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Archive for the ‘Judgement’ Category

Legal nuances ‘free’ dowry death accused

Posted by 498A_Crusader on March 18, 2008

MUMBAI: Legal technicality came in the way of justice.

A sessions court on Monday acquitted four accused in a dowry death case because the victim’s dying declaration was not recorded by a special executive officer (SEO).

Rita Baricha, 23, married Hemant in 1997. She gave birth to two daughters. In the first information report (FIR) recorded by the investigating officer, Rita had said that Hemant, her father-in-law Dhanji, her
mother-in-law Madhu and brother-in-law Naresh taunted her regularly for being unable to bear a male child. The entire family lived in a Kanjurmarg chawl.

In her statement, Rita had said that her husband accused her of misbehaving with her in-laws. He also blamed her for ignoring household duties. When she met her parents in Andheri on September 11, 2000, they advised her to keep her husband happy instead of picking up fights with him. 

The next day she had a quarrel with her mother-in-law. While they were arguing, her husband allegedly slapped her and told her to set herself on fire because she had failed to bear a male child. She was doused in kerosene, allegedly by her mother-in-law, and given a matchbox too. Rita apparently set herself on fire inside the bathroom. When she realised she was burning she ran out of the bathroom, according to the prosecution. A neighbour, Sandeep Kadam, wrapped her in a blanket and took her to Rajawadi Hospital. Rita had suffered 85 per cent burns and she died on September 18, 2000.
Special executive officer Suvarna Karanje told the court that she had asked her ‘worker’ to record Rita’s statement. She later signed the declaration, which did not have Rita’s signature.

“The court accepted the first dying declaration (recorded in the FIR). The second one was not accepted because the SEO had not recorded it herself,” said additional public prosecutor Kiran Raykar.

Rita’s father Laxman Baria had filed an affidavit with the police about her daughter being harassed by her in-laws for a male child. But he later told the court that only her mother-in-law (she died during trial) had harassed her and not the other accused.

“If Baria had supported the prosecution, it would have corroborated Rita’s statement in the FIR which was accepted by the court. He backtracked possibly because his two grandchildren live with Rita’s in-laws,” said Raykar.

Source :>>

Posted in 498a, Articles, biased laws, domestic violence in india, dowry, dvact, feminism, gender biased laws, india, Judgement, justice, law misuse, men, men`s rights, mynation.net, News, save indian society, society, women | 2 Comments »

Parents-in-law can’t be forced to maintain daughter-in-law: SC

Posted by 498A_Crusader on March 17, 2008

New Delhi: The latest round of `Saas-Bahu ki ladai’ has gone decisively in favour of the motherin-law. The Supreme Court has ruled that a woman, if neglected by her husband, cannot eye her
mother-in-law’s property for getting maintenance.
Maintenance of a married woman is her husband’s personal obligation and the property in her mother-in-law’s name can never be the subject matter of the obligation to maintain a daughter-in-law even after the death of her husband, said a Bench comprising Justices S B Sinha and V S Sirpurkar.

A woman lawyer, who had filed several cases against her parents-in-law in Chincholi, Karnataka, had even taken recourse to litigation to see that their property was auctioned for getting the maintenance she was entitled to from their son.
Disapproving the extra-legal arguments taken by her and deprecating the trial court and the Karnataka High Court overstretching the law as well as their jurisdiction to go by her
pleadings, the Bench said a woman could seek attachment of properties only if her husband had a share in it.
This means, if the parents-inlaw’s properties were self-acquired and not inherited, then their daughter-in-law could institute suits seeking attachment of those properties which stood in the name of her husband and not against those owned by his parents.
Referring to the plea of the daughter-in-law, Sonalben, the Bench said she might be entitled to maintenance from her husband and the decree in her suit could only be against his properties.
“The decree, if any, must be executed against her husband and only his properties could be attached for that but not of her mother-in-law,” said Justice Sinha, writing the judgment for the
Bench. Referring to the HC order, which was challenged by mother-in-law Vimlaben, the apex court said it suffered from “total non-application of mind” and was “wholly unsustainable”.
“The said orders might have been passed only on consideration that Sonalben is a harassed lady, but the fact that Vimlaben is also a much harassed lady was lost sight of (by the HC),” the Bench said.

Directing release of the attached properties to Vimlaben, the court directed Sonalben to give Rs 50,000 to her mother-in-law as cost of litigation.


As a general guideline to the trial courts, the Bench said: “Sympathy or sentiment, as is well known, should not allow the court to have any effect in its decision-making process. Sympathy or
sentiment can be invoked only in favour of a person who is entitled to it. It should never be taken into consideration as a result whereof the other side would suffer civil or evil consequences.”


No Alimony
THE WORLD ACCORDNG to FEMNSTS
EMpower Women with FeminISM
GREAT INDIA GONE to DOGS
THE WORLD ACCORDNG to FEMNSTS
Marital Rape a Sabotage of Institute of Marriage
A THOUGHT for ALL FUTURE UNMARRIED MALES
PRE NUPITAL CONTRACT
Indian Mens Legal Torture

Posted in Articles, biased laws, domestic violence in india, dvact, feminism, gender biased laws, india, Judgement, justice, law misuse, mynation.net, News, save indian society, society, women | 5 Comments »

SMSes and emails can be used as evidence: Judge

Posted by 498A_Crusader on March 15, 2008

Pune, December 31 Can a child’s testimony be used to verify his father’s hostility towards his mother? How can you prove if a wife’s death was accidental, a suicide or a consequence of marital harassment? What rights does a wife driven out of her husband’s house have, when their divorce is pending in court? These were some of the questions that were answered by the Pune Family Court judge Vinay Borikar as a part of a three-day workshop on the importance of the Indian Evidence Act in women related cases, held on Tadiwala on Sunday.“In the past couple of years, the number of divorce cases has gone up which is accompanied by the urgency to resolve marital disputes as well as deliver justice, if a women is being unfairly treated by her husband,” said Borikar who elaborated the amendments in the Evidence Act that may be used by a victim of violence to her benefit. “Often when women are driven to suicide by the harassment that they face or are killed by husband or in-laws, the victim’s parents and relatives are often unable to procure the evidence to implicate the offenders. However, recent amendments to the Evidence Act has permitted that electronic media can be used as evidence and the result has been that SMSes or e-mails have been submitted to the court, as evidence of harassment,” said Borikar.

“If a married woman commits suicide, which is suspected to have occurred due to harassment from her marital home and if she has confided to her parents about the harassment being meted out to her before her death, the testimony of her parents can be used to prove the case of abetment to suicide,” said Borikar.

According to the Act’s “presumption as to abetment to suicide” section also states that if a women dies ‘accidentally’ or commits suicide within seven years of marriage, and its proved that she was subjected to harassment, then its assumed that the husband and the in-laws must have incited her to take her life, until proven otherwise, he added.

Borikar related his experience in resolving a case of domestic violence when in an effective judgment, given last month, he had ordered a man who had driven out his wife and their two children, to house them in a separate accommodation. The man had refrained from going on higher appeal and had complied with the order.

“With a drastic increase in the crimes against married women, despite specific women-related laws like the Protection of Women against the Domestic Violence Act, 2005, several cases suffer because the victims’ families are unable to furnish the appropriate proof. Hence, we realised that it was essential that women’s organisations, who are the first agency that the bereaved women approach, need to be educated about what kind of relevant evidence will ensure that the women get relief,” said advocate Asuntha Pardhe of the Chetana Mahila Vikas Kendra, that organised the workshop, which was attended by representatives from several organisations in the State.
SOURCE >>


Truth About Dowry Law and Its Misuse
Violence at Home A Truth for The Indian Husband
Narcissists Modern Indian Woman?
Indias Legal Tools of Extortion
Reconciliation
TRUE Colour of Media and Women
My Vision My Dream
The Indian GenderBiased Domestic Violence Act
Indian Mens Legal Torture
PRE NUPITAL CONTRACT
Think before get marry Indian Women

Posted in 498a, Articles, feminism, gender biased laws, india, Judgement, justice, law misuse, men, men`s rights, mynation.net, News, save indian society, society | 2 Comments »

cruelty-to-wife cases can’t be settled out of court

Posted by 498A_Crusader on March 13, 2008

MUMBAI: A high court bench comprising Chief Justice Swatanter Kumar, Justice Dhananjay Chandrachud and Justice J P Devadharowever has ruled that cruelty-to-wife cases can’t be settled out of court. However, the three judges also held that an HC can definitely exercise its power under its inherent jurisdiction, and quash a 498-A complaint in the larger interests of justice, to maintain matrimonial harmony and to prevent abuse of the legal process. The court specified the principles of criminal jurisprudence that need to be followed.

The judgment essentially says that a husband or his family facing a charge under 498-A of inflicting physical or mental cruelty on the wife cannot effect a settlement with her even if the two have patched up or the woman has agreed to forgive her husband or if the charges are based on flimsy pretexts to begin with and prima facie false. This means the husband can get arrested and even convicted and sent to jail for up to three years.

But there could be a way out from the legal quagmire that a husband may find himself in once a 498-A case is slapped on him. For that, however, only the HC can help. The HC has to be moved for quashing of the first information report (FIR), probe or criminal proceedings. The judgment has held that a HC has the power to quash such non-compoundable offences so as “to secure the ends of justice”. However, the judges also held that quashing of a complaint has to be on the basis of the facts of each case and the power must be “sparingly used”.

The 102-page verdict said, “An offence of cruelty under IPC 498-A is not merely a crime between husband and wife but a crime against society, and therefore the parties themselves cannot compound the offence.” The judges have, significantly, also held that not just offences under 498-A, but also other offences such as murder, rape, attempt to murder and causing grievous hurt—which are not specifically mentioned in the law as ‘compoundable’ offences—cannot be settled between the complainant and the accused. Section 320 of the CrPC lists offences that can be settled between parties at any stage of the prosecution.

The issue was referred to a full bench by a single judge of the Bombay high court who had to decide on an appeal filed by a Solapur-based husband Abasaheb Honmane who, after being held guilty of an aggravated form of bigamy and sentenced to jail for five years, had sought the leave of the court to compound the offence and also to set aside his conviction.

A full bench is normally formed in exceptional circumstances when there are conflicting judgments of two or more division benches. Here, it was a single judge who felt that a division bench judgment was not the correct interpretation of law and hence referred it to the Chief Justice since it was an important law point that needed to be settled.

Besides, before the court there were ten other similar cases on the question of compounding of offences such as robbery, dowry harassment, kidnapping, causing serious hurt with weapons, causing a miscarriage without the woman’s consent and so on. In each case, the prayer was that the FIR should be quashed, as the complainant had agreed to settle the matter. Most of these cases had arisen out of disputes in a matrimonial relationship.

The Chief Justice, who wrote the judgment for the bench, noted, “No statute can provide for all situations when the legislature enacts a law.” He said this as one of the points of reference was also whether the high court had the inherent powers to quash or compound complaints when this was not spelt out clearly in any law, including the CrPC, which is the procedural Bible for the criminal law courts.

The full bench held that Section 482 of the CrPC which speaks of the court’s “inherent power” to pass any order to “meet the ends of justice” has “intentionally” been worded widely by the legislature to ensure a larger impact on the procedural law governing investigations and criminal trials. “The inherent powers of the high courts are not meant to be static just like the law is not static and develops and varies according to the progress of time and need of society.”

The HC noted that until recently even a complaint of cheque bouncing was not compoundable but the government recently amended the law to allow parties to go in for “out-of-court settlements”.

Amit Desai, an expert defence counsel, said, “There is a need for criminal law to be amended to make an offence such as Section 498-A compoundable. It is time for the legislature to consider a change in the law since these are private disputes.”

The legislature has provided an alternative statute—the Protection of Women from Domestic Violence Act, 2005, to provide greater safeguards and protection to women by providing for a chance of “resettlement of matrimonial home and relationship prior to actual registration of crime under Section 498-A of IPC”.

But the legislature still did not make the Section 498-A offence compoundable. “While interpreting and implementing the law, legislative wisdom has to be given preference,” the judgment said, adding, “It can very well be presumed that the legislature, while enacting a law, is aware of the difficulties faced in implementation of such a law.”

Source :>>

Biased TOI published, Hubby can be jailed despite patch-up, Instead cruelty-to-wife cases can’t be settled out of court


Truth About Dowry Law and Its Misuse
Violence at Home A Truth for The Indian Husband
Narcissists Modern Indian Woman?
Indias Legal Tools of Extortion
Reconciliation
TRUE Colour of Media and Women
My Vision My Dream
The Indian GenderBiased Domestic Violence Act
Indian Mens Legal Torture
PRE NUPITAL CONTRACT
Think before get marry Indian Women

Posted in 498a, Articles, biased laws, domestic violence in india, dowry, dvact, feminism, gender biased laws, india, Judgement, justice, law misuse, men, men`s rights, mynation.net, News, save indian society, society, women | 6 Comments »

Delhi Police fined for illegal detention

Posted by 498A_Crusader on February 29, 2008

New Delhi, Feb 29 (IANS) The Delhi High court Thursday slapped a fine of Rs.50,000 on the capital’s police force for illegally detaining a person last year.

The court also asked the Delhi Police commissioner to hold an inquiry against the officials responsible for the illegal detention.

Slapping a fine of Rs.50,000, judge S.N. Dhingra also asked the petitioner, Purshottam Ramani, to file a suit against the police officials for mental agony and harassment.

“You (petitioner) should sue Delhi Police for the mental harassment and agony they have caused you,” Dhingra said in his order.

Ramani was arrested by the Delhi Police Sep 25 last year under the Preventive Detention Act after a minor property dispute and was released Sep 30.

The high court last week slapped a fine of Rs.1 million on the Delhi Police in two other cases of illegal detention.

Truth About Dowry Law and Its Misuse
Violence at Home A Truth for The Indian Husband
Narcissists Modern Indian Woman?
Indias Legal Tools of Extortion
Reconciliation
TRUE Colour of Media and Women
My Vision My Dream
The Indian GenderBiased Domestic Violence Act
Indian Mens Legal Torture
PRE NUPITAL CONTRACT
Think before get marry Indian Women

Posted in Articles, biased laws, gender biased laws, india, Judgement, justice, law misuse, men, men`s rights, mynation.net, News, save indian society, society | Leave a Comment »

Seven Mumbai blast convicts granted bail, four denied

Posted by 498A_Crusader on February 13, 2008

New Delhi, Feb 13 (IANS) The Supreme Court Tuesday granted bail to seven convicts of the 1993 Mumbai serial terror bombing case but denied the relief to four others,including fugitive underworld don and blast mastermind Tiger Memon’s sister-in-law Rubina Suleman Memon.

A bench of Chief Justice K.G. Balakrishnan also ordered the Maharashtra government to constitute a medical board to examine whether one of the Memon brothers, Yusuf Abdul Razak Memon, sentenced to life in jail, is actually suffering from chronic schizophrenia and deserves bail on that ground.

The bench, which included Justice R.V. Raveendran and Justice J.M. Panchal, decided to take up Yusuf Memon’ bail plea Feb 22 after examination of his mental condition by the medical board.

The bench dismissed the bail pleas of the four lifers, saying: “They do not have fit cases to be admitted for bail.”

The three lifers denied bail were Sardar Sahawali Khan, Muzamil Umar Kadri, Zamir Sayed Ismail Kadri.

The seven convicts who were eventually granted bail were Khalil Ahmed Sayed Ali Nazir, Shahnawaz Hajwani, Mujib Sharif Parkar, Sudhanwa Sadashiv Talavdekar, Ehsan Mohammad Tufel Qureshi, Sikkandar Issaq Hajhwane and Issaq Mohammed Hajwane.

Rubina and Yusuf Memon were convicted for allowing their houses to be used for conspiracy meetings and storage of arms and explosives. They had also given their van for the bombings that shook the metropolis on March 12, 1993 and killed 257 people.

Sardar Shahwali Khan was sentenced to life term and a Rs.100,000 fine for hatching the conspiracy, while Muzamil Umar Kadri was given life sentence and a Rs.125,000 fine for arranging arms landing in Shekhadi and for conspiracy.

Similarly, Zameer Sayyed Ismail Kadri was awarded life sentence and a Rs.125,000 fine for being a party to the conspiracy and arranging arms landing at Mumbai’s coastal area in Dighi.

The convicts, who were granted bail, were sentenced to 10 years or less for their respective roles in the terror attack and had spent a considerable period in jail.

For example, Khalil Ahmed Sayed Ali Nazir was given 10 years’ rigorous imprisonment and a Rs.125,000 fine for arms landing in Shekhadi area of Mumbai.

Source >> IANS

When These convicts, who suspected to mastermind to bomb and kill thousands of Innocent get bail, why not Falsely charged 498A and DV Act Victims…

Do Anyone need any more Proofs that Indian Judiciary is not only deaf and dumb but BLIND Too…?

Truth About Dowry Law and Its Misuse
Violence at Home A Truth for The Indian Husband
Narcissists Modern Indian Woman?
Indias Legal Tools of Extortion
Reconciliation
TRUE Colour of Media and Women
My Vision My Dream
The Indian GenderBiased Domestic Violence Act
Indian Mens Legal Torture
PRE NUPITAL CONTRACT
Think before get marry Indian Women

Posted in Articles, biased laws, gender biased laws, india, Judgement, justice, men, men`s rights, mynation.net, News, save indian society, society | Leave a Comment »

Law panel’s knotty idea: Let boys marry at 18

Posted by 498A_Crusader on February 6, 2008

New Delhi: The legal age for men to marry should be made 18 and marriages of people younger than 16 should be annulled and declared illegal, the Law Commission of India has recommended.

The Government must amend laws and reduce the marriageable age for men from 21 to 18, says the commission in two reports presented to the Union Law Minister on Wednesday.

”There is no rational, scientific basis to why boys who may vote or take other decisions after 18 must wait to be 21 to marry,” commission member Kirti Singh told UNI.

The commission has recommended that the age for sexual consent should be raised from 15 years to 16 for women, regardless of whether they are married or not.

If the government accepts the commission’s recommendation, men who have sex with their ‘wives’ younger than 16 will be booked.

The commission’s recommendations come after a research group’s report that child marriages, though illegal, continue unabated in the three big states of Madhya Pradesh, Rajasthan and Uttar Pradesh.

Delhi-based Centre for Social Research on February 3 published a report which says: “the proportion of people whose community still practices child marriage is 77.2 percent in Madhya Pradesh, followed by Rajasthan (41 percent) and Uttar Pradesh (10 percent)”.

The law commission in its proposal noted that child marriage stunts the growth and development, particularly of the girl child who is the more vulnerable to domestic violence and sexual abuse. It also deprives the girl child of her right to obtain education and live with freedom and dignity.

It studied the changes to the Child Marriage Restraint Act 1929, with reference to the age of marriage and age of consent for sexual intercourse, and judgements which have upheld the validity of child marriage through the years.

The panel also looked at laws related to child marriage from various countries and also International Covenants that mandate the eradication of child marriage like the CEDAW (The Convention On The Elimination of All Forms of Discrimination Against Women).

It also studied the CRC (Convention On The Rights Of The Child), which makes it obligatory for states to protect children from all forms of violence, abuse and neglect.

Source >>

Truth About Dowry Law and Its Misuse
Violence at Home A Truth for The Indian Husband
Narcissists Modern Indian Woman?
Indias Legal Tools of Extortion
Reconciliation
TRUE Colour of Media and Women
My Vision My Dream
The Indian GenderBiased Domestic Violence Act
Indian Mens Legal Torture
PRE NUPITAL CONTRACT
Think before get marry Indian Women

Posted in Articles, children, feminism, gender biased laws, india, Judgement, men, men`s rights, mynation.net, News, save indian society, society | 2 Comments »

Women facing harassment can write to us: SC

Posted by 498A_Crusader on February 6, 2008

NEW DELHI: Women, facing harassment in their in-laws’ home or at any other place, can straightaway write to the Supreme Court and their letter would be entertained as public interest litigation (PIL), new eligibility guidelines published by the top court said.

Incidents of torture resulting from moral policing by village panchayats, generally in the news for ostracising couples in inter-caste marriages where one of them belong to a backward class, would also be entertained as PILs, it said.

Tired of dealing with the heap of PILs that crowd the list of cases to be heard daily, the court has come out with an eligibility test for PILs to limit their number and reduce the burden on judges.

No petition involving individual or personal matter shall be entertained as public interest litigation, said the recent guidelines posted on the apex court website.

“Letter-petitions (letters written by aggrieved parties to the apex court directly without filing a petition in the registry) will ordinarily be entertained as PIL,” said the guidelines putting the petitions into 10 categories.

The court, which had seen a flurry of public interest litigation on admissions to educational institutions, has completely banned PILs on the admission issue.

The categories under which letter-petitions would be entertained are:

• Atrocities against women, especially harassment of bride, bride burning, rape, murder, kidnapping etc.
• Harassment or torture of villagers by co-villagers or by police from persons belonging to SC or ST or economically backward classes
• Bonded labour matters
• Neglected children
• Non-payment of minimum wages to workers
• Harassment of jail inmates (not to include petitions for parole)
• Refusal of police to register case, harassment by police and custodial death
• Environmental pollution, wildlife and maintenance of heritage and culture
• Petitions from riot victims and those seeking family pension

All letter-petitions received in the PIL cell would be screened and if found meeting the eligibility criteria, would be placed before a judge nominated by the Chief Justice of India for scrutiny.

If the judge finds the letter PIL suitable, only then it would be put up for hearing in open court, the guidelines said.

Source :>>

// Lets Ask all our Mothers and sisters to write to SC, who are harassed with False 498A.LET THEM EAT THIER OWN SHIT

No Alimony
THE WORLD ACCORDNG to FEMNSTS
EMpower Women with FeminISM
GREAT INDIA GONE to DOGS
THE WORLD ACCORDNG to FEMNSTS
Marital Rape a Sabotage of Institute of Marriage
A THOUGHT for ALL FUTURE UNMARRIED MALES
PRE NUPITAL CONTRACT
Indian Mens Legal Torture

Posted in Articles, children, domestic violence in india, dvact, feminism, gender biased laws, india, Judgement, justice, law misuse, mynation.net, News, save indian society, society, women | 1 Comment »

AIDWA for review of judgment on dowry

Posted by 498A_Crusader on February 5, 2008

NEW DELHI: The All-India Democratic Women’s Association will file a review petition in the Supreme Court next week against its order that said demands for customary gifts, and payments given at the time of birth of a child or during ceremonies was not dowry. It wanted the government to re-define dowry to avoid its misinterpretation.

Talking to reporters here on Friday, AIDWA general secretary Sudha Sundararaman said this was the third judgment of the apex court in which it had been held that demands made after the marriage for various reasons and on various occasions did not amount to dowry.

“We feel that the judgment totally misinterprets the definition of dowry. The definition of dowry in the Dowry Prohibition Act, 1961 states that dowry is money or valuable security given before, at the time of, and after the marriage, in connection with the marriage. The words ‘in connection with the marriage’ obviously means that the articles have been demanded as a result of the marital relationship between the parties,” she said.

Adversely affects marriage’

 

“It has been AIDWA’s experience over the past 20 years that the demands for dowry have always been made on occasions of festival, birth of a child, anniversaries, and other such events. The penalty for non-compliance by the girl’s family are grave and adversely affect the marriage between the parties,” Kirti Singh, the legal cell convenor, said.

Dowry also had a direct link to son preference, female foeticide, and women not receiving their due share of property in their parental homes.

Regressive

 

Meanwhile, the National Federation of Indian Women has expressed shock over the ruling, and described it as regressive.

In a statement issued here, NFIW general secretary Annie Raja said the ruling in a way diluted the existing dowry laws and justified the practice of dowry.

Source :>>

Posted in 498a, Articles, biased laws, dowry, feminism, gender biased laws, india, Judgement, law misuse, men, men`s rights, mynation.net, News, save indian society, society | 7 Comments »

Judgements for DISCHARGE u/s 239

Posted by 498A_Crusader on February 5, 2008

IN THE COURT OF SH. XYZ, JUDICIAL MAGISTRATE FIRST CLASS, XYZ

Argument

  1. The allegations, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence under IPC 498-A or make out a case against the accused.

Section 498A reads as follows:

“498A: Husband or relative of husband of a woman subjecting her to cruelty- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation – For the purpose of this section ‘cruelty’ means -

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

   There is NO Injury reported by wife/complainant, So, No ‘physical’ cruelty.

The vagueness of mental cruelty is cleared by the Supreme Court of India by lying the following definition of “mental cruelty” in V.Bhagat Vs. Mrs.D.Bhagat AIR 1994 SC 710:

“the parties cannot reasonably be expected to live together”. The situation must be such that the wronged party cannot reasonably be asked to put with such conduct and continue to live with the other party.”

Also, cruelty is defined in Dr.N.G.Dastane Vs. Mrs.S.Dastane (1975) 2 SCC 326 and Savitri Devi Vs Ramesh Chand , 2003, Cri LJ 2759 (Del) : 2003 (3) Crime 100

>> However, the wife/complainant wants to live with the husband/accused. She has filed a case u/s 9 for Restitution of Conjugal Rights.

  •  
    • Both Parties are willing to LIVE together, so, there is NO CRUELTY.

Where there was allegation by wife against her husband but such allegations were not supported by any reliable evidence. Wife was prepared to live with her Husband. The accused was entitled for benefit of doubt. Lawrence Vs State of Kerala, 2002 Cri LJ 3458 (Ker.)

Supreme Court in Ajay Mitra Vs State of M.P. and others reported in 2003 (3) KCCR 2043 held that the FIR which does not allege or disclose essential requirement of a penal provision are prima facie satisfied , cannot form the foundation or constitute the starting point of lawfull investigation.

And, In the case of Ashok Chaturvedi and other Vs Shitul H Chanchani and another reported in ( 1998) 7 S.C.C. 698 it was held that allowing the criminal proceeding to continue even when the allegation of the complaint petition do not make out any offence would be tantamount to abuse of the process of the court.

  1. Prosecution has blindly “denied” all the paragraphs of application for discharge u/s239, whereas applicant/husband has attached wife/ complainant’s own admittance/statements and prosecution’s own documents as a part of application from Annexure R1 to Annexure R 16
    • Prosecution has denied the Affidavit submitted in the Punjab and Haryana High Court by the Jagmohan Singh, DSP on behalf of SSP, patiala and State of Punjab.
      •  
        • How can Prosecution deny their own affidavit filed in HIGH COURT ??
    • Prosecution has denied all the para, even their own complaints and its contradictions,

For example, in the charge-sheet in line 33 of Page 2 reads as “Mr.SoAndso. left Zirakpur on 14-10-2005 for Gujarat and asked me that I can go to my parental house at Patiala and can live with my parents for about 10 days

Contrary to above para, line 13 of page 2 (back side) reads as “he asked me that why I have not returned to Zirakpur, on this I asked that I am waiting for him as he while going to Gujarat in October 2005 asked me that until and unless he do not return back from to Zirakpur and not reached Patiala, I need not come to Zirakpur of my own

  •  
    •  
      •  
        • Can wife/complainant’s version/statement be relied upon?
        • Is wife/complainant speaking truth?
        • Is wife/complainant approached the Court with Clean hands?
    • In para 20, prosecution have even denied the Powers of the Hon’ble Court.
  1. Prosecution has admitted in para 2 that investigation was carried out by Women Cell, Patiala
    • Women Cell report clearly states that “she (complainant) is determined to teach a lesson to her husband and his family by leveling serious allegations
    • Women cell investigation concluded that “No action is required by Police, so, the complaint to be filed
  1. Wife /Complainant has not approached the court with clean hands, all bills all fake, prepared with an intension to procure the conviction.

How can anyone taunt for bring inferior/cheap articles, when the ‘claimed’ articles don’t have any existence???

  1. Complainant/wife claims that the Bills of Gift articles are not Fake. If the bills are assumed to be true, It is pertinent to note that these bills are of LG brand products

      Is there any brand better than LG ?

      How can anyone taunt for a LG product? Is LG inferior brand???

As such “”Taunting is not Cruelty”” in Savitri Devi Vs Ramesh Chand , 2003, Cri LJ 2759 (Del) : 2003 (3) Crime 100

  1. Complainant/wife has filed petition for “Restitution of Conjugal Rights” under section 9 of HMA.
  • How can complainant/wife live with a Criminal? This itself shows that complaint u/s 498a was filed to fulfill the uterious motives.
  • Complainant has admitted that there were frequent picnic tours, more than 8 destinations have been admitted by complainant for her total stay of about 10 months.

So, the allegations doesn’t fall under the preview of mental or physical cruelty because “The mental cruelty can broadly be defined as  
that conduct which inflicts upon the other party such mental pain  
and suffering as would make it not possible for that party to live with the other”

  1. NO SPECIFIC ALLEGATIONS, even the allegations of Demand of dowry etc. is not quantified/ specified in the complaint. All allegations are VAGUE.
  • In Krishan Jeet Singh Vs State of Haryana, II (2003) DMC 127 (P&H) it was held thatWhere there is no specific allegations in complaint, charge could not be proved” also in Hon’ble HIGH COURT OF DELHI in CRL.M.C.7262/2006 on 23.02.2007 in Smt. Neera Singh Vs STATE (GOVT. OF NCT OF DELHI) and ORS held that “vague allegations as made in the complaint by the petitioner against every member of the family of husband cannot be accepted by any court at their face value and the allegations have to be scrutinized carefully by the Court before framing charge”.
  1. Hon’ble Court shall refer to a leading decision of SC court reported in State of Haryana Vs. Bhajan Lal [1992 Suppl. {1} SCC 335] in which SC court pointed out certain category of cases by way of illustrations wherein the inherent power can be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice. The same are as follows :-
    • Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
    • Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
    • Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
    • Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
    • Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
    • Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
    • Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
  2. In the case of Pepsi Food Limited and another Vs Special Judicial Magistrate and others reported in AIR 1998 S.C 128 it was held that Summoning and Accussed in a criminal case is serious matter .Criminal Law cannot be set into Motion as matter of course .
  3. in the case of Saritha Vs R.Ramachandra reported in (I) (2003) DMC 37 ( DB ) made an observation that “the court would like to go on record that for nothing the educated women are approaching the courts for divorce and resorting to proceedings against in-laws under section 498a , IPC implicating not only the husbands but also their family members whether in India or Abroad. This is nothing but misuse of the beneficial provision intended to save the women from unscrupulous husbands . It has taken a reverse trend now. In some cases this kind of actions is coming as a formidable hurdle in the reconciliation efforts made by either well meaning people or the courts. and the sanctity attached to the marriage in Hindu Religion and the statutory mandate that the courts try to save the marriage through conciliatory efforts till last , are being buried neck-deep . It is for the law commission and the parliament either to continue that provision ( section 498a IPC ) in the same form or to make that offense non cognizable and bailable so that ill-educated women of this country do not misuse the provision to harass innocent people for the sin of contracting marriage with egoistic women

Judgments

  • It is the duty of the court, even at the stage of framing the charge to consider whether there was sufficient material to go into trial. In other words, whether the evidence collected by the prosecution ,if rebutted, warrant any conviction. In doing so, the court can also consider the material on record in State of assam Vs. Achit Ranjan Dey, 1989 Cri LJ 1117 at 1118 (Gau), Sessions Judge Vs. I R redid, 1972 Cri LJ 1485, Abdul Aziz Vs. State of Mysore, 1975 Cri LJ 335 (kant)
  • State of Karnataka Vs. L. Muniswamy , a three judge Bench of SC Court had observed that at the stage of framing the charge, the Court has to apply its mind to the question whether or not there is any ground for presuming the commission of the offence by the accused. As framing of charge affects a persons liberty substantially, need for proper consideration of material warranting such order was emphasized.
  • When offences not prima facia made out against accused person framing of charge not proper in Imtiaz Ahmed Vs State of m.P. , 1997 Cri LJ 1844 (MP)
  • Allegations has to be specific in Krishan Jeet singh Vs. State of Haryana, 11 (2003) DMC 127 (P & H)
  • General allegations are not sufficient to procure 498-A in Surajmal Barithia V. State of west Bengal 11 (2003) DMC 546 (Cal) (DB)
  • Vague allegations are not acceptable in sher Singh V. state of Punjab 11 (2003) DMC 192 (P & H)
  • Bhajan Lal Bhatia & ors. Vs. Sarita Neelam 2005 Vol I HLR 59
  • Where evidence on record neither disclosed that there was cruelty on part o the accused which was of such a nature as was likely to drive victim to commit suicide or cause grave injury or danger to her life or limb or mental or physical health nor showed that she was harassed by accused with regard to any demand for additional dowry, section 498-A could not be attracted in such circumstances in Bomma Ilaiach Vs. State of U.P. , 2003 Cri LJ 2439 (AP)
  • Where there is no specific allegations in complaint, charge could not be proved in Krishan Jeet Singh Vs State of Haryana, II (2003) DMC 127 (P&H)
  • Conviction not sustainable in the absence of evidence of ‘torture’ or “harassment” in Benumadhab Padhi Mohapatra Vs State, 2004 (13) AIC 253 (ori.)
  • Taunting is not Cruelty in Savitri Devi Vs Ramesh Chand , 2003, Cri LJ 2759 (Del) : 2003 (3) Crime 100
  • Dr. Sant Singh Vs. State of Punjab, 11 (2003) DMC 232 (P & H)
  • Where there was allegation by wife against her husband but such allegations were not supported by any reliable evidence. Wife was prepared to live with her Husband. The accused was entitled for benefit of dobut. Lawrence Vs State of Kerala, 2002 Cri LJ 3458 (Ker.)
  • State of Haryana Vs. Bhajan Lal, 1992 Supp (1) SCC 335,
  • Janata Dal Vs. H.S.Chowdhary, (1992) 4 SCC 305,
  • State of Bihar Vs. P.P. Sharma, (1992)Supp. 1 SCC 222,
  • Roopan Deol Bajaj Vs. Kanwar Pal Singh Gill, (1995) 6 SCC 194,
  • State of U.P. Vs. O.P.Sharma, 1996(1) ALD (Crl.) 823 (SC) = (1996) 7 SCC 705
  • State of Maharashtra Vs. Ishwar Piraji Kalpatri, 1996(1) ALD (Crol.) 139 (SC) =(1996) 1 SCC 542
  • Kumar Bhada, (1997 Rashmi Kumar Vs. Maheswh) 2 SCC 397
  • Rajesh Bajaj Vs. State NCT of Delhi, 1999 (1) ALD (Crl.) 760 (SC) = (1999(3) SCC 259
  • Satvinder Kaur Vs. State (Govt. of NCT of Delhi), (1999)8 SCC 728,
  • Jagdish Ram Vs. State of Rajasthan, 2004(1) ALD (Crl.) 672 (SC) = (2004) 4 SCC 432,
  • A.V. Mohan Rao Vs. M. Kishan Rao, (2002) 6 SCC 174,
  • State of Karnataka Vs. M. Devendrappa, 2002(1) ALD (Crl.) 412 (SC) = 2002(3) SCC 89
  • State of Orissa Vs. Saroj Kumar Sahoo, (2005)13 SCC 540
  • Sushil Kumar Sharma Vs. Union of India (UOI) and Ors – Jul 19 2005 JT 2005 (6) SC 266 it was held that by misuse of the 498A provision a new LEGAL TERRORISM can be unleashed.
  • HIGH COURT OF DELHI in CRL.M.C.7262/2006 on 23.02.2007 in Smt. Neera Singh Vs STATE (GOVT. OF NCT OF DELHI) and ORS held that “vague allegations as made in the complaint by the petitioner against every member of the family of husband cannot be accepted by any court at their face value and the allegations have to be scrutinized carefully by the Court before framing charge”.
  • In R.P. Kapur. vs. State of Punjab (AIR 1960 SC 866), SC Court summarized some categories of cases where inherent power can and should be exercised to quash proceedings.
    1.  
      1. Where it manifestly appears that there is a legal bar against the institution or continuance, e.g. want of sanction;
      2. Where the allegation in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;
      3. Where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
  • Madhavrao Jiwaji Rao Scindia and Ors. v. Sambhajirao Chandrojirao Angre and Ors. [1988 [1] SCC 692], SC Court has reiterated the same principle and laid down that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence.
  • Pratibha Rani Vs. Suraj Kumar and Anr. [1985] 2 SCC 370
  • State of Bihar Vs. Murad Ali Khan & Ors. [1988 [4] SCC 655]  

By: MyNation

No Alimony

THE WORLD ACCORDNG to FEMNSTS

EMpower Women with FeminISM

GREAT INDIA GONE to DOGS

THE WORLD ACCORDNG to FEMNSTS

Marital Rape a Sabotage of Institute of Marriage

A THOUGHT for ALL FUTURE UNMARRIED MALES

PRE NUPITAL CONTRACT

Indian Mens Legal Torture

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IN SUPPORT OF THE RECENT JUDGMENT OF THE SUPREME COURT OF INDIA

Posted by 498A_Crusader on February 4, 2008

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We support Supreme Court’s recent Judgment whereby it clarified that gifts are not dowry (as per news report in TOI)Demand for Gift after marriage is not Dowry Says Supreme Court of India
The Supreme Court has ruled that demand for money and presents from parents of a married girl at the time of birth of her child or for other ceremonies, as is prevalent in society, may be depreciable but cannot be categorized as dowry to make it a punishable offence. This means, if a daughter-in-law is being harassed for customary gifts by parents-in-law, then they could be booked under ordinary penal provisions but not under the tough anti-dowry laws providing stringent punishments. Acquitting the parents-in-law of a woman who had accused them of harassing her for dowry, a Bench comprising Justices Arijit Pasayat and S Sathasivam took help of a 2001 judgment of SC to say that not all demands from the parents-in-law could be categorized as dowry under the Dowry Prohibition Act. It said though the Act covers payment of money or articles during, before or after marriage by the girls parent to her in-laws, the cash and presents given had to have a link with the marriage to become objectionable in law. Other payments which are customary payments, for example given at the time of birth of a child or other ceremonies as are prevalent in different societies, are not covered by the expression dowry, said Justice Pasayat, writing the judgment for the Bench.
A Haryana trial court had continued the dowry harassment charges against the woman’s husband while acquitting the parents-in-law, the married sister and brother of the husband. Though the high court allowed quashing of charges against the sister and brother, it said the parents-in-law were liable to be proceeded against. The apex court said that when the trial court had held that an attempt had been made by the woman to rope in as many relatives of her husband as possible, the HC should have given some reasons while reversing a well-reasoned order.
It said judicial discipline demanded the HCs to give clear reasons when reversing a trial court order backed by facts. Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the ‘inscrutible face of the sphinx’, it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudicating the validity of the decision, the Bench said.

Prior to this ruling, our lawmakers as well as the radical feminist organizations had never opened their eyes or tried to understand the basis behind the same, and the result was more and more misuse of Dowry Laws. Thus far, we have been silent witnesses to the extortion of money or obtaining custody and a legal advantage in the divorce case in more than 98% of the false dowry complaints (as per the court records), where it is the wife’s family that is demanding and taking money from the husband’s family in open court (in return for them agreeing to have the husband/his family released from jail) and the same is not considered a crime.

The bride and groom’s family in every culture around the world give gifts. Dowry itself is a bogus word that did not exist in India prior to the arrival of the British who had been practicing it for centuries (without a single dowry complaint having been filed in England). However, the word ‘Dowry’ has been misused by the radical Indian feminist organizations and the greedy/money minded girls’ families who hide behind the word ‘Dowry’ and cheat their own daughter/sisters basic right on Streedhan and equal right in parental property and always treat the husband’s family as a free ATM machine.

The Save Family Foundation and their associate organizations, and even Ms. Madhu Kiswar, have continuously demanded and urged that if any one harasses others for any money or property the same should be termed as Extortion or Blackmail. However, our lawmakers failed to accept that. Finally, the Supreme Court of India has understood that each and every dispute should not be termed as Dowry Harassment which is one small step towards stopping the Legal Terrorism and rampant Misuse of 498A, DV act and CRPC125 maintenance act.

Every 4 minutes in India an innocent person (who never demanded any dowry or money from the wife/daughter-in-law) including old mothers/pregnant sisters/children are facing false and fabricated Dowry cases and sent behind bars without any evidence (since no evidence is required and 498A is non-bailable). Despite the Law commission and various judges’ recommendations to make 498A a bailable offence, our lawmakers have not made any effort to save the innocent people who are being victimized by the abusive women and their families. We must stop this legal terrorism (as termed by the Supreme Court of India) by our radical women organizations that openly advocates and legitimizes adultery by the wife and killing of the unborn child (against the husband’s wishes).

We applaud the recent judgment of the Supreme Court of India whereby it clarifies that gifts are not dowry. We request the Supreme Court of India to set up an in-depth review by a panel of happily married lawyers, retired judges, elders and representatives from the men’s organizations that should also look into the complaints regarding the misuse of these laws. All laws that affect families should also take into account that mothers and sisters are women too, and it takes two to tango.

The Hon’ble Supreme Court in Batra v Batra rightly decided that the right should only available to a woman in a household owned by the husband and not in the household owned by the in laws, even though it may have been the shared household. In a country where the joint family pattern of residence is then norm, any other judgment virtually gives a license to women to throw out senior citizens from the own home with the help of a bad law. Every family has a right to live free from abuse. Denial of the right to reside in their own home for senior citizens is one of the most extreme forms of abuse, rendering the parents and grandparents homeless and insecure. There are numerous concerted efforts being made among the radical women’s groups to abuse these badly drafted gender baised laws.

We, the undersigned, therefore support the Supreme Court of India whereby it clarified that gifts are not dowry and request the following:

· Review the complaints of all those crying of misuse of these laws and by taking appropriate steps in the Supreme Court of India.
· Appoint full time qualified Investigating Officers (who should be held responsible if any misuse of the law is reported) and notifies Service Providers and medical facilities.
· Impose legal sanctions all women (and their helpers) who are misusing the law.
· We request all of you to sign this e – petition to support the above-mentioned ruling of the Supreme Court of India. Please write letters separately to the Chief Justice of India with copies to us:

We also request you to forward it further amongst your partners, networks and friends.

Please support our cause, Those anti social Women organisation influenced by wester ideas, Which are total against Interest of Indian Family system

JAI HIND.

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Criminal case registered against APC in Ahmedabad

Posted by 498A_Crusader on February 2, 2008

Bhopal, January 21 (Pervez Bari): An Ahmedabad court has registered a criminal case against Mrs. Parikshita Gurjar (Rathod), Assistant Police Commissioner of City Crime Branch of Ahmedabad City of Gujarat State. The court issued summons for the accused to appear before the Metropolitan Magistrate Court No. 21 on February 18.
The Court proceedings were initiated by the All India Christian Council due to unlawfully detaining a Backward Class youth named Dhirajbhai, his elder brother Advocate Rasikbhai, his sister-in-law, and his aged father and, thereafter, beating severely Dhirajbhai in the office of the Crime Branch.

“By detaining the family of Backward Class staying in the Ahmedabad City, the capital of Gujarat state, without any reason, and threatening to kill and creating fear, a great injustice was done. A police complaint has been lodged against Mrs. Parikshita Gurjar, Asstt. Police Commissioner of Crime Branch, and summons have been issued to her to remain present for an upcoming hearing,” said Samson Christian, All India Christian Council, (AICC), National Executive member and general secretary in a Press statement.

According to the Press statement Advocate Rasikbhai Muljibhai Waghela, residing at Ranip, Ahmedabad City of Gujarat state, was residing with his family. The marriage of Dhirajbhai, younger brother of Rasikbhai was performed with Harshaben Dimple in the year 2000.

However, after marriage instead of staying at the in-laws house, Harshaben was staying at her parent’s house and was pressurising Dhirajbhai to come to her parent’s home. But Dhirajbhai did not oblige. Finally, Harshaben Dimple came to her in-laws for few days and after celebrating a ‘SEEMANT’ ceremony, she returned to her parental home. After the birth of a child, she did not return to her husband, who was still living with his parents. Therefore, Dhirajbhai applied for a search warrant in the Metropolitan Magistrate Court No. 13 of Ahmedabad to have both in his home. But Harshaben Dimple told the court that she does not want to go to her husband’s house and will stay at her father’s home and the custody of the son was her right.

Then, Harshaben, the wife of Dhirajbhai, planned to get a divorce. She filed an application before the Mahila (women) Police Station, Ahmedabad alleging there was a lot of harassment by Dhirajbhai, his elder brother Advocate Rasikbhai, and others. The accused family members were called to Mahila Police Station on March 6, 2006 at 11.00 am when Harshaben and her family members were also present. They levelled false allegations of being tortured by Dhirajbhai and his family members, demanded the divorce and Rs. 50,000/- household utensils, other ornaments and amount of life-time maintenance. Dhirajbhai and his family members did not agree to this. Then Harshaben Dimple registered an offence in the Mahila police Station against her husband Dhirajbhai and his family members.

On March 23, 2006 at about 11.00 pm, Asstt. Police Commissioner Mrs. Parikshita Gurjar went to the house of Rasikbhai in plain clothes and in a private vehicle with two unknown persons. He took Rasikbhai, his wife and father in the vehicle, brought to the Mahila police Station and said, “Tell your brother Dhirajbhai to get a divorce. The other party is demanding Rs. 2,00,000/- of expenses, but I will complete in Rs. 50,000/- if you give me Rs. 20,000/- for my expense”.
After hearing this, Advocate Rasikbhai reportedly said, “We have not committed any offence. We are not able to give such a huge amount. Whatever legal proceedings has to be done, must be done.” At this Asstt. Police Commissioner Mrs. Parikshita became angry and threatened Advocate Rasikbhai. She said she could cancel his degree, arrest him illegally, and take away the mobile phone of Rasikbhai.

Thereafter, two days later on March 23, a phone call of ACP Mrs. Parikshita Gurjar came on the mobile phone of Police Constable Natvarsinh, writer of the said Police Station, and Advocate Rasikbhai was threatened for not giving money. ACP Parikshita Gurjar talked with Advocate Rasikbhai in a very abusive language, the statement said.

Meanwhile, on March 26 a press reporter came in the said Police Station, and gave his own mobile to Rasikbhai. Rasikbhai told ACP Parikshita Gurjar that the illegal arrest of him and his family and the demand of a bribe was being watched by the media. Advocate Rasikbhai was presented before the Metropolitan Magistrate. By seeking a remand of two days, Advocate Rasikbhai and his family members were jailed in Gaikwad Haveli Police Station with hardened criminals. Due to hunger and thirst during detention, the health of Advocate Rasikbhai deteriorated. On March 27, 2006 wife of the Advocate Rasikbhai and his father were released. Next day on March 28 Advocate Rasikbhai was released on bail.

Advocate Rasikbhai Waghela and his family sought the help of AICC due to continuing fear. The AICC lodged a written complaint of the incident to higher police officers of the State. On July 21, 2007, a FIR (First Information Report) No. 12/08 was registered in the Metropolitan Magistrate Court No. 21 under Section 323, 504 and 506(1) of IPC. A summon has been issued to ACP Mrs. Parikshita Gurjar to appear before the court next month on February 18.
“The AICC welcomes the case registered against ACP Mrs. Parikshita Gurjar (Rathod) by the Metropolitan Magistrate, and the summon issued to her. We appeal to the court to initiate proceedings as such a case is alarming. Police, who are protectors, should not be harassing citizens,” said Samson Christian.

Posted in Articles, feminism, gender biased laws, india, Judgement, justice, men, men`s rights, mynation.net, News, save indian society | Leave a Comment »

Invoke Sec 482 of CrPC sparingly: HC

Posted by 498A_Crusader on February 2, 2008

Madras High Court today held that the inherent powers of the Court under section 482 of CrPC for giving direction to the police to register a case should be invoked sparingly and only in heinous crimes.

Justice M Jeyapaul also held that the High Court shall not entertain a petition under section 482 of CrPC, alleging commission of offences of lesser gravity.

The judge disposed of a batch of 258 petitions, seeking a direction to the Station House Officer (SHO) concerned to register their cases as the allegations reflected cognizable offence.

The judge said, “If a complaint reflects commission of murder, dowry death, attempt to murder, where the victims sustained grievous injuries, robbery, decoity, rape and attempt to rape and the SHO refuses to register the complaint on such allegations, then the High Court would have to necessarily give a direction to SHO to register a case invoking the jurisdiction under the section 482.”

There are cases where immediate inspection of the scene of crime, recovery of material objects and collection of every potential evidence in heinous crimes may be highly warranted.

If the SHO exhibits supine indifference and callousness in registering such cases which warrant immediate attention for the purpose of saving the very case from collapse, then inspite of the alternative remedy available under the scheme of CrPC, the aggrieved party can very well invoke the section 482 to secure ends of justice, the judge added.

Source >>

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Demand for gifts after wedding not dowry: SC

Posted by 498A_Crusader on February 1, 2008

NEW DELHI: The Supreme Court has ruled that demand for money and presents from parents of a married girl at the time of birth of her child or for other ceremonies, as is prevalent in society, may be deprecable but cannot be categorised as dowry to make it a punishable offence.

This means, if a daughter-in-law is being harassed for customary gifts by parents-in-law, then they could be booked under ordinary penal provisions but not under the tough anti-dowry laws providing stringent punishments.

Acquitting the parents-in-law of a woman who had accused them of harassing her for dowry, a Bench comprising Justices Arijit Pasayat and S Sathasivam took help of a 2001 judgment of SC to say that not all demands from the parents-in-law could be categorised as ‘dowry’ under the Dowry Prohibition Act. It said though the Act covers payment of money or articles during, before or after marriage by the girl’s parent to her in-laws, the cash and presents given had to have a link with the marriage to become objectionable in law.

“Other payments which are customary payments, for example given at the time of birth of a child or other ceremonies as are prevalent in different societies, are not covered by the expression ‘dowry’,” said Justice Pasayat, writing the judgment for the Bench.

A Haryana trial court had continued the dowry harassment charges against the woman’s husband while acquitting the parents-in-law, the married sister and brother of the husband. Though the high court allowed quashing of charges against the sister and brother, it said the parents-in-law were liable to be proceeded against.

The apex court said that when the trial court had held that an attempt had been made by the woman to rope in as many relatives of her husband as possible, the HC should have given some reasons while reversing a well-reasoned order.

It said judicial discipline demanded the HCs to give clear reasons when reversing a trial court order backed by facts. “Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the ‘inscrutible face of the sphinx’, it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudicating the validity of the decision,” the Bench said.
source >>

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Justice Mallimat Committee recomendations on 498A

Posted by 498A_Crusader on January 28, 2008

Page 199:
16.4.3 If the woman victim lodges an F.I.R alleging commission of
offence under Section 498A, her husband, in-laws and other relatives of the
husband would be arrested immediately. If she has no independent source of
income she has to return to her natal family where also support may not be
forthcoming. Her claim for maintenance would be honoured more in default
than in payment especially if the husband has lost his job or suspended from his
job due to the arrest. Where maintenance is given, it is often a paltry sum.
(Thus the woman is neither here nor there. She has just fallen from the frying
pan into the fire.) Even when there is a divorce, or reconciliation, the criminal
case continues as Section 498A is non compoundable.
16.4.4 In less tolerant impulsive woman may lodge an FIR even on a
trivial act. The result is that the husband and his family may be immediately
arrested and there may be a suspension or loss of job. The offence alleged
being non-bailable, innocent persons languish in custody. There may be a claim
for maintenance adding fuel to fire, if the husband cannot pay. She may change
her mind and get into the mood to forget and forgive. The husband may realize
the mistakes committed and come forward to turn a new leaf for a loving and
cordial relationship. The woman may like to seek reconciliation. But this may
not be possible due to the legal obstacles. Even if she wishes to make amends
by withdrawing the complaint, she can not do so as the offence is non
compoundable. The doors for returning to family life stand closed. She is thus
left at the mercy of her natal family.
16.4.5 This section, therefore, helps neither the wife nor the husband. The
offence being non-bailable and non-compoundable makes an innocent person
undergo stigmatization and hardship. Heartless provisions that make the offence
non-bailable and non-compoundable operate against reconciliations. It is
therefore necessary to make this offence (a) bailable and (b) compoundable to
give a chance to the spouses to come together.

Page : 298 :

16. OFFENCES AGAINST WOMEN
There are several shortcomings or aberrations in dealing with the offences
against women which need to be addressed. The Committee feels that a man
who marries a second wife during the subsistence of the first wife should not
escape his liability to maintain his second wife under Section 125 of the Code
on the grounds that the second marriage is neither lawful nor valid.
The Supreme Court has held that, for proving bigamy, it is to be
established that the second marriage was performed in accordance with the
customary rites of either parties under the personal laws which is not easy to
prove. Therefore the Committee feels that evidence regarding a man and
woman living together for a reasonably long period should be sufficient to draw
the presumption that the marriage was performed according to the customary
rites of the parties.
As a man can be punished under Section 497 of IPC for adultery, for
having sexual intercourse with a wife of another man it stands to reason that
wife should likewise be punished if she has sexual intercourse with another
married man.
There is a general complaint that section 498A of the IPC regarding cruelty
by the husband or his relatives is subjected to gross misuse and many times
291
operates against the interest of the wife herself. This offence is non-bailable and
non-compoundable. Hence husband and other members of the family are arrested
and can be behind the bars which may result in husband losing his job. Even if the
wife is willing to condone and forgive the lapse of the husband and live in
matrimony, this provision comes in the way of spouses returning to the
matrimonial home. This hardship can be avoided by making the offence bailable
and compoundable.
As instances of non-penal penetration are on the increase and they do not
fall in the definition under the offence of rape under Section 375 of the IPC, the
Committee feels that such non-penal penetration should be made an offence
prescribing a heavier punishment.
The Committee is not in favour of imposing death penalty for the offence of
rape, for in its opinion the rapists may kill the victim. Instead the Committee
recommends sentence of imprisonment for life without commutation or remission.
The Committee however feels that investigation and trial of rape cases
should be done with most expedition and with a high degree of sensitivity. The
Committee therefore, makes the following recommendations:
(115) Definition of the word ‘wife’ in Section 125 of the Code be amended to
include a woman who was living with the man like his wife for
reasonable long period.
(116) Section 494 of the I.P.C be suitably amended to the effect that if the
man and woman were living together as husband and wife for a
reasonable long period the man shall be deemed to have married the
woman according to the customary rites of either party.
(117) Section 497 of the Indian Penal Code regarding offence of Adultery be
amended to include wife who has sexual intercourse with a married
man, by substituting the words “whosoever has sexual intercourse with
the spouse of any other person is guilty of adultery”.
(118) The Code may be suitably amended to make the offence under Section
498 A of the I.P.Code, bailable and compoundable.
(119) Forcible penetration, penile/oral, penile/anal, object or finger/vaginal
and object or finger/anal should be made a separate offence under the
IPC prescribing appropriate punishment on the lines of Section 376 of
I.P.Code.
(120) The Committee is not in favour of prescribing death penalty for the offence of rape.
292
Instead the Committee recommends sentence of imprisonment for life
without commutation or remission.
(121) A suitable provision should be made requiring the officer investigating
to complete investigation of cases of rape and other sexual offences on
priority basis and requiring the court to dispose of such cases
expeditiously within a period of four months.
(122) Specialised training should be imparted to the Magistrates in regard to
trial of cases of rape and other sexual offences to instill in them
sensitivity to the feelings, image, dignity and reputation etc of the
victim.
(123) Provision should be made in the Code permitting filing of F.I.Rs in
respect of offences under Sections 376, 376-A, 376-B, 376-C, 376-D
and 377 of IPC within a reasonable time.

Full Source :>>

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Narender Kumar and Anr – (498a) Justice Dhingra Verdict

Posted by 498A_Crusader on January 27, 2008

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: 03.9.2007
Date of Order: 01.11.2007

Crl.Appeal No. 696/2004 01.11.2007

Narender Kumar and Anr. … Appellants Through: Mr. Atul Jain, Advocate

Versus

State (Govt. of NCT of Delhi) … Respondent Through: Mr. Sunil K. Kapoor, Advocate

Crl.Appeal No. 748/2004

Vijay Kumar and Anr. … Appellants Through: Mr. Atul Jain, Advocate

Versus

State (Govt. of NCT of Delhi) … Respondent Through: Mr. Sunil K. Kapoor, Advocate

Crl.Appeal No. 787/2004

Gyan Prakash … Appellant Through: Mr. Atul Jain, Advocate

Versus

State (Govt. of NCT of Delhi) … Respondent Through: Mr. Sunil K. Kapoor, Advocate

Crl.Appeal No. 749/2004

Jeevani Devi @ Jamuna Devi … Appellant Through: Mr. Atul Jain, Advocate

Versus

State (Govt. of NCT of Delhi) … Respondent Through: Mr. Sunil K. Kapoor, Advocate

CORAM

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment? Yes.

2. To be referred to the reporter or not ? Yes.

3. Whether judgment should be reported in Digest ? Yes.
JUDGMENT:
1. These appeals have been preferred against the judgment of
learned Additional Sessions Judge dated 10th September, 2004 whereby he
convicted the appellants under Section 498A read with Section 34 IPC and Section
307 read with Section 34 IPC and against the order of sentence dated 14th
September, 2004 whereby he sentenced each of the appellants to undergo RI for 02
years and a fine of Rs.3,000/- under Section 498A and RI for 07 years and a fine
of RS.5,000/- under Section 307/34 IPC.

2. The brief facts necessary for deciding these appeals are that
complainant Veena Rani was married to accused Gyan Prakash on 24th November,
1997. She was admitted to Safdarjung Hospital on 9th May, 2002 by her husband
at about 10.00 p.m. with 25 % burns. She told the doctor that she received burn
injuries accidentally while she was cooking food on LPG stove and her dupatta
caught fire accidentally resulting into burn injuries. Her MLC Ex. PW 3/1 shows
that her pulse rate, Blood Pressure were normal her chest was clean she was
oriented to time, place and persons. The injuries present on her body showed
that she was having thermal burns on upper parts of the body i.e. upper exteme
face, lower abdomen and some patches over the back. Police was informed of the
admission by the duty constable in hospital vide DD No. 4A (Ex. PW 1/1) on the
night of 9th and 10th May, 2002. The investigation was given to ASI Ramesh
Chand, who requested SDM to come to hospital and record statement of Smt. Veena.
Statement of Smt. Veena was recorded by SDM on 10th May, 2002. Doctor’s
endorsement of her being fit for giving statement is Ex. PW 12/1. In her
statement given to SDM (Ex. PW 2/2) she stated that on previous night around
7.00 p.m. she was at home, her jethani and mother-in-law were also at home, LPG
Stove was lying on floor. She was standing near the stove and food was being
cooked. Her dupatta caught fire from the LPG stove and she cried of catching
fire, her mother-in-law and jethani extinguished the fire. Her husband was on
duty at the time of incident. Thereafter, she was brought to hospital by her
husband. She had been living happily with her family and was not being harassed
for dowry, everybody in the family loved her. The incident was an accident and
she had no doubt on anyone. She was in full senses and gave the statement
without any pressure.
3. Father of complainant Roshan Lal came to see her on 10th May,
2002 itself. On 11th May, 2002, her father made an application Ex. PW5/1 to
SDM wherein he stated that her daughter Veena was being mistreated by her in-
laws. His son-in-law Gyan Prakash was having no business or work and due to
this reason his family members used to throw him out of the house and on this
attitude of family of his son-in-law, he had to bring his daughter to his own
house sometime for four months and sometime for six months. His daughter was
having one son, who was also living with him for about last three years. Due to
unemployment of his son-in-law he got his daughter employed in a private firm as
a labour, so that she could maintain herself. During this period he had also
been sending his daughter to in-laws house with the help of inter-mediators.
Mother-in-law of his daughter told him that he should get his son-in-law Gyan
Prakash settled by opening a clothier shop for him. Since he (father-in-law)
was not a rich person this was not possible for him. On 9th May, 2002 around
7.00 p.m. girl’s two jeths (brothers-in-law) viz. Narender and Vijay, two
jethanis (sisters-in-law) viz. Om Prabha and Nirmal and mother-in-law viz.
Jeevani Devi @ Jamuna Devi and her husband Gyan Prakash poured kerosene oil on
his daughter and set her on fire. He was not informed of the incident.
However, he got information on 10th May, 2002 at 10.00 a.m. from some
acquaintance that Veena had met with an accident. So, when he went to know well
being of his daughter at her in-laws’ house there her father-in-law Pandit
Prabhati Lal told him that Veena was in burns ward of the Safdarjung Hospital.
When he reached Safdarjung Hospital he learnt that SDM had already recorded his
daughter’s statement. His daughter told him that she made statement to SDM as
per the wishes of her in-laws since her in-laws had threatened her that they
would kill her and her son and that she would be divorced. By his application
Ex. PW5/1 he requested SDM that another statement of his daughter Veena should
be recorded.

4. After the application made by father of complainant, SDM again
recorded a statement of the complainant Venna (Ex. PW 2/1). In this statement
complainant stated that her husband Gyan Prakash used to do a private job and
she herself was doing a private job. She was having a child around 3 ? years
old. For about a month after her marriage she was kept by her in-laws properly
thereafter her in-laws started harassing her on small things. She remained at
her parents house for 8-9 months thereafter. She was again called by her in-
laws after a compromise and she remained at her in-laws for about two months
thereafter. After two months she was against harassed for dowry. She used to
be told that she had no brother and she had brought so less dowry. She again
went to her parents’ house and lived there for about 8-9 months and again came
back to her in-laws house after a compromise and she was living at her in-laws
house since 8th December, 2001. About 15 days before the incident she had a
quarrel with her Jeth and mother-in-law. Her in-laws had purchased a Maruti Car
on the day of Holi Festival and they told her that in case she wanted to remain
alive she should bring 2 ? lac rupees or a clothier shop be opened for her
husband in Chandni Chowk. She refused to accede to these demands telling her
that her father had no money. On this she was told to pack up and go from the
house. This quarrel continued till the days of the incident. On the night of
Wednesday again a similar quarrel took place and her in-laws gave her beatings
and all went for sleeping. On Thursday morning she got up and cooked meals and
got ready for going to office. She was told by her in-laws that in case she
wanted her safety, she should bring 2 ? lac from her parents or she should call
her father. She however, went to her office/job and after doing her job came
back home. When she came back from office, all members of the family viz. both
her jeths, jethanis and mother-in-law were sitting in the house. Her in-laws
asked her why she had not brought her parents. When she went to her room, she
found that her goods were lying packed. Her mother-in-law and jethani abused
her and told her that she should pick up her goods and go away. When she
refused they bolted the main gate from inside and her jeth said that she should
be beaten. Jethani said that she should be burnt and cremated. In the meantime
her mother-in-law brought kerosene oil in a tin and poured kerosene oil on her.
When she cried then her elder jethani lit fire and set her ablaze. She cried
for being saved then all of them went away from there. A bucket full of water
was lying there, she picked up the bucket, poured water on herself the fire got
extinguished. She asked them to take her to hospital, on this they started
beating her. She kept lying in the house for about two hours and they told her
that they would take her to hospital only if she would not testify against them
otherwise her son and father would be killed. When she agreed to this, she was
removed to hospital. She was also threatened on the way to hospital and even
beaten. She made her earlier statement under pressure. Her earlier statement
was not correct. Since her parents had met her in the hospital now she was
under no fear and had made the statement without pressure. Her mother-in-law
her jeths viz. Narender and Vijay, her husband Gyan Prakash her jethanis Om
Prabha and Nirmal had burnt her.

5. The accused persons were put to trial under Section
406/498/307/34 IPC. Smt. Veena appeared as PW 2 and testified against the
accused persons more vehemently, making improvements even over her second
statement given to the SDM. Her father and mother also testified against the
accused persons and based on the statements, the appellants were convicted.

6. The learned Trial Court observed that the two contradictory
statements made by Veena before SDM have been explained and the testimony of the
complainant given in the Court was trustworthy and cannot be looked upon with
suspicion. The Trial Court also observed that had the complainant been having
nice time with her in-laws and been loved and respected as stated in the first
statement, she would not have turned a somersault and implicated everyone of her
family merely because her father had come to the hospital and met her. The
Trial Court observed that earlier statement made to the SDM was under a threat
and therefore could not be used to erase the credibility of complainant’s
testimony in the Court. The Trial Court also observed that had the incident
been an accident only, the appellant would have not concealed the incident from
the father of the complainant and would have immediately informed the father of
the complainant. The fact that father of the complainant was not informed about
the incident by the in-laws/appellants proves guilty mind of the appellants.
The Trial Court brushed aside the contradictions in the ocular testimony of
complainant and the medical evidence observing the same being inconsequential
holding that the doctor who examined her had not taken the case of the
complainant seriously and considered it as a case of accident and not a case of
burning. Trial Court also brushed aside the contradiction in the stand taken by
the complainant about the incident in her maintenance petition and in the Court
on the ground that there must have been communication gap. There were other
contradictions in the statement of complainant made in the Court and the earlier
statement but all these were considered as immaterial by the Trial Court.

7. It is argued by the counsel for the appellants that the Trial
Court had grossly ignored the entire sequence of the evidence and the
circumstances which proved that the complainant had made false statement in the
Court out of vengeance, only to see that her husband, who was not earning well
and was not able to maintain her properly and the in-laws should be taught a lesson.

8. As per testimony of PW 2 complainant, made in the Court after
marriage, the accused started asking her to bring 2 ? lac from her father or to
get a shop opened for her husband. This part of the testimony is contrary to
Ex. PW 5/1, a written application made by her father to SDM wherein her father
had clearly stated that her son-in-law Gyan Prakash was unemployed and for this
reason he was turned out by his family and he (PW 5) was forced to keep his
daughter with him sometime for 04 months and sometime for 06 months and he also
had to get his daughter employed as a labour in a private company. She in her
statement to SDM and in court tried to make out a case as if she lived at her
parents’ house for 8-9 months together due to dowry demands. Her statement in
Court is also contrary to her second statement made to SDM implicating her in-
laws. In Ex. PW 2/1 she talked of demand of Rs. 2 ? lac after purchase of a car
by in-laws on Holi festival of 2002 while deposing in Court she alleged of this
demand from day one of her marriage. It is clear that it was not a case where
the in-laws were demanding 2 ? lac after marriage of the girl but it was a case
where the girl was married with a boy who was practically unemployed and had no
source of earning. The boy must have been unable to earn livelihood and for
this reason he was being turned out from the house by his own family members.
Had the in-laws been trying to extract money and been asking Rs. 2 ? lac from
the parents of the girl, they would not have turned out their own son. Once a
person grows up and attains age of majority, gets married, he has to earn for
himself and his wife. His elder brothers or parents cannot be expected to
sustain him and his family even after his marriage. Because of joint family
system prevalent in India sometimes the parents go out of way to help such of
their sons, who are not able to earn properly and do establish them in business
or help them to earn livelihood but that is possible only if the parents are
having enough money for this. Where the parents belong to poor or middle class
and do not have enough money to extend this help, they have no alternative but
to turn out such non-earning persons hoping that this would compel him to
sustain himself by striving and struggling. Ex. PW 5/1 is the first admitted
written account from complainant’s father that Gyan Prakash was being turned out
from house time and again, so that he was able to sustain himself and struggle
for himself and it seems ultimately Gyan Prakash got some private job and
started going on work. Complainant in order to sustain herself also got a
private job with the help of her father and the couple left their son with
maternal grand parents out of poverty. The initial period of their married life
went like that. It has come in evidence that father of the girl was running a
clothier shop in Gurgaon. It is possible that the parents of Gyan Prakash had
asked father of the complainant to help Gyan Prakash in opening a clothier shop
when he was unemployed however, there was no dowry demand alleged by PW 5 in his
application Ex. PW 5/1. Had there been any persistent dowry demand as testified
by PW 2, nobody stopped PW 5 from writing the same in his application made to SDM.

9. Let me consider the different statements made by the complainant
in this case. In her first statement, she told SDM that she met with an
accident. Presuming that this statement and the story of accident told by the
complainant to the SDM was made under pressure but there was no pressure on the
complainant as far as other facts are concerned. In her first statement, made
to SDM she stated that her husband was on duty at the time of incident and at
that time her mother-in-law and jethani were at home. One may consider that
there may be pressure on her to say that she had caught fire by accident but
there could be no pressure on her to mis-state about the presence of persons in
the house at the time of the incident. As per her first statement, except her
mother-in-law and one jethani, no one was present at home at the time of
incident. However, in the second statement Ex. PW 2/1 she stated that her
mother-in-law, two jeths and two jethanis were present at the time of incident
and her husband was not there when incident of burning took place. Her jethani
and mother-in-law bolted the outer door from inside. In her statement before
the Court she went further and made her husband also present at the time of
incident and stated that it was her husband who bolted the door from inside at
the time of incident. It is obvious that her testimony in respect of presence
of persons at the time of incident is changing from one statement to other and
the effort was gradually to implicate every member of the family. This reflects
the mental process of the complainant who seems to wrack vengeance against the
family by implicating one after statements of the family members in successive.

10. In her testimony, she alleged that a number of times she used
to be confined in a room under lock and sometimes she used to be kept hungry for
two days at stretch and sometimes she used to be turned out of the house. She
has not stated any such thing in Ex. PW 2/1 her second statement to SDM.
Moreover, she was a working girl. She was attending her office at Gurgaon and
used to commute by the conveyance provided by the company, as is admitted by her
in her cross examination. She was working as a labour. If she had been
confined in the room for a number of days she would not have been able to attend
office and would have been terminated from service for regular absence from the
office. This aspect of her testimony whether she was attending office regularly
or not could not be verified by the IO because she in her statement to the SDM
had not stated that she was confined by her in-laws in the room. Keeping her
hungry is also not believable since she was living with her husband in a
separate room, as is admitted by her in cross-examination and she was going to
office daily. She herself stated that on the day of incident she had cooked
meal in the morning and went to office. A lady who used to cook food herself
cannot be kept hungry by others. Moreover, she had every opportunity of taking
meals at her work place. Her purse recovered from the room contained Rs.1,500/-
showing she used to carry sufficient money to enable her to meet her
requirements. In her statement before the SDM she stated that her husband was
doing a private job, while in her testimony before Court she stated that her
husband was not working anywhere. In her statement before the SDM she stated
that she was being taunted by in-laws that she had no brother while in her
testimony she admitted that she had a brother. In such a case nobody could have
taunted her that she had no brother. In her testimony she stated that there was
no telephone at her parents’ house and telephone was installed only after the
incident. However, her father PW 5 in his testimony stated that there was a
telephone in house even before the incident and demand of Rs. 2 ? lac was made
by mother-in-law on telephone and accused Narender and Vijay also talked on
telephone. He also asserted that he was informed about the incident by some
acquaintance on telephone.

11. Her testimony seen in the light of previous admitted statement
shows that in order to implicate each member of the family she changed the
version of incident. In her testimony in the Court she described the incident
of burning her differently. She stated that her mother-in-law Jeevani Devi @
Jamuna brought Kerosene Oil and when she tried to save herself running here and
there, she was held by her both jeths (brothers-in-law) and her sisters-in-law
Nirmal pressed her hand against her mouth to prevent her from raising alarm and
then mother-in-law poured kerosene oil and her elder sister-in-law Om Prabha set
her ablaze. Her husband had bolted the main door from inside and did not try to
save her. After she was set ablaze, she rushed to tap and poured water kept in a
bucket on her. She also tore her clothes and extinguished the fire, of her own
efforts. Her testimony in the Court was recorded on 1st May, 2003. She was in
a better position to remember the details on 11th May, 2002 i.e. soon after the
incident when she described the incident to SDM in Ex. PW 2/1. The description
of incident given by her in her statement to SDM on 14th May, 2002 is altogether
different from the description given by her in the statement given in the Court.
She has nowhere stated in her earlier statement that she had torn her clothes.
She did not state that she was held by her two jeths or her mouth was gagged by
her jethani Nirmal or her husband bolted the door from inside and kept watching
but did not try to save. In a case of maintenance her allegations changed. Her
unemployed husband suddenly started earning Rs.8,000/- p.m. and she was set
ablaze by her jethani Nimal and not Om Prabha. All these improvements and
changing versions have been made by her just to see that entire family is
implicated.
12. It is her own case that a container of 05 litres of kerosene
oil was poured on her. 05 litres of kerosene oil is an enormous quantity of oil
and if this quantity is poured on a person and fire is lit, he/she will
immediately turn into a fire ball. Presuming that the complainant had
extinguished the fire immediately by pouring a bucket full of water on herself
and by tearing her clothes, in that case the unburnt kerosene oil would remain
on clothes and she would have been profusely smelling of kerosene oil. Not only
her clothes but her entire body would have been drenched with kerosene oil and
her clothes would have been drenched with kerosene oil and water. It is not her
case that when she was removed to hospital her clothes were changed or she was
washed off and bathed, rather her allegations are that she was continuously
beaten for two hours before having been removed to the hospital and she kept
lying there for two hours in kerosene oil and water. It cannot be believed that
on seeing a patient in such a condition, doctor would have closed his eyes and
would not record the condition in the MLC. There is no mention of smell of
kerosene oil coming from her body in MLC, there is no mention of traces of
kerosene oil on her clothes, there is no mention of her clothes being torn,
there is no injury on any part of her body except the burn injuries in the MLC.
A woman, who had been continuously beaten for about two hours definitely would
receive some injury on some part of the body but no injury of the nature was
found on her body as per MLC. The oral testimony of Smt. Veena/complainant is
totally in contradiction with the medical testimony.

13. It is rightly said that men may lie but circumstances do not.
Her lies have been nailed down by the circumstances. There is no seizure of
torn clothes soaked with kerosene oil or water, there is no seizure of kerosene
oil container by the IO moreover, there is no mention of kerosene oil smell
either from body or from clothes and there is no mention of torn clothes by the
doctor in the MLC. All these circumstances show that the entire story put
forward by the complainant was a cooked up story and no kerosene oil was poured on her.

14. If two of her jeths had caught her so that she could be doused
with kerosene oil and one jethani had gagged her mouth as alleged by her,
nothing would have stopped them from burning her completely so that she did not
survive. It only seems that none of the persons except mother-in-law and one
jethani were even present when incident of burning took place and the incident
seems to be an accidental burning and that is why she received only 25% burns at
upper part of her body near neck. The nature of injuries confirms to her first
version that her dupatta caught fire, fire travelled through dupatta to her
upper portion. Since dupatta is normally worn by ladies around neck and keeps
hanging the burns in this case seen to be due to presence of dupatta on the
upper portion i.e. on neck and back that fire had travelled through dupatta on
the upper parts of clothes worn by her.

15. Trial Court has heavily relied upon a presumption against the
accused persons that parents of the girl were not informed. This is also belied
by the witnesses. PW 13 (Raghbir Prashad) is brother-in-law of the complainant
(sister’s husband). He learnt about the incident on 9th May, 2002 i.e. on the
day when the incident happened from his father-in-law who informed him on
telephone about the incident. However, he did not visit Veena at the hospital
and met Veena at her residence only after 5-7 days of the incident. This
witness has not been cross examined by the APP on any point. He is a
prosecution witness. This testimony cannot be brushed aside. This shows that
father of girl was informed on 9th May, 2002 itself, that is why he could inform
PW 13 on telephone on 9th May, 2002 but since the incident was not so serious
and the burns were received accidentally and complainant was not in any danger
of life, it was not taken seriously by this witness and he did not even visit
his sister-in-law at the hospital and met her only when she came back home after
5 days. The non-serious nature of the incident is also reflected from the testimony of Smt. Kanta PW 6, who is mother of the complainant. She stated that
she was informed about the incident by her husband, who made her a telephone
call in the morning of Saturday i.e. 11th May, 2002 and thereafter she went to
hospital. Had the incident been serious her husband would have informed her at
least on 10th May, 2002 when she claimed that he learnt about the incident and
she also would have visited her on the same day along with her husband.

16. PW 2 testified in the Court that after getting her bandaged,
none of her in-laws looked after her and all left the hospital. Her testimony
is belied by the testimony of her own father. Her father stated that when he
reached hospital on 10th May, 2002 her mother-in-law, brother-in-laws etc. all
met him in the hospital. Similar is the testimony of her mother, who visited her
on 11th May, 2002. It shows that PW 2 was out to speak patent lies in the
Court.

17. There is another important factor in this case which shows that
the case of dowry demand and breach of trust under Section 406 IPC was falsely
foisted on the accused persons. PW 11 Sushma Rawat, SI CAW Cell, who
investigated the case testified that she had visited the house along with the
complainant and all her jewellery, dowry articles etc. were found in the room in
which she was residing when she was living with her in-laws. It was her room
and there was an almirah in the room and the key of the almirah was in the purse
of the complainant. The purse was also lying in the same room and her entire
jewellery and Rs.1500 were found in the almirah. That shows that complainant
and her husband were living separate in one room and her entire dowry articles
and istridhan was in her own custody and none of the other in-laws had any kind
of greed to take away her jewellery or her articles neither her goods were lying
packed. The story of demand of Rs.2 ? lac seems to be an invention made by the
complainant and her father just to make a false case against the accused
persons. Her father in his testimony stated that mother-in-law and brothers-in-
law demanded Rs.2 ? lac from her on telephone much prior to the incident. Had
it been so PW 5 in his written application Ex. PW 5/1 would have mentioned about
this demand because in this application he has mentioned everything possible
against the accused persons. A demand of Rs.2 ? lac seem to be invented in
consultation before making statement to the SDM and that is why when subsequent
statement was recorded by the SDM of complainant, her father and mother this
demand was included in the statement while prior to that in Ex. PW 5/1 there is
no mention of demand of Rs.2.5 lac neither it is mentioned that boy wanted a
shop for him to be established in Chandni Chowk, what mentioned is the abject
poverty of the boy and his inability to earn.

18. I consider that the story of the complainant that she was
threatened by her husband and in-laws for making statement to doctor and SDM
about her accidental burning is palpably false. Her husband was not even at
home when the incident took place. Her husband used to go for his job and
perhaps come back home after the arrival of his wife. He was working as a
labour. The son of parties was living at Gurgaon with father of the girl. Her
husband was not a criminal neither it is alleged that he had any criminal
background. A poor man who was starving for his survival and had to work as a
labour from morning till evening for livelihood, could not have given threats to
kill his own son and father-in-law. This story of threat seems to have been
developed later on by the complainant in consultation with father. The question
would arise why the complainant would falsely implicate her in-laws. It is
undisputed that complainant was not happy with her matrimonial life. Her
husband was an idle man, who earlier was not doing any job. Complainant had to
live at her parents’ house for 8-9 months together because of poverty of her
husband. Complainant’s son was also being brought up by her father because of
the poor financial condition of her husband. Complainant herself had to take a
job as a labour. She was living with her husband while her son was living with
her father in Gurgaon, miles away. It seems that after the incident her father advised her to call it a day and break this relationship once for all. But
simultaneously it seems that it was decided that the in-laws must be taught a
lesson for ruining the life of the complainant as she was got married to a
worthless boy. May be some false representations were made at the time of the
marriage about the worth of the boy. It is not uncommon that someone may decide
to end the unhappy married life. It looks that the complainant made allegations
of threat etc. only to turn a ‘U’ turn, as she and her parents had decided to
call it a day for the unhappy married life of the complainant.

19. It must be understood that god had not made any two persons
same with the same ideas, qualities and it must be acknowledged that marriages
do fail and there is a mismatch not only in arranged marriages but even in love
marriages. The mismatch is discovered during the continuation of married life.
No doubt poverty is a curse and a poor man has to suffer in the society at
different fronts but I consider that despite poverty being a curse, poverty
cannot be made a crime. Neither the failed marriage can be made a crime. In
this case, the poverty was not only a curse for the boy but it made to be a
crime since due to his poor condition he could not provide all that which he
should have provided to the wife and the wife ultimately saw to it that not only
he but everyone of his other family members land in jail. Every marriage that
fails does not fail due to dowry demand or cruelties. The marriages do fail for
several other reaons including the reason of incompatibility of the persons. A
failed marriage is not a crime however, the provisions of Section 498A are being
used to convert failed marriages into a crime and the people are using this as
tool to extract as much monetary benefit as possible. In many cases, where FIRs
are filed under Section 498A IPC, petitions are being filed under Section 482
Cr.P.C. for quashing of FIRs after settlements between the parties and the
allegations made of cruelties etc. are withdrawn the moment a lump sum payment
is received. Involving each of the family members of the husband is another
arm in the armory of the complainants of failed marriages. Not only close
relatives but distant relatives and even neighbours are being implicated under
Section 498A and other provisions of IPC in cases of failed marriages. The
Courts must be very cautious during trials of such offences. In all these cases
in the name of investigation, except recording statement of complainant and her
few relatives nothing is done by police. The police does not verify any
circumstantial evidence nor collect any other evidence about the claims made by
the complainant. No evidence about giving of dowry or resources of the
complainant’s family claiming spending of huge amounts is collected by the
police. This all is resulting into gross misuse of the provisions of law. The
investigating agency in all such cases must collect all circumstantial and other
evidence in respect of claims made by the complainant and similarly Courts
should always be careful in considering the credibility and truthfulness of the
statement of the complainant and relatives.

20. From the entire documents and the testimony of the witnesses I
come to the conclusion that it is an unfortunate case where the complainant by
making false statement implicated the entire family in offences of under Section
307 and 498 A IPC. The Trial Court was not cautious enough to even look to
admitted documents on record before convicting the family on mere statement of
an estranged wife. Trial Courts should guard themselves from being swayed by
emotions. They should consider entire circumstances and should carefully
analyze the entire evidence. Poverty should not be allowed to become a crime.
Neither failed marriage be permitted to be a crime.

21 I allow these four appeals. All the persons/appellants are acquitted of Section 498A and Section 307 IPC.

22. The appellants, namely, Gyan Prakash in Crl.Appeal No.787/2004 and Smt.Jeevani Devi @ Jamuna Devi in Crl.Appeal No.749/2004 are directed to be released forthwith.
A copy of the judgment be sent to the Superintendent, Central Jail, Tihar.

November 01, 2007 SHIV NARAYAN DHINGRA, J.

Source :>>

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Justice delayed: 222 cases await Supreme Court verdict

Posted by 498A_Crusader on January 25, 2008

New Delhi, Jan 25 (IANS) It looks like the Supreme Court does not practise what it preaches. While it has many times disapproved of delays in judgements by high courts, the apex court itself has 222 cases waiting for the verdict six months or more after the final hearing.

The apex court revealed this fact in response to an application by a lawyer seeking the total number of cases awaiting verdict for six months or more after the case’s final hearing. The plea had been made under the new transparency law, the Right to Information Act, 2005.

“With reference to your application dated Dec 14, 2007, (the apex court’s last working day last year), this is to inform you that as on Dec 14, 2007, 222 cases are pending for judgement for six months or more after their hearing is over,” the court’s Additional Registrar and Central Public Information Officer told lawyer Manzoor Ali Khan.

The apex court in its various rulings, including a landmark one in 1976, had disapproved of the practice of delay in judgement saying this tends to erode the people’s confidence in the judiciary.

In the 1976 ruling, a three-judge bench headed by then Chief Justice A.N. Ray ticked off the Allahabad High Court for an eight-month delay in delivering the verdict and said: “An unreasonable delay between hearing of the arguments and the delivery of judgement, unless explained by exceptional or extraordinary circumstances, is highly undesirable.

“A litigant must have complete confidence in the result of the litigation. This confidence tends to be shaken if there is excessive delay between hearing of arguments and the delivery of judgement. Justice, as we have often observed, must not only be done but must manifestly appear to be done,” the bench, which also included Justice M.H. Beg and Justice Jaswant Singh, had said.

Cautioning the high courts against the perils of abnormal delay in the delivery of verdicts, the bench added, “It is not unlikely that some points which the litigant considers important may have escaped notice due to delay in delivery of justice.”

The bench had termed the delay in the delivery of judgements “undesirable” despite the fact that the Civil Procedure Code does not provide any time limit for the period between the hearing of arguments and the delivery of a judgement.

“But with 222 cases awaiting their verdicts in the apex court itself, it may well be a case of darkness beneath the lamp,” said advocate Manzoor Khan, who forced the apex court to make the embarrassing revelation.

Even the government is concerned with the courts’ practice of keeping verdicts reserved for unnecessarily long periods after the conclusion of hearings in various cases.

Senior law ministry officials often emphasise the need for the Supreme Court and various high courts to divulge details like how much time they take to dispose of a case, including the time taken in writing the judgements.

They want courts to record in each individual judgement details like total number of days when the case was effectively heard, the number of days when it was adjourned and the reason for adjournments.

But they lament that the courts have been resisting such a move on the pretext that it would impinge on judicial independence.

A parliamentary panel headed by E.M.S. Natchiappan, a Rajya Sabha member, is currently examining whether a timeframe could be fixed for the disposal of cases akin to the practice in the West where the day a case is filed, the litigants are also given a list of dates in advance to indicate by what period the hearing would be over and the judgement delivered.

Source >> IANS

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Dowry frame-up is cruelty against husband

Posted by 498A_Crusader on January 24, 2008

New Delhi: A city court, while granting divorce to a husband has held that his wife’s false allegations of dowry harassment against him amount to cruelty. In this case the husband had sought a divorce from his wife to whom he had been married to 33 years as he claimed that his wife had been cruel to him by lodging several false complaints against him.

Additional district judge Atul Kumar Garg, said in a recent order: ‘‘It has been proved that the wife has treated the husband with cruelty as no person expects misbehaviour from his wife and to send him to jail by lodging several complaints.’’

Admitting the divorce plea of the husband, who spent a few days in jail due to his wife’s false complaints, the court observed that his wife had in her testimony denied levelling dowry charges against him. ‘‘By claiming this, she belied her own allegations levelled against her husband in various other judicial and quasi-judicial fora,’’ the court said. The couple’s children had also spoken in favour of their father before the Delhi Police’s Crime Against Women (CAW) cell.
TNN

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SC grants succession right to live-in partner

Posted by 498A_Crusader on January 24, 2008

NEW DELHI: Setting a precedent, the Supreme Court has granted succession certificate to a woman after the death of the man she was living with and despite the fact that his legally-wedded wife was alive.

This gives a new twist to the concept of live-in relationship. In the past, the court had repeatedly shown inclination to assume valid marriage between a man and a woman who lived together as husband and wife for ‘long years’ without specifying the inheritance rights of the woman in such a relationship.

In this judgment, the court gave succession certificate to the live-in partner on the ground that the children born out of the relationship were legitimate disregarding the fact that the man had a legally-wedded wife, who never lived with him.

One Vidyadhari had lived for a long time with Sheetaldeen and gave birth to four children from him. After the death of Sheetaldeen, Vidyadhari claimed succession certificate on the basis of her being mentioned as the nominee by him in the provident fund and life insurance policies.

After the death of Sheetaldeen, both Vidyadhari and his legally-wedded wife, Sukharna Bai, filed petitions before a Madhya Pradesh trial court seeking right of succession to his properties.

The trial court rejected Sukharna Bai’s claim, but the high court reversed the decision saying there was no evidence to substantiate Vidyadhari’s claim that there was a customary divorce between Sheetaldeen and his legally-wedded wife.

After reaching this finding, the HC had held that Sukharna Bai alone was entitled to the right of succession and not Vidyadhari.

An apex court Bench comprising Justices S B Sinha and V S Sirpurkar came to the rescue of Vidyadhari and said though the HC was right in reaching the conclusion about subsisting marriage between Sheetaldeen and Sukharna Bai, it was wrong in denying succession certificate to Vidyadhari for the purpose of collecting provident fund and life insurance amounts.

Whatever be the status of Vidyadhari, there was no doubt about the legitimacy of the four children born out of her relationship with Sheetaldeen, said Justice Sirpurkar, who wrote the judgment on behalf of the Bench.

“No doubt Vidyadhari herself claimed to be a legal heir which status she could not have claimed, but besides that she had the status of a nominee of Sheetaldeen. She continued to stay with Sheetaldeen as his wife for a long time and was a person of confidence for Sheetaldeen who had nominated her for his PF, life cover scheme, pension and amount of life insurance and other dues,” he said.

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Dying declaration unreliable: SC acquits two

Posted by 498A_Crusader on January 24, 2008

The Supreme Court has acquitted two persons sentenced to life imprisonment for burning a man alive, observing that the victim’s ‘dying declaration’ was unreliable and the prosecution could not produce any evidence against them.

The apex court felt that barring the ‘dying declaration’ claimed to have been recorded by an assistant sub-inspector, the prosecution could not produce any evidence to prove the guilt of the accused.

According to the prosecution, on November 3 2002 accused Shaik Rafik and Fatim Bee doused Noor Miya Mohd Hussain with kerosene and set him ablaze following an altercation.

The prosecution alleged that Hussain was set ablaze at his house by the duo after he refused to allow his estranged daughter-in-law, Jaibunissa, to return to his house.

Hussain’s dying declaration was recorded by ASI Maroti on the basis of which a sessions court in Maharastra convicted the accused to life imprisonment and the Bombay High Court affirmed the conviction and sentence.

The accused appealed in the apex court on the ground that the conviction was unsustainable as there were no other evidence except the dying declaration purportedly recorded by the ASI, which they said was flawed on various counts.

Agreeing with the defence view, the court pointed out that the ASI had recorded the declaration despite the fact that the executive magistrate was available for recording the same. According to rules, a dying declaration has to be recorded by an executive magistrate or a judicial magistrate; and only in their absence by a police or medical officer.

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EMpower Women with FeminISM

GREAT INDIA GONE to DOGS

Indian Spicy GREEN BEER

THE WORLD ACCORDNG to FEMNSTS

Marital Rape a Sabotage of Institute of Marriage

A THOUGHT for ALL FUTURE UNMARRIED MALES

PRE NUPITAL CONTRACT

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SC directs CBI to release Nanda’s passport

Posted by 498A_Crusader on January 24, 2008

The Supreme Court on Thursday directed the Central Bureau of Investigation to release within a week, the passport of arms dealer Suresh Nanda, allegedly involved in receiving a kickback in the Rs 1,150-crore Barak missile deal.

The court held that the investigating agency failed to follow the proper procedure laid down in the law for impounding the passport.

“We set aside the Delhi High Court’s order and direct the CBI to hand over the passport to Nanda within a week,” a Bench comprising Justices P P Naolekar and Markandey Katju said.

It said the CBI had erroneously taken Nanda’s passport in its custody by following the Code of Criminal Procedure (CrPC) instead of the Passport Act which specifically says that any issues relating to passport has to be dealt in accordance with the special law.

“It appears that passport cannot be impounded except by passport authority. Retaining of passport by CBI is not in accordance with law as there is no order from passport authority,” the Bench said.

“The Passport Act is a special Act, while CrPC is a general Act. A special Act always overrules the general rule,” the Bench said, adding that “no steps were taken by the CBI to impound the passport under the special Act. However, it left open to CBI to start fresh procedure for impounding the passport of Nanda in accordance with law”.

“It shall be open to the CBI to approach the Passport Authority to impound the passport (of Nanda) in accordance with law,” the Bench said, when Additional Solicitor General Amarendra Sharan submitted that the investigating agency should be allowed to approach the passport authority.

The CBI had alleged that Nanda had received Rs 400 crore from abroad which was not disclosed
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Narco tests not sanctioned by law, argues lawyer

Posted by 498A_Crusader on January 24, 2008

New Delhi, Jan 24 (IANS) Modern scientific techniques of polygraph, brain mapping and narco-analysis for probing a crime and collecting evidence do not have the sanction of the law, a senior advocate argued before the Supreme Court Wednesday.

The Supreme Court had an inconclusive hearing on the legality of these techniques.

Refuting Solicitor General Goolam E. Vahanvati’s argument Tuesday that these techniques have the legal sanction as per Section 53 of the Criminal Procedure Code (CrPC), Senior advocate Dushyant Dave, assisting the court as amicus curiae on the matter, said that the section was last amended in 2005, when parliament specifically incorporated in it the DNA fingerprinting as a valid scientific tool of investigation.

However, the amendment to the CrPC did not incorporate polygraph, brain mapping and narco-analysis for the purpose. This clearly indicated that parliament had no intention to validate these tests per se as tools of investigation, said Dave.

The amicus curiae also contended that use of these three tests as tools of investigation is not validated even by Article 20(3) of the constitution, which says that “no person accused of any offence shall be compelled to be a witness against himself”.

“It means that the mandate of Article 20 (3) clearly prohibits subjecting an accused to any or all of the three tests without obtaining his or her consent,” said Dave.

“There does not appear to be any legal system in the world, which has ether allowed or considered admissible the evidence collected with the help of any one or all of these tests,” said Dave.

“As early as in 1923, the Court of Appeals of the District of Columbia had held that the result of polygraph is inadmissible as it is not yet scientifically established. And 65 years later, the Supreme Court of the US has once again rejected the reliability of polygraph evidence.

“There is no backing in law for police to collect such evidence through the means of these three tests, nor has there been any power in the courts to authorize the police to do so,” contended Dave.

He, however, supported the government’s view that these tests could be utilized for collection of evidence in heinous crimes like murder, rape and terrorism.

But for that to make possible, the law of the land has to be first amended, he said.

The court was hearing a bunch of petitions from various parties, including Santokhben Jadeja from Gujarat, also known as ‘godmother’, who faces a string of criminal charges and is opposing the use of these tests.

Source :>>

Truth About Dowry Law and Its Misuse

Violence at Home A Truth for The Indian Husband

Narcissists Modern Indian Woman?

Indias Legal Tools of Extortion

Reconciliation

TRUE Colour of Media and Women

My Vision My Dream

The Indian GenderBiased Domestic Violence Act

Indian Mens Legal Torture

PRE NUPITAL CONTRACT

Think before get marry Indian Women

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Molestation may be made non-bailable

Posted by 498A_Crusader on January 23, 2008

MUMBAI: In the face of a public outcry against the molestation of two women on New Year’s eve in the city, the state government on Tuesday sent a proposal to the Centre, asking for permission to make molestation a non-bailable offence.

The state has also sought to increase the maximum term for a person convicted of molestation from two years to three years.

“We sent the proposal to the Centre on Tuesday. We have asked for permission to amend section 354 of the Indian Penal Code,” deputy chief minister R R Patil, who holds the home portfolio, told the media. “This is the only way that we will be able to deter people. We need to take the strictest action to ensure that such cases are not repeated,” Patil added.

Section 354 of the IPC is defined as ‘assault or criminal force to woman with intent to outrage her modesty’. The punishment is a prison term of two years or a fine or both.

All 14 people arrested for allegedly molesting two women outside Juhu’s J W Marriott late on December 31 night were let off on bail immediately after their arrest, but remained in police custody for five days on account of procedural delays. “By making it a non-bailable offence, the police can get custody of the accused and proper investigations can be made,” Patil said.

Maharashtra and Mumbai’s reputation as being safe for women has taken a severe beating and the Democratic Front government is trying hard to restore that image.

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Indian Spicy GREEN BEER

THE WORLD ACCORDNG to FEMNSTS

Marital Rape a Sabotage of Institute of Marriage

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PRE NUPITAL CONTRACT

Indian Mens Legal Torture

Indias Legal Tools of Extortion

Reconciliation

Narcissists Modern Indian Woman

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SC Judgement on 2nd Marriage and Conversion

Posted by 498A_Crusader on January 22, 2008

PETITIONER:SMT. SARLA MUDGAL, PRESIDENT, KALYANI & ORS.

Vs.

RESPONDENT:UNION OF INDIA & ORS.

DATE OF JUDGMENT10/05/1995

BENCH:KULDIP SINGH (J)
BENCH:KULDIP SINGH (J) SAHAI, R.M. (J)

CITATION: 1995 AIR 1531 1995 SCC (3) 635 JT 1995 (4) 331 1995 SCALE (3)286

ACT:

HEADNOTE:

JUDGMENT:
THE 10TH DAY OF MAY, 1995
Present:
Hon’ble Mr. Justice Kuldip Singh
Hon’ble Mr. Justice R.M. Sahai
Mr. D.N. Diwedi, Additional Solicitor General,
Mr. V.C. Mahajan, Mr. Shankar Ghosh, Mr. R.K. Garg, Sr.
Advs.,
Ms. S. Janani, Mr. P. Parmeswaran, Mr. R.P. Srivastava,
Ms. A. Subhashini, (Ms. Janki Ramachandran, Mr. K.J. John,)
Advs. (N.P.), Mr. Shakeel Ahmed Syed, Advs. with them for
the appearing parties.
J U D G M E N T S/O R D E R
The following Judgments/Order of the Court were delivered:
Smt. Sarla Mudgal, President,Kalyani and Ors.
Versus.
Union of India & Ors.
(W.P.(C) No.347/90, W.P. (C) No.509/92 and W.P. (C) No.424/92)
J U D G M E N T
Kuldip Singh, J.
“The State shall endeavour to secure for the citizens a
uniform civil code through-out the territory of India” is an
unequivocal mandate under Article 44 of the Constitution of
India which seeks to introduce a uniform personal law – a
decisive step towards national consolidation. Pandit Jawahar
Lal Nehru, while defending the introduction of the Hindu
Code Bill instead of a uniform civil code, in the Parliament
in 1954, said “I do not think that at the present moment the
time is ripe in India for me to try to push it through”. It
appears that even 41 years thereafter, the Rulers of the day
are not in a mood to retrieve Article 44 from the cold
storage where it is lying since 1949. The Governments -
which have come and gone – have so far failed to make any
effort towards “unified personal law for all Indians”. The
reasons are too obvious to be stated. The utmost that has
been done is to codify the Hindu law in the form of the
Hindu Marriage Act, 1955. The Hindu Succession Act, 1956,
the Hindu Minority and Guardianship Act, 1956 and the Hindu
Adoptions and Maintenance Act, 1956 which have replaced the
traditional Hindu law based on different schools of thought
and scriptural laws into one unified code. When more than
80% of the citizens have already been brought under the
codified personal law there is no justification whatsoever
to keep in abeyance, any more, the introduction of “uniform
civil code” for all citizens in the territory of India.
The questions for our consideration are whether a Hindu
husband, married under Hindu law, by embracing Islam, can
solemnise second marriage? Whether such a marriage without
having the first marriage dissolved under law, would be a
valid marriage qua the first wife who continue to be Hindu?
Whether the apostate husband would be quilty of the offence
under Section 494 of the Indian Penal Code (IPC)?
These are four petitions under Article 32 of the
Constitution of India. There are two petitioners in Writ
Petition 1079/89. Petitioner 1 is the President of “KALYANI”
- a registered society – which is an organisation working
for the welfare of needy-families and women in distress.
Petitioner 2, Meena Mathur was married to Jitender Mathur on
February 27, 1978. Three children (two sons and a daughter)
were born out of the wed-lock. In early 1988, the petitioner
was shocked to learn that her husband had solemnised second
marriage with one Sunita Narula @ Fathima. The marriage was
solemnised after they converted themselves to Islam and
adopted Muslim religion. According to the petitioner,
conversion of her husband to Islam was only for the purpose
of marrying Sunita and circumventing the provisions of
Section 494, IPC. Jitender Mathur asserts that having
embraced Islam, he can have four wives irrespective of the
fact that his first wife continues to be Hindu.
Rather interestingly Sunita alias Fathima is the
petitioner in Writ Petition 347 of 1990. She contends that
she along with Jitender Mathur who was earlier married to
Meena Mathur embraced Islam and thereafter got married. A
son was born to her. She further states that after marrying
her, Jitender Prasad, under the influence of her first
Hindu-wife, gave an undertaking on April 28, 1988 that he
had reverted back to Hinduism and had agreed to maintain his
first wife and three children. Her grievance is that she
continues to be Muslim, not being maintained by her husband
and has no protection under either of the personal laws.
Geeta Rani, petitioner in Writ Petition 424 of 1992 was
married to Pradeep Kumar according to Hindu rites on
November 13, 1988. It is alleged in the petition that her
husband used to maltreat her and on one occasion gave her so
much beating that her jaw bone was broken. In December 1991,
the petitioner learnt that Pradeep Kumar ran away with one
Deepa and after conversion to Islam married her. It is
stated that the conversion to Islam was only for the purpose
of facilitating the second marriage.
Sushmita Ghosh is another unfortunate lady who is
petitioner in Civil Writ Petition 509 of 1992. She was
married to G.C. Ghosh according to Hindu rites on May 10,
1984. On April 20, 1992, the husband told her that he no
longer wanted to live with her and as such she should agree
to divorce by mutual consent. The petitioner was shocked and
prayed that she was her legally wedded wife and wanted to
live with him and as such the question of divorce did not
arise. The husband finally told the petitioner that he had
embraced Islam and would soon marry one Vinita Gupta. He had
obtained a certificate dated June 17, 1992 from the Qazi
indicating that he had embraced Islam. In the writ petition,
the petitioner has further prayed that her husband be
restrained from entering into second marriage with Vinita
Gupta.
Marriage is the very foundation of the civilised
society. The relation once formed, the law steps in and
binds the parties to various obligations and liabilities
thereunder. Marriage is an institution in the maintenance of
which the public at large is deeply interested. It is the
foundation of the family and in turn of the society without
which no civilisation can exist.
Till the time we achieve the goal – uniform civil code
for all the citizens of India – there is an open inducement
to a Hindu husband, who wants to enter into second marriage
while the first marriage is subsisting, to become a Muslim.
Since monogamy is the law for Hindus and the Muslim law
permits as many as four wives in India, errand Hindu husband
embraces Islam to circumvent the provisions of the Hindu law
and to escape from penal consequences.
The doctrine of indissolubility of marriage, under the
traditional Hindu law, did not recognise that conversion
would have the effect of dissolving a Hindu marriage.
Conversion to another religion by one or both the Hindu
spouses did not dissolve the marriage. It would be useful to
have a look at some of the old cases on the subject. In Re
Ram Kumari 1891 Calcutta 246 where a Hindu wife became
convert to the Muslim faith and then married a Mohammedan,
it was held that her earlier marriage with a Hindu husband
was not dissolved by her conversion. She was charged and
convicted of bigamy under Section 494 of the IPC. It was
held that there was no authority under Hindu law for the
proposition that an apostate is absolved from all civil
obligations and that so far as the matrimonial bond was
concerned, such view was contrary to the spirit of the Hindu
law. The Madras High Court followed Ram Kumari in Budansa
vs. Fatima 1914 IC 697. In Gul Mohammed v. Emperor AIR 1947
Nagpur 121 a Hindu wife was fraudulently taken away by the
accused a Mohammedan who married her according to Muslim law
after converting her to Islam. It was held that the
conversion of the Hindu wife to Mohammedan faith did not
ipso facto dissolve the marriage and she could not during
the life time of her former husband enter into a valid
contract of marriage. Accordingly the accused was convicted
for adultery under Section 497 of the IPC.
In Nandi @ Zainab vs. The Crown (ILR 1920 Lahore 440,
Nandi, the wife of the complainant, changed her religion and
became a Mussalman and thereafter married a Mussalman named
Rukan Din. She was charged with an offence under Section 494
of the Indian Penal Code. It was held that the mere fact of
her conversion to Islam did not dissolve the marriage which
could only be dissolved by a decree of court. Emperor vs.
Mt. Ruri AIR 1919 Lahore 389, was a case of Christian wife.
The Christian wife renounced Christianity and embraced Islam
and then married a Mohomedan. It was held that according to
the Christian marriage law, which was the law applicable to
the case, the first marriage was not dissolved and therefore
the subsequent marriage was bigamous.
In India there has never been a matrimonial law of
general application. Apart from statute law a marriage was
governed by the personal law of the parties. A marriage
solemnised under a particular statute and according to
personal law could not be dissolved according to another
personal law, simply because one of the parties had changed
his or her religion.
In Sayeda Khatoon @ A.M. Obadiah vs. M. Obadiah 49 CWN
745, Lodge, J. speaking for the court held as under:
“The parties were originally Jews bound
by the Jewish personal law… The
Plaintiff has since been converted to
Islam and may in some respects be
governed by the Mohammedan Law.. The
Defendant is not governed by the
Mahommedan Law.. If this were an Islamic
country, where the Mahommedan Law was
applied to all cases where one party was
a Mahommedan, it might be that plaintiff
would be entitled to the declaration
prayed for. But this is not a Mahommedan
country; and the Mahommedan Law is not
the Law of the Land.. Now all my
opinion, is it the Law of India, that
when any person is converted to Islam
the Mahommedan Law shall be applicable
to him in all his relationships?.. I can
see no reason why the Mahommedan Law
should be preferred to the Jewish Law in
a matrimonial dispute between a
Mahommdan and a Jew particularly when
the relationship, viz.: marriage, was
created under the Jewish Law.. As I
stated in a previous case there is no
matrimonial law of general application
in India. There is a Hindu Law for
Hindus, a Mahommedan Law for
Mahommedans, a Christian Law for
Christians, and a Jewish Law for Jews.
There is no general matrimonial law
regarding mixed marriages other than the
statute law, and there is no suggestion
that the statute law is applicable in
the present case.. It may be that a
marriage solemnised according to Jewish
rites may be dissolved by the proper
authority under Jewish Law when one of
the parties renounces the Jewish Faith.
It may be that a marriage solemnised
according to Jesish rites may be
dissolved by the proper authority under
Jewish Law when one of the parties
renounces the Jewish Faith. It may be
that a marriage solemnised according to
Mahommedan Law may be dissolved
according to the Mahommedan Law when one
of the parties ceases to be a
Mahommedan. But I can find no authority
for the view that a marriage solemnized
according to one personal law can be
dissolved according to another personal
law simply because one of the two
parties has changed his or her
religion.”
Sayeda Khatoon’s case was followed with approval by Blagden,
J. of the Bombay High Court in Robasa Khanum vs. Khodadad
Bomanji Irani 1946 Bombay Law Reporter 864. In this case the
parties were married according to Zoroastrian law. The wife
became Muslim whereas the husband declined to do so. The
wife claimed that her marriage stood dissolved because of
her conversion to Islam. The learned Judge dismissed the
suit. It would be useful to quote the following observations
from the judgment:
“We have, therefore, this position -
British India as a whole, is neither
governed by Hindu, Mahommedan, Sikh,
Parsi, Christian, Jewish or any other
law except a law imposed by Great
Britain under which Hindus, Mahomedans,
Sikhs, Parsis, and all others, enjoy
equal rights and the utmost possible
freedom of religious observance,
consistent in every case with the rights
of other people. I have to decide this
case according to the law as it is, and
there seems, in principle, no adequate
ground for holding that in this case
Mahomedan law is applicable to a non-
Mahomedan.. Do then the authorities
compel me to hold that one spouse can by
changing his or her religious opinions
(or purporting to do so) force his or
her newly acquired personal law on a
party to whom it is entirely alien and
who does not want it? In the name of
justice, equity and good conscience, or,
in more simple language, of common
sense, why should this be possible? If
there were no authority on the point I
(personally) should have thought that so
monstrous an absurdity carried its own
refutation with it, so extravagant are
the results that follow from it. For it
is not only the question of divorce that
the plaintiff’s contention affects. If
it is correct, it follows that a
Christian husband can embrace Islam and,
the next moment, three additional wives,
without even the consent of the original
wife.”
Against the judgment of Blagden, J. appeal was heard by a
Division Bench consisting of Sir Leonard Stone, Chief
Justice and Mr. Justice Chagla (as the learned Judge then
was). Chagla, J. who spoke for the Bench posed the question
that arose for determination as under: “what are the
consequences of the plaintiff’s conversion to Islam?”. The
Bench upheld the judgment of Blagden, J. and dismissed the
appeal. Chagla, J. Chagla, J. elaborating the legal position
held as under:-
“We have here a Muslim wife according to
whose personal law conversion to Islam,
if the other spouse does not embrace the
same religion, automatically dissolves
the marriage. We have a Zoroastrian
husband according to whose personal law
such conversion does not bring about the
same result. The Privy Council in
Waghela Rajsanji v. Shekh Masludin
expressed the opinion that if there was
no rule of Indian law which could be
applied to a particular case, then it
should be decided by equity and good
conscience, and they interpreted equity
and good conscience to mean the rules of
English law if found applicable to
Indian society and circumstances. And
the same view was confirmed by their
Lordships of the Privy Council in
Muhammad Raza v. Abbas Bandi Bibi. But
there is no rule of English law which
can be made applicable to a suit for
divorce by a Muslim wife against her
Zoroastrian husband. The English law
only deals and can only deal with
Christian marriages and with grounds for
dissolving a Christian marriage.
Therefore we must decided according to
justice and right, or equity and good
conscience independently of any
provisions of the English law. We must
do substantial justice between the
parties and in doing so hope that we
have vindicated the principles of
justice and right or equity and good
conscience… It is impossible to accept
the contention of Mr. Peerbhoy that
justice and right requires that we
should apply Muslim law in dealing this
case. It is difficult to see why the
conversion of one party to a marriage
should necessarily afford a ground for
its dissolution. The bond that keeps a
man and woman happy in marriage is not
exclusively the bond of religion. There
are many other ties which make it
possible for a husband and wife to live
happily and contentedly together. It
would indeed be a startling proposition
to lay down that although two persons
may want to continue to live in a
married state and disagree as to the
religion they should profess, their
marriage must be automatically
dissolved. Mr. Peerbhoy has urged that
it is rarely possible for two persons of
different communities to be happily
united in wedlock. If conversion of one
of the spouses leads to unhappiness,
then the ground for dissolution of
marriage would not be the conversion but
the resultant unhappiness. Under Muslim
law, apostasy from Islam of either party
to a marriage operates as a complete and
immediate dissolution of the marriage.
But s.4 of the Dissolution of Muslim
Marriages Act (VIII of 1939) provides
that the renulciation of Islam by a
married Muslim woman or her conversion
to a faith other than Islam shall not by
itself operate to dissolve her marriage.
This is a very clear and emphatic
indication that the Indian legislature
has departed from; the rigor of the
ancient Muslim law and has taken the
more modern view that there is nothing
to prevent a happy marriage
notwithstanding the fact that the two
parties to it professed different
religious.. We must also point out that
the plaintiff and the defendant were
married according to the Zoroastrian
rites. They entered into a solemn pact
that the marriage would be monogamous
and could only be dissolved according to
the tenets of the Zoroastrian religion.
It would be patently contrary to justice
and right that one party to a solemn
pact should be allowed to repudiate it
by a unilateral act. It would be
tantamount to permitting the wife to
force a divorce upon her husband
although he may not want it and although
the marriage vows which both of them
have taken would not permit it. We might
also point out that the Shariat Act (Act
XXVI of 1937) provides that the rule of
decision in the various cases enumerated
in s.2 which includes marriage and
dissolution of marriage shall be the
Muslim personal law only where the
parties are Muslims; it does not provide
that the Muslim personal law shall apply
when only one of the parties is a
Muslim.” (the single Judge judgment and
the Division Bench judgment are reported
in 1946 Bombay Law Reporter 864)
In Andal Vaidyanathan vs. Abdul Allam Vaidya 1946
Madras, a Division Bench of the High Court dealing with a
marriage under the Special Marriage Act 1872 held:
“The Special Marriage Act clearly only
contemplates monogamy and a person
married under the Act cannot escape from
its provisions by merely changing his
religion. Such a person commits bigamy
if he marries again during the lifetime
of his spouse, and it matters not what
religion he professes at the time of the
second marriage. Section 17 provides the
only means for the dissolution of a
marriage or a declaration of its
nullity.
Consequently, where two persons
married under the Act subsequently
become converted to Islam, the marriage
can only be dissolved under the
provisions of the Divorce Act and the
same would apply even if only one of
them becomes converted to Islam. Such a
marriage is not a marriage in the
Mahomoden sense which can be dissolved
in a Mahomedan manner. It is a statutory
marriage and can only be dissolved in
accordance with the Statute: (’41) 28
A.I.R.1941 Cal. 582 and (1917) 1 K.B.
634, Rel. on; (’35) 22 A.I.R. 1935 Bom.
8 and 18 Cal. 264, Disting.”
It is, thus, obvious from the catena of case-low that a
marriage celebrated under a particular personal law cannot
be dissolved by the application of another personal law to
which one of the spouses converts and the other refuses to
do so. Where a marriage takes place under Hindu Law the
parties acquire a status and certain rights by the marriage
itself under the law governing the Hindu Marriage and if one
of the parties is allowed to dissolve the marriage by
adopting and enforcing a new personal law, it would
tantamount to destroying the existing rights of the other
spouse who continues to be Hindu. We, therefore, hold that
under the Hindu Personal Law as it existed prior to its
codification in 1955, a Hindu marriage continued to subsist
even after one of the spouses converted to Islam. There was
no automatic dissolution of the marriage.
The position has not changed after coming into force of
the Hindu Marriage Act, 1955 (the Act) rather it has become
worse for the apostate. The Act applies to Hindus by
religion in any of its forms or developments. It also
applies to Buddhists, Jains and Sikhs. It has no application
to Muslims, Christians and Parsees. Section 4 of the Act is
as under:
“Overriding effect of Act. save as
otherwise expressly provided in this
Act,-
(a) any text, rule or interpretation of
Hindu law or any custom or usage as part
of that law in force immediately before
the commencement of this Act shall cease
to have effect with respect to any
matter for which provision is made in
this Act;
(b) any other law in force immediately
before the commencement of this Act
shall cease to have effect in so far as
it is inconsistent with any of the
provisions contained in this Act.”
A marriage solemnised, whether before or after the
commencement of the Act, can only be dissolved by a decree
of divorce on any of the grounds enumerated in Section 13 of
the Act. One of the grounds under Section 13 (i) (ii) is
that “the other party has ceased to be a Hindu by conversion
to another religion”. Sections 11 and 15 of the Act is as
under:-
“Void marriages:- Any marriage
solemnized after the commencement of
this Act shall be null and void and may,
on a petition presented by either party
thereto against the other party, be so
declared by a decree of nullity if it
contravenes any one of the conditions
specified in clauses (i), (iv) and (v)
of Section 5.”
“Divorced persons when may marry again.-
When a marriage has been dissolved by a
decree of divorce and either there is no
right of appeal against the decree or,
of there is such a right of appeal the
time for appealing has expired without
an appeal having been presented or an
appeal has been presented but has been
dismissed, it shall be lawful for either
party to the marriage to marry again.”
It is obvious from the various provisions of the Act
that the modern Hindu Law strictly enforces monogamy. A
marriage performed under the Act cannot be dissolved except
on the grounds available under section 13 of the Act. In
that situation parties who have solemnised the marriage
under the Act remain married even when the husband embraces
Islam in pursuit of other wife. A second marriage by an
apostate under the shelter of conversion to Islam would
nevertheless be a marriage in violation of the provisions of
the Act by which he would be continuing to be governed so
far as his first marriage under the Act is concerned despite
his conversion to Islam. The second marriage of an apostate
would, therefore, be illegal marriage qua his wife who
married him under the Act and continues to be Hindu. Between
the apostate and his Hindu wife the second marriage is in
violation of the provisions of the Act and as such would be
nonest. Section 494 Indian Penal Code is as under:-
“Marrying again during lifetime of
husband or wife. Whoever, having a
husband or wife living, marries in any
case in which such marriage is void by
reason of its taking place during the
life of such husband or wife, shall be
punished with imprisonment of either
description for a term which may extend
to seven years, and shall also be liable
to fine.
The necessary ingredients of the Section are: (1)
having a husband or wife living; (2) marries in any case;
(3) in which such marriage is void; (4) by reason of its
taking place during the life of such husband or wife.
It is no doubt correct that the marriage solemnised by
a Hindu husband after embracing Islam may not be strictly a
void marriage under the Act because he is no longer a Hindu,
but the fact remains that the said marriage would be in
violation of the Act which strictly professes monogamy.
The expression “void” for the purpose of the Act has
been defined under Section 11 of the Act. It has a limited
meaning within the scope of the definition under the
Section. On the other hand the same expression has a
different purpose under Section 494, IPC and has to be given
meaningful interpretation.
The expression “void” under section 494, IPC has been
used in the wider sense. A marriage which is in violation of
any provisions of law would be void in terms of the
expression used under Section 494, IPC.
A Hindu marriage solemnised under the Act can only be
dissolved on any of the grounds specified under the Act.
Till the time a Hindu marriage is dissolved under the Act
none of the spouses can contract second marriage. Conversion
to Islam and marrying again would not, by itself, dissolve
the Hindu marriage under the Act. The second marriage by a
convert would therefore be in violation of the Act and as
such void in terms of Section 494, IPC. Any act which is in
violation of mandatory provisions of law is per-se void.
The real reason for the voidness of the second marriage
is the subsisting of the first marriage which is not
dissolved even by the conversion of the husband. It would be
giving a go-bye to the substance of the matter and acting
against the spirit of the Statute if the second marriage of
the convert is held to be legal.
We also agree with the law laid down by Chagla, J. in
Robasa Khanum vs. Khodabad Irani’s case (supra) wherein the
learned Judge has held that the conduct of a spouse who
converts to Islam has to be judged on the basis of the rule
of justice and right or equity and good conscience. A
matrimonial dispute between a convert to Islam and his or
her non-Muslim spouse is obviously not a dispute “where the
parties are Muslims” and, therefore, the rule of decision in
such a case was or is not required to be the “Muslim
Personal Law”. In such cases the Court shall act and the
Judge shall decide according to justice, equity and good
conscience. The second marriage of a Hindu husband after
embracing Islam being violative of justice, equity and good
conscience would be void on that ground also and attract the
provisions of Section 494, IPC.
Looked from another angle, the second marriage of an
apostate-husband would be in violation of the rules of
natural justice. Assuming that a Hindu husband has a right
to embrace Islam as his religion, he has no right under the
Act to marry again without getting his marriage under the
Act dissolved. The second marriage after conversion to Islam
would, thus, be in violation of the rules of natural justice
and as such would be void.
The interpretation we have given to Section 494 IPC
would advance the interest of justice. It is necessary that
there should be harmony between the two systems of law just
as there should be harmony between the two communities.
Result of the interpretation, we have given to Section 494
IPC, would be that the Hindu Law on the one hand and the
Muslim Law on the other hand would operate within their
respective ambits without trespassing on the personal laws
of each other. Since it is not the object of Islam nor is
the intention of the enlighten Muslim community that the
Hindu husbands should be encouraged to become Muslims merely
for the purpose of evading their own personal laws by
marrying again, the courts can be persuaded to adopt a
construction of the laws resulting in denying the Hindu
husband converted to Islam the right to marry again without
having his existing marriage dissolved in accordance with
law.
All the four ingredients of Section 494 IPC are satisfied in
the case of a Hindu husband who marries for the second time
after conversion to Islam. He has a wife living, he marries
again. The said marriage is void by reason of its taking
place during the life of the first wife.
We, therefore, hold that the second marriage of a Hindu
husband after his conversion to Islam is a void marriage in
terms of Section 494 IPC.
We may at this stage notice the Privy Council judgment
in Attorney General Ceylon vs. Reid (1965 Al. E.R. 812). A
Christian lady was married according to the Christian rites.
Years later she embraced Islamic faith and got married by
the Registrar of Muslim Marriages at Colombo according to
the statutory formalities prescribed for a Muslim marriage.
The husband was charged and convicted by the Supreme Court,
Ceylon of the offence of bigamy under the Ceylon Penal Code.
In an appeal before the Privy Council, the respondent was
absolved from the offence of bigamy. It was held by Privy
Council as under :-
“In their Lordship’s view, in such
countries there must be an inherent
right in the inhabitants domiciled there
to change their religion and personal
law and so to contract a valid
polygamous marriage if recognised by the
laws of the country notwithstanding an
earlier marriage. It such inherent right
is to be abrogated, it must be done by
statute.”
Despite there being an inherent right to change
religion the applicability of Penal laws would depend upon
the two personal laws governing the marriage. The decision
of Privy Council was on the facts of the case, specially in
the background of the two personal laws operating in Ceylon.
Reid’s case is, thus, of no help to us in the facts and
legal background of the present cases.
Coming back to the question “uniform civil code” we may
refer to the earlier judgments of this Court on the subject.
A Constitution Bench of this Court speaking through Chief
Justice Y.V. Chandrachud in Mohd. Ahmed Khan vs. Shah Bano
Begum AIR 1985 SC 945 held as under:
“It is also a matter of regret that
Article 44 of our Constitution has
remained a dead letter. It provides that
“The State shall endeavour to secure for
the citizens a uniform civil code
throughout the territory of India”.
There is no evidence of any official
activity for framing a common civil code
for the country. A belief seems to have
gained ground that it is for the Muslim
community to take a lead in the matter
of reforms of their personal law. A
common Civil Code will help the cause of
national integration by removing
disparate loyalties to laws which have
conflicting ideologies. No community is
likely to bell the cat by making
gratuitous concessions on this issue. It
is the State which is charged with the
duty of securing a uniform civil code
for the citizens of the country and,
unquestionably; it has the legislative
competence to do so. A counsel in the
case whispered, somewhat audibly, that
legislative competence is one thing, the
political courage to use that competence
is quite another. We understand the
difficulties involved in bringing
persons of different faiths and
persuasions on a common platform. But, a
beginning has to be made is the
Constitution is to have any meaning.
Inevitably, the role of the reformer has
to be assumed by the courts because, it
is beyond the endurance of sensitive
minds to allow injustice to be suffered
when it is so palpable. But piecemeal
attempts of courts to bridge that gap
between personal laws cannot take the
place of a common Civil Code. Justice to
all is a far more satisfactory way of
dispensing justice than justice from
case to case.”
In Ms. Jordan Diengdeh vs. S.S. Chopra AIR 1985 SC 935 O.
Chinnappa Reddy, J. speaking for the Court referred to the
observations of Chandrachud, CJ in Shah Bano Begum’s case
and observed as under:
“It was just the other day that a
Constitution Bench of this Court had to
emphasise the urgency of infusing life
into Art. 44 of the Constitution which
provides that “The State shall endeavour
to secure for the citizens a uniform
civil code throughout the territory of
India.” The present case is yet another
which focuses .. on the immediate and
compulsive need for a uniform civil
code. The totally unsatisfactory state
of affairs consequent on the lack of a
uniform civil code is exposed by the
facts of the present case. Before
mentioning the facts of the case, we
might as well refer to the observations
of Chandrachud, CJ in the recent case
decided by the Constitution Bench (Mohd.
Ahmed Khan vs. Shah Bano Begum).”
One wonders how long will it take for the Government of the
day to implement the mandate of the framers of the
Constitution under Article 44 of the Constitution of India.
The traditional Hindu law – personal law of the Hindus -
governing inheritance, succession and marriage was given go-
bye as back as 1955-56 by codifying the same. There is no
justification whatsoever in delaying indefinitely the
introduction of a uniform personal law in the country.
Article 44 is based on the concept that there is no
necessary connection between religion and personal law in a
civilised society. Article 25 guarantees religious freedom
whereas Article 44 seeks to divest religion from social
relations and personal law. Marriage, succession and like
matters of a secular character cannot be brought within the
guarantee enshrined under Articles 25, 26 and 27. The
personal law of the Hindus, such as relating to marriage,
succession and the like have all a sacramental origin, in
the same manner as in the case of the Muslims or the
Christians. The Hindus alongwith Sikhs, Buddhists and Jains
have forsaken their sentiments in the cause of the national
unity and integration, some other communities would not,
though the Constitution enjoins the establishment of a
“common civil Code” for the whole of India.
It has been judicially acclaimed in the United States
of America that the practice of Polygamy is injurious to
“public morals”, even though some religion may make it
obligatory or desirable for its followers. It can be
superseded by the State just as it can prohibit human
sacrifice or the practice of “Suttee” in the interest of
public order. Bigamous marriage has been made punishable
amongst Christians by Act (XV of 1872), Parsis by Act (III
of 1936) and Hindus, Buddhists, Sikhs and Jains by Act (XXV
of 1955).
Political history of India shows that during the Muslim
regime, justice was administered by the Qazis who would
obviously apply the Muslim Scriptural law to Muslims, but
there was no similar assurance so far litigations concerning
Hindus was concerned. The system, more or less, continued
during the time of the East India Company, until 1772 when
Warren Hastings made Regulations for the administration of
civil justice for the native population, without
discrimination between Hindus and Mahomedans. The 1772
Regulations followed by the Regulations of 1781 whereunder
it was prescribed that either community was to be governed
by its “personal” law in matters relating to inheritance,
marriage, religious usage and institutions. So far as the
criminal justice was concerned the British gradually
superseded the Muslim law in 1832 and criminal justice was
governed by the English common law. Finally the Indian Penal
Code was enacted in 1860. This broad policy continued
throughout the British regime until independence and the
territory of India was partitioned by the British Rulers
into two States on the basis of religion. Those who
preferred to remain in India after the partition, fully knew
that the Indian leaders did not believe in two-nation or
three-nation theory and that in the Indian Republic there
was to be only one Nation – Indian nation – and no community
could claim to remain a separate entity on the basis of
religion. It would be necessary to emphasise that the
respective personal laws were permitted by the British to
govern the matters relating to inheritance, marriages etc.
only under the Regulations of 1781 framed by Warren
Hastings. The Legislation – not religion – being the
authority under which personal law was permitted to operate
and is continuing to operate, the same can be
superseded/supplemented by introducing a uniform civil code.
In this view of the matter no community can oppose the
introduction of uniform civil code for all the citizens in
the territory of India.
The Successive Governments till-date have been wholly
re-miss in their duty of implementing the constitutional
mandate under Article 44 of the Constitution of India.
We, therefore, request the Government of India through
the Prime Minister of the country to have a fresh look at
Article 44 of the Constitution of India and “endeavour to
secure for the citizens a uniform civil code throught the
territory of India”.
We further direct the Government of India through
Secretary, Ministry of Law and Justice to file an affidavit
of a responsible officer in this Court in August, 1996
indicating therein the steps taken and efforts made, by the
Government of India, towards securing a “uniform civil code”
for the citizens of India. Sahai, J. in his short and crisp
supporting opinion has suggested some of the measures which
can be undertaken by the Government in this respect.
Answering the questions posed by us in the beginning of
the judgment, we hold that the second marriage of a Hindu-
husband after conversion to Islam, without having his first
marriage dissolved under law, would be invalid. The second
marriage would be void in terms of the provisions of Section
494 IPC and the apostate-husband would be guilty of the
offence under Section 494 IPC.
The question of law having been answered we dispose of
the writ petitions. The petitioners may seek any relief by
invoking any remedy which may be available to them as a
result of this judgment or otherwise. No costs.
Smt. Sarla Mudgal, President
Kalyani & Ors. etc. etc.
Vs.
Union of India & Ors.
J U D G M E N T
R.M. SAHAI, J.
Considering senstivity of the issue and magnitude of
the problem, both on the desirability of a uniform or common
civil code and its feasibility, it appears necessary to add
a few words to the social necessity projected in the order
proposed by esteemed Brother Kuldip Singh, J. more to focus
on the urgency of such a legislation and to emphasise that I
entirely agree with the thought provoking reasons which have
been brought forth by him in his order clearly and lucidly.
The pattern of debate, even today, is the same as was
voiced forcefully by the members of the minority community
in the Constituent Assembly. If, `the non-implementation of
the provisions contained in Article 44 amounts to grave
failure of Indian democracy’ represents one side of the
picture, then the other side claims that, `Logical
probability appears to be that the code would cause
dissatisfaction and disintegration than serve as a common
umbrella to promote homogeneity and national solidarity’.
When Constitution was framed with secularism as its
ideal and goal, the consensus and conviction to be one,
socially, found its expression in Article 44 of the
Constitution. But religious freedom, the basic foundation of
secularism, was guaranteed by Articles 25 to 28 of the
Constitution. Article 25 is very widely worded. It
guarantees all persons, not only freedom of conscience but
the right to profess, practice and propagate religion. What
is religion? Any faith or belief. The Court has expanded
religious liberty in its various phases guaranteed by the
Constitution and extended it to practices and even external
overt acts of the individual. Religion is more than mere
matter of faith. The Constitution by guaranteeing freedom of
conscience ensured inner aspects of religious belief. And
external expression of it were protected by guaranteeing
right to freely, practice and propagate religion. Reading
and reciting holy scriptures, for instance, Ramayana or
Quran or Bible or Guru Granth Sahib is as much a part of
religion as offering food to deity by a Hindu or bathing the
idol or dressing him and going to a temple, mosque, church
or gurudwara.
Marriage, inheritance, divorce, conversion are as much
religious in nature and content as any other belief or
faith. Going round the fire seven rounds or giving consent
before Qazi are as much matter of faith and conscience as
the worship itself. When a Hindu becomes convert by reciting
Kalma or a Mulsim becomes Hindu by reciting certain Mantras
it is a matter of belief and conscience. Some of these
practices observed by members of one religion may appear to
be excessive and even violative of human rights to members
of another. But these are matters of faith. Reason and logic
have little role to play. The sentiments and emotions have
to be cooled and tempered by sincere effort. But today there
is no Raja Ram Mohan Rai who single handed brought about
that atmoophere which paved the way for Sati abolition. Nor
is a statesman of the stature of Pt. Nehru who could pilot
through, successfully, the Hindu Succession Act and Hindu
Marriage Act revolutionising the customary Hindu Law. The
desirability of uniform Code can hardly be doubted. But it
can concretize only when social climate is properly built up
by elite of the society, statesmen amongst leaders who
instead of gaining personal mileage rise above and awaken
the masses to accept the change.
The problem with which these appeals are concerned is
that many Hindus have changed their religion and have become
convert to Islam only for purposes of escaping the
consequences of bigamy. For instance, Jitendra Mathur was
married to Meena Mathur. He and another Hindu girl embraced
Islam. Obviously because Muslim Law permits more than one
wife and to the extent of four. But no religion permits
deliberate distortions. Much misapprehension prevails about
bigamy in Islam. To check the misuse many Islamic countries
have codified the personal Law, `Wherein the practice of
polygamy has been either totally prohibited or severely
restricted. (Syria, Tunisia, Morocco, Pakistan, Iran, the
Islamic Republics of the Soviet Union are some of the Muslim
countries to be remembered in this context’. But ours is a
Secular Democratic Republic. Freedom of religion is the core
of our culture. Even the slightest deviation shakes the
social fibre. `But religious practices, violative of human
rights and dignity and sacerdotal suffocation of essentially
civil and material freedoms, are not autonomy but
oppression’. Therefore, a unified code is imperative both
for protection of the oppressed and promotion of national
unity and solidarity. But the first step should be to
rationalise the personal law of the minorities to develop
religious and cultural amity. The Government would be well
advised to entrust the responsibility to the Law Commission
which may in consultation with Minorities Commission examine
the matter and bring about the comprehensive legislation in
keeping with modern day concept of human rights for women.
The Government may also consider feasibility of
appointing a Committee to enact Conversion of Religion Act,
immediately, to check the abuse of religion by any person.
The law may provide that every citizen who changes his
religion cannot marry another wife unless he divorces his
first wife. The provision should be made applicable to every
person whether he is a Hindu or a Muslim or a Christian or a Sikh or a Jain or a Budh. Provision may be made for maintenance and succession etc. also to avoid clash of interest after death.
This would go a long way to solve the problem and pave the way for a unified civil code.
Smt. Sarla Mudgal, President Kalyani and Ors.
Vs.
Union of India & Ors.
(W.P. (C) No.347/90, W.P. (C) No.509/92 and W.P. (C) No.424/92).
O R D E R
For the reasons and conclusions reached in separate but concurring judgments the Writ petitions are allowed in terms of the answers to the questions posed in the opinion of Kuldip Singh, J.

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B.S. Joshi and Ors. vs State of Haryana and Anr

Posted by 498A_Crusader on January 22, 2008

CASE NO.:Appeal (crl.) 383 of 2003

PETITIONER:B.S. Joshi & Ors.

RESPONDENT:State of Haryana & Anr.

DATE OF JUDGMENT: 13/03/2003

BENCH:Y.K. Sabharwal & H.K. Sema.

JUDGMENT:J U D G M E N T
[Arising Out of SLP (Crl.) No.3416 of 2002]

Y.K. Sabharwal, J.

Leave granted.
 The question that falls for determination in the instant case is about the ambit of the inherent powers of the High Courts under Section 482, Code of Criminal Procedure (Code) read with Articles 226 and 227 of the Constitution of India to quash criminal proceedings. The scope and ambit of power under Section 482 has been examined by this Court in catena of earlier decisions but in the present case that is required to be considered in relation to matrimonial disputes. The matrimonial disputes of the kind in the present case have been on considerable increase in recent times resulting in filing of complaints by the wife under Sections 498A and 406, IPC not only against the husband but his other family members also. When such matters are resolved either by wife agreeing to rejoin the matrimonial home or mutual separation of husband and wife and also mutual settlement of other pending disputes as a result whereof both sides approach the High Court and jointly pray for quashing of the criminal proceedings or the First Information Report or complaint filed by the wife under Sections 498A and 406, IPC, can the prayer be declined on the ground that since the offences are non-compoundable under Section 320 of the Code and, therefore, it is not permissible for the Court to quash the criminal proceedings or FIR or complaint. The facts here are not in dispute. Appellant No.4 is the husband. Respondent No.2 is his wife. Their marriage had taken place on 21st July, 1999. They are living separately since 15th July, 2000. Appellant Nos. 1 to 3 are father, mother and younger brother of appellant No.4. FIR No.8 of 2002 was registered under Section 498A/323 and 406 IPC at Police Station, Central Faridabad at the instance of the wife on 2nd January, 2002. She has filed an affidavit that the FIR was registered at her instance due to temperamental differences and implied imputations. According to that affidavit, her disputes with the appellants have been finally settled and she and Appellant No.4 have agreed for mutual divorce. The affidavit further states that on filing of the petition for mutual divorce, statements on first motion were recorded on 18th July, 2002 and 2nd September, 2002. Also that in second motion filed by the parties to the marriage, their statements were recorded by the Court of Additional District Judge, Delhi on 13th September, 2002. Counsel for respondent No.2 supporting the appeal also prays for quashing of the FIR. There is, however, serious opposition on behalf of the State.
  The High Court has, by the impugned judgment, dismissed the petition filed by the appellants seeking quashing of the FIR for in view of the High Court the offences under Sections 498A and 406 IPC are non-compoundable and the inherent powers under Section 482 of the Code cannot be invoked to bypass the mandatory provision of Section 320 of the Code. For its view, the High Court has referred to and relied upon the decisions of this Court in State of Haryana & Ors. v. Bhajan Lal & Ors. [1992 Supp.(1) SCC 335]; Madhu Limaye v. The State of Maharashtra [(1977) 4 SCC 551; and Surendra Nath Mohanty & Anr. v. State of Orissa [AIR 1999 SC 2181].
After reproducing the seven categories of cases as given in para 102 of Bhajan Lals case, the High Court has held that the parameters, principles and guidelines for quashing of complaints, first information report and criminal proceedings have been settled in terms thereof and has concluded therefrom that the instant case does not fall in any of the said categories. It is quite clear that the High Court has lost sight of the earlier part of para 102 which made it abundantly clear that the said categories of cases were being given by way of illustration. Neither the categories of cases given were exhaustive nor it could be so. Before giving those categories, it was said in Bhajan Lals case that :
In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulate and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

In Pepsi Food Ltd. & Anr. v. Special Judicial Magistrate & Ors. [(1998) 5 SCC 749], this Court with reference to Bhajan Lals case observed that the guidelines laid therein as to where the court will exercise jurisdiction under Section 482 of the Code could not be inflexible or laying rigid formulae to be followed by the courts. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any court or otherwise to secure the ends of justice. It is well settled that these powers have no limits. Of course, where there is more power, it becomes necessary to exercise utmost care and caution while invoking such powers.
 The High Court has relied upon Madhu Limayes case for coming to the conclusion
 that since the offences under Sections 498A and 406 IPC are non-compoundable, i
t would be impermissible in law to quash the FIR on the ground that there has be
en a settlement between the parties. The decision in Madhu Limayes case has be
en misread and misapplied by the High Court. The question considered in that ca
se was when there was a bar on the power of revision in relation to any interloc
utory order passed in an appeal, enquiry, trial or other proceedings, what would
 be its effect on exercise of power under Section 482 of the Code. Sub-section
(2) of Section 397 of Cr.P.C providing that the power of revision conferred by s
ub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceedings was noticed and it was held that on a plain reading of Section 482, it would follow that nothing in the Code, which would include sub-section (2) of Section 397 also, shall be deemed to limit or affect the inherent powers of the High Court. The Court said that if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers but adopting a harmonious approach held that the bar provided in sub-section (2) of Section 397 operates only in exercise of the revisional power of the High Court meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. It was further held that, then, in accordance with one of the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redressal of the grievance of the aggrieved party. In Madhu Limayes case, it was, inter alia, said that if for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court. By way of illustration, an example was given where without jurisdiction the Court takes cognizance or issues process and assumes it to be an interlocutory order, would it stand to reason to say that inherent power of the High Court cannot be exercised for stopping the criminal proceedings as early as possible, since being an interlocutory order, it was not revisable and resultantly the accused had to be harassed up to the end, though the order taking cognizance or issuing process was without jurisdiction. It was held that the bar will not operate to prevent the abuse of the process of the Court and/or to secure the ends of justice.
 It is, thus, clear that Madhu Limayes case does not lay down any general proposition limiting power of quashing the criminal proceedings or FIR or complaint as vested in Section 482 of the Code or extra ordinary power under Article 226 of the Constitution of India. We are, therefore, of the view that if for the purpose of securing the ends of justice, quashing of FIR becomes necessary, Section 320 would not be a bar to the exercise of power of quashing. It is, however, a different matter depending upon the facts and circumstances of each case whether to exercise or not such a power.
The High Court has also relied upon the decision in case of Surendra Nath Mohantys case (supra) for the proposition that offence declared to be non-compoundable cannot be compounded at all even with the permission of the Court. That is of course so. The offences which can be compounded are mentioned in Section 320. Those offences which are not mentioned therein cannot be permitted to be compounded. In Mohantys case, the appellants were convicted by the trial court for offence under Section 307. The High Court altered the conviction of the appellants and convicted them for offence under Section 326 and imposed sentence of six months. The trial court had sentenced the appellants for a period of five years RI. The application for compounding was, however, dismissed by the High Court. This Court holding that the offence for which the appellants had been convicted was non-compoundable and, therefore, it could not be permitted to be compounded but considering that the parties had settled their dispute outside the court, the sentence was reduced to the period already undergone. It is, however, to be borne in mind that in the present case the appellants had not sought compounding of the offences. They had approached the Court seeking quashing of FIR under the circumstanced abovestated.
 In State of Karnataka v. L. Muniswamy & Ors. [(1977) 2 SCC 699], considering th
e scope of inherent power of quashing under Section 482, this Court held that in
 the exercise of this wholesome power, the High Court is entitled to quash proce
edings if it comes to the conclusion that ends of justice so require. It was ob
served that in a criminal case, the veiled object behind a lame prosecution, the
 very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice and that the ends of justice are higher than the ends of mere law though justice had got to be administered according to laws made by the legislature. This Court said that the compelling necessity for making these observations is that without a proper realization of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction. On facts, it was also noticed that there was no reasonable likelihood of the accused being convicted of the offence. What would happen to the trial of the case where the wife does not support the imputations made in the FIR of the type in question. As earlier noticed, now she has filed an affidavit that the FIR was registered at her instance due to temperamental differences and implied imputations. There may be many reasons for not supporting the imputations. It may be either for the reason that she has resolved disputes with her husband and his other family members and as a result thereof she has again started living with her husband with whom she earlier had differences or she has willingly parted company and is living happily on her own or has married someone else on earlier marriage having been dissolved by divorce on consent of parties or fails to support the prosecution on some other similar grounds. In such eventuality, there would almost be no chance of conviction. Would it then be proper to decline to exercise power of quashing on the ground that it would be permitting the parties to compound non-compoundable offences. Answer clearly has to be in negative. It would, however, be a different matter if the High Court on facts declines the prayer for quashing for any valid reasons including lack of bona fides.
In Madhavrao Jiwajirao Scindia & Ors. v. Sambhajirao Chandrojirao Angre & Ors. [(1988) 1 SCC 692], it was held that while exercising inherent power of quashing under Section 482, it is for the High Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. Where, in the opinion of the Court, chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may, while taking into consideration the special facts of a case, also quash the proceedings.
The special features in such matrimonial matters are evident. It becomes the duty of the Court to encourage genuine settlements of matrimonial disputes.
The observations made by this Court, though in a slightly different context, in G.V. Rao v. L.H.V. Prasad & Ors. [(2000) 3 SCC 693] are very apt for determining the approach required to be kept in view in matrimonial dispute by the courts, it was said that there has been an outburst of matrimonial disputes in recent times. Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their young days in chasing their cases in different courts.
There is no doubt that the object of introducing Chapter XX-A containing Section 498A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view to punishing a husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. The hyper-technical view would be counter productive and would act against interests of women and against the object for which this provision was added. There is every likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier. That is not the object of Chapter XXA of Indian Penal Code.
In view of the above discussion, we hold that the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code.
 For the foregoing reasons, we set aside the impugned judgment and allow the appeal and quash the FIR above mentioned.

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