False character assassination, False case, threat to life etc all amounts to Cruelty

IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: October 03, 2016 Judgment Delivered on: October 07, 2016 MAT.APP.(F.C.) 63/2016
SANTOSH SAHAY ..... Appellant
Represented by: Mr.A.K.Sharma & Mr.C.M. Sharma, Advocates.
versus
HANUMAN SAHAY ..... Respondent
Represented by: Mr.Arunav Tiwari, Advocate with respondent in person.
CORAM:
HON’BLE MR. JUSTICE PRADEEP NANDRAJOG HON’BLE MS. JUSTICE PRATIBHA RANI PRATIBHA RANI, J.
1. The appellant/wife is in appeal impugning the judgment and decree dated January 30, 2016 whereby the respondent/husband has been granted a decree of divorce on the ground of cruelty. For the sake of convenience we shall be referring the parties as ‘the wife’ and ‘the husband’.
2. HMA Petition No.73/10 (Old No.402/07) was filed by the husband seeking dissolution of marriage with the respondent on the ground of cruelty and desertion. The status of the parties at the time of marriage as pleaded in para 2 of the divorce petition was as under:
(i) Husband – 23 years – Hindu Bachelor
(ii) Wife – 18 years – Virgin
3. The marriage was consummated. The couple was blessed with two sons – elder one born on July 12, 2003 and younger one born on September 09, 2005.
4. It was an arranged marriage. The husband was belonging to a family of farmers though employed as teacher in Rajasthan. The father of the wife was a Government servant. As per the husband the wife was not comfortable leading a rural life in the village. When the husband got selected as a teacher in Delhi after one year of marriage, he brought his wife to Delhi. There were some temperamental differences between the husband and wife and of the wife with her in-laws. As per the husband the wife used to disrespect the guests visiting them and was not even preparing tea for them. His wife was indulged in some tantrik activities and performing ‘Tantrik Kriya’ which terrified him. She also used to light a diya during midnight and perform puja. She also put clove, cardamom and beetle nut under his pillow cover. The wife also used to tie half baked bread smeared with vermilion on her belly, prepare a effigy of flour and used to insert the iron nail (keel) in it and immerse it in Yamuna river. She made an attempt to strangulate him with her hands. She also used to avoid physical relations. Though he tried to make her understand the need to satisfy the sexual desires, she did not pay any heed and continued avoiding him. Not only that, she also accused him of having illicit relationship with

another lady. The husband has also pleaded that he is a non-smoker a teetotaller but he was defamed by her as an alcoholic and womanizer. This adversely affected his reputation in the family so much so that he even thought of committing suicide. The averments made in para 46 of the petition refer to the incident where after the wife left the matrimonial home, are extracted hereunder:
’46. That from that day the Petitioner had the sleepless night, the petitioner was always worried about his sons and their life. The petitioner never had sleep after that day. The respondent again one day when petitioner was sleeping came and again tried to strangulate him. The respondent was as if she was under some evil spell, taking the knife in her hand she tried to kill the petitioner. It was midnight time; the petitioner after getting rid of her went out of his house and keeps on roaming in the street like a mad whole night. The bad thoughts about his sons keep on haunting the Petitioner whole night. The petitioner after mustering up some courage and believing god went back to his house in the morning but to his shock and his dismay, the respondent was gone with his both son. That when enquired from the neighbours it transpired that the Respondent without informing anybody with her bag and baggage.’
5. The husband sought divorce on the ground of cruelty and desertion.
6. In the written statement the wife denied all the instances of cruelty and desertion alleged in the divorce petition. She pleaded that her husband was not a bachelor at the time of his marriage with her. His first wife committed suicide by jumping into the well because of the harassment and torture caused to her. After her marriage she was also severely beaten by her father-in-law Sh.Ram Sahay and brothers-in-law Sh.Ranjeet, Sh.Parbhas Dayal, Sh.Ram Gopal and Sh.Ram Babu. She also claimed that she was harassed on non-fulfilment of the dowry demand. While pleading that the parties were having normal conjugal relationship till the period March 28, 2007 to June 18, 2007, when the husband had gone to attend the marriage of her sister on June 19, 2007 at Alwar, Rajasthan, he returned without attending the marriage.
7. While raising preliminary objection about the maintainability of the divorce petition but admitting relationship of husband and wife between the parties, the wife pleaded it to be a case of she being harassed on account of dowry demand. She also pleaded that the husband had relations with other women. He always came late at night in drunken state and did not share bed with her in the same room for sleeping at night and had been neglecting not only her but also his matrimonial obligations.
8. While the husband examined himself as PW1 he also produced two more witnesses as PW2 – Kishan Lal and PW3 – Bhagwan Dass who visited them and were insulted by his wife.
9. The wife examined herself as RW1.
10. After considering the evidence adduced by the parties, learned Judge, Family Court dismissed the divorce petition on the ground of desertion for the reason that the divorce petition was filed before expiry of statutory period of two years from the date of desertion.
11. On the ground of cruelty, learned Judge, Family Court concluded as under:
(i) The allegations regarding demands of dowry by the wife are general, vague and ambiguous.
(ii) There was no evidence of her husband being earlier married or the wife committing suicide on account of dowry demand.
(iii) The wife has tarnished the reputation of the husband by assassinating his character that he was having relationship with a school teacher.

12. Written submissions running into 13 pages have been filed by the learned counsel for the appellant, major part of which refer to the pleadings in the divorce petition. The contentions raised in the written submissions to disprove cruelty by the wife can be noted as under:
(i) The husband was under graduate at the time of marriage. The fact that he not only completed his graduation but also got a Government job after one year of marriage reflects that the wife provided a peaceful and healthy environment at home.
(ii) The persons who were allegedly defamed or insulted by the wife have not been examined and even PW2 and PW3 did not depose about any rumour being heard by them which had the effect of adversely affecting the character of the husband.
(iii) The wife is only 8th Class pass and there is no question of she getting any job in place of her husband if something goes wrong with him.
(iv) Birth of two children out of this wedlock indicates her dedication and love for the husband.
(v) The allegation against her of making long calls from PCO on the false pretext, that she was calling her family, has not been established.
(vi) Name of the Tantrik who performed the puja is not disclosed.
(vii) No complaint was made to the police when the husband was allegedly tried to be strangulated by her.
(viii) She always expressed her desire to live with the husband which has not been considered by the Family Court.
(ix) The legal recourse taken by her by filing petition under Section 125 Cr.P.C. and FIR No.901/07 under Section 498A/406/34 IPC at PS Uttam Nagar against the husband and his family does not amount to cruelty.
13. Before dealing with the contentions raised on behalf of the wife we would like to note that in the written statement filed on August 23, 2007 by the wife she had made various defamatory allegations against the husband especially in preliminary objection No.5 which reads as under:
‘That the petitioner is a teacher and he has the relation with other women and he always came late at night with drinking condition and he was not shared, the room for sleeping at night and thus, the respondent has neglecting from the matrimonial relation as husband and wife, hence, this present petition is liable to be dismissed with cost.’
14. Thereafter in FIR No.901/07 under Section 498A/406/34 IPC, registered on December 07, 2007 at PS Uttam Nagar, apart from making allegations of she being harassed and tortured on account of dowry demand, without referring the month/year even by approximation she pleaded of being compelled to bring `50,000 from her parents for purpose of arranging a job for the husband. She apprised her parents about the physical and mental torture and the beatings given by her father-in-law as well younger brothers of her husband, she being dragged out of the house and again given beating by kicking and hitting with fist and blows. She talked to her father who sent `50,000 through her Fufa – Sh.Madan Lal and thereafter she was kept well for a few days. The FIR further reads as under:
‘mere pati Hanuman Sahay sarkari school mein master ki naukri par lag gaye hain. Jo kuch baad hi ek aurat jo mere pati ke school mein teacher hai ko ghar par laaye aure mujhe batlaya ki yeh meri dharma ki behan hai lekin 3⁄4 mah baad hi uske avaid sambandh sthapit kar liye aur

ab mujhe tatha mere bachhon ko beghar karke nikalna chahta hai. Mere pita ji biradari ke paanch-saat logon ko le kar iske paas (pati ke paas) aaye aur samjhane ki koshish ki jis par Hanuman Sahay (pati) ne kaha ki main to dusari aurat rakhunga. Jo chahe kar lo. Aap se anurodh prarthna hai ki meri shikayat par uchit karyavahi kar ke mera jeevan surakshit kiya jaaye.’
15. Perusal of the LCR shows that when the wife left the matrimonial house, both the children were left with the father. Thereafter one child was taken away by the wife. In MAT Appeal No.10/2012 filed by the husband the order dated February 09, 2012 passed by this Court records his concern as father for the child Yash who was taken by the wife to the village. He was studying in Air Force School at Palam, Delhi. The said order reads as under:
‘the only grievance of the appellant is that the child is studying in a village and he wants that the child should study in Air Force School at Palam, Delhi where he was earlier studying. The appellant/husband has also agreed to bear the school expenses of the child apart from maintenance of `6,000/- which he is already paying to the respondent/wife.
He has also stated that he has no objection if the respondent/wife continues to stay in the house of the appellant at Mohan Garden, Uttam Nagar, where she was earlier residing. The learned counsel for appellant has stated that appellant has no objection if custody of child remains with respondent/wife as is ordered by Ld. Trial Court. The respondent is present in person. The counsel for respondent, after taking instructions from her, has stated that the respondent has no objection and has agreed that she will bring the child Yash in Delhi and she has also no objection in staying in the aforesaid accommodation and also sending the child to the Air Force School as per wish of appellant/husband. Appellant/husband has agreed that it will be his responsibility to get the child admitted in the said school.’
16. It is an admitted fact, recorded by the Family Court, in the order on application under Section 24 of the Hindu Marriage Act, 1955 that the house which was purchased by the husband in Delhi is in use and occupation by the wife since beginning and it is the husband who is residing in a rented accommodation. Thus the allegation made by the wife that he intended to dispossess them from the house, which was purchased by the husband by availing loan facility, is contrary to the factual situation noted in the two orders (i) by the Family Court while disposing of an application under Section 24 of the Hindu Marriage Act, 1955; and (ii) by this Court in MAT Appeal No.10/2012.
17. Testimony of PW2 and PW3 proved that when they visited the house of the appellant, they had to face insult and humiliation at the hands of the wife. They were produced by the husband not to prove that his character has been assassinated but to bring on record the conduct of his wife even with the guests visiting their house.
18. So far as character assassination of the husband is concerned, it is a matter of record that such accusations have been made not only in the written statement filed on August 23, 2007 but also thereafter in the FIR registered on December 07, 2007. It may be relevant to refer here that after taking the plea in the written statement that the husband is not only a drunkard but also lives in adultery and failed to perform matrimonial obligations, she pleaded of being harassed after the marriage and physically assaulted for not meeting the dowry demands. The written submissions are just contrary to that. Wherein she projected herself to be a good wife providing right kind of environment to the husband for study and preparing for competition for government job, she could not have done so had she been harassed and physically tortured on above grounds. It may be relevant to mention here that the marriage was solemnised on May 01, 2001 and FIR making such types of allegations was lodged on December 07, 2007, almost after a period of six and a half years of marriage.
19. The averment made in the written statement that the husband and in- laws tried/threatened 

to set her on fire by pouring kerosene oil on her is conspicuously absent in the FIR. Making such type of accusations in the written statement in itself amounts to causing mental cruelty to the husband especially when his entire family has been blamed for giving beatings on non-fulfilment of the dowry demand. The wife has not examined either her father or her Fufa to establish that the alleged demand of `50,000 was fulfilled for arranging a job for the husband nor this fact is pleaded in the written statement. It is a matter of record that he got the job on merits. The husband has education to her sons in a reputed school in Delhi even after the wife left him and continue doing so even after litigation started. Even if all the pleas by the wife are considered to be proved, she could not establish herself to be a victim of matrimonial offence.
20. With a view to examine the correctness of the finding returned by the learned Judge, Family Court that the husband was subjected to cruelty, we have re-appreciated the entire evidence. First of all we may note that plea of the wife that her husband was already married and his first wife committed suicide by jumping into a well, which was concealed at the time of her marriage to the respondent, has not been substantiated by any material – oral or documentary. Suffice it to note here that a case of unnatural death of young bride and that too in a village can never be kept a secret. Such type of unnatural deaths invite penal action. We restrict our discussion only on the under mentioned four grounds for the reason if these grounds are substantiated by the respondent/husband, we need not delve any further:- (1) The wife insulting and humiliating not only the husband and in-laws but also the guests visiting their house.
Apart from the version of PW-1 – the husband, PW-2, Kishan Lal has also stated that on his visit to the house of the parties whenever the appellant/wife was asked to prepare tea, she used to abuse without caring for the presence of the guests. PW-3, Bhagwan Dass visited the house of the parties on the occasion of the birth of their younger son. He has also stated that without bothering for the presence of other guests the wife was abusing the husband that he had not properly invited her parental family. (2) Assassinating the character of the husband as leading an adulterous life and projecting him as drunkard.
Not only in the written statement filed on August 23, 2007 but also in the FIR registered on December 07, 2007 the husband has been accused of having illicit relationship. However, neither in the written statement nor during cross-examination of PW-1 the name of the lady has been disclosed. It may be noted that in the written statement the illicit relationship was stated to be with some women but in the FIR the lady was referred to be a teacher in the same school without disclosing her name. No evidence was led by the respondent/wife to bring on record that some lady was living in the same house along with them as his ‘Dharam Behan’ or that after 3-4 months her husband established illicit relationship with her. She has not led any evidence in support of these allegations or confronted the husband during his cross- examination Legal position is well settled that making of allegations against the spouse assassinating his character amounts to mental cruelty. In the decision reported as (2003) 3SCR 607, Vijaykumar Ramchandra Bhate Vs. Neela Vijaykumar Bhate, the allegations of unchasity and extramarital relations were made by the husband against the wife. The Supreme Court considered it to be constituting mental cruelty and held as under:
‘Levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extra-marital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife.
Such aspersions of perfidiousness attributed to the wife, viewed in context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law has also come

to be firmly laid down by the Supreme Court.’ In the instant case the spouse making such allegations is wife who has branded her husband as a drunkard and leading an adulterous life. The effect of such allegations on the state of mind of the husband is reflected in para No.44 of the divorce petition. The husband has pleaded that he felt like committing suicide when his wife made such type of accusations despite he being a non-smoker and teetotaller but desisted for the sake of his son. (3) Accusing the husband and his entire family of treating the wife with physical and mental cruelty on non-fulfilment of the dowry demand.
The marriage between the parties was solemnized on May 01, 2001. For more than six and a half years they lived together initially at his native place, then in Delhi. There was no averment in the written statement of any specific dowry demand being fulfilled. For the first time at the stage of registration of FIR in December, 2007 the allegations were made of fulfilment of the demand of Rs.50,000 to arrange a job for the husband and the money being sent by her father through her uncle (Fufa) Sh. Madan Lal, without even specifying the month/year of meeting the demand. The husband has qualified SSB just after one year of the marriage and is employed as a teacher in MCD school. This shows that he has qualified the competitive examination and got selected on merits. Absence of any such pleading in the written statement filed just four months prior to the registration of FIR is indicative of the falsity of such allegations. We are not informed about the fate of the investigation in the above FIR No. and whether the trial has been concluded or not. In this case we are dealing with the matrimonial offence which is required to be proved on probability and not on the standard of ‘proof beyond reasonable doubt’ as required in a criminal trial. We have drawn the above inference on the basis of averments made in the written statement dated August 23, 2007 and in the FIR dated December 07, 2007.
(4) Performing ‘Tantrik Kriyas‘ through a Tantrik and herself, the acts under the evil spell i.e. attempt being made on the life of the husband repeatedly to strangulate him and attack him with a knife.
In para Nos.38 and 39 of the divorce petition the husband had pleaded about the ‘Tantrik Kriyas’ being performed by the wife through Tantrik as well herself. In para No.45 of the petition the husband has pleaded that one night his wife tried to strangulate him which filled him with terror and shock. In para No.46 of the petition he again pleaded that he was spending sleepless nights worrying about his life and of his son. Another attempt made on his life by his wife was also by trying to strangulate him. His wife appeared to be under some evil spell and was having the knife in her hand at mid-night. He got out of the house and kept roaming on the street, feeling haunted. In the morning when he returned he found his wife missing with both the sons. He informed the incident telephonically to his father-in-law.
21. In the written statement the above averments have been simply denied by the wife.
22. We do not want to delve about motive behind such ‘Tantrik Kriyas’ or the intention behind keeping clove, cardamom and beetle nut under his pillow cover. The question to be decided is whether such acts by the wife constitute mental cruelty. A detailed analysis is available in a well reasoned decision reported as AIR 1961 P&H 125 P.L.Sayal Vs. Smt.Sarla Rani, in which numerous decisions have been cited and discussed on this subject. In the above noted case, it was conceded by the wife that some kind of magical charm or tawij or potion was administered by her to the petitioner/husband sometime in the end of 1951. Thereafter, the husband became ill. Apart from nervous breakdown he suffered various other complications. This was pleaded as an act of cruelty to seek judicial separation under Section 10 of Hindu Marriage Act, 1955. The petition was dismissed and impugned in appeal bearing FAO No. 72-D/1957 (decided on September 22, 1960).

  

23. The question for determination in the appeal was whether the above act of the wife constitutes such cruelty as to cause a reasonable apprehension in the mind of the husband that it was harmful or injurious for him to live with her. While deliberating on the above subject it was held:-
‘6. Considering the state of mind, the status and the prevailing notions of the strata of society to which the parties belong, the conclusion appears to be irresistible that a state of tension exists between the husband and the wife and the husband, at any rate, is afraid of living with his wife lest such a thing should happen again. Admittedly, the parties are not living together and their marital life has ceased to exist from 1953. It is to be seen in this context whether the conduct of which the petitioner complains comes within the ambit of legal cruelty according to the meaning attached to this word by eminent authorities.
xxxxxx
11. In my judgment, the crucial point to determine is whether there is reasonable apprehension in the mind of the petitioner of a similar act from his spouse in future. The evidence in this case leaves no doubt in my mind about the reality of this fear in the mind of the petitioner. I also think that the fear in the mind of the petitioner, in the context and circumstances of this case, is not groundless and is based on the instinct of self- preservation. He has suffered a great deal from the hands of an ignorant wife and no amount of repentance can undo the wrong that has been wrought. In this situation and state of affairs, it would be futile to expect the petitioner and the respondent to live a normal married life again and it would be a plain denial of justice to keep them within the bonds of marriage.’
24. Reverting to the facts of the instant appeal, we find that the acts of cruelty attributed to the wife have been proved by the husband not only by his own testimony but also by examining two other witnesses who visited their house and left insulted and humiliated. The allegations of dowry demand, physical and mental harassment made by the wife in the written statement and even going to the extent that she was threatened to be set on fire by putting kerosene oil on her are of very serious nature. Most of the allegations made in the written statement including threat to set her on fire are missing in the FIR No.901/07 under Section 498A/406/34 IPC, registered at PS Uttam Nagar just after four months of filing the written statement. The wife has been assassinating the character of the husband by accusing him of having illicit relationship with his colleague or projecting him as an alcoholic without there being even an iota of evidence to establish the above fact even on probabilities. We have unrebutted testimony of the husband that he is a non-smoker, teetotaller and was compelled to walk out of the house fearing threat to his life because of the ‘Tantrik Kriyas’ being performed by his wife. This is sufficient to create fear in his mind about his safety. The husband cannot be made to spend sleepless night fearing for his life.
25. The admitted fact that he purchased a house in Delhi after availing home loan facility and has given to his wife to live there by shifting to a rented accommodation, bearing the maintenance and education expenses of both sons and even ensuring that his children study in a good school in Delhi i.e. Air Force School Delhi reflect that he is a caring father having no intention to sell either the house or intend to dispossess them to settle in life with another lady.
26. The disgusting accusations made by the wife against the husband of he being in illicit relationship, referring him as a drunkard are serious in nature assassinating his character and harming his reputation as a teacher. She has failed to prove any of the above but yet resisting the divorce which if accepted, would make life of the two even more complex and unbearable. The allegations made not only in the written statement but also in the FIR against the husband and his entire family have the effect of causing mental cruelty to him and his entire family. It is now beyond cavil that if a false character assassination allegation is made by either spouse it would invariably constitute matrimonial cruelty to entitle other spouse to seek divorce.

27. The findings recorded by the learned Judge Family Court in our opinion are fully borne out from the material on record and cannot be faulted with. Therefore, the decree of divorce granted by the Family Court has to be upheld.
28. The appeal is dismissed.
29. LCR be sent back alongwith copy of this order.
30. No costs.
PRATIBHA RANI (JUDGE) PRADEEP NANDRAJOG (JUDGE) October 07, 2016

 

SC Judgment: Need material evidence to prove dowry demand

CASE NO.:
Appeal (crl.) 222 of 2008
PETITIONER:
Ran Singh and Anr.
RESPONDENT:
State of Haryana and Anr.
DATE OF JUDGMENT: 30/01/2008
BENCH:
Dr. ARIJIT PASAYAT & P. SATHASIVAM
JUDGMENT:
J U D G M E N T
(Arising out of SLP (Crl.) No.3089 of 2006)
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the order passed by a
learned Single Judge of the Punjab and Haryana High Court
allowing the Revision Petition filed under Section 401 of the
Code of Criminal Procedure, 1973 (in short the ‘Code’) which
was filed before it by Kurra Ram since deceased and
represented by his daughter i.e. respondent No.2 in the
present appeal.
3. Background facts in a nutshell are as follows:
A complaint was filed by the aforesaid Kurra Ram
alleging commission of offences punishable under Sections
498-A, 406, 323, 506, 148 and 149 of the Indian Penal Code,
1860 (in short the ‘IPC’) by Jaswant-son in law and husband
of his daughter-Saroj, Ran Singh and Raj Bala, the present
appellants who were father and mother of Jaswant and two
others namely, Jai Singh and Suman, the brother and married
sister of Jaswant.
It was stated in the complaint that Saroj got married to
Jaswant on 14.4.1994 and that she was harassed for dowry by
the aforesaid accused persons. Learned Additional Chief
Judicial Magistrate, Hissar, after recording preliminary
evidence of the complainant, decided to proceed against all the
accused persons for the alleged offences. Separate Revision
Petitions were filed by Jai Singh, Ran Singh and Suman taking
the stand that there is no offence made out so far as they are
concerned. Learned Additional Sessions Judge found that no
case was made out against aforesaid accused persons and
directed that proceedings would continue only against
Jaswant. The order dated 4.11.2003 disposing of the revisions
in the aforesaid manner was challenged by Kurra Ram in the
Revision Petition before the High Court. It was held by High
Court that there is no ground to proceed against Jai Singh and
Suman who may just be living in the house, but may not be
interfering in matrimonial problems of Saroj and Jaswant.
Therefore, the order of the Additional Sessions Judge was
upheld to that extent. But so far as the present appellants are
concerned the High Court inter alia observed as follows:
“However, when articles of dowry are handed
over to elder members in the family that will
mean that those were handed over to Ran
Singh and Raj Bala i.e. father and mother of
the husband who could misappropriate. It is
they who can practice cruelty for less dowry or
otherwise.”
(Underlined for emphasis)
The High Court noted that police had earlier registered a
case and had sent cancellation report and thereafter the
complaint was filed by Kurra Ram who appeared as PW-1, as
his son Rajesh appeared as PW-2 and Saroj as PW-3.
4. Learned counsel for the appellants submitted that the
High Court failed to notice that some customary articles were
given to relatives of the bridegroom. That cannot be covered by
the expression ‘dowry’. High Court noticed the fact that the
complainant tried to rope even a married sister who was living
far away and the brother, which shows the tendency to falsely
implicate them. Reference is also made to the following
observations of the High Court:
“..They are close relatives but the fact remains
that an effort is made by the complainant to
implicate as many persons as possible, in such
matters.”
5. Learned counsel for the respondent-State and the
complainant submitted that it is not a case where the
Additional Sessions Judge should have interfered and the High
Court has therefore rightly set aside the order dated 4.11.2003
which was impugned before it.
6. Section 2 of the Dowry Prohibition Act, 1961 (in short
‘Dowry Act’) defines “dowry” as under:-
Section 2. Definition of ‘dowry’ In this Act,
‘dowry’ means any property or valuable
security given or agreed to be given either
directly or indirectly
(a) by one party to a marriage to the
other party to the marriage; or
(b) by the parents of either party to a
marriage or by any other person, to
either party to the marriage or to any
other person,
at or before or any time after the marriage in
connection with the marriage of the said
parties, but does not include dower or mehr
in the case of persons to whom the Muslim
personal law (Shariat) applies.
Explanation I- For the removal of doubts, it is
hereby declared that any presents made at
the time of a marriage to either party to the
marriage in the form of cash, ornaments,
clothes or other articles, shall not be deemed
to be dowry within the meaning of this
section, unless they are made as
consideration for the marriage of the said
parties.
Explanation II- The expression ‘valuable
security’ has the same meaning in Section 30
of the Indian Penal Code (45 of 1860).”
7. The word “dowry” is defined in Section 2 of the Dowry
Act. Thus, there are three occasions related to dowry. One is
before the marriage, second is at the time of marriage and the
third “at any time” after the marriage. The third occasion may
appear to be unending period. But the crucial words are “in
connection with the marriage of the said parties”. Other
payments which are customary payments e.g. given at the
time of birth of a child or other ceremonies as are prevalent in
different societies are not covered by the expression “dowry”.
(See Satvir Singh v. State of Punjab (2001 (8) SCC 633))
.
8. The High Court has fallen in grave error while observing
that present appellants “could misappropriate” and “who can
practice cruelty”. The conclusions to say the least are
presumptuous. Learned Additional Sessions Judge by a well
reasoned order had held that there was no material to show
that demand for any dowry was made and an attempt was
made to rope in many persons. When the High Court was
interfering with such conclusions arrived at on facts it ought
to have indicated the reasons necessitating such interference.
That has not been done and on the contrary on presumptuous
conclusions the order of learned Additional Sessions Judge
has been set aside.
9. Reasons introduce clarity in an order. On plainest
consideration of justice, the High Court ought to have set forth
its reasons, howsoever brief, in its order indicative of an
application of its mind. The absence of reasons has rendered
the High Court’s judgment not sustainable.
10. Even in respect of administrative orders Lord Denning
M.R. in Breen v. Amalgamated Engineering Union (1971 (1) All
E.R. 1148) observed “The giving of reasons is one of the
fundamentals of good administration”. In Alexander Machinery
(Dudley) Ltd. v. Crabtree (1974 LCR 120) it was observed:
“Failure to give reasons amounts to denial of justice”. Reasons
are live links between the mind of the decision taker to the
controversy in question and the decision or conclusion arrived
at”. Reasons substitute subjectivity by objectivity. The
emphasis on recording reasons is that if the decision reveals
the “inscrutable face of the sphinx”, it can, by its silence,
render it virtually impossible for the Courts to perform their
appellate function or exercise the power of judicial review in
adjudging the validity of the decision. Right to reason is an
indispensable part of a sound judicial system, reasons at least
sufficient to indicate an application of mind to the matter
before Court. Another rationale is that the affected party can
know why the decision has gone against him. One of the
salutary requirements of natural justice is spelling out reasons
for the order made, in other words, a speaking out. The
“inscrutable face of a sphinx” is ordinarily incongruous with a
judicial or quasi-judicial performance.
11. It is to be noted that the High Court itself has held that
there was an attempt to rope in many persons and it did not
find any merit or challenge to the discharge of the married
sister and the brother.
12. Above being the position, the impugned order of the High
Court cannot be maintained and is set aside. We make it clear
that we have not expressed any opinion on merits so far as
husband Jaswant is concerned.
13. The appeal is allowed to the aforesaid extent.

Legal Terrorism: A tool to Kill Indian Men

State sponsored 'Legal Terrorism' in action to Kill Indian Men

In India lodging a false case u/s 498-A, DV Act 2005 and 376 IPC is just like ordering a pizza. Large number of females using these legal provision as a tool to settle score with male parteners and their family members after failed marriages. The law is very stringent but is vagure, unfair and easy to misuse, In year 2006 The Supreme Court of India termed these statutory provision as "Legal Terrorism" and asked the Govt of India to amend these provisions. But the Govt of India is still sleeping and did nothing to stop these abuse.

The recent report of India's National Crime Records Bureau(NCRB) reveals 242 male and 129 female suicides a day (Report) . Though the count of male suide is almost double than female, still there is no legal remdy to deal with criminals who force men to commit suicide.

Many young married men are commiting suicide becuase of False 498-A and Domestic Violence cases filed on them by their estranged wives. There is no legal provision to deal with criminals who force men to commit suicide. When a suicide case of young man is reported to police, The police just shifts the body for post-mortem and registered a case under section 174 (Suspicious death) and They do not take any further action to bring the perpetrator of the crime to justice. Hence cases involving men suicide never reach to  courtrooms. Even if somehow a case reaches in court, The courts are very reluctant to deal with men's suicide cases.

On the otherhand if a married woman commit suicide, police directly register the case u/s 498-B and 306 IPC and entire family of husband and his relatives is put behind bars ,When the case related to  suicide of a married woman comes in courts, Indian evidence act section 112-B is applied and husband and his family is presumed as guilty and they have to disprove the entire case. In nutshell, There is no justice for men and they do not have a difnified life and the entire system is treating then unfairly.

http://www.thehindu.com/news/national/india-saw-135445-suicides-last-year/article4849710.ece

Legal terrorism in practice

6.1  In Sushil Kumar Sharma Vs. Union of India (UOI) (Case No: Writ Petition (C) No. 141 of 2005), the Honorable Supreme Court has observed:

 

“The object of the provision is prevention of the dowry meance. But as has been rightly contended by the petitioner many instances have come to light where the complaints are not bonafide and have filed with obligue motive. In such cases acquittal  of the accused does not in all cases wipe out the ignomy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame work. As noted the object is to strike at the roots of dowry menace. But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used a shield and not assassins’ weapon. If cry of “wolf” is made too often as a prank assistance and protection may not be available when the actual “wolf” appears. There is no question of investigating agency and Courts casually dealing with the allegations. They cannot follow any strait jacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that ultimate objective of every legal system is to arrive at truth, punish the guilty and protect the innocent. There is no scope for any pre-conceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the courts start with the presumption that the accused persons are guilty and that the complainant is speaking the truth. This is too wide available and generalized statement. Certain statutory presumption are drawn which again are reputable. It is to be noted that the role of the investigating agencies and the courts is that of watch dog and not of a bloodhound. It should be their effort to see that in innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally indisputable that in many cases no direct evidence is available and the courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view. “

6.2  In Som Mittal Vs Govt. of Karnataka (Appeal (crl.) 206 of 2008, DATE OF JUDGMENT: 29/01/2008), the Honorable Supreme Court has observed:

33. Experience has shown that the absence of the provision for anticipatory bail has been causing great injustice and hardship to the citizens of U.P. For instance, often false FIRs are filed e.g. under Section 498A IPC, Section 3/4 Dowry Prohibition Act etc. Often aged grandmothers, uncles, aunts, unmarried sisters etc. are implicated in such cases, even though they may have nothing to do with the offence. Sometimes unmarried girls have to go to jail, and this may affect their chances of marriage. As already observed by me above, this is in violation of the decision of this Court in Joginder Kumar s case (supra), and the difficulty can be overcome by restoring the provision for anticipatory bail.

6.3       Onkar Nath Mishra & Ors vs State (Nct Of Delhi) & Anr on 14 December, 2007, Honorable Supreme Court observed as:

The Honorable Judge has observed that:

“Section 498A I.P.C. was introduced with the avowed object to combat the menace of dowry deaths and harassment to a woman at the hands of her husband or his relatives. Nevertheless, the provision should not be used as a device to achieve oblique motives. Having carefully glanced through the complaint, the F.I.R. and the charge-sheet, we find that charge under Section 498A I.P.C. is not brought home insofar as appellant Nos. 1 and 2 are concerned.”

6.4      In Kans Raj vs. State of Punjab and others AIR 2000 SC 2324 the Hon’ble Supreme Court, inter alia, observed as under:-:

The Honorable Judge has observed that:

“Crl.A.No.339-41/2005 Page 21 of 27 “In cases where such accusations are made, the overt acts attributed to persons other than husband are required to be proved beyond reasonable doubt. By mere conjectures and implications such relations cannot be held guilty for the offence relating to dowry deaths. A tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in thematters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the    real accused as appears to have happened in the instant case.””

6.5      IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl.A.No.339-41/2005 % Reserved on: 23rd February, 2010 Date of Decision: 02nd March, 2010

The Honorable Judge has observed that:

“23. There is growing tendency these days to take revenge  from the husband, by implicating all his family members, by  making allegations of general nature  against all of them,  though the husband alone may be responsible for the cruelty  inflicted to the woman. The Courts, therefore, need to  carefullyanalyze the evidence and need to separate the chaff  from the grain, so as to arrive at a just and fair conclusion.”

 

6.6  IN THE HIGH COURT OF DELHI AT New Delhi, Reserved on: 12.02.2007      Date of Decision: February 23, 2007, CRL.M.C.7262/2006 by JUSTICE SHIV              NARAYAN DHINGRA

“Now-a-days, exorbitant claims are made about the amount spent on marriage and other ceremonies and on dowry and gifts. In some cases claim is made of spending crores of rupees on dowry without disclosing the source of income and how funds flowed. I consider time has come that courts should insist upon disclosing source of such funds and verification of income from tax returns and police should insist upon the compliance of the Rules under Dowry Prohibition Act and should not entertain any complaint, if the rules have not been complied with.

The Metropolitan Magistrates should take cognizance of the offence under the Act in respect of the offence of giving dowry whenever allegations are made that dowry was given as a consideration of marriage, after demand. Courts should also insist upon compliance with the rules framed under the Act and if rules are not complied with, an adverse inference should be drawn. If huge cash amounts are alleged to be given at the time of marriage which are not accounted anywhere, such cash transactions should be brought to the notice of the Income Tax Department by the Court so that source of income is verified and the person is brought to law. It is only because the Courts are not insisting upon compliance with the relevant provisions of law while entertaining such complaints and action is taken merely on the statement of the complainant, without any verification that a large number of false complaints are pouring in.

I consider that the kinds of vague allegations as made in the complaint by the petitioner against every member of the family of husband cannot be accepted by any court at their face value and the allegations have to be scrutinized carefully by the Court before framing charge.”

6.7  IN THE HIGH COURT OF DELHI AT NEW DELHI, CRL. R 462/2002  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.
HON’BLE MR. JUSTICE J.D. KAPOOR

 

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 whereas 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 for 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 relatives 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 sistes, 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 exaggerated 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 Against 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 complaints 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 marriage 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 burden 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 definition 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.

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 hatchet 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 offences 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 futher 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 bargaining 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.

Copy of the order be sent to Law Secretary, Union of India.

6.8  2002 (4) ALT 592 (D.B), In the High Court of judicature, Andhra Pradesh at hyderabad

B. S. A Swamy and Dr. G. Yethirajulu, JJ, A. A. O. No. 1039 of 2001-Decided on 9-7-2002

Saritha Vs R.Ramachandra reported in (I) (2003) DMC 37 ( DB )

“The court would like to go on record that for nothing the educated women are approaching the courts for divorce and resorting to proceedings against in-laws under section 498a , IPC implicating not only the husbands but also their family members whether in India or Abroad. This is nothing but misuse e of the beneficial provision intended to save the women from unscrupulous husbands. It has taken a reverse trend now. In some cases this kind of actions is coming as a formidable hurdle in the reconciliation efforts made by either well meaning people or the courts. and the sanctity attached to the marriage in Hindu Religion and the statutory mandate that the courts try to save the marriage through conciliatory efforts till last , are being buried neck-deep . It is for the law commission and the parliament either to continue that provision ( section 498a IPC ) in the same form or to make that offense non cognizable and bailable so that ill-educated women of this country do not misuse the provision to harass innocent people for the sin of contracting marriage with egoistic women “

6.9  In 1990 Punjab and Haryana High court observed in Jasbir Kaur vs. State of Haryana, (1990)2 Rec Cri R 243 case as:

“It is known that an estranged wife will go to any extent to rope in as many relatives of the husband as possible in a desperate effort to salvage whatever remains of an estranged marriage.”

 

6.10  In Kanaraj vs. State of Punjab, 2000 CriLJ 2993 the apex court observed as:

“for the fault of the husband the in-laws or other relatives cannot in all cases be held to be involved. The acts attributed to such persons have to be proved beyond reasonable doubt and they cannot be held responsible by mere conjectures and implications. The tendency to rope in relatives of the husband as accused has to be curbed”

6.11  Karnataka High Court, in the case of State Vs. Srikanth, 2002 CriLJ 3605 observed as:

“Roping in of the whole of the family including brothers and sisters-in-law has to be depreciated unless there is a specific material against these persons, it is down right on the part of the police to include the whole of the family as accused”

 

6.12  Supreme Court, In Mohd. Hoshan vs. State of A.P. 2002 CriLJ 4124 case, observed as:

“Whether one spouse has been guilt of cruelty to the other is essentially a question of fact. The impact of complaints, accusation or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the victim concerned, the social background, the environment, education etc. Further, mental cruelty varies from person to person depending on the intensity of the sensitivity, degree of courage and endurance to withstand such cruelty. Each case has to be decided on its own facts whether mental cruelty is made out”

6.13       Delhi high Court, in Savitri Devi vs. Ramesh Chand, 2003 CriLJ 2759 case observed as:

“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 relatives 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 sisters, sisters-in-law, unmarried brothers, married uncles and in some cases grand parents or as many as 10 o 15 or even more relatives of the husband.”

 

6.14       Punjab and Haryana High Court, in Bhupinder Kaur and others vs. State of Punjab and others, 2003 CriLJ 3394 case observed as:

“From the reading of the FIR, it is evident that there is no specific allegation of any act against petitioners Nos.2 and 3, which constitute offence under s.498-A I.P.C. I am satisfied that these two persons have been falsely implicated in the present case, who were minors at the time of marriage and even at the time of lodging the present FIR. Neither of these two persons was alleged to have been entrusted with any dowry article nor they alleged to have ever demanded any dowry article. No specific allegation of demand of dowry, harassment and beating given to the complainant by the two accused has been made. The allegations made are vague and general. Moreover, it cannot be ignored that every member of the family of the husband has been implicated in the case. The initiation of criminal proceedings against them in the present case is clearly an abuse of the process of law”

 

6.15       Jharkhand High Court in Arjun Ram Vs. State of Jharkhand and another, 2004 CriLJ 2989 case observed as:

“In the instant case, it appears that that the criminal case has been filed, which is manifestly intended with mala fide and ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

6.16       Punjab and Haryana High Court in Mukesh Rani Vs. State of Haryana 2002 (1) RCR (Criminal) 163 observed as:

The learned Single Judge of Punjab and Haryana High Court has observed that:

“Whenever there is a matrimonial dispute between the husband and wife for the fault of husband other relations of the husband that is the brothers, sisters, parents are also roped in the litigation on the allegation of demand of dowry, whether they are living jointly or separate and sometimes even the parents who are aged 80 to 90 years and are unable to walk or talk and the sisters living at far off places in the matrimonial house are involved.”

 

6.17       Delhi High Court in Anu Gill Vs. State & Anr. 2001 (2) JCC (Delhi) 86 observed as:

The Honorable Judge of Punjab and Haryana High Court has observed that:

“ 8. It has almost become a practice that whenever a police report is lodged consequent upon a matrimonial discord, there is always a tendency on the part of the complainant to involve practically all the relations of her in-laws’ family either out of vengeance or to curl out appropriate settlement. Such a tendency ought to be deprecated.”

 

6.18       Ramesh & Ors. Vs. State of Tamil Nadu AIR 2005 SC 1989 observed as:

The Honorable Judge has observed that:

“The bald allegations made against her sister-in-law seem to suggest the anxiety of the informant to rope in as many of the husband’s relations as possible.”

 

6.19       Delhi High Court CHANDER KANTA LAMBA & ORS. observed as:

The Honorable Judge has observed that:

“18. In the light of the aforesaid proposition if one examines the authorities cited by the learned Senior Counsel one cannot but agree that the proposition of law which is enunciated in all these cases is that invariably whenever matrimonial relations have turned sour there is a tendency on the part of the complainant whether it is done by her of her own free will or at the instigation of her parents, brothers, sisters or even legal advice to make all kinds of wild and reckless allegations against the entire family of the husband.”

 

6.20       THE ADDITIONAL SESSIONS JUDGE-01/SOUTH,PATIALA HOUSE COURT in Criminal Revision No. 88/2008/2002, observed as:

The Honorable Judge has observed that:

“ It is settled legal position that vague and bald statement7 cannot be the foundation for framing of charge. Since a tendency has emerged to rope in other family members of the husband in cases of 498-A, concrete allegations with regard to the date, the place, the manner, the act of cruelty should be present in the evidence in order to frame a charge for offence under Section 498-A. Because of the present propensity to rope in innocent persons, the Trial Court has to be vigilant while framing charge for offence under Section 498-A.“

6.21       THE Panjab and harayana High Court in Krishan Jeet Singh vs State Of Haryana on 3/10/2002, observed as:

The Honorable Judge has observed that:

“18. It is germane to mention here that the petitioner had stayed at her matrimonial home only on four occasions during her marital life. These are from the date of marriage that is February 18, 1991 till February 21, 1991, from February 22, 1991 to February 25, 1991, from March 12, 1991 to March 14, 1991 and thereafter from June 15, 1991 to June 20, 1991. The total period of the stay of the petitioner at her matrimonial home as per her own version was 13 days in all. It is the case of the petitioner that during her short stay at her matrimonial home, she was given beating, abuses, and harassment on the point of  inadequate dowry given to her by her parents and further demand of dowry was made. It is an admitted fact that the parties belong to Hissar. As can be gleaed from the evidence led by the parties, the parties arc affluent and belong to families of high strata of society. The father of the petitioner is Deputy Director in Ch. Charan Singh Haryana Agriculture University, Hissar. The real uncle of the petitioner, Sh. Jawant Singh, was a Minister in the State Government. The petitioner herself is educated. The respondent is also running a restaurant in Hissar besides having agricultural land. With this background, this Court is of opinion that in such a short span of 13 days, demand of dowry, as has been alleged by the petitioner, could not have been made by the respondent or his family members. At the risk of repetition, it is being mentioned that had it been so, the figure that is Rs. one lac or two lacs or Rs. 11,000/- must have been referred to in the petition by the petitioner which she did not for the reasons best known to her. This Court is conscious of a fact that in these days when the number of divorce petitions are increasing in our society, this is one of the easiest allegations to level against the husband by the wife. It is easy to level it but it is very difficult to prove the same. It also appears obnoxious that a bride, as the petitioner was, when left her parental home for her permanent home that is her husband’s home after the marriage on February 18, 1991 and stayed there upto February 21, 1991 and during 2-3 days, she was given beating and abuses by the respondent and his family members because it is in the rarest of rate cases that such bad treatment would be given to the bride by the bridegroom or his family members, particularly having considered the background of the families, as has been indicated above.”

6.22       THE Orrissa High Court in Benumadhab Padhi Mohapatra vs State on 28/8/2003, observed as:

The Honorable Judge has observed that:

“But then, while dealing with the prosecution relating to such offences the Court cannot close their eyes  to the fact that the provisions are also misused by unscrupulous litigants to satisfy their personal vendetta. Often being enraged, innocent relatives are roped in just for the sake of harassment and taking revenge. In view of the aforesaid scenario the Court has to be careful while dealing with cases involving dowry torture.”

6.23      THE HON’BLE SRI JUSTICE P. SWAROOP REDDY Criminal Petition No. 6642 of 2007, 22-11-2007, Kamireddy Mangamma and others, State of AP represented by the Public Prosecutor, Counsel for the Petitioner: Sri D. Bhaskar Reddy, Advocate
Counsel for Respondent No.1: The Public Prosecutor,  observed as:

The Honorable Judge has observed that:

4. Thus most of the allegations in the complaint are vague and petitioner Nos. 2 to 5 are married sisters and their husbands, who are admittedly living elsewhere and out of them, A-5 is living in
USA. It is very difficult to believe that from USA A-5 every day used to telephone and instigate the other accused to harass the complainant. As per the complaint, A-5 has grudge against the
complaint, but it is not stated as to why A-5 should have grudge against the complainant.

6. The nature of allegations referred to in the complaint, particularly against the present petitioners, particularly against petitioner Nos. 2 to 5, the married daughters and their husbands, would show that in all probability, the allegations are false and exaggerated. It is very difficult to believe that the third
petitioner used to harass the complainant, all the way from USA by instigating the other accused, particularly when no reasons are shown for him to have any grievance against the complainant. The
reference to A-5 in the complaint, might be A-3 and, in fact, even that also would not make any difference.

8. Before parting with the petition, I feel it desirable to observe that there is rampant misuse of S.498-A IPC. False complaints are given against kith-and-kin of the husband, including the married sisters and their husbands; unmarried sisters and  brothers and married brothers and their wives. There are instances where even young children, aged below ten years, were also implicated in the offences of this nature. My experience, while sitting in matrimonial Bench revealed that several families are ruined;  marriages have been irretrievably broken down and chances of reconciliation of spouses have been spoiled on account of unnecessary complaints and the consequent arrest and remand of the husbands and their kith-and-kin. To discourage this unhealthy practice, it is desirable that anticipatory bail is granted very liberally in all cases of S.498-A IPC, particularly when the petitioner/accused is not the husband of the complainant and when the allegations are not very specific and prima facie do not inspire confidence.

9. Section 498-A IPC is incorporated by the Legislature basically in the interest of women and to safe guard them from harassment. But, it has become somewhat counter productive. In several cases, women are harassed, arrested and humiliated on the complaints given under section 498-A IPC. The truth or otherwise of the allegations is subject to proof. For giving complaint absolutely no authentic and prima facie material like medical evidence is required, but on such complaints, in several cases, number of women are being arrested. In cases of arrest of married young women, they might face problems from their husbands and in-laws; in case unmarried women are arrested their marriage prospects would be badly affected and if government servants are arrested their service prospects are affected. In the present case, only one woman is the alleged victim; but at least four women might have to go to jail even before trial, effecting their reputation, subjecting them to rude treatment at Police Station etc.
10. Only in cases where, strong and authentic evidence like letters written by the accused-husband to the spouses or their parents etc., are available and where there is sufferance of serious injuries or death of the victim only, perhaps, it is desirable to refuse anticipatory bail, that, too, for the accused-husband. Another important aspect is in this type of cases; there is no chance of witnesses turning hostile or being influenced by the accused, as the witnesses would invariably be the kith-and-kin of
the alleged victim like herself and her parents etc. These aspects have to be kept in view, while dealing with the cases of anticipatory bail/bail in cases of offences involving section 498-A IPC.

6.24       THE Allahabad High Court in Case :- CRIMINAL MISC. WRIT PETITION No. – 3322 of 2010, Petitioner :- Sanjeev Kumar & Others, Respondent :- State Of U.P. & Others, Petitioner Counsel :- P.N. Gangwar, Respondent Counsel :- Govt. Advocate, observed as:

The Honorable Judge has observed that:

Hon’ble Amar Saran,J.
Hon’ble Shyam Shankar Tiwari,J.

The other reason why this Court often interferes in such cases, is that when the atmosphere, between the wife and her natal family and the husband and his family has become sour, there is a tendency to rope in as many of the relations of the husband as possible, even though they may not be directly involved in the crime. This negative tendency was adversely commented upon by the Supreme Court in Kansraj v. State of Punjab, AIR 2000 SC 2324. Such en masse involvement of a large number of family members takes place because in the aftermath of the incident, tempers are extremely high, the parties do not have a cool mind, and the aggrieved party at that stage only wants to seek recompense, by sending the other party to jail. It is only with the passage of some time usually with the help of mediators, that wisdom may dawn and the complaining party may consider the advisability of exploring other options such as either to resolve their differences and to come together, or to mutually agree to part on acceptable terms.

Rakesh Kumar And Others vs State Of Punjab And Another

Criminal Misc. No.M-18404 of 2008 1 In the High Court of Punjab and Haryana at
Chandigarh Criminal Misc. No.M-18404 of 2008

Date of decision: 22.1.2009

Rakesh Kumar and others

......Petitioners

Versus

State of Punjab and another

.......Respondents

CORAM: HON'BLE MRS. JUSTICE SABINA

Present: Mr.P.S.Hundal, Sr.Advocate with Mr.N.S.Sondhi, Advocate,

for the petitioners.

Mr.Aman Deep Singh Rai, AAG, Punjab.

Mr.Vishal Aggarwal, Advocate,

for respondent No.2.

****

SABINA, J.

The petitioners have filed this petition under Section 482 of the
Code of Criminal Procedure ("Cr.P.C." for short) seeking quashing of order on
framing of charge dated 30.4.2007 (Annexure P-7), charge sheet dated 30.4.2007
(Annexure P-8) passed by the learned Judicial Magistrate, Ist Class, Ludhiana
order of the learned Additional Sessions Judge (Fast Track Court), Ludhiana
dated 4.6.2008 (Annexure P-9) dismissing the revision petition against framing
of charge and all subsequent proceedings. Petitioner Nos. 1 and 4 are brothers
of the husband of the complainant, whereas, respondent No.3 is the un-married
sister of Criminal Misc. No.M-18404 of 2008 2 the husband of the complainant.
Petitioner Nos. 2 and 5 are the wives of petitioner Nos. 1 and 4 respectively.
The case of the complainant, as set out in the First Information Report, is
reproduced as under:- "Application for registration of a case under Section
406, 498-A, 120-B and Protection of Woman from Domestic Violence Act, 2005
against 1. Mukesh Kumar s/o Sh.Ved Parkash Marwaha 2. Asha Rani wife of late
Sh.Ved Parkash Marwaha, 3. Rajesh Kumar Marwaha son of late Sh.Ved Parkash
Marwaha, 4. Simran wife of Rajesh Kumar Marwaha, 5. Rakesh Kumar son of late
Sh. Ved Parkash Marwaha, 6. Meenu wife of Sh.Rakesh Kumar, 7., Poonam daughter
of late Sh.Ved Parkash Marwaha all residents of 191, Kidwai Nagar, Near Shiv
Shakti Mandir, Ludhiana, 8. Neena wife of Sh.Anil Kumar resident of Denmark.
Sir, 1. That the marriage of the applicant was solemnized on 11.2.2004 with the
accused No.1 according to Hindu rites and ceremonies. This marriage was
solemnized by the mother of the applicant with the help of sister of the
applicant and spent about Rs.5,00,000/- on the marriage of the applicant. The
mother of the applicant gave items No. 1 to 6 to my husband namely Mukesh
Kumar, items No.7 to 9 to my mother-in-law namely Asha Rani, items No. 10 to 18
to Criminal Misc. No.M-18404 of 2008 3 my brother-in-law namely Rajesh Kumar,
items No.19 to 23 to Simran my sister-in-law (Jethani), items No.24 to 26 to
my sister-in-law namely Meenu (Jethani) and items No.27 to 34 to Rakesh Kumar
my brother-in-law (my husband's brother) and items No. 35 to 40 to my elder
sister-in-law namely Poonam as per Anexure 'A' and the cash receipts and Bills
of the items were handed over to the family members of the accused No.1 and
these items were given to the accused in presence of Kirpal Singh son of Amar
Singh cousin of the applicant and Rajinder Singh son of Sh.Balwant Singh cousin
of the applicant and these items were given to the above said accused with the
assurance that these items will be handed over to the applicant after reaching
the applicant to her in-laws house. But all the accused dishonestly
misappropriated all the items given to the applicant and converted the same
for their own use.

2. That all the accused were not satisfied with the dowry articles
given to accused at the time of the marriage. They started taunting,
humiliating the applicant on one excuse or the other. The accused No.1 and his
family members started demanding Santro Car from the mother of the applicant.
The applicant showed her inability to fulfil the demand of Santro Car because
her Criminal Misc. No.M-18404 of 2008 4 mother had already spent a huge amount
on the marriage of the applicant. Thereafter, all the accused started
harassing the complainant only to fulfil their demand of Santro Car. In the
meantime the complainant became pregnant during the month of June, 2004. But
the applicant did not disclose her mother and sister about the maltreatment by
the accused with the hope that after the birth of child, the accused may
change their attitude towards the complainant. But the complainant was
suffering from Ruptured Ectopil Pregnancy and was operated on 19.7.2004.
Thereafter, all the accused became so arrogant towards the complainant. They
started harassing the complainant. The information regarding the operation was
also sent given to accused No.8 Neena on telephone by the husband of the
complainant. She also used abusive language against the complainant and told my
husband to take divorce from me and instigated my husband to remarriage. The
accused separated the complainant from the in-laws house with the excuse that
there is no sufficient space in the in-laws house and the dowry articles give
by the mother of the complainant were retained in the in-laws house and we
were given some furniture, utensils etc. Criminal Misc. No.M-18404 of 2008 5
thereafter, in the month of December, 2005 the complainant again became
pregnant and was again suffering from Ruptured Ectopil Pregnancy and was
operated on 16.12.2005. After the operation of the complainant the behaviour of
all the accused was totally changed towards the complainant. They started
using derogatory language against the complainant by calling the complainant
"Baanj" by the accused 1,2,3 and 4. Even the respondent No.8 also used these
words against the complainant on telephone from Denmark and instigated my
husband to divorce me and said that she will arrange his second marriage at
Denmark. In this way all the accused mentally tortured the complainant on
account of non bringing of Santro car and by calling her 'Baanj". On 18.6.2006,
when the complainant was at her house the respondents No.1 to 7 namely Mukesh
Kumar, Asha Rani wife of late Sh.Ved Parkash Marwaha, Rajesh Kumar Marwaha,
Simran, Rakesh Kumar, Meenu, Poonam came there and accused No.1, 3 and 5 along
with other accused started beating the complainant under the influence of
liquor. The accused No.2 mother of my husband instigated all the accused to
beat the complainant. Ultimately the complainant was turned out of the house
Criminal Misc. No.M-18404 of 2008 6 in three clothes on 22.6.2006. The items
given by the mother of the applicant on different occasions as mentioned in
Annexure "A" and "B" have also been retained by the accused. Similarly the
items given by the in-laws of the applicant as shown in the Annexure "C" have
not been handed over to the applicant. It is pertinent to mention here that the
accused No.1 moved an application before the S.P.City (1), Ludhiana on a
flimsy ground only to save himself and his family members from the clutches of
law. Thereafter, the complainant and other family members requested the
accused to rehabilitate the complainant, but he refused to rehabilitate the
complainant.

3. That before the Panchayat consisting of Rajinder Singh s/o
Sh.Balwant Singh, Kirpal Singh son of Sh.Amar Singh, Raju c/o Sewak Tent House
and other respectables of the locality the accused and his family members
repeated the same demand of Santro Car and when the accused refused to
rehabilitate the complainant the Panchayat members and the complainant
demanded her ISTRI DHAN from all the accused, but they refused to return the
same to the complainant. So all the accused have committed breach of trust by
refusing to return the ISTRI DHAN. It Criminal Misc. No.M-18404 of 2008 7 is ,
therefore, prayed that a case under Section 406, 498-A, 120-B IPC and
Protection of Women from Domestic Violence Act, 2005 may kindly be registered
and items given in Annexures "A" and "B" be recovered from the accused and
accused be punished accordinglyl."

Learned counsel for the petitioners has submitted that there were
no specific allegations against the petitioners in the FIR. The petitioners had
merely been roped in this case being relatives of the husband of the
complainant.

Learned counsel for the complainant, on the other hand, has
submitted that all the accused including the petitioners had been harassing the
complainant and had misappropriated the dowry articles. He has further
submitted that the order, vide which the charge was framed, had been challenged
by the petitioners before the Additional Sessions Judge, Ludhiana by way of a
revision petition and hence, second revision petition under Section 482 Cr.P.C.
was not maintainable. In this regard, he has placed reliance on Darshan Singh
vs. State of Punjab, 1996 (1) RCR (Criminal) 464, Rajinder Prasad vs. Bashir,
2001(4) RCR (Criminal) 312 and Deepti vs. Akhil Raj, 1995 (3) RCR (Criminal)
638.

It has been held by the Apex Court in Krishanan vs. Krishnaveni,
AIR 1997 SC 987, in para 9 of its judgment, as under:- "The inherent power of
the High Court is not one Criminal Misc. No.M-18404 of 2008 8 conferred by the
Code but one which the High Court already has in it and which is preserved by
the Code. The object of Section 397(3) is to put a bar on simultaneous
revisional applications to the High Court and the Court of Sessions so as to
prevent unnecessary delay and multiplicity of proceedings . As seen, under sub
section (3) of Section 397, revisional jurisdiction can be invoked by "any
person" but the Code has not defined the word 'person'. However, under Section
11 of the IPC, 'person' includes any Company or Association or body of
persons, whether incorporated or not. The word 'person' would, therefore
include not only the natural person but also juridical person in whatever from
designated and whether incorporated or not. By implication, the State stands
excluded from the purview of the word 'person' for the purpose of limiting its
right to avail the revisional power of the High Court under Section 397 (1) of
the Code for the reason that the State, being the prosecutor of the offender
is enjoined to conduct prosecution on behalf of the society and to take such
remedial steps as it deems proper. The object behind criminal law is to
maintain law, public order, stability as also peace and progress in the
society. Generally, private complaints under Section 202 of the Code are laid
in respect of non- Criminal Misc. No.M-18404 of 2008 9 cognizable offences or
when it is found that police has failed to perform its duty under Chapter XII
of the Code or to report as mistake of fact. In view of the principle laid
down in the maxim Ex debito justitiae, i.e. in accordance with the requirements
of justice, the prohibition under Section 397 (3) on revisional power given to
the High Court would not apply when the State seeks revision under Section
401. So the State is not prohibited to avail the revisional power of the High
Court under Section 397 (1) read with Section 401 of the Code."

The said view has been followed by the Hon'ble Supreme Court in
later decisions also.

So far as the decision in Darshan Singh's case (supra), relied
upon by the learned counsel for the complainant, is concerned, there it was
held that the second revision petition under Section 482 Cr.P.C. was not
maintainable as disputed questions of fact were involved in the case. In
Deepti's case (Supra), Hon'ble Supreme Court held that the High Court Could not
interfere simply on the basis of the statement of the State Govt as there was
sufficient material on record to frame charge against the accused under Section
498-A IPC. In Rajinder Prasad's case (supra), the order, whereby the
cognizance taken by the Magistrate was set aside by the High Court, was
challenged in the Apex Court and it was held that since the revision petition
filed under Section 397 Cr.P.C. had been rejected by Criminal Misc. No.M-18404
of 2008 10 the High Court then the aggrieved party had no right to file a
petition under Section 482 Cr.P.C. with a prayer for quashing the same order.

In Rishi Anand vs. Govt. of NCT of Delhi, AIR 2002 SC 1531, the
Apex Court quashed the FIR under Section 482 Cr.P.C. because there were no
allegations of specific nature to connect the accused with the alleged offence
under Section 406 IPC. There was nothing in the FIR to show that the articles
were entrusted to the accused at the time of marriage. The accused had gone to
USA after his brief stay in India. In Prasanta Kumar vs. The State of West
Bengal, AIR 2003 SC 4412, the High Court had declined to entertain a petition
under Section 482/401 Cr.P.C. on the ground that the second revision petition
was not maintainable. The judgment of the High Court was set aside that
petition could not be dismissed on this technical ground and the High Court
should have gone out into the merit of the case to find out if it was a fit
case to interfere in revision. Reliance was placed on the decision in
Krishanan's case (Supra).

In Lakhwinder Singh vs. State of Punjab, 2004(4) RCR (Criminal)
104, it was held in para Nos. 12 and 19 as under:- "12. The observations made
above leave no manner of doubt that the wholesome jurisdiction conferred upon
the High Court by Section 482 of Code of Criminal Procedure cannot be
narrowed, confined or put in a strait-jacket. Criminal Misc. No.M-18404 of 2008
11 This inherent power can always be exercised by the High Court to prevent
abuse of the process of Court or to otherwise to secure the ends of justice.
The only constraint on the High Court is that since the power under this
section is very wide, it should be exercised with great care and and caution.
On the other hand, the court should not shy away from exercising this power
when the accused persons are being persecuted in the guise of prosecution.
Proceedings initiated and continued for oblique motives or to wreak vengeance
on the other party are liable to be quashed. Proceedings are also liable to be
quashed if even on the allegation being accepted in toto, prima facie no
offence could be made out.

19. It, thus, become fairly evident that the court have
consistently put an end to criminal proceedings which are an abuse of the
process of Court. At the initial stage, at the summoning stage and even after
charges have been framed, the High Court has the inherent power to quash
proceedings and to pass such orders as are necessary to prevent abuse of the
process of any court or otherwise to secure ends of justice. Section 482 of the
Code of Criminal Procedure contains a non-obstante clause to the effect that
nothing in the Code of Criminal Procedure shall be deemed to limit the powers
of the High Court to Criminal Misc. No.M-18404 of 2008 12 prevent abuse of the
process of Court. Therefore, filing of the charge-sheet in Court does not in
any manner affect the amplitude of the wholesome jurisdiction of the High
Court under Section 482 of the Code of Criminal Procedure. The only rider
being, that greater the power, greater the care and caution in exercise
thereof" This Court in para 6 of its judgment in Manoj vs. Prem Lal, 2006(3)
RCR(Criminal) 941, held as under:- "Power under Section 482 Cr.P.C. has to be
exercised sparingly and such power was not to be utilised as a substitute for
second revision. Ordinarily, when a revision has been barred under Section 397
(3) of the Code, the complainant or the accused cannot be allowed to take
recourse to revision before the High Court under Section 397 (1) of the Code,
as it is prohibited under Section 397 (3) Cr.P.C. However, the High Court can
entertain a petition under Section 482 of the Code, when there is serious
miscarriage of justice and abuse of the process of the Court or when mandatory
provision of law are not complied with and when the High Court feels that the
inherent jurisdiction is to be exercised to correct the mistake committed by
the revisional Court." Thus, the legal position that emerges is that this Court
is not expected to throw out a case on technicalities but is expected to
Criminal Misc. No.M-18404 of 2008 13 interfere wherever there has been failure
of justice or misuse of judicial mechanism or procedure. This Court is not
expected to be a mere silent spectator when it is made out that that criminal
prosecution is an abuse of process of the Court. This Court, in its discretion,
is expected to prevent the abuse of process or miscarriage of justice by
exercise of jurisdiction under Section 482 Cr.P.C.

In the present case the petitioners are the brothers, their wives
and sister of the husband of the complainant. A perusal of the FIR (Annexure
P-1) reveals that all the allegations are general in nature. So far as the
entrustment of dowry articles is concerned, the memos of recovery of dowry
articles (Annexure P-3 to P-6) reveal that dowry articles were recovered from
the husband and mother-in- law of the complainant. It has been averred that the
complainant had been tortured by all the accused for not bringing a Santro car
and by calling her baanj. It has also been averred in the FIR that petitioner
Nos.1 and 4 along with Mukesh Kumar, husband of the complainant, had given
beatings to the complainant under the influence of liquor. However, no specific
date has been mentioned nor the nature of injuries suffered by the complainant
has been disclosed in this regard.

In Kans Raj vs. State of Punjab and others, 2000 (2) RCR
(Criminal) 696 (SC), their Lordships of the Apex Court have observed that a
tendency has developed for roping in all the Criminal Misc. No.M-18404 of 2008
14 relations in dowry cases and if it is not discouraged, it is likely to
affect case of the prosecution even against the real culprits. The efforts for
involving the other relations ultimately weaken the case of the prosecution
even against the real accused. No doubt, the charge has been framed against the
petitioners by the trial Court and revision petition filed against the charge
has also been dismissed but each case has to be examined on its own facts. In
the present case, it is evident that the petitioners have been roped in the
case merely because they are relatives of the husband of the complainant.
Hence, in the facts and circumstances of this case, it would be just and
expedient to quash the order vide which charge was ordered to be framed against
the petitioners and the order, vide which revision petition was dismissed by
the Additional Sessions Judge, Ludhiana. Accordingly, this petition is allowed.
The impugned orders dated 30.4.2007 (Annexures P-7 and P-8) passed by the
learned Judicial Magistrate, Ist Class, Ludhiana, order dated 4.6.2008
(Annexure P-9) passed by the learned Additional Sessions Judge (Fast Track
Court), Ludhiana and all the subsequent proceedings, arising therefrom, qua
petitioners are quashed. (SABINA)

JUDGE

January 22, 2009

anita

Court ordered Legal Terrorist to pay 7.7cr Rs. to innocent sibling of th husband

G.A. No. 1297 of 2007
C.S. No. 223 of 2005

IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction

PRITAM SEN

-V-

SMT. SWASTIKA SEN (MUKHERJEE)

For Plaintiff/Responden t: Mr. Krishnendu Gooptu,
Mr. C. K. Saha, Advs.

For Defendant/Petitione r: Mr. Malay Kr. Ghose,
Mr. S. K. Trivedi, Advs.

Heard on : 2-5-2007, 10-5-2007, 16-5-2007, 5-6-2007,
29-4-2008, 14-5-2008, 3-6-2008, 17-6-2008,
8-7-2008, 14-7-2008.

BEFORE:
THE HON'BLE MR. JUSTICE MAHARAJ SINHA.

Judgement delivered..: 25-9-2008.
MAHARAJ SINHA, J.

On 16 April 2007, when the plaintiff was about to complete his
evidence, learned Counsel engaged by the sole defendant appeared in
Court for the first time and submitted that the defendant was willing to
defend the suit and for such purpose the defendant would make necessary
application for obtaining leave to enter appearance and seek direction for
filing a written statement to contest the suit instituted by the plaintiff in
this Court. When this prayer was made on behalf of the defendant by the
defendant's learned Counsel the suit was already heard on several days,
namely 11 December 2006, 18 December 2006, 15 January 2007, 20
February 2007, 7 March 2007, 14 March 2008, 28 March 2007, 4 April
2007 and 5 April 2007, as an undefended suit.

It should, however, be mentioned here that the plaintiff was allowed
to proceed with the suit treating it to be an undefended suit as I was
satisfied on the basis of the records of the proceeding regarding the due
service of writ of summons upon the defendant including the necessary
certificates issued by the Registrar, Original Side and by the Sheriff's
Office.

It is an admitted position however that when the learned Counsel
appeared on behalf of the defendant on 16 April 2007 and made the above
prayer the defendant did not even enter appearance to contest the suit. It
was submitted on behalf of the defendant that the defendant was unable to
contest the suit as no writ of summons was ever served upon the
defendant and as such the defendant was not in the know that the above
suit was instituted by the plaintiff in this Court and the same was being
heard as an undefended suit.

However, after considering the submissions of the learned Counsel
both for the plaintiff and the defendant I adjourned the suit till 25 April
2007 and in the mean time learned Advocate-on- record of the defendant
was given liberty to inspect the records of the suit proceeding except the
depositions of the plaintiff and his witness/witnesses, who had already
given evidence in Court by then, upon notice to the learned Advocate-on-
record of the plaintiff and in the presence of an officer of this Court.

The defendant thereafter made an application essentially for a
direction upon the plaintiff that the plaintiff should serve the writ of
summons together with the copy of the plaint filed in the suit upon the
defendant, that the defendant be granted leave to enter appearance and
thereafter file written statement within a specified time after the service of
writ of summons upon the defendant and stay of hearing of the suit as an
undefended suit. The full prayers, however, are set out in the defendant's
above application at pages 13, 14 and 15 thereof, G. A. No. 1297 of 2007.
Since the plaintiff wanted to contest the above application of the
defendant, direction was given for using affidavits for final disposal of the
defendant's application on merits.

The defendant, who is the only defendant as aforesaid, has primarily
based her case only on one ground for obtaining leave of this Court to
enter appearance for contesting the suit by filing a written statement, that
since no writ of summons or copy of the plaint was received by the
defendant the defendant was unable to enter appearance and consequently
file the written statement to contest the suit. (Paragraph 23 of the Petition).

It is an admitted position however that in this case the service of writ
of summons upon the defendant was sought to be effected by two modes,
namely delivery of summons by Court and issue of summons for service by
post in addition to personal service.

It was, however, rightly pointed out by the learned Counsel for the
plaintiff that simultaneous issue of summons of service by post in addition
to personal service "is no longer required" in view of the amendment of the
Code of Civil Procedure with effect from 2002, to be precise from 1 July
2002, as by virtue of such amendment, rule 19(a) of Order 5 of the Code of
Civil Procedure (CPC, in short) was omitted altogether. Before the said rule
was omitted a simultaneous issue of summons for service by post in
addition to personal service was generally regarded as necessary though
Court could dispense with such simultaneous issue of summons for
service if the Court considered such service unnecessary. The effect of the
2002 amendment or rather the effect of deletion of rule 19(a) of Order 5 of
CPC on the present case is that if the plaintiff is in a position to satisfy the
Court that the writ of summons was duly served upon the defendant
through Court or rather by the process server of the Court in question,
then and in that event, the proof of service of writ of summons by post
upon the defendant would no longer be treated to be necessary.
In the instant case, however, as far as the records of the proceeding
show both modes were used for service of writ of summons upon the
defendant, one through the process server of the District Court of Alipore
since the place of residence of the defendant was (is) outside the original
jurisdiction of this Court and also by registered post.

I would first examine the relevant averments made by the petitioner,
namely the defendant in her petition in support of her case that no writ of
summons or copy of the plaint was received by the defendant.

In order to demonstrate that no writ of summons or the copy of the
plaint was received by the defendant, the contents of the report dated 22
December 2005 of the process server have been relied on. The defendant
has tried to show that according to the process server's report he "went to
the 4th floor (Panch Tala in Bengali) at premises no. 49/65, Gulam
Muhammad Shah Road, Calcutta 700 033 on 25 December 2005 and
affixed copy of the writ of summons and the plaint on the outer door of a
room on the 4th floor (Panch Tala in Bengali) of the said premises. [Sub-
paragraph VI of Paragraph 16 at page 8 of the Petition].

According to the defendant, since 1999 "the defendant has been
living and still is residing with her father in the flat on the third floor of
premises no. 49/65, Gulam Muhammad Shah Road, Calcutta 700 033.
The said premises is a four storied building". [Paragraph 17 at
Page 9 of the Petition].
There is no denial, however, that the premises number mentioned in
the report, which I would also call a declaration, is the residential premises
of the defendant. The defendant has also said that the same is a four
storied building but the defendant "has never met any process server".
[Paragraph 17 of the Petition].

The defendant has categorically stated that the defendant had not
received the writ of summons or a copy of the plaint "relating to the suit
being C.S. No. 223 of 2005 and as a result thereof" the defendant could not
enter appearance and file the written statement to defend the suit "by
engaging lawyer when the said suit was heard by this" Court. (Paragraph
23 of the Petition).

Since no writ of summons has been received by the defendant, the
defendant should be given leave to enter appearance and file the written
statement for the purpose of contesting the suit within a specified time
after the due service of the writ of summons upon the defendant with a
copy of the plaint filed in the suit.

Admittedly, the plaintiff instituted the suit in this Court and since
the defendant was(is) residing outside the ordinary original jurisdiction of
this Court the writ of summons was sent to the District Court at Alipore
(as the defendant was(is) residing within the jurisdiction of that Court) for
delivery of writ of summons to the defendant and that is why it is the
process server of the District Court of Alipore who had to serve the writ of
summons upon the defendant as provided in the relevant provisions of the
Code of Civil Procedure, namely sub-rule 4 of rule 9 of Order 5 thereof and
the relevant provisions under chapter 8 of the Original Side Rules.

In support of due service of the writ of summons upon the defendant
by both the modes, as aforesaid, the plaintiff has annexed the relevant
documents to the affidavit-in- opposition used by the plaintiff to contest the
present proceeding initiated by the defendant for the purpose of obtaining
leave to enter appearance and to file the written statement.

For my present purpose, as I would first deal with the service of writ
of summons by the process server, the original report of the process server,
Chunilal Sardar, dated 22 December 2005 as appearing in the writ of
summons and the certificate issued by Sovan Das, Dealing Assistant of the
Sheriff's Office of this Court dated 6 March 2006, need I think be examined
once again. In addition to that the plaintiff, needless to mention, also had
relied on the certificate issued on behalf of the Registrar, Original Side
dated 13 November 2006 certifying that the defendant "has not entered
appearance either in person or by Advocate up to 10 November 2005".

At this juncture, I must say that when I allowed the plaintiff to prove
his claims made in his suit ex parte treating the suit to be an undefended
suit, I was fully satisfied with the due service of the writ of summons upon
the defendant and this satisfaction on my part was based on the above
documents relied upon by the plaintiff or rather on his behalf by his
learned Counsel at the hearing of the suit, copies whereof have also been
annexed to the present affidavit-in- opposition. However, as the hearing of
the present proceeding was initiated by the defendant on the basis of the
leave granted by me I decided to give the defendant a chance to prove the
defendant's case as made out in the petition that the defendant was unable
to appear on the day when the suit was fixed for hearing as the writ of
summons of the suit was not delivered to the defendant, or rather, more
appropriately, the defendant had not received the writ of summons nor a
copy of the plaint which prevented the defendant from entering appearance
and filing the written statement to contest the suit. (Paragraph 23 of the
Petition).

It must be made clear at this stage also that since the plaintiff was
allowed to prove his claims made in the suit ex parte it was not for the
plaintiff to prove due service of summons upon the defendant all over again
either by the delivery of writ of summons by Court or by mail or post as
provided in the Code of Civil Procedure and in the High Court Rules. The
plaintiff, as aforesaid, was allowed to proceed with the suit ex parte as I
was fully satisfied with the due service of writ of summons upon the
defendant after the institution of the suit. Even then, keeping in view the
provisions of rule 19 of order 5 of CPC and more importantly the
statements made by the defendant that "the contents of the report of the
process server should not be taken to be correct without giving" the
defendant an opportunity to cross-examine the process server through her
advocate, (Paragraph 16 Page 10 of the Affidavit-in- Reply), I made the order
on 29 April 2008 whereby the concerned process server, namely Chunilal
Sardar, an employee of the District Court of Alipore, was summoned by me
to give evidence in Court as I thought that his evidence was necessary for
an effective adjudication of the present proceeding, meaning thereby the
proceeding initiated by the defendant with the leave of this Court for
obtaining leave to enter appearance and file the written statement for the
purpose of contesting the suit.

The plaintiff, I repeat, had discharged his initial burden of proving
due service of writ of summons upon the defendant on the basis of the
above mentioned documents including the necessary certificates before
being allowed to prove his claims in the suit ex parte by me.

Since in the present proceeding the defendant has stated that she
was not served with the writ of summons, or rather, had not received the
writ of summons which prevented her from entering appearance for the
purpose of contesting the suit, the onus is on the defendant to prove that
she was not, in fact served with the writ of summons as claimed by the
plaintiff, or rather, the officials of this Court and the Court of Alipore as the
alleged non-service or non-receipt of writ of summons upon or by the
defendant gave the defendant her cause of action for the present
proceeding for obtaining leave to enter appearance and file the written
statement. The defendant, therefore, must discharge the onus of proving
that there was no service of writ of summons upon her as claimed by the
plaintiff together with the concerned departments of this Court including
the process server of the District Court. The plaintiff is under no obligation
to prove due service of writ of summons upon the defendant repeatedly or
all over again since the plaintiff was allowed to proceed with the suit by
this Court as this Court was satisfied with the due service of the writ of
summons upon the defendant in the first place.
Pursuant to my above order, the process server, the said Chunilal
Sardar, an employee of the District Court of Alipore, was examined before
me on 14 May 2008 and he was also thoroughly cross-examined by the
defendant's Counsel on 3 June 2008. The process server gave evidence
that he was working as a process server for nearly 40 years, 38 years to be
precise, and never in the past he was summoned by any Court to give
evidence on due service of writ of summons upon the parties in any matter
and this was the first time that he was summoned to give evidence in
Court. The process server has indeed an unblemished record of nearly
forty years. His appearance, the age and experience are, I have found, very
convincing as well.

The process server in his evidence from the witness box stated in
clear terms that he visited the premises in question on 22 December 2005
at about 2 p.m. when he was told by a person who came out from the
building to go on to the top floor of the said premises, or rather, of the
building in question at the premises as the defendant, the process server
was told by that person, was to be found on the top floor, namely the 4th
floor which, in Bengali, he said "Panch Tala". When he knocked the door
of the flat in question "two ladies came out along with two dogs who were
barking at" him. The ladies opened the door but the collapsible gate of the
flat remained closed. The process server was asked by the ladies the
purpose of his visit, when he explained as to why he was visiting the place.
The process server also mentioned the name of the defendant or rather
called the defendant by name and said that he came to deliver the writ of
summons to the defendant but the ladies refused to accept the same. The
process server then tied the summons with the collapsible gate and as he
was climbing down the stairs the collapsible gate was opened and two dogs
who were little behind the two ladies came running after the process server
but the process server somehow escaped. One of the two ladies who came
out in fact said that she was the defendant. The process server also
approached the person who showed him the way to the top floor but the
person did not keep the request of the process server to sign on the
document i.e. the writ of summons "as that person did not want to sign
any Court's document". On being asked in examination- in-chief why did
the process server mention in his report that he went to the 4th floor
whereas the flat in question was, in fact on the third floor, he said that he
described it to be 4th floor as the person who showed him the way said that
it was "Panch Tala" so the process server went to the top floor and found
the same to be the roof of the building. He then came down to the next
floor and knocked the door when the two ladies came out to answer. I
specifically asked the process server whether he first went to the roof top
and then came down, his answer was "yes", then he said that he came
down to the very next floor. When I asked the process server when he
reached the roof top what he found, he said that he did not find any other
floor on the roof. [Questions 19 to 26 in Examination- in-Chief] .

In his cross-examination the process server, I find, clearly repeated
what he stated in his report dated 12 December 2005, which I take it to be
his declaration as well. He also said the person who showed him the way
to the roof top at the premises in question, in fact, came out from the
house in question when he "called but the person did not disclose his
name, or rather, his identity". He also mentioned that one of the two ladies
who came out from the flat in question did say that she was the defendant
but both of them refused to put their signatures on the documents. In
cross-examination, he explained the whole thing in detail as to how he
went to the roof top and then came down to the next floor and then
knocked the door when two ladies came out, one of whom said that she
was the defendant and then refused to put any signature on the
documents then the process server "tied the writ of summons with the
collapsible gate with thread". In answer to specific questions put by the
defendant's Counsel, namely questions 60 and 61 he explained how he
served the writ of summons

To Counsel:
The expression "latkaya dia jari karilam" in your report written in
Bengali what did you mean by that expression? / By hanging with thread.

What did you hang with the thread? / The true copy of the writ of
summons was hanged with thread by me.

When the defendant's Counsel asserted that there was no collapsible
gate in front of the door of the flat in question, he said that there was a
collapsible gate as well as the door of the flat.

In his entire evidence, which I have examined more than once, the
process server stated in clearest possible terms as to how he served or
delivered the writ of summons to the defendant (who is the only defendant
in the suit).

His evidence in Court, I find, tallies exactly with his report, or rather
corroborates his report or the declaration made by him on 22 December
2005 after the process server completed his service of writ of summons.
Taking an extremely technical approach, learned Counsel on behalf
of the defendant was trying to make out a case that though the process
server mentioned in his report that he served the writ of summons, he did
not say that he also served the copy of the plaint. If the evidence is
analyzed, which I have done very closely and repeatedly, it would be seen
that the only question that was put to the witness, namely the process
server by the defendant's counsel was that he did not serve the writ of
summons to which he repeatedly answered that he did serve the writ of
summons. Why the defendant's Counsel was so shy to suggest the process
server that he "neither served the writ of summons, nor a copy of the
plaint," when the case that the defendant has tried to make out in the
petition is that the defendant did not receive the copy of the writ of
summons nor a copy of the plaint, cannot however be understood with any
rational approach.

It should be mentioned at this stage, however, that the suit was
instituted in this Court and the concerned department of this Court sent
the writ of summons together with the copy of the plaint, as it is done
regularly as a matter of course in every suit, to the concerned District
Court for the purpose of delivering the writ of summons to the defendant
concerned as the defendant admittedly was residing outside the original
jurisdiction of this Court. In this connection, it will be enough to mention
the question put to the process server by the defendant's counsel, namely
question 71 "I put it to you that no writ of summons was served by you
on the defendant" to which his answer was rather specific, he said, "I went
there, I showed her the document, she read it, thereafter she refused to
accept it, then I hanged the copy of the writ of summons with the
collapsible gate with a thread".

Then in answer to question 72 which happened to be the last
question in cross-examination, namely, "I put it to you that the contents of
your report dated 22 December 2005 are not correct", the process server
answered in the positive saying that "it is correct and my report was right".

As I have said above that the process server gave the correct and
perfect answer to the suggestion made by the defendant's Counsel i.e.
question 71 as it was not put to him at the same time that he neither
served the writ of summons nor the copy of the plaint upon the defendant
on 22 December 2005.

In this connection, I shall deal with the judgment of the Supreme
Court relied upon by the defendant's Counsel a little later, before that, I
must also point out that the process server came and gave evidence in
support of his report or the declaration dated 22 December, 2005
regarding his service of writ of summons upon the defendant. He made
positive statements from the witness box in his evidence which I find no
reason to disbelieve, on the contrary, in the absence of any better evidence
from the defendant, I believe and accept the evidence of the process server
and his report or declaration on the due service of the writ of summons
together with the copy of the plaint upon the defendant. It may well be,
that the defendant's counsel did not deliberately ask the process server
whether he served the copy of the plaint together with the written
statement because the answer was expected to be so obvious.
Above all, I find it extremely difficult to appreciate as to why the
defendant did not come forward and give evidence to substantiate her case
made in the petition. As I said above, in order to proceed with the suit the
plaintiff had to satisfy this Court, which the plaintiff did, that after the
institution of the suit the writ of summons was duly served upon the
defendant and in spite of such service the defendant did not enter
appearance and as such the plaintiff had a right to proceed ex parte and
the Court on that basis should allow the plaintiff to proceed ex parte
treating the suit to be an undefended one.

Since the defendant has attempted to set up a case that the
defendant did not receive the writ of summons or the copy of the plaint or
that there was no proper service of writ of summons either by the process
server or by the registered mail the onus is on the defendant to prove that
the service that was alleged to have been effected upon the defendant
either by the Court through its process server or by the registered mail was
not in fact a true service in the first place.

In this connection, the decision of the Supreme Court relied upon by
the defendant's Counsel, namely Sushil Kr. Sabharwal V- Gurpreet Singh
& Ors., reported in A.I.R. 2002 S.C. 2370, is referred to. In that case the
appellant before the Supreme Court was trying to establish that since the
service of writ of summons was sought to be effected upon the defendant
just a day before the date of hearing of the suit and that the process server
concerned did neither affix a copy of the summons nor the plaint on the
wall of the premises in question and since the alleged affixation of the writ
of summons was not witnessed by any person who could identify the
defendant, the so-called service of writ of summons should be treated to be
"non-service of summons" and that should be held to be a good ground for
setting aside an ex parte decree. The High Court in that case, in fact,
refused to set aside the ex parte decree without satisfying itself as to the
due service of the writ of summons, the Supreme Court found.

The facts of that case undoubtedly differ substantially from the facts
of this case so far as the service of writ of summons upon the defendant in
the present case is concerned. However, the Supreme Court after
examining the facts as to how the writ of summons was sought to be
served upon the defendant concerned was satisfied that there was no
proper service of writ of summons upon the concerned defendant as the
endorsement made by the process server was contradictory. The Supreme
Court said in paragraph 8 at page 2371 of the report "We find several
infirmities and lapses on the part of the process server. Firstly, on the
alleged refusal by the defendant either he did not affix a copy of the
summons and the plaint on the wall of the shop or if he claims to have done
so, then the endorsement made by him on the back of the summons does not
support him, rather contradicts him. Secondly, the tendering of the
summons, its refusal and affixation of the summons and copy of the plaint
on the wall should have been witnessed by persons who identified the
defendant and his shop and witnessed such procedure. The endorsement
shows that there were no witnesses available on the spot. The correctness
of such endorsement is difficult to believe even prima facie. The tenant runs
a shoe shop in the suit premises. Apparently, the shop will be situated in a
locality where there are other shops and houses. One can understand
refusal by unwilling persons requested by the process server to witness the
proceedings and be a party to the procedure of the service of summons but to
say that there were no witnesses available on the spot is a statement which
can be accepted only with a pinch of salt. Incidentally, we may state that
though the date of appearance was 23 February 1993 the summons is said
to have been tendered on 22 February 1993, i.e. just a day before the date
of hearing".

But the decision of the Supreme Court, I think, was based on the
evidence of the appellant himself, namely the defendant in the suit, who
complained that there was no proper service of the writ of summons upon
him in the first place and gave evidence to that effect in Court, as the
Supreme Court said "The appellant has himself appeared in the witness-
box and deposed on oath that no summons was tendered to him by any
process server of the Court. It is a case of oath against oath. In view of the
facts which we have noticed hereinabove clearly the oath of the appellant
was more weighty than the oath of the process server. In the ordinary
course of events, the Court of facts should have discarded the statement of
the process server and believed the statement of the appellant". [See
Paragraph 9 at Page 2372 of the report].

In my opinion, the evidence given by the appellant/tenant from the
witness-box was the deciding factor as the Supreme Court accepted the
evidence of the appellant/tenant given from the witness box to be the
better evidence than the evidence of the process server in that case. The
Supreme Court undoubtedly was dealing with a case of the
defendant/appellant who was seeking an order of setting aside the ex parte
decree against him. The Supreme Court on facts was satisfied that the
defendant had no notice of the date of hearing and that the case before the
Supreme Court was not a mere irregularity in the service of writ of
summons but it was a case of non-service of writ of summons and the
appellant, namely the defendant by his evidence from the witness-box
could prove that there was no due service of writ of summons upon him in
the first place.

Most importantly, however, the defendant in her petition has not
questioned the correctness of the process server's visit to the defendant's
residence for the purpose of service of the writ of summons on 22
December 2005 at all. The defendant has made only one line statement
that the "petitioner has not met any process server", and in the affidavit-in-
reply the defendant, I repeat, has said "that the contents of the report of
the process server should not be taken to be correct without giving" the
defendant "an opportunity to cross-examine the process server through"
her "advocate". (Paragraph 16 at Page 10 of the Affidavit-in- Reply).

In the present case, however, it is only the one sided evidence of the
process server in support of the service of writ of summons upon the
defendant which I have examined very closely and repeatedly and found to
be good evidence of due service of the writ of summons upon the
defendant. No challenge has been thrown to the positive statements made
by the process server in support of his report from the witness-box. The
process server also stated that the person who showed him the way to the
defendant's flat refused to put his signature on the writ of summons since
he was not willing to sign "any Court's paper".
As the truth has the bad habit of coming out any way, the process
server from the witness-box said that not only two ladies appeared behind
the collapsible gate but there were two dogs as well with them who were
barking at him. A process server cannot have the special knowledge of pet
dogs unless he had gone to the premises, or rather to the flat in question
to deliver the writ of summons, how the process server could go on
asserting that there were two dogs who, in fact, chased him and he
somehow escaped. True it is, that he did not mention this incident in the
report as he said that there were several difficulties faced by a process
server every day in effecting service of writ of summons to different parties.
In other words, what he wanted to say was that this was one of the usual
hazards faced by a process server in discharging his duties very often and
that is why these things are not normally mentioned in the reports.

Interestingly enough, however, the defendant did not challenge this
positive assertion on the part of the process server that there could not be
any presence of dogs at the defendant's premises or rather at the flat in
question as the defendant or her family never had any "pet dogs" in the
first place or that the dogs did not belong to the defendant or her family or
that the evidence on dogs was false or untrue "for some reason or the
other". No challenge on this assertion was thrown to the process server in
cross-examination by the defendant's learned Counsel except that the
process server did not mention this incident in the report, to which, the
process server answered, and answered quite honestly, that these things
are not mentioned by a process server as there are many hazards like this
which a process server has to face in discharging his duties practically
everyday.
However, the evidence of the process server from the witness-box that
he was chased by the dogs is rather too serious. By allowing the dogs to
chase the process server at the time when he was discharging his duties or
acting under the authority of "Court", the defendant and the other lady
(her companion), in my opinion, have also rendered themselves liable for
committing criminal contempt.

I repeat that the process server's evidence has remained
uncontroverted and the defendant even by cross-examining the process
server to the fullest extent has not been able to throw any doubt on the
due service of the writ of summons upon the defendant at all.

I also accept the case of the plaintiff that since the defendant has
said that there has not been any service of writ of summons, or rather any
service of writ of summons in the first place, the question whether the copy
of the plaint was served or not becomes immaterial as it is not the case of
the defendant that "even assuming the copy of the writ of summons was
served, but there was no service of copy of the plaint upon her at all. The
case of the defendant in the petition is that the defendant did not receive
the writ of summons nor the copy of the plaint. The defendant has also
said that the defendant did not meet any process server.

The defendant however, I believe, knew full well that merely the
allegation of non-service of copy of the plaint upon the defendant would
not take the case of the defendant too far as far as the present proceeding
is concerned and that is why the petition proceeds on the basis that no
writ of summons was served upon the defendant. The defendant has not
said that since "I was not served with the copy of the plaint I could not file
the written statement" her case is, as aforesaid, she did not receive the writ
of summons nor the copy of the plaint and that is why the defendant could
not enter appearance to contest the suit by filing her written statement.

I, therefore, do not attach any importance to the faint and feeble
attempt on the part of, or rather on behalf of the defendant to suggest that
the report or the declaration of the process server and his evidence from
the witness-box do not prove that a copy of the plaint was also served upon
the defendant with the writ of summons. Even if the defendant were duly
served with the writ of summons without the copy of the plaint, then it
would be obligatory on the part of the defendant to enter appearance to
contest the suit and then apply for a direction for service of the copy of the
plaint to enable the defendant to file the written statement.

In this connection the decision relied upon on behalf of the
defendant, namely Nahar Enterprises V- Hyderabad Allwyn Ltd. & Anr.,
reported in (2007) 9 SCC 466 does not take the case of the defendant
anywhere, as in that case the writ of summons was admittedly served
upon the defendant after the date fixed for his appearance and that is why
the Supreme Court said that it was obligatory on the part of the Court, or
rather the Trial Court to fix another date for hearing for the defendant's
appearance and for filing of the written statement and as such the Trial
Court should have directed that as the writ of summons was admittedly
served after the date fixed for his appearance in the summons, a fresh writ
of summons should be served upon the defendant. A plain reading of
paragraphs 4 and 10 at pages 467 and 468 of the report makes the above
position absolutely clear.

The Supreme Court in that case found that in the summons sent to
the appellant, a particular date, namely 10-10-1988 was fixed for his
appearance but since the writ of summons had not been served upon the
defendant the Court had to adjourn the matter till 02-12-1988. But the
writ of summons was, in fact, served on the appellant on 14 October 1988
after the expiry of the date of appearance of the defendant, namely 10-10-
1988 mentioned in the summons. The defendant was diligent enough to
inform the Trial Court by his telegram and his letter that although he
received a writ of summons after the expiry of the date of his appearance
mentioned in the same, he did not receive any copy of the plaint along with
the writ of summons. The said telegram or the letter of the defendant was
not even replied to. The Court did not issue any further summons fixing
another date for his appearance but since on the adjourned date the
appellant/defendant was absent the Court fixed another date for ex parte
hearing and on the adjourned date the suit was decreed ex parte.

It is on that issue the Supreme Court observed that there was a
manifest error on the part of the learned Trial Court as it failed to take into
consideration that the summons having been served upon the appellant
after the date fixed for his appearance it was obligatory on the part of the
Court to fix another date for his appearance and for filing a written
statement and as such the Trial Court should have directed the plaintiff to
take steps for fresh service of writ of summons and this the Supreme Court
said - "is explicit in view of provisions of Order 9 Rule 6(1)(c) of the CPC".
(See Paragraph 10 at Page 468 of the Report).
I do not think I need to say more as to why I think that the above two
Supreme Court decisions do not come in aid of the case of the defendant
which the defendant has attempted to make out in her petition for
obtaining leave to enter appearance and for filing the written statement for
the purpose of contesting the suit. On the contrary, both the above
decisions in fact make the feeble attempt on the part of the defendant to
somehow make out a case of "non-service or non-receipt of the writ of
summons" even weaker.

Now comes the question as to whether the defendant was duly served
with the writ of summons by mail, or rather by registered post. At the very
outset it must be said that learned Counsel on behalf of the plaintiff has
rightly argued that by virtue of rule 19(a) of Order 5 of CPC which was
brought about by way of amendment of the Code with effect from 1 July
2002 the simultaneous issue of writ of summons for service by post in
addition to personal service has lost its importance as the service by
anyone of the modes, namely the personal service or the service of writ of
summons by post will suffice.
However, since I am fully satisfied that the writ of summons together
with the copy of the plaint was duly served upon the defendant by the
process server on 22 December 2005, my attempt to examine whether the
defendant was also duly served with the writ of summons by registered
post would practically be academic.

In support of the service of writ of summons by post an affidavit of
Sri Amar Kr. Sengupta, "an assistant in the Sheriff's Office, High Court at
Calcutta", affirmed on 29 March 2006 and the receipt acknowledging that
the writ of summons with a copy of the plaint was delivered to the
premises in question and received by one Gopal Roy (Gopal, in short) on
behalf of the defendant was and is relied upon. The said acknowledgement
receipt was signed by Gopal who was admittedly the driver of the father of
the defendant at the time when the writ of summons was delivered to the
residence of the defendant by the postman and received by Gopal, the
driver. However, the defendant has said that Gopal never informed the
defendant or her father or mother or any other family member of the father
of the defendant that he received any copy of the writ of summons or the
plaint filed in the suit, nor Gopal had handed over the copy of the writ of
summons or the plaint in question to the defendant or her mother or her
father or anybody else in the family. Gopal is not a member of the family
and that the defendant had never authorized or empowered Gopal to
accept any writ of summons or copy of the plaint or any other paper or
document relating to any "Court proceedings" . [Paragraphs 18, 19, 20, 22
of the defendant's petition].

On a plain reading of the petition of the defendant it is clear that the
father of the defendant plays a very important role in her life and that the
defendant has the fullest faith and confidence in her father who also looks
after the Courts' proceedings on behalf of the defendant. Admittedly, at
the relevant point of time Gopal was employed as the driver of the father.
It is not the case of the defendant that the father of the defendant or the
defendant had no confidence in Gopal, the driver, otherwise how could he
be trusted as the driver of the father of the defendant. Unless the employer
or the owner of the car, namely the father of the defendant, had the fullest
faith in the person who was employed as his driver, he would not have
been retained as "driver". As far as the question of authority is concerned
the onus was on the defendant to prove that Gopal, the driver had no
authority to accept or was not empowered to accept the copy of the writ of
summons from the postman who went to the defendant's place to deliver
the same.

The writ of summons together with the copy of the plaint was, no
doubt mailed to the correct address, namely the premises of the defendant.
It was also received by a person who held as important position as the
driver of the defendant's father with whom the defendant was living (or
perhaps is still living as well). The father of the defendant, as aforesaid,
has a very important role to play, if not the most important role to play as
far as the Courts' proceedings in which the defendant has interest are
concerned as evident from the statements of the defendant made in
paragraphs 1 to 18 of the petition.

I do not know why the defendant did not even make any attempt to
produce the driver as witness or why did not the defendant herself come
forward and say that she did not receive any copy of the writ of summons
or the copy of the plaint from Gopal, the driver. At no point of time the
defendant was ready to examine Gopal as well. The presumption of due
service of writ of summons together with the copy of the plaint by
registered post is, in my view, overwhelmingly in favour of such service on
the basis of the documents evidencing such service.

I see no reason to hold that the service by registered post is improper
service in the facts and circumstances of this case. I also accept the
submissions on the basis of Section 114 (e) of the Indian Evidence Act as
well as Section 3(e) of the Indian Post Office Act 1898 made by the learned
Counsel of the plaintiff. Section 3(e) of the 1898 Act contains the meaning
of the expression "in the course of transmission by post" and "delivery".
Section 3 (e)(c) says that "the delivery of postal article at the house or office
of the addressee, or to the addressee or his servant or agent or other person
considered to be authorized to receive the article according to the usual
manner of delivering postal articles to the addressee, shall be deemed to be
delivery to the addressee". In this case the postman rightly considered
Gopal, the driver to be authorized to receive the writ of summons for and
on behalf of the defendant.

The presumption, as aforesaid, under Section 114(e) of the Indian
Evidence Act, in the present case, as rightly submitted by the plaintiff's
learned Counsel, is that "the postman had duly served on the person who
could be served in the regular course and in due discharge of his duties".

As rightly contended by the defendant's learned Counsel that the
presumption under Section 27 of the General Clauses Act and under
Section 114(e) of the Indian Evidence Act, 1872 is rebuttable, but I am
afraid that in the facts and circumstances of the case and the evidence on
record the defendant has miserably failed to rebut that presumption. On
the contrary, the defendant has tried to take an extremely technical, or
rather, hypertechnical approach to make out a case that no writ of
summons was served upon the defendant. In order to show that the driver
of the defendant's father had no authority to accept the service of writ of
summons by post, it was pointed out that a servant is not regarded as a
member of the family within the meaning of rule 15 of order 5 of the Code
of Civil Procedure. Indeed, nobody suggests that a driver is to be regarded
as the member of the family of his employer, the question is whether the
driver or the servant is authorized or empowered to accept the delivery of
the writ of summons or the documents regarding Courts' proceedings.

I have already said that the driver of the father of the defendant was
employed as the driver as the father of the defendant and his family
members including the defendant being the daughter had the full
confidence in the person concerned, namely Gopal, otherwise he could not
be retained in the service as driver of the family or driver of the father of
the defendant. The relationship, as I have already said, between the
defendant and the father has been very close and the defendant with her
daughter has been living with her father and mother as the members of the
family of the father since 1999 as evident from the statements made in the
petition itself by the defendant.

I repeat that the defendant has made no attempt to show that the
driver of the defendant's father had no authority to accept the writ of
summons by post on her behalf. She has done nothing to rebut the
presumption, as aforesaid. The defendant could have easily come forward
to give evidence to demonstrate that the driver had no authority and could
have also asked for the driver's presence in Court for examining him.

The feeble attempt on behalf of the defendant to show that Gopal had
no authority or was not empowered to accept the delivery of the writ of
summons from the postman and for such purpose reliance on the
unreported Judgment of this Court on an application for revocation of the
grant of probate by this Court in the goods of Bhagawati Prasad
Chowdhury, G.A. No. 1803 in PLA No. 28 of 2002, is nothing but an
exercise in futility.
In the above case, on facts it was found that there was no proof "that
the citation was received either by the petitioner or by some other persons
said to be Darwan of the house and also another person who were
authorized by him". (See Page 6, the 2nd Paragraph of the Judgment.)

The learned Judge thought that "the propounder executor could have
come with the affidavit of the Darwan", who was the "common Darwan" of
the petitioner as well as the propounder, as the common Darwan allegedly
received the citation. Since no such affidavit of the common Darwan was
on record acknowledging due service of citation the learned Judge was not
prepared to accept the service of citation as due service in the facts of that
case and that is why it was said that the executor propounder had failed to
discharge the burden as he failed to produce any counter-affidavit of the
common Darwan, or "any other person that it was received by him and the
same was handed over to the petitioner". (See the 1st, 2nd paragraphs at
page 6 of the Judgment).

The driver in the present case (if he is not still the driver) was the
driver of the defendant's father, and I have already explained why I think
that both the defendant's father and the family members of the defendant
including the defendant herself should be taken to have the full confidence
in Gopal, the driver, as otherwise he could not have served the family as
driver. It is common knowledge that a person who engages another as his
driver must have the fullest confidence in the person as without such
confidence an important job such as of a driver cannot be entrusted with a
person by the employer, the owner of a vehicle. Similarly, without the
confidence of the family members of the owner of a car in the driver, the
owner cannot retain such driver.
Since in the facts and circumstances of the entire case and on
repeated reading of the evidence on record I am convinced that the writ of
summons together with the copy of the plaint was duly served upon the
defendant both by the process server and by registered post I do not think
I need to go on dealing with the cases cited in support of the plaintiff's case
in detail. Suffice it to say, however, that the decisions amongst others in
United Commercial Bank V- Mrs. Raka Sen(Nandi), AIR 1996 Cal. 242,
and in Basant Singh & Anr. V- Roman Catholic Mission, AIR 2002 SC
3557 relied on by the plaintiff's learned Counsel fully support the stand of
the plaintiff taken in his affidavit used in opposition regarding the due
service of writ of summons upon the defendant.

I must say at the end that I thoroughly disbelieve the case attempted
to be made out in the petition by the defendant for obtaining leave to enter
appearance and file the written statement for contesting the suit instituted
by the plaintiff against the sole defendant. Needless to mention, leave to
enter appearance for contesting a suit cannot be granted in this case to the
defendant as a matter of course in the absence of a genuine non-service of
writ of summons.

Since I have also the feeling that the attempt on the part of the
defendant to obtain leave of this Court to enter appearance and to file
written statement for the purpose of defending the suit has not been an
honest one, inasmuch as the defendant has not really told the truth,
instead has taken a hypertechnical approach to demonstrate that the writ
of summons was not served or delivered either by the process server or by
registered post, the defendant is liable to pay cost to the plaintiff assessed
at 500 GMs which cost the defendant must pay by 11 November 2008 to
the plaintiff or the plaintiff's Advocate on record.

The application is thus dismissed with cost as above.

Let the suit appear as an undefended suit as before for further
hearing on the second Wednesday, 12 November 2008 after the Puja
Vacation.

Let an urgent Xerox certified copy of the Judgment be given to the
parties, if applied for, on the urgent basis.

[MAHARAJ SINHA, J.]