Sunday, September 30, 2007

Need to file or defend a case in the Supreme Court ?

You can approach the SCLSC in two situations:

1.You need to file or defend a case in the Supreme Court. This would include:


Appeals/Special Leave Petitions, Civil or Criminal, against an order of the High Court.
Petition for violation or enforcement of your fundamental right. This includes:
Habeas Corpus petitions- where a close friend or relative is missing or illegally taken away and whose whereabouts you do not know
Petitions challenging the legality of government action or inaction
Petitions challenging the legality of a legislation or order of government that violates your fundamental right.
Petition for transferring a case, civil or criminal, pending in one State to another State within India.
2. You need legal advice regarding your problem.

To file a case you need to fulfill certain eligible criteria. One of them is that you need to be a woman. If the Fundamental Rights of your family are violated by an officer of the law, be it a police officer or a magistrate, then get the women of your family to bring this to the attention of this committee.

Your mom will be the best bet for being eligible for aid as most of our moms are home makers with no sources of income. They’ve raised you to be a decent human being and have sacrificed a lot for us. Tell them that it just another battle as the laws have tied your hands and have deprived you of your ability to fight back.

Like all things in India, don’t expect this to be an easy process. All the same, from what I’ve seen of the Judicial system in India, the higher echelons of the Judiciary are untainted and disciplined. I expect that you’ll get a decent shot at justice.

For obtaining legal advice, you can call at the office of the SCLSC on any working day between 10.30 a.m. and 5 p.m.. Or you could send in a query by post, for which you should receive a reply within fifteen days. If the query is sent by e-mail, you could expect a reply sooner. Again, there are no charges for legal advice.

If you have any queries, you may contact :

The Secretary

Supreme Court Legal Services Committee
109, Lawyers’ Chambers,
Supreme Court Compound,
New Delhi-110 001

Ph. Nos. 23388313, 23073970, 23381257
e-mail : sclsc@nic.in

FAQ: http://sclsc.nic.in/faq.htm

http://sclsc.nic.in/

Friday, September 21, 2007

Maintenance Alimony Citations

India is a country where an ordinary MALE citizen does not have any civil liberity, Husband and his parents are being harassed, tortured, and looted by the greedy wife and her parents. The indian legal system is helping them in the racket of extortion.

1) False 498A cases
2) False Domestic Violence Cases

and other criminal cases are are being registered against innocent ealderly parents, Everyday houndered of elderly parents are being put behind the bards..

Later on money is extorted from them in form of maintenance, Alimony etc etc..

Here are some of the case laws to fight back the bloody extortionist... India is a counry ruled by goons..

http://maintenance-alimony.blogspot.com/

Wednesday, September 19, 2007

Anti-Dowry Laws: Tools of Justice, or Instruments of Blackmail ?

Anti-Dowry Laws: Tools of Justice, or Instruments of Blackmail ?

by the Society for Promotion of Marital Harmony


The Dowry Prohibition Act, was enacted with the intention of protecting wives from marital violence, abuse and extortionist dowry demands, however, the actual implementation of these laws has left a bitter trail of disappointment, anger and resentment in its wake, among the affected families

The truth is, that there were adequate provisions in the IPC Sections 323, 324, 325 and 326 for use against anyone who assaults a woman or causes her injury. The Indian Penal Code was amended twice during the 1980s — first in 1983 and again in 1986 — to define special categories of crimes dealing with marital violence and abuse

In 1983, Section 498A of the IPC defined a new cognizable offence, namely, “cruelty by husband or relatives of husband”. This means that under this law the police have no option but to take action, once such a complaint is registered by the victim or any of her relatives. It prescribes imprisonment for a term which may extend to three years and also includes a fine. The definition of cruelty is not just confined to causing grave injury, bodily harm, or danger to life, limb or physical health, but also includes mental health, harassment and emotional torture through verbal abuse. This law takes particular cognisance of harassment, where it occurs with a view to coercing the wife, or any person related to her, to meet any unlawful demand regarding any property or valuable security, or occurs on account of failure by her, or any person related to her, to meet such a demand.

During the same period, two amendments to the Dowry Prohibition Act of 1961, enacted in 1984 and 1986, made dowry giving and receiving a cognizable offence. Even in this case, where a person is prosecuted for taking or abetting dowry, or for demanding dowry, the burden of proof that he had not committed the offence was placed on the accused.

However, no punitive provisions were added for those making false allegations or exaggerated claims. There is, of course, the law against perjury (lying on oath). But in India, the courts expect people to prevaricate and lawyers routinely encourage people to make false claims because such stratagems are assumed to be part of the legal game in India. Therefore, the law against perjury has hardly ever been invoked in India.

Section 406, to be invoked by the woman to file cases against her husband and in-laws for retrieval of her dowry prescribes imprisonment of upto three years for criminal breach of trust. Often, highly exaggerated or bogus claims are made by unscrupulous families who demand the return of more than was given as ‘stridhan’, using the draconian sections 498A and section 406 of the IPC as a bargaining tool.

Furthermore, another Section 304B was added to the IPC to deal with yet another new category of crime called “dowry death”. This section states that if the death of a woman is caused by burns or bodily injury, or occurs under abnormal circumstances, within seven years of her marriage and it is shown that just prior to her death she was subjected to cruelty by her husband or any relative of her husband, in connection with any demand for dowry, such a death would be called a “dowry death”, and the husband or relative would would be deemed to have caused her death. The burden of proof is shifted to the accused party. The basic spirit of Indian jurisprudence is that a person is presumed innocent till proven guilty. However, in all these cases the person is assumed guilty till proven innocent.

The person held guilty of a "dowry death" shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. By inserting a new section 113B in the Indian Evidence Act, the lawmakers stipulated that in cases that get registered by the police as those of “dowry death”, the court shall presume that the accused is guilty unless he can prove otherwise.

This is understandable in cases of death because the unnatural demise of a woman through suicide or murder is in itself proof that something was seriously wrong in the marriage. But problems arise when the same presumption applies to cases of domestic discord where the underlying cause of conflict is not necessarily the husband's violence, abuse or economic demands but due to the couple's inability to get along with each other.

The law was recast, heavily weighted in the woman’s favour, on the assumption that only genuinely aggrieved women would come forward to lodge complaints and that they would invariably tell the truth. In the process, however, the whole concept of due process of law had been overturned in these legal provisions dealing with domestic violence

With the police as well as lawyers encouraging female complainants to use this as a necessary ploy to implicate their marital families, making them believe that their complaint will not be taken seriously otherwise. It has become a distinct trend to include dowry demands in every complaint of domestic discord or cruelty, even when dowry was not an issue at all. This has created an erroneous impression that all of the violence in Indian homes is due to a growing greed for more dowry.

This tendency has received a further fillip with the enactment of 498 A, mentioning dowry demands seems to have become a common ritual in virtually all cases registered with the police or filed in court, misusing the provisions of sections 498A and 406. Even members of many women’s organisations themselves acknowledge such abuse. Things have come to this pass, not just due to police and judicial corruption/apathy but also because the laws, as they are currently framed, lend themselves to easy abuse.

All these amendments placed draconian powers in the hands of the police without adequate safeguards against the irresponsibility of the enforcement machinery. There are any number of cases coming to light where Section 498A has been used mainly as an instrument of blackmail. It lends itself to easy misuse as a tool for wreaking vengeance on entire families, because, under this section, it is available to the police to arrest anyone a married woman names as a tormentor in her complaint, as “cruelty" in marriage has been made a non-bailable offence. Thereafter, bail in such cases has been denied as a basic right.

This law has lent itself to gross abuse, because arresting and putting a person in jail, even before the trial has begun, amounts to pre-judging and punishing the accused without due process. Although a preliminary investigation is required after the registration of the F.I.R, in practice such complaints are registered, whether the charges are proved valid or not, and arrest warrants issued, without determining whether the concerned family is actually abusive, or they have been falsely implicated. Our laws do not recognise the possibility of daughters-in-law maltreating old in-laws or other vulnerable members of their husband's family.

There are any number of cases where the problem is mutual maladjustment of the couple rather than abuse by the entire joint family. However, a host of relatives, including elderly parents, who are not necessarily the cause of maladjustment, have all been arrested and put in jail for varying lengths of time before the trial begins. There have been several cases where judges have refused bail unless the accused family deposits a certain sum of money in the complainant’s name as a precondition to the grant of bail.

There have been of instances where the main point of discord between the couple was that the wife wanted the husband to leave his parent's home or an old widowed mother and set up a nuclear family. Since the man resisted this move, the wife used 498A as a bargaining device, without success though.

Indeed, there have been many cases where the woman uses the strict provisions of 498A in the hope of enhancing her bargaining position vis a vis her husband and in-laws. Her lawyers often encourage her in the misguided belief that her husband would be so intimidated that he will be ready to concede all her demands. However, once a family has been sent to jail even for a day, they are so paranoid that they refuse to consider a reconciliation under any circumstances, pushing instead for divorce, then they are in a fight to the finish. Thus, many a woman ends up with a divorce she didn’t want and with weaker, rather than strengthened, terms of bargaining.

Often, these highly exaggerated or bogus claims made by unscrupulous wives and her family fail to stand scrutiny and many cases do not go far because the charges are so exaggerated that the cases fall through. In many instances, out-of-court settlements are made, by presenting, with mutual consent, a joint petition/ in the High Court u/s 482 Cr. P.C., using 498A as a bargaining point by the woman’s family. But this in itself amounts to using the law as a weapon of intimidation rather than a tool of justice defeating the letter, spirit and purpose of the law depriving the truly deserving cases of her legitimate dues....

Tuesday, September 18, 2007

Delhi High Court Judgement 406/498A (Savitri Devi Vs. Ramesh Chand and Ors.)

IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CRL. R 462/2002

19.05.2003

DATE OF DECISION: May 19, 2003
Savitri Devi .............Petitioner.
Through Mr. H C Mittal,Adv.


Versus

Ramesh Chand and Ors. ............Respondents
Through Mr. R P Bhardwaj, Adv.
CORAM:-
HON'BLE MR. JUSTICE J.D. KAPOOR
1.Whether Reporters of local papers may be allowed to see the judgment ?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in Digest ?


J.D. KAPOOR, J:

1.Though State has the locus standi to prefer such petitions, since petitioner is the wife and on her complaint case was registered and charge sheet was filed, and has grievance against the order dated 13.3.2002 passed by Ms. Nisha Saxena, Metropolitan
Magistrate this is being entertained.
2. Vide impugned order charge for the offence punishable under Section 406 IPC for misappropriation of dowry articles and istridhan was framed against her husband only and her father-in-law, brothers-in-law and sister-in-law (wife of of one of the brothe
rs of her husband) and her unmarried sister-in-law were discharged and charge for the offence under Section 498 A IPC i.e. harassment of the wife by the husband and his relatives for inadequate dowry or non-fulfillment of demands of dowry was framed agai
st the husband and father-in-law alone. According to the petitioner/wife, every member of the family though the elder brother of the husband died during the proceedings should have been subjected to trial for both the offences viz offence under Section
498A IPC as well as 406 IPC.
3.The allegations in brief are that after marriage her in-laws specially her father-in-law and her husband and the brother-in-law did not like the dowry articles and expressed their unhappiness that they were not given Hero Honda and cash of Rs.50,000/-.
The wife of elder brother of her husband Ms. Mukesh and the sister of her husband did not like the clothes given for them and Ms. Mukesh represented that if Sanjay had married her younger sister then he would have got more dowry. The main allegations
f harassment were against the husband and father-in-law. There were no allegations of demand of dowry against other relatives.
4. The main contention of the learned counsel for the petitioner is that non-acceptance of the gifts by respondents and others tantamount to harassment and cruelty as defined in Section 498A IPC.
5. Section 498A IPC provides as under :-
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, "crruelty " 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 her su

6. A bare perusal shows that the word `cruelty' encompasses any of the following elements :-
(i) Any `wilful' conduct which is of such a nature as is likely to drive the woman to commit suicide; or
(ii) any `wilful' conduct which is likely to cause grave injury to the woman; or
(iii) any `wilful' act which is likely to cause danger to life, limb or health whether physical or mental of the woman.
7. So far as criminality attached to word `harassment' is concerned, it is independent, of `cruelty' and is punishable in the following circumstances:-
(a) Where the harassment of the woman 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
(b) Where the harassment is on account of failure by her or any persons related to her to meet such demand.
8.It is apparent, neither every cruelty nor every harassment has element of criminal culpability for the purposes of Section 498-A. There is no problem where there is physical violence and infliction of injury which is likely to cause grave injury or da
nger to life, limb or health. In such cases, facts will speak for themselves. We have adopted this defintion from English Law though for the purpose of divorce on the ground of cruelty, Indian Law defines it as a conduct as to cause a reasonable appr
hension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party. Element that cruelty should be of such nature as to cause `danger' to life, limb or health or as to give rise to reasonable ap
rehension of such a danger does not exist in Indian Laws of Divorce. This ingredient is of much sterner and higher degree. Supreme Court in Dr.N.G.Dastane Vs. Mrs.S.Dastane (1975) 2 SCC 326 has referred to this aspect of `cruelty' like this:-
ry, as under the English law, that the cruelty must be of such a character as to cause `danger' to life, limb or health or as to give rise to a reasonable apprehension of such a danger. Clearly danger to life, limb or health or a reasonable apprehensio

9. It would also be unwise for me to categorize specific acts or conduct which are capable of amounting to cruelty as such categorization cannot be put in strait jacket mould. In this regard, I am reminded of words of wisdom of LORD TUCKER who said :-
cial pronouncement to create certain categories of acts or conduct as having or lacking the nature or quality which render them capable or incapable in all circumstances of amounting to cruelty in cases where no physical violence is averred. Every such
ct must be judged in relation to its surrounding circumstances, and the physical or mental condition or susceptibilities of the innocent spouse, the intention of the offending spouse, and the offender's knowledge of the actual or probable effect of his c
nduct on the other's health are all matters which may be decisive in determining on which side of the line a particular act or course of conduct lies. It is, generally speaking, not possible to compartment acts for the purposes of relevance as being gro
s so as to constitute cruelty or less gross so as not to constitute cruelty, though there may be extreme cases where the acts in themselves are so trivial as to justify dismissal of an action for lack of relevance without proof. It is with regard to the
(Jamieson Vs. Jamieson (1952) 1 All E R 875)
10. When analysis of such human sensibilities, affairs and conduct is under discussion, I would be failing if I don't quote Lord Denning, a celebrated and legendary Judge of this century. Lord Denning says :-

When there is no intent to injure, they are not to be regarded as cruelty unless they are plainly and distinctly proved to cause injury to health......when the conduct does not consist of direct action against the other, but only of misconduct indirec
ly affecting him or her, such as drunkenness, gambling, or crime, then it can only properly be said to be aimed at the other when it is done, not only for the gratification of the selfish desires of the one who does it, but also in some part with an inte
tion to injure the other or to inflict misery on him or her. Such an intention may readily be inferred from the fact that it is the natural consequence of his conduct, especially when the one spouse knows, or it has already been brought to his notice, w
at the consequences will be, and nevertheless he does it, careless and indifferent whether it distresses the other spouse or not. The court is, however not bound to draw the inference. The presumption that a person intends the natural consequences of h
s acts is one that may-not must-be drawn. If in all the circumstances it is not the correct inference, then it should not be drawn. In cases of this kind, if there is no desire to injure or inflict misery on the other, the conduct only becomes cruelty
(Kaslefsky Vs. Kaslefsky (1950) 2 All E R 398)
11. Supreme Court of India laid 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. It is not necessary to prove that the menta
cruelty is such as to cause injury to the health of the petitioner.
The word "cruelty" is to be used in relation to human conduct or human behavior. It is the conduct in relation or in respect of matrimonial duties and obligations. It is a course of conduct of one which is adversely affecting the other. The cru
elty may be mental or physical, intentional or unintentional. ""

12. In S.Hanumanta Rao Vs. S.Ramani 1999 (3) SCC 620, Supreme Court observed as under:-
13. Parameters of what constitutes cruelty in matrimonial affairs have been well carved out in American Jurisprudence 2nd edition Vol 24 page 206. These are:-
to a reasonable person or a person of average or normal sensibilities, but whether it would have that effect upon the aggrieved spouse. That which may be cruel to one person may be laughed off by another, and what may not be cruel to an individual und
14. Thus to ascertain marital cruelty though ordinarily whole series of acts or conduct should be weighed to infer cruelty yet an isolated act can lead to inference of cruelty if its gravity or seriousness is of such a magnitude that it is likely to cau
se grave injury to physical or mental health of victim spouse. Composite picture should be drawn as to the acts, incidents or conduct for ascertaining whether these amount to cruelty-physical or mental. Unless such kinds of physical or mental ill-t
eatments when taken together lead to the inference of persistent cruelty, charge of cruelty cannot stick.
15.Though intention to cause injury is not an essential ingredient regard may be had as to the actual intention or knowledge on the part of the offending spouse as to actual or probable effect whether it would cause injury to physical or mental health.
Again acts or conduct should be judged from the angle of a person possessing ordinary intellectual capabilities.
16.For the purpose of Section 498A IPC which is peculiar to Indian families victim spouse is always the `wife' and guilty is the husband and his relatives-near or distant, living together or separately. Ingredients of `cruelty' as contemplated under s
ection 498A are of much higher and sterner degree than the ordinary concept of cruelty applicable and available for the purposes of dissolution of marriage i.e. Divorce. In constituting `cruelty' contemplated by Section 498A IPC the acts or condu
t should be either such that may cause danger to life, limb
or health or cause `grave' injury or of such a degree that may drive a woman to commit suicide. Not only that such acts or conduct should be "wilful" i.e intentional. So to invoke provisions of Section 498A IPC the tests are of stringent nature and i
tention is the most essential factor. The only test is that acts or conduct of guilty party should have the sting or effect of causing grave injury to the woman or are likely to cause danger of life, limb or physical or mental health.. Further conduc
that is likely to drive the woman to commit suicide is of much graver nature than that causing grave injury or endangering life, limb or physical or mental health. It involves series of systematic, persistent and wilful acts perpetrated with a view
to make the life of the woman so burdensome or insupportable that she may be driven to commit suicide because of having been fed up with marital life.
17.Similarly offence of `harassment' is peculiar to Indian conditions and society where evil of dowry and its perpetuation through customary gifts or demands is widely prevalent and is eating the very vitals of matrimony and tearing familial social fabr
ic apart. To curb this evil, the acts of not only the husband but the entire household have been brought within the net of "harassment of a woman" if done to coerce her or her relatives to fulfill the unlawful demands for property or valuable securi
y.
18.The word `harassment' in ordinary sense means to torment a person subjecting him or her through constant interference or intimidation. If such tormentation is done with a view to `coerce' any person and in this case, the wife to do any unlawful act a
nd in this case to meet the unlawful demand of property or valuable security, it amounts to "harassment" as contemplated by Section 498-A. Word `Coercion' means pursuading or compelling a person to do something by using force or threats. Thus to const
tute "harassment" following ingredients are essential:-
(i) Woman should be tormented i.e. tortured either physically or mentally through constant interference or intimidation;
(ii) Such act should be with a view to pursuade or compel her to do something which she is legally or otherwise not expected to do by using force or threats;
(iii) Intention to subject the woman should be to compel or force her or her relatives to fulfill unlawful demands for any property or valuable security.
19.Only allegation against the respondents is that they did not like the clothes brought by the petitioner as customary gifts for relatives of the husband. One of the sisters-in-law remarked that had the marriage taken place with her sister, more dow
y would have been received. These allegations when tested on the anvil of aforesaid tests, do not make out a case of either `cruelty' or `harassment' as contemplated by section 498A IPC. Non-acceptance of gifts might have hurt her feelings and other r
marks might have been unkindly and incisive but by no stretch of imagination, such a conduct involves any of the ingredients of either offence under section 498A IPC or 406 IPC. Neither such an act or conduct has the effect of driving the woman to co
mit suicide nor of causing grave injury nor is likely to cause danger to life or limb nor did it amount to tormenting her either physically or mentally to compel or force her or her relatives to fulfill the demands of any property or valuable security.
For the foregoing reasons, the petition is highly misconceived and is being used as a tool to hold the entire household to ransom and jeopardy. Petition is dismissed.
20. It appears that the legislature was mindful of the fact and situation that this provision may be exploited that it defined `cruelty' and for that purpose "harassment" falling within the parameters of "intentional conduct'"of such a degre
that may either drive the woman to commit suicide or cause danger to life, limb or health or cause `grave' injury. Of course "health" means not only physical but mental also. But unfortunately, these provisions have been abused by the Investigati
g and Prosecuting Agencies and exploited by the women and their relatives to such an extent that these have proved to be most ineffective in curbing the evil of dowry as well as disciplining the husband and his relatives to treat the woman in human and
umane manner and give the bride or wife proper respect and honour.
21.Before parting, I feel constrained to comment upon the misuse of the provisions of Section 498A/406 IPC to such an extent that it is hitting at the foundation of marriage itself and has proved to be not so good for the health of the society at large.
To leave such a ticklish and complex aspect of proposition as to what constitutes `marital cruelty' and `harassment' to invoke the offences punishable under sections 498A/406 IPC to a lower functionaries of police like Sub Inspectors or Inspectors wh
reas some times even courts find it difficult to come to the safer conclusion is to give the tools in the hands of bad and unskilled masters.
22. This Court has dealt with thousands of cases and matters relating to dowry deaths and cases registered under Section 498A./406/306 IPC arising out of domestic violence, harassment of women on account of inadequate dowry or coercion of the woman fo
r not fulfilling the demand of dowry and hundred of divorce cases arising therefrom. Experience is not so happy nor is implementation or enforcement of these laws is anything but satisfactory or punctilious.
23.These provisions were though made with good intentions but the implementation has left a very bad taste and the move has been counter productive. There is a growing tendency amongst the women which is further perpetuated by their parents and relative
s to rope in each and every relative- including minors and even school going kids nearer or distant relatives and in some cases against every person of the family of the husband whether living away or in other town or abroad and married, unmarried siste
s, sister-in-laws, unmarried brothers, married uncles and in some cases grand-parents or as many as 10 to 15 or even more relatives of the husband. Once a complaint is lodged under Sections 498A/406 IPC whether there are vague, unspecific or exaggerate
allegations or there is no evidence of any physical or mental harm or injury inflicted upon woman that is likely to cause grave injury or danger to life, limb or health, it comes as an easy tool in the hands of Police and agencies like Crime Agains
Women Cell to hound them with the threat of arrest making them run here and there and force them to hide at their friends or relatives houses till they get anticipatory bail as the offence has been made cognizable and non-bailable. Thousands of such c
mplaints and cases are pending and are being lodged day in and day out.
24.These provisions have resulted into large number of divorce cases as when one member of the family is arrested and sent to jail without any immediate reprieve of bail, the chances of salvaging or surviving the marriage recede into background and ma
rriage for all practical purposes becomes dead. The aftermath of this is burdensome, insupportable and miserable more for the woman. Remarriage is not so easy. Once bitten is twice scared. Woman lacking in economic independence starts feeling as bu
den over their parents and brothers. Result is that major bulk of the marriages die in their infancy, several others in few years. The marriage ends as soon as a complaint is lodged and the cognizance is taken by the police.
25.It was primarily a social problem and social evil but has been allowed to be dealt with iron and heavy hands of the police. These provisions have tendency to destroy whole social fabric as power to arrest anybody by extending or determining the defini
tion of harassment or cruelty vests with the lower police functionaries and not with officers of higher rank who have intellectual capacity to deal with the subject.
26. For ages the cruelty, desertion and adultery have been ground for divorce which were to be proved in civil courts. Now the police and that too its lower functionaries have been made the decision making authority to conclude whether the harassment
or the cruelty as brought out in the statement of the complainant wife is sufficient to put all the relatives including school going minor brothers and sisters of the husband behind the bar. Such was neither the intention nor the object of the legislatio

27.It is rightly said sometimes the remedies are worse than the perils or disease. Having seen and experienced the enforcement of these laws for decades, time has come to take stock and review them as thousands of marriages have been sacrificed at the
altar of this provision. In one metropolis alone, thousands divorce cases arising from the cases under Section 498A/406 IPC are pending in Courts. There are equal or more number of marriages which are in limbo. What else is it if not a social cata
trophy ? This should be a matter of concern for social scientists, law-makers and Judges also. Sterner provisions have failed to make any dent. Menace and evil of dowry is still looming large. In the words of Supreme Court (Pawan Kumar's Case
AIR 1998 SC 958) in spite of stringent measures, sections of society are still boldly pursuing this chronic evil to fulfill their greedy desires..
28.It does not mean that the wolves mesquarding in the human flesh should be given a free hand. They should rather be dealt with iron hand. Again it is because of tendency to involve innocent persons that the Supreme Court has cautioned the court
29.To start with, marital offences under Sections 498A/406 IPC be made bailable , if no grave physical injury is inflicted and necessarily compoundable. If the parties decide to either settle their disputes amicably to salvage the marriage or decide
to put an end to their marriage by mutual divorce, they should be allowed to compound the offences so that criminal proceedings don't chase them if they want to start their marital life afresh or otherwise. The past should not haunt them nor the hat
het they have buried should be allowed to be dug up and mar their present life or future married life.
30.Lastly in view of sensitivity of such offences and in order to avoid clumsiness in human relations and viewing this problem from human and social point of view, and the law as it stands today it is required that the investigation into these offenc
es be vested in civil authorities like Executive Magistrates and after his finding as to the commission of the offence, cognizance should be taken. Till such a mechanism is evolved, no police officer below the rank of ACP for the offences under sect
on 498A/406 IPC and D.C.P for the offence under Section 304-B IPC i.e dowry death should be vested with investigation and where minor school going children are named, they shall not be arrested and be sent to the court for taking cognizance and fu
ther proceedings. Their arrest ruin their future life and lower them in their self esteem. This court has even dealt with the bail applications and prosecution of children merely for the fact that their names also figured in the complaint lodged by
the wife. In certain cases even grand-parents of the husband who are in their eighties and nineties suffer this traumatic situation.
31.There is growing tendency to come out with inflated and exaggerated allegations roping in each and every relation of the husband and if one of them happens to be of higher status or of vulnerable standing, he or she becomes an easy prey for better bar
gaining and blackmailing.
32. These ground realities have pursuaded this court to recommend to the authorities and law makers to have a review of the situation and legal provision.
33. Copy of the order be sent to Law Secretary, Union of India.
May 19 , 2003 J.D.KAPOOR
ssb JUDGE

Delhi High Court Judgement 406/498A ( Not to summon the person listed in colum 2 of chargesheet)

IN THE HIGH COURT OF DELHI AT NEW DELHI
Unreportable

Crl.M.C. No. 924 of 2005

02.05.2007
Pronounced on : May 02, 2007


Atma Ram Singhal and Ors. .....Petitioners

through: Ms. Purnima Maheshwari, Advocate


VERSUS

State and Anr.
.....Respondents



through: Mr. Ajay K. Agrawal with
Ms. Alka Agrawal and
Ms. Anamika Agrawal, Advocates
for the respondent No.2.

CORAM :-
THE HON'BLE MR.JUSTICE A.K.SIKRI

1. Whether Reporters of Local papers may be allowed to see the Judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?


A.K. SIKRI, J.
1.The respondent No.2 is the complainant, who lodged complaint under Section
498-A/406 of the Indian Penal Code (for short, 'IPC') against her husband Anil
Singhal as well as other relations. This complaint was made to the ACP, Crime
Against Women (CAW) Cell, Pitampura. Thereafter, an FIR was registered.
Police, after investigation, filed challan under Section 173 of the Code of
Criminal Procedure (for short, 'Cr.P.C.'). Names of the petitioners herein were
put in Column No.2 in the said charge sheet. Complainant's husband, father-in-
law and mother-in-law were shown as main accused. The relation of these
petitioners, who were put in Column No.2, with the complainant's husband is as
under :-
Petitioner No.1
?
Uncle (chacha) of the complainant's husband
Petitioner No.2
?
Son of the petitioner No.1
Petitioner No.3
?
Another uncle of the complainant's husband
Petitioner No.4
?
Wife of the petitioner No.3
Petitioner No.5
?
Daughter of the petitioner No.3
Petitioner No.6
?
Son of the petitioner No.3
Petitioner No.7
?
Another uncle of the complainant's husband

2.After the filing of the charge sheet, the learned MM chose to summon all these
petitioners, who were shown as accused in Column No.2, by passing the following
order :-
?Present: APP for the State.
Accused present on bail.

IO SI Bhagwan Dass present. SI Bhagwan Dass has given his explanation.
I am not satisfied with the explanation given by him in respect of this specific
allegation made in the complaint itself. In these circumstances, as there are
sufficient grounds to proceed against the accused shown at column no.2 they be
summoned on 29.10.04.



Sd/-
MM/Delhi
30.6.04.?
The petitioners, feeling aggrieved against this summoning order, filed
criminal revision before the learned ASJ, which has been dismissed by the
learned ASJ vide order dated 19.2.2005. Challenging this order, the present
petition is filed under Section 482 Cr.P.C.

3.It is stated in this petition that Anil Singhal was married to the complainant
on 31.1.1996 according to Hindu rites and ceremonies in Delhi. The complainant,
after the marriage, initially lived for about 10-15 days at the house of the
parents of Anil Singhal, but as she was not happy to live in the joint family,
day to day fights started and the complainant also left the matrimonial house.
The parents of the husband separated the couple for all purposes to maintain
cordial relations. The complainant and her husband started living in a rental
accommodation at Sector-IX, Rohini. The complainant at that time took all her
belongings with her to her rental house. The husband also started his own
independent business under the name and style of 'Geetanjali Enterprises' at
Rani Bagh, Delhi. The couple lived together for about one year in the said
rental house and a child was also born. However, due to interference from the
parents of the complainant, the married life of the couple was not cordial and
frequent fights occurred. The couple also shifted to another house in Rohini
only and where the complainant gave birth to the second child. Meanwhile,
because of his business, the husband took a house on rent in Ahmedabad. He
wanted to shift to Ahmedabad permanently. The complainant was not interested
and refused to do so on one pretext or other. However, she kept visiting
Ahmedabad. Subsequently, the complainant filed the present complaint in CAW
Cell and FIR was registered.

4.On the basis of the aforesaid averments in the petition, it is the case of the
petitioners that order of the trial court dated 30.6.2004 is passed on
conjectures and without giving any cogent reasons for summoning the petitioners.
The order passed is not a speaking order inasmuch as the 'explanation' given by
the Investigating Officer to the purported allegations has not been brought in
the impugned order. It is further submitted that the Police had filed the charge
sheet after proper investigation and recording the statement of various
independent witnesses, who had stated that the complainant had shifted out of
the matrimonial house within 10-15 days of marriage and they never lived with
the petitioners thereafter. Statements of witnesses were also enclosed along
with the report filed by the Investigating Officer under Section 173 Cr.P.C. It
is also the case of the petitioners that all the petitioners were living
separately and just after the marriage even the couple started living away from
the vicinity of Rohini and all these factors are not even considered by the
learned trial court. It is also pointed out that the petitioners, who are
uncles of the complainant's husband and their family members, have got nothing
to do with the parents of complainant's husband and all are staying separately.
The petitioners also say that during the pendency of the case, the parties had
even arrived at settlement, as per which it was agreed that the husband would
get a decree of divorce by mutual consent and this settlement dated 26.3.2003
was signed by the complainant and her husband. Further, all the dowry articles
and stridhan of the complainant were recovered from the own possession of the
complainant either from her account in the banks and she had taken away all
her stridhan/dowry articles and other household articles etc.,
which fact was specifically taken note of in the report of the Investigating
Officer, but ignored by the learned MM.



5.It may be noted that the revision petition was filed even by the father-in-law
and mother-in-law, along with the present petitioners, which was dismissed by
the learned ASJ. However, the mother-in-law and the father-in-law of the
complainant have not joined these proceedings. Perusal of the order passed by
the learned ASJ would show that after taking note of the argument of the
petitioners that the learned MM passed the order without application of mind,
which is not as per the report prepared by the Police under Section 173 of the
Cr.P.C. This argument was brushed aside only on the ground that the Magistrate
had the power to summon even those persons whose names are placed in Column No.2
and case law is cited in support thereof. There may not be any quarrel with
this abstract proposition of law. Power of the learned MM is not in dispute.
It is the manner in which the said power is exercised was challenged. But there
is no answer to the argument that the impugned order was without application of
mind, having regard to the report of the Police under Section 173 Cr.P.C.

6.Undoubtedly, the learned MM is not to act mechanically on the basis of the
report filed by the Investigating Officer under Section 173 of the Cr.P.C. and
has to apply his own mind. He may refuse to summon any of the persons named in
the charge sheet. On the other hand, if he finds that there is prima facie
evidence against those whose names are mentioned in Column No.2, he may even
summon them along with others. However, what is important is that there should
be depiction of application of mind in the order passed. More so, when as per
the report of the Investigating Officer there is nothing against a particular
person but the MM still wants to summon him. The learned ASJ, apart from
stating the legal position to the effect that the Magistrate had the necessary
power and dismissing the revision petition on that ground, did not deal with the
argument of the petitioners herein to the effect that the order of the trial
court was non-speaking order and even a semblance of reason was not recorded as
to what were the considerations which persuaded the learned trial court to
summon these petitioners, notwithstanding the fact that their names appear in
Column No.2.

7.Section 173 Cr.P.C. prescribed that whenever a final report under that
provision is filed for consideration by the Magistrate, it gives rise to two
situations. Firstly, that the report may conclude that the offence appears to
have been committed by a particular person or persons. Secondly, that in the
opinion of the officer-in-charge no offence appears to have been committed. In
the former case, i.e. where the report discloses the commission of an offence,
three courses are open to the Magistrate viz. (a) he may accept the report and
take cognizance of the offence and issue process; (b) he may disagree with the
report and drop the proceedings; and (c) he may direct further investigation.
Coming to the latter case where the report states that no offence appears to
have been committed, the Magistrate has again three choices: (a) he may accept
the report and drop the proceedings; (b) he may disagree with the report and
take the view that there is sufficient grond to for proceeding further, take
cognizance of the offence and issue process; and (c) he may direct further
investigation to be made by the police.

8.Thus, there is no doubt that even if the report discloses that no offence
appears to have been committed, the Magistrate may disagree with the report and
take a view that there is sufficient ground for proceeding further, take
cognizance of the offence and issue process. However, the question to be
determined is as to when the MM decides to issue the process, notwithstanding
the observations of the Investigating Officer; is he to indicate some reasons
and reflect his thought process in the order as to why he is taking such a
course.



9.When the cancellation report is filed, the complainant is given an opportunity
to submit his objections to the said report. On receipt of the objections and
hearing the complainant, the Magistrate is required to apply his mind and to
consider as to whether the report is to be accepted or not. However, in case
the Magistrate decides to proceed further and orders summoning the accused, it
is incumbent upon him to deal with the conclusion of the report instead of
dismissing the same brusquely. This is so held by this Court in the case of
Ajay Khandelwal v. State and Anr., 2003 (6) AD (Del) 485.

10.In the present case, the impugned order does not show any such consideration
bestowed by the learned Magistrate. He has simply stated that he was not
satisfied with the explanation given by the Investigating Officer in respect of
?this specific allegation made in the complaint itself?. What is the 'specific'
allegation contained in the complaint to which the learned Magistrate was
referring to and what was the 'explanation' which the Investigating Officer had
tendered, which was not to the satisfaction of the learned MM, is not spelled
out in the impugned order. No doubt, at this stage, while issuing the process,
the learned MM is not required to give detailed reasons. However, when the
report under Section 173 Cr.P.C. states that it appears that no case is made
out, it is the duty of the Magistrate to at least indicate his mind as to why he
still wanted to proceed in the matter and summon the accused persons.

11.In the present case, the petitioners are put in Column No.2. The summoning
of the accused is a serious matter and, therefore, they are entitled to at least
know as to why, in the face of such a report, the learned MM still wanted to
proceed against them.

12.This petition is, accordingly, allowed and the summoning order dated
30.6.2004 is set aside. The matter is remitted back to the learned Metropolitan
Magistrate to consider the same afresh and pass appropriate orders. Trial court
record be sent back immediately.


(A.K. SIKRI)
JUDGE
May 02, 2007
nsk

High court judgement on lie/unclean hands

The citation references are as under:-

1. AIR 2004 DELHI 323 "Radhika v. Vineet Rungta"
2. AIR 2003 BOMBAY 273 "Anita Krishnakumar Kachba v. K. R.
Kachba"
3. B. N. Samiulla vs Madina Begum and Another [KARNATAKA HIGH
COURT] COULD NOT LOCATE
4. AIR 2000 BOMBAY 345 "Ila Vipin Pandya v. Smita Ambalal
Patel"
5. AIR 2000 GUJARAT 232 "Kalaben Kalabhai Desai v. Alabhai
Karamshibhai Desai"
6. Rankanidhi Behera vs Jayanti Sahoo and Others [ORISSA HIGH
COURT] COULD NOT LOCATE
7. AIR 1998 KARNATAKA 389 "Narasimhasetty v. Padmasetty (FB)"
8. Gopinath Nayak vs Smt. Rinu Nayak [ORISSA HIGH COURT] COULD
NOT LOCATE
9. AIR 1993 HIMACHAL PRADESH 1 "Nirmala Devi v. Ved Prakash"
10. AIR 1987 DELHI 210 "Shahina Praveen v. Mohd. Shakeel"
11. AIR 1977 DELHI 24 "Vinod Chandra v. Aruna"
12. Pettitt vs Pettitt [COURT OF APPEAL] COULD NOT LOCATE