Domestic Violence Act - Dismissed factor

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: September 05, 2008

Date of Order : September 30, 2008

CM(M) 105/2006

30.09.2008

Neetu Mittal ...Petitioner Through: Ms. Radhika Chandrasekhar, Adv.

Versus

Kanta Mittal and Ors. ...Respondents

Through: Ms. Nandni Sahni, Adv. for R.1 and 2

Mr. Devendra Singh, Adv. for R.3

JUSTICE SHIV NARAYAN DHINGRA

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

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

3.   Whether   should be reported in Digest? Yes.

#JUDGMENT:

1.       The petitioner is aggrieved by an order dated 4th January, 2006 passed by the learned Additional Senior Judge allowing an appeal of the respondent against order dated 24.5.2005 of  dismissing an application under Order 39 Rule 1 and 2 CPC.

2.       The respondents had filed a suit making petitioner, their son and in-laws of the son as defendants wherein they prayed for permanent injunction. An application under Order 39 Rule 1 and 2 was made that the petitioner and other respondents be restrained from forcibly and illegally entering into their house No. B-2/23, Phase-II, Ashok Vihar and from interfering with their peaceful living. The petitioner is wife of Sh. Vikas Mittal son of respondents, Smt. Kanta Mittal and Sh. Ram Kishan Mittal.

3.       The learned Senior   while allowing appeal observed that wife has a right to live in the matrimonial home after marriage but there was no specific definition of matrimonial home. However, matrimonial home was not just a building made of bricks and walls. It was a home/place comprising of sweetness of relations of family members and elders, full of blessing. In the matrimonial home, matrimonial rights and obligations are to be equally observed. Practically speaking, the residence of husband should be the home of the wife where both the spouses have equal right to reside.

4.       The learned Senior Civil Jude found that in this case, the respondents were parents of Sh. Vikas Mittal and in-laws of Neetu Mittal (petitioner). They had separated from their son. The son had taken a flat in Rohini for his own residence and residence of his wife. The son and his wife had agreed to shift there on 10th May, 2005 under a compromise arrived at Police Station. However, the wife did not stay in the flat at Rohini. Her grievance was that flat was not habitable due to deficiency of fan, cooler, etc.   Thereafter, she asserted that she had a right to live in her in-laws' house in Ashok Vihar and she wanted to forcibly live there which compelled respondents no. 1 and 2 to file the suit. The learned Senior   found that the respondents were aged parents. They had shown by filing medical record that they were suffering from various ailments and at this age of their life they have a right to live peacefully at their home. Since the relations of petitioner were not cordial with them, there was every likelihood of breach of peace to the detriment to their mental and physical health. Due regards have to be given to their rights. It was a admitted fact that the respondents and petitioner could not live together under one roof with peace and harmony. The common use of dining and one kitchen would create further problems and a situation may come when parties may everyday land up at Police station or in the Court, fighting on minor issues.

5.       Learned Sr.   also observed that the respondents(parents) even apprehend danger to their lives and dignity, as per the complaint made by them to the Police. Under these circumstances, the learned Senior   allowed the application under Order 39 Rule 1 and 2 CPC and restrained the defendants (petitioner herein) from forcibly entering into their house and disturbing the peaceful possession of the respondents.

6.       Counsel for the petitioner argued that the petitioner being wife of son of respondents no. 1 and 2 has a right to live in the matrimonial home and no injunction could legally have been issued by the learned Civil Judge. She referred to Protection of Women from   Act, 2005 and argued that the right of women to live in the shared household was to be protected by every Court and the house of in-laws was a shared household and a matrimonial home and she had a right to live there.

7.       In S.R. Batra vs. Taruna Batra AIR 2007 SC 1118, Supreme Court observed as under:

            "16. There is no such law in India, like the British Matrimonial Homes Act, 1967 and in any case, the rights which may be available under any law can only be as against the husband and not against the father-in-law or mother-in-law.

 17. Here, the house in question belongs to the mother-in-law of Smt. Taruna Batra and it does not belong to her husband Amit Batra. Hence, Smt. Taruna  Batra cannot claim any right to live in the said house. xxxxx xxxxx xxxxx

27.   Learned counsel for the respondent Smt. Taruna Batra has relied upon Section 19(1)(f) of the Act and claimed that she should be given an alternative accommodation. In our opinion, the claim for alternative accommodation can only  be made against the husband and not against the husband's in-laws or other relatives.

28.   As regards Section 17(1) of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household, and a 'shared household' would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The property in question in the present case neither belongs to Amit Batra nor was it taken on rent by him nor is it a joint family property of which the husband Amit Batra is a member. It is the exclusive property of appellant no.2, mother of Amit Batra. Hence it cannot be called a 'shared household'.”

8.       As observed by the Supreme Court, 'Matrimonial home' is not defined in any of the statutory provisions. However, phrase ?Matrimonial home? refers to the place which is dwelling house used by the parties, i.e., husband and wife or a place which was being used by husband and wife as the family   residence. Matrimonial home is not necessarily the house of the parents of the husband. In fact the parents of the husband may allow him to live with them so long as their relations with the son (husband) are cordial and full of love and affection. But if the relations of the son or daughter-in-law with the parents of husband turn sour and are not cordial, the parents can turn them out of their house. The son can live in the house of parents as a matter of right only if the house is an ancestral house in which the son has a share and he can enforce the partition. Where the house is self-acquired house of the parents, son, whether married or unmarried, has no legal right to live in that house and he can live in that house only at the mercy of his parents upto the time the parents allow. Merely because the parents have allowed him to live in the house so long as his relations with the parents were cordial, does not mean that the parents have to bear his burden throughout the life.

9.       Once a person gains majority, he becomes independent and parents have no liability to maintain him. It is different thing that out of love and affection, the parents may continue to support him even when he becomes financially independent or continue to help him even after his marriage. This help and support of parents to the son is available only out of their love and affection and out of mutual trust and understanding. There is no legal liability on the parents to continue to support a dis-obedient son or a son which becomes liability on them or a son who dis-respects or dis-regards them or becomes a source of nuisance for them or trouble for them. The parents can always forsake such a son and daughter-in-law and tell them to leave their house and lead their own life and let them live in peace. It is because of love, affection, mutual trust, respect and support that members of a joint family gain from each other that the parents keep supporting their sons and families of sons. In turn, the parents get equal support, love, affection and care. Where this mutual relationship of love, care, trust and support goes, the parents cannot be forced to keep a son or daughter in law with them nor there is any statutory provision which compels parents to suffer because of the acts of residence and his son or daughter in law. A woman has her rights of maintenance against her husband or sons/daughters. She can assert her rights, if any, against the property of her husband, but she cannot thrust herself against the parents of her husband, nor can claim a right to live in the house of parents of her husband, against their consult and wishes.

10.    I therefore consider that the order passed by the learned Senior Civil Jude granting injunction does not suffer from any illegality and the petition is hereby dismissed.

September 30, 2008 

SHIV NARAYAN DHINGRA J. 

Man moves court against wife in false dowry case

Thursday, Apr 16, 2009, 3:42 IST | Place: New Delhi

A woman and a police officer, who allegedly tried to implicate a man in a dowry case, have got trapped in their own net.

A harassed Nishant Saini, 32, has filed a retaliatory complaint in court seeking the arrest of his wife, Anjali Dargan, 30, for "forcefully giving dowry which he never demanded".

Police officer Asha Sinha, who helped Dargan, is also in trouble. Metropolitan magistrate (MM) Saurabh Pratap Singh Laler ordered deputy commissioner of police (DCP) of south Delhi to take action against the officer for failing to submit a report despite the court's order. 15pt; margin: 5pt 0in; widows: auto;">Saini, an architect, married Dargan, an executive with ITC, in 2007. But their relationship soured within six months. Dargan slapped a dowry case against Saini, alleging that he had taken Rs17 lakh in dowry and forcibly kept her jewellery and stridhan (bride's article) worth Rs20 lakh. Though Saini refuted the charges, he spent six days in Tihar jail. He also lost his job.

Later, Saini filed a counter complaint with the police, accusing his wife and in-laws of forcing him to accept the money he never demanded. When the police refused to register his complaint Saini approached the court under Section 156 (3) of the CrPc, seeking  action against his wife and her parents under Section 3 of the Dowry Prohibition Act (DPA). Section 3 DPA is a non-bailable, non compoundable (cannot be withdrawn), cognisable offence for giving, taking or abetting giving or taking of dowry. It carries a minimum punishment of five years in prison. On the other hand, Section 498A (cruelty for dowry), which Dargan had filed against Saini, has a penalty of three years in prison.

Based on Saini's complaint the judge, who was convinced that the wife was involved in the dowry offense, ordered officer Sinha to find out whether the money was willingly given by the woman's family or under pressure from the groom's side. However, Sinha, who had earlier opposed Saini's bail, failed to submit a report and told the court that no case could be registered against the bride or her parents.

"Instead of conducting the investigation, the police were trying to save the accused, forcing us to move a contempt of court application against Sinha," Saini's lawyer Pradip Nawani said. The judge directed Sinha's senior officers to take action against her for contempt of court.

Conceding that many women were misusing dowry laws to settle scores with their husbands, the Delhi high court laid down guidelines for the Delhi Police to be followed during investigations in dowry related complaints and IPC-498A. It said in case an educated woman gets married to a person despite a dowry demand, she and her family become accomplices under section 3 of DPA.

DPA JUDGEMENT IN THE HIGH COURT OF DELHI AT NEW DELHI

DPA JUDGEMENT

IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT :  SECTIONS 3 & 4 OF DOWRY PROHIBITION

ACT SEEKS QUASHMENT OF THE FIR

Crl.M.C.1950/04 & Crl.M.A.6384/2004

Judgment delivered on: March 31, 2006

K.M.ANEES-UL-HAQ & ORS.                                         Petitioners.

                                                  Through        Mr.G.D.Gandhi, Advocate.

VERSUS

STATE & ANR.                                             Respondents

                                                  Through        Mr.Ravinder Chadha &

Mr.Jagdish Prasad, Advocates, for State.Mr.Abdul Rehman, R-2, in person. Mr.Anees Ahmad for respondent No.3.

Manju Goel, J.

1.      In this petition under section 482 Code of Criminal Procedure (Cr.P.C.), the petitioners who are accused in FIR No.260/2001 P.S. Mayur Vihar under sections 406/420/34 of Indian Penal Code (in short `IPC') and sections 3 & 4 of Dowry Prohibition Act seeks quashment of the FIR and consequent proceedings. Although several grounds have been mentioned in the petition, at the time of hearing the only ground pressed is that of limitation and accordingly the petition will be disposed of only on the question of limitation.

2.      The petitioners' counsel submitted that the offence made out against the petitioners is only under section 406 IPC as well as under sections 3 & 4 of Dowry Prohibition Act and that on the date the FIR was filed or cognizance taken both the offences were time barred. Therefore, the real question is what offence is made out in the FIR. The complainant in the FIR is Shri Abdul Rehman. The gist of the FIR is as under:

The complainant/respondent No.2 met petitioner No.1 in 1997 and the two became good friends within a short span of time. In September, 1999 the complainant and his wife attended a marriage in the family of petitioner No.1 at Bangalore where petitioner No.1 and his wife Nusrat Fatima (petitioner No.2) proposed that their nephew (Furkhan-Ul-Haque @ Muneeb) who had earned a Degree in Electronics Engineering would be a good match for Aalya, daughter of the complainant/respondent No.2. The complainant was persuaded to agree to the proposal. Petitioner No.1 and his wife asked for an engagement ceremony in a grand scale. An engagement ceremony was

accordingly held at Asia House on 16.1.2000 and the expenditure incurred by the petitioner on that account accounted to approximately Rs.5 lakhs. Both sides mutually agreed to perform the marriage within the next 6-7 months. In a later visit to Bangalore, the complainant was shown an abandoned factory shed and it was represented to him that the proposed bridegroom was trying to secure a loan to start a business of plywood manufacturing. It was also represented to him that the proposed bridegroom was facing financial crunch. A sum of Rs.3.25 lakhs was paid to petitioner No.2 in this regard. In view of the proposal of the marriage to be held within 6-7 months of the engagement ceremony, relatives of the complainant started arriving in Delhi. On 2.10.2000, petitioner Nos.1 & 2 along with petitioner No.3 (father of Muneeb) visited the complainant and persuaded the complainant to hold the marriage ceremony at Bangalore and 4.11.2000 was fixed as the date of marriage. On 13.10.2000 the complainant went to Bangalore to make arrangements when he carried with him most of the bridal jewellery. The complainant booked a hotel for the purpose of marriage, accommodation for the baarat apart from cooks and other helps which would be required on the occasion. The complainant also booked the articles of furniture to be given as dowry. A sum of Rs.3 lakhs was given to petitioner No.2 for purchase of a car and subsequently another sum of Rs.1.5 lakhs was added towards this fund. A sum of Rs.50,000/- was given to petitioner No.2 for flowers required for the occasion of marriage. On 27.10.2000, petitioner No.2 called the complainant to postpone the marriage due to a death in the family of the bridegroom and the complainant had to agree to the postponment on account of decency. In April, 2001, the complainant again got in touch with petitioner No.2  when petitioner No.2 told him that the bridegroom was finding it difficult to settle down and was facing certain problems in the business front. In the meantime, the boy had been in constant touch with the daughter of the complainant. The business plan of the boy changed from plywood manufacturing to agricultural farming and then to the petrol pump. Later petitioner No.2 told him that the attempt to secure a loan had not succeeded and hinted that complainant should come forward to help the boy financially so that the business can be set up and the marriage can follow. The complainant and his wife by now had become anxious as a lot of time had already been spent after the engagement ceremony. They, therefore, talked to the boy at length and learnt that the boy was in dire need of Rs.5 lakhs which would see him through all problems. On 16.10.2001, the boy called Muneeb came to Delhi when the sum of Rs.5 lakhs was given to him in the presence of petitioner No.1. The boy's side assured the complainant that the marriage would be held sometime in December, 2001/January, 2002. No firm date was, however, communicated to the petitioner. In January, 2002 the boy came to Delhi and remained there for about three weeks and visited the residence of the complainant every morning and spent the day there. Petitioner No.1 agreed to persuade the father of the boy to perform the marriage immediately and assured the complainant that the problems of the boy would be over by  March, 2002 and then his parents would be asked to fix a date for marriage. During all this period, petitioner No.2 ruled all the proceedings and everything happened exactly the way she had desired. Even in the month of March,2002 no proposal for a date of marriage came from the side of the boy and they kept on putting off fixing a date by telephoning the complainant every week that they were about to come to Delhi for the purpose. In April, 2002 the complainant had become sceptic about the intentions of the petitioners. By now the boy had developed a practice of telephoning the daughter of the complainant every night. On the night prior to the date of the complaint while the boy was on telephone talking to the daughter of the complainant, the complainant took the phone and asked the boy to have his parents talk to him. The father accordingly called after half an hour and in the conversation that followed it transpired that if the complainant was interested in an early marriage he should give a sum of Rs.25 lakhs in cash to the boy. The complainant then refused to pay any such amount and asked for return of all the articles of dowry and to reimburse him for all the expenses incurred. The complainant had thus been cheated by the fraud and misrepresentation of the petitioners including petitioner  Nos.3 & 4 who are the parents of the boy as well as by the boy Muneeb (respondent No.3 herein) himself. The accused named above in the FIR were also accused of having committed breach of trust by retaining all the dowry articles particularly jewellery, clothes & cash and of extorting large sums of money. Further they were accused of wasting precious 2-1/2 years of the life of the complainant's daughter. The complainant asked for strict possible action.

3.      Admittedly, the FIR was initially registered only under sections 406/34 IPC and sections 3/4 of Dowry Prohibition Act. According to the counsel for the petitioners, the only offences made out were under section 406 of IPC and sections 3 & 4 of Dowry Prohibition Act. According to him, the date of cancellation of engagement being 5th August, 2000, the FIR could be made latest by 5.8.2001 and thus the FIR dated 25.6.2002 was clearly barred by time.

4.   For the purpose of examining the question of limitation, the only thing that can be seen at this point of time is the complaint itself. The complaint nowhere says that the engagement was called off on 5.8.2000. As per the complaint till the evening prior to the date of complaint, the complainant was contemplating the marriage to take place shortly although the complainant had become sceptic about the intentions of the boy's side, viz., the petitioners. The complaint nowhere says that the marriage/ engagement was called off on 5.8.2000. Accordingly the period of limitation cannot start from 5.8.2000. So far as the offence under section 406 is concerned, the period of limitation can start only from the date the misappropriated articles were demanded back. Going by the complaint that date would be 24.6.2002. Therefore, for the offence under section 406 IPC the complaint made on 25.6.2002, on which summons was issued on 22.2.2003, will not be barred by time.

5.      It has to be noticed that sufficient allegation about the fraud has also been made out in the complaint. The fraud complained of in the complaint is that the boy Muneeb and the petitioners defrauded the complainant into parting with large sums on the assurance that Muneeb would be married to complainant's daughter but that the petitioners as well as boy Muneeb never had the intention of performing any such marriage. Thus, three offences have been made out, namely, under sections 3 & 4 of Dowry Prohibition Act and under sections 406 & 420 of IPC. The offence under section 420 IPC is punishable with 7 years of imprisonment whereas the offence under section 406 IPC is punishable with 3 years of imprisonment. The offences under sections 3 & 4 of Dowry Prohibition Act are punishable with imprisonment for a term which shall not be less than five years & six months respectively, except for adequate and special reasons. So far as the fraud punishable under section 420 IPC & offences under sections 3 & 4 of Dowry Prohibition Act are concerned, no limitation is prescribed under section 468 of Cr.P.C. So far as section 406 is concerned, the offence takes place only when the entrusted articles are called back and the accused fails to return. This situation arose, according to the complaint, only on 24.6.2002. Therefore, the complaint was made on the following day. Summons  from the court was issued on 22.2.2003, i.e., within one year of the date of the offence. Further, section 468 (3) Cr.P.C. prescribes that when several offences are made out the limitation applicable will be determined with reference to the offence which is punishable with more severe sentence. Since the complaint includes offences of fraud punishable under section 420 IPC and sections 3 & 4 of Dowry Prohibition Act, there can be no question of limitation barring the case. 

6.      The petition under section 482 Cr.P.C. is not only devoid of any merit but is totally frivolous. The filing of the petition has caused much delay in the disposal of the complaint case before the trial court. The same is accordingly dismissed with costs, assessed at Rs.10,000/-. Both parties are directed to appear before the trial court on 18th April, 2006.

                                                                                   Sd./-

March 31, 2006                                                   MANJU GOEL,J       

CRPC 340 Criminal case against Wife for making False calim in Maintance Case

HIS HONOUR JUDGE: 24 th DECEMBER, 2013 . school. The respondent is doing a job as a pre-primary Teacher at she does not want to give written reply. parties. has neither made a complaint under sub-Section (1) in 2011 (Exh.13) for interim maintenance under the provisions of herself and what was stated by her is not true. requirements like food, shelter and clothes from the person who isसतय ं वदं" “Tell dignity and respect in that amount and the income of the petitioner is that the respondent is absolved from the criminal liability. Therefore, th December, 2013 Family Court

No.3, Mumbai.

ORDER BELOW EXH.56

This is an application filed by the petitioner for taking

action for perjury against respondent-wife.

2. According to the petitioner he has filed this petition for decree of divorce. The respondent had filed interim application for maintenance pendentelite on 28-4-2011 stating in para No.10 of said application, “I have no source of income and have become burden on my parents, it is embarrassing and ridiculous situation as I am being compelled to depend upon parents for my daily needs, after marriage”. The respondent has also mentioned, “I do not have any other source of income.”

3. According to the petitioner, the respondent used to work as a Teacher in a school prior to her marriage is admitted position. The petitioner had filed an application for review of order by producing documentary proof that the respondent is working as a school Teacher and her photograph appears in the magazine of the Thakur Public School, Kandivali (E) and having permanent job and also having bank account in Saraswat Bank, Kandivali (E) Branch, vide salary account No.4963957. The respondent had refused to produce any document in spite of the petitioner has filed on recor the book published by the school, where the respondent is working as a Teacher. The respondent has filed her affidavit as per the direction of this Court, which speaks abut her employment. It is admitted that she was working full-time and getting Rs.7500/- per month but in spite of calling upon her to produce her bank statement and income proof, she refrained from doing so.

4. According to the petitioner, after the witness summons and a document brought on record, it is revealed by the order of this Court dated 7-5-2013 that the respondent is a liar and she obtained the interim maintenance order by misguiding this Court by purposefully stating lie on oath and concealing the material fact by not producing documents which are in her possession and made the petitioner to suffer. Therefore, the petitioner has requested for taking legal action against the respondent under the provisions of Section 195 and Section 340 of Criminal Procedure Code.

5. After filing of this application, my learned predecessor has passed order dated 3-7-2013 of issuance of notice under Section 340 of Criminal Procedure Code. The copy of this application was given to the respondent on the same day i.e. on 3-7-2013. On 5-8-2013 the learned Advocate for the respondent had made a remark on the overleaf of the application that she will argue,

6. I have heard learned Advocate Smt. Usha Tanna for the petitioner and learned Advocate Smt. Jivan Vijay for the respondent wife.The learned Advocate for the petitioner has vehemently argued that, though the respondent has source of income, she has made false averments in her application that she did not have any source of income. She has sworn affidavit with false contents. The learned Advocate has further submitted that while deciding the review application of the husband, this Court has made observations in respect of the false averments made by the respondent and therefore, it is necessary to initiate action of perjury against the respondent-wife.

7. Smt. Jivan Vijay, learned Advocate, appearing for the respondent-wife has submitted that false accusations are made against the respondent. She has filed her documents on record and in view of modified order, the quantum of the maintenance was reduced and this Court, while deciding the review application, has imposed exemplary cost of Rs.5000/- on the respondent and therefore already action is taken against the respondent. Now, there is no need to proceed against the respondent under the provisions of Code of Criminal Procedure. The learned Advocate for the respondent has further submitted that there was no malice or intention to mislead this Court and the bonafide mistake of the respondent be excused.

8. I have given my thoughtful consideration to the submissions canvassed by the learned Advocates for both the

9. The provisions of Chapter XXVI of Code of Crimina Procedure deal with offences affecting the administration of justice. Section 195 of said Code speaks about prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. The provisions of Section 340 of the Code reads as under :

“Procedure in cases mentioned in Section 195- (1) When,upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of Section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,-

(a) record a finding to that effect;

(b) make a complaint thereof in writing;

(c ) send it to a Magistrate of the first class having jurisdiction;

(d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and

(e) bind over any person to appear and give evidence before such Magistrate.

(2) The power conferred on a Court by sub-Section (1) in respect of an offence may, in any case where that Court respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of Section 195.

(3) A complaint made under this section shall be signed,-

(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;

(b) in any other case, by the presiding officer of the Court or by such officer of the Court as the Court may authorise in writing in this behalf.

(4) In this section, “Court” has the same meaning as in Section 195.”

10. In the case in hand the petitioner-husband has filed main petition for divorce under the provisions of Section 13(1)(ia) of Hindu Marriage Act. The respondent has submitted written statement at

Exh.12. After the appearance of the respondent, both the parties were referred to the Marriage Counsellor for exploring the possibility of reconciliation and amicable settlement. However, no reconciliation or amicable settlement had taken place. Even after hearing of the argument of present application at Exh.56, I had referred both the parties to Judge Mediator, to work out the settlement between the parties. However, the parties could not come to terms and accordingly Judge Mediator has submitted the report.

11. The respondent had filed interim application No.162 of Section 24 of Hindu Marriage Act. Said application was contested by the petitioner. Said application was decided on 2-3-2012 by my learned predecessor and interim maintenance at the rate of Rs.20,000/- per month was granted to the respondent, from the date of said application i.e. 28-4-2011. The respondent was also given litigation cost of Rs.20,000/-.

12. On 11-5-2012 the petitioner had filed application for review and/or cancellation of maintenance order dated 2-3-2012. The said application was resisted by the respondent by filing her reply on Exh.32 and after hearing both the parties, the said application was decided on 7-5-2013. In view of that order, the quantum of maintenance granted to the respondent was reduced from Rs.20,000/- per month to Rs.13,000/- per month.

13. In the original interim maintenance application at Exh.13 in para No.10 the respondent has stated that she has no source of income and has become burden on her parents, it is embarrassing and ridiculous situation as she being compelled to depend upon parents for her daily needs, after marriage. Further, in para No.13 of said application the respondent has stated that she is a simple graduate and cannot earn her livelihood and it is the duty of the petitioner to provide for the same. While replying these averments, the petitioner had stated in para No.8 of his reply at Exh.17 that the respondent is well educated and accomplish and qualified graduate with expertise in teaching institution and was employed in Nursery Institution and thus the respondent was capable of maintaining

14. Now, it is necessary to see what observations are made by my learned predecessor while deciding the review application at Exh.30, in respect of the income of the respondent-wife. The observations made in para No.10 of said order runs as under :

“While disposing interim maintenance application, this Court in para No.4 has observed that there is no record before Court to believe that respondent-wife is an earning member. This observation was based upon statement of respondent and also from the circumstance that there was no record before Court to prove the earning of the respondent. The documents which are referred herein in this order clearly reveal that on the date of passing of the order and on the date of moving an application for interim maintenance, respondent was an earning member, so respondent has misguided this Court to believe that she do not have any income. She has suppressed vitalinformation from the Court that she is earning about Rs.6804/- by being working as a Pre-primary Teacher in a school”.

15. It is settled position of law that while determining quantum of maintenance the regard shall be had to the status and position of the parties, income of both the parties, reasonable wants of the claimant and number of persons dependent upon the payer. The provisions of maintenance are benevolent provisions. These provisions are made to prevent vagrancy of destitute wife and the minor children. The person who is liable to maintain his dependents, has to provide maintenance to his dependents, so that they can keep their soul and body together and they should not face any problem in their day-to-day life. The needy persons are entitled to get the basic liable to maintain them as per the provisions of law.

16. It is settled principle of law that he who seeks equity,must do equity. The fraud and justice cannot dwell together. The justice seeker must step in the Court with clean hands. The dishonest person cannot be entertained by the Court of law. In matrimonial matters persons come with their family problems before the Court and Court makes every possible attempt to find out solution of their problems. In such circumstances, it is the first and foremost responsibility of the party to tell the truth to the Court, so that Court can go to the root of the matter to solve the real dispute. There should not be game of hide and seek when justice is sought from the Court of law. All the Dharmashastras teach us "the truth”. Foundation of every case must be on true and honest disclosure of facts. No place can be given to lies or falsehood during the course of administration of justice. The person who comes to the Court i.e. house of justice, to seek justice, has to show his bonafides and honesty by making true disclosure of the facts within his knowledge.

17. Here it has been established that the respondent-wife has suppressed vital information from the Court that she is earning about Rs.6804/- by being working as a Pre-primary Teacher in a school. It was the prime duty of the respondent-wife to come in the Court with clean hands by stating that she is earning Rs.6804/- per month. If she wants to claim maintenance from the petitioner, she has to make out a case that it is not possible for her to lead life with at higher side. She has to show the disparity between her income and income of the respondent and by making such type of true disclosure of the facts, she should have claimed maintenance amount from the petitioner. But this has not been happened in this case. The respondent-wife has made false averments in her interim maintenance application by stating that she has no source of income and she is burden upon her parents. She has not taken pain to disclose her income, though it may be meager. On the contrary, she has made false statements on oath.

18. While submitting the application for interim maintenance, the respondent-wife has taken oath and she has sworn affidavit on the application itself. This goes to show that she has made false averments knowingly in a Court proceeding. In such circumstances, prima facie, the offences punishable under Section 177, 181, 182 and 191, read with Section 193 of Indian penal Code are attracted. Because of the false statements made by the respondent in her application for interim maintenance, this Court is misled and misguided and therefore, the petitioner has suffered and he was directed to pay maintenance at the rate of Rs.20,000/- per month.

19. The petitioner was required to file application for review of said order and accepting his contention, the quantum of maintenance was reduced from Rs.20,000/- per month to Rs.13,000/- per month. While deciding the said application, my learned predecessor has imposed exemplary cost of Rs.5000/- on the respondent for making false statements. But it does not mean it is necessary to take action against the respondent as per the provisions of Section 195 and 340 of Criminal Procedure Code. The Deputy Registrar of this Court has to file complaint against the respondent in competent Court for the offences discussed above.

20. In view of my foregoing discussion, I come to the conclusion that, the application at Exh.56 deserves to be allowed. In the result, I proceed to pass the following order.

O R D E R

1. The application at Exh.56 is allowed.

2. The Deputy Registrar of Family Court, Bandra, Mumbai,is directed to file complaint against the respondent-wife in competent Court, for the offences punishable under Section 177, 181, 182 and 191, read with Section 193 of Indian penal Code.

3. The Deputy Registrar is authorized to take true copies of entire proceedings to file along with the complaint in the competent Court.

4. Inform this order to Deputy Registrar, Family Court,

Bandra, Mumbai.

Sd/-24-12-2013

( Subhash R. Kafre )

Judge,

Date : 24

Anti-dowry Law Misused, No Automatic Arrest in Such Cases: SC

Anti-dowry Law Misused, No Automatic Arrest in Such Cases: SC

By PTI Published: 02nd July 2014 08:19 PM Last Updated: 02nd July 2014 08:50 PM

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NEW DELHI: Expressing concern over misuse of anti-dowry law by "disgruntled" wives against her husband and in-laws, the Supreme Court on Wednesday ruled that police cannot arrest accused in such cases "automatically" and it must give reasons for taking such steps which would be judicially examined.

The apex court said the attitude to arrest first and then proceed with the rest is "despicable" which must be curbed and directed all state governments to ensure that police do not resort to arresting in all offences punishable up to seven- year jail term including dowry harassment cases.

"We direct all the state governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC (dowry harassment) is registered but to satisfy themselves about the necessity for arrest under the parameters laid down flowing from Section 41 CrPC," a bench headed by Justice C K Prasad said.

It said that the police officer shall furnish the reasons and materials which necessitated the arrest before the magistrate.

"Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A is a cognisable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives.

"The simplest way to harass is to get the husband and his relatives arrested under this provision. In quite a number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested," the bench said.

The bench said the arrest curtails freedom, brings humiliation and casts scars forever and no arrest should be made only because the offence is non-bailable and cognisable.

"The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from power to arrest, the police officers must be able to justify the reasons thereof.

"No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent and wise for a police officer that no  arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation," the bench said.

Referring to crime statistics, the apex court said 1,97,762 persons were arrested in 2012 for offence under Section 498-A and nearly a quarter of those arrested under this provision were women depicting that mothers and sisters of the husbands were liberally included in their arrest net.

"Its share is 6 per cent out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5 per cent of total crimes committed under different sections of penal code, more than any other crimes except theft and hurt," it said.

It said the rate of charge-sheeting in cases is as high as 93.6 per cent, while the conviction rate is only 15 per cent, which is lowest across all heads and as many as 3,72,706 cases are pending at trial stage.

The apex court said that police in the country has not come out of its colonial mindset.

"It has not come out of its colonial image despite six decades of Independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized

time and again by courts but has not yielded desired result.

"Power to arrest greatly contributes to its arrogance so also the failure of the magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive," it said.

Not only accepted to giving dowry

Advocate Pradeep Nawani Nails The Wife, The In Laws And Corrupt Cops

Adv Pradeep Nawani has shown us the way on how to go about nailing the scum t

hat infest the ranks of the Indian police and has also shown us to how to nail the bitter half and her enablers under Dowry Prohibition Act Section 3 (DP3).

Here is the coverage in the news. This is reproduced from DNA India:

NEW DELHI: A Noida court has ordered police to book a woman and her parents for giving dowry. The chief judicial magistrate (CJM) of Noida ordered the police to register an FIR against Noida-based call centre employee Natasha Juyal and her parents under section 3 of the Dowry Prohibition Act (DPA) for giving dowry. The CJM also ordered action against police officers who refused to register Natasha’s husband Namit Juyal’s complaint.

Giving or taking dowry is a criminal offence under Section 3 of the DPA with imprisonment. This is a rare case where the section was evoked against a woman and her family.

Namit’s lawyer Pradeep Nawani argued that Natasha had not only accepted to giving dowry, but also submitted a list of stridhan that was not as per the DPA. Even her claim of huge wedding expense did not match her father’s financial capacity.

According to Nawani, Natasha filed a complaint of dowry harassment in Noida’s sector-20 police station last year, saying Namit was given Rs10 lakh as dowry in 2005.

The Noida police arrested Namit and packed him off to Dasna jail in UP. After getting bail, Namit sought information under RTI from the Noida police, seeking to know on what basis he was arrested.

He was horrified to hear that he was arrested on the basis of his wife’s mere written complaint and verbal statement with no records to back her allegations. He then asked police to register a complaint against his wife and family for giving dowry.

On refusal by the police, he approached court to get a complaint registered against his wife and her parents. He also sought contempt of court action against the police for failing to comply with a supreme court order, stipulating that refusing to register police complaint by a husband in a dowry case is tantamount to the contempt of court.

Here are the orders: