I make it clear that they remedy provided under S. 125(3), Cr.P.C. is a speedy and expeditious remedy. By virtue of the order of maintains granted in M.C. 18/84 the right vested in the wife to receive maintenance from the date of the application i.e. 7-12-83. She may not be able to recover the earlier arrears by resorting to an application under Section 126(3), Cr.P.C., but still she would certainly be entitled to claim those arrear by filing a civil suit on the basis that the amount is die to her by virtue of the court order. But at the same time it should be remembered that under civil laws also her claim should be within the period of limitation. For instance, for the maintenance payable for the period 7-12-83 to 7-1-84 she should file a suit on or before 7-1-87. At the most she can recover arrears of maintenance for 3 years by resorting to a civil suit. Unfortunately in this case the right to file a civil suit for the earlier arrears is also barred by time.

 

12. Point No. 3 : In view of my finding on point No. 2, the maximum period for which she can claim maintenance under the procedure contemplated under S. 125(3) is one year. Hence the amount of Rs. 3,250/- paid in pursuance of the orders of this court in Crl.M.P. No. 2707/88 would cover payment of maintenance for 25 months. This amount cannot be appropriate for the earlier arrears. It can only be appropriated to the amount recoverable under S. 125(3), Cr.P.C. and hence 12 months arrears which are sought to be recovered by filing Crl.M.P. No. 397/88 have been paid. In fact another 13 months' maintenance also has been paid. In the present proceedings nothing more can be recovered as her claim is fully satisfied.

 

13. In view of the various findings recorded by me there is no need to quash the proceedings in Crl.M.P. 397/88 which are confirmed in Crl.R.P. No. 94/88. I make it clear that the amount recoverable under the Crl.M.P. has been recovered. The petition is closed.

 

14. Order accordingly.

 

 

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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