Mr.Rebates

Mr. Rebates

Saturday, October 23, 2010

(Judgments) Important Perjury Citations




Laxminarayan Deepak Ranjan Das vs K.K. Jha And Ors. on 16 April, 1999

Section 340. of the Code incorporates following principles :
(i) Only cases where Courts, on objective consideration of the facts and circumstances are of honest belief and opinion that interests of justice require the laying of a complaint, should form subject of an enquiry.
(ii) Conducting preliminary enquiry or dispensing with it is not mandatory, but is discretionary.
(iii) A proceeding under the provision is an independent and different proceeding from that of the original sessions case.
(iv) The proceeding being penal in nature, in accordance with principles of natural justice the accused should be issued show cause notice to afford a reasonable opportunity to establish by adducing oral arid documentary evidence that it is not expedient in the interest of justice to prosecute him.
(v) As a condition precedent to filing a complaint; the Court should record a finding that it is expedient in the interests of justice that an enquiry should be made….
(vi) The provision to record a finding is not merely discretionary but is mandatory, for, an appeal lies against the order of the Court.
(vii) The order recording such a finding must be a speaking one supported by valid and justifiable grounds to enable the appellate Court to know the material on which the Court formed the opinion that it was expedient in the interest of justice to launch a prosecution.
(viii) The language recording the finding as contemplated under the provision must be such that it leaves no doubt that it was a fit and proper case.
(ix) It is incumbent on the Court to give a specific finding before making a complaint.
(x) The omission or failure to record a finding that it is expedient in the interests of justice to enquire into the offence is not a mere irregularity curable under Sections 464 and 465 of the Code as it goes to the root of the matter and the Court will have no jurisdiction to file a complaint without recording such a finding.
8. Before an order is made under Section 340 of the Code there must be grounds of a nature higher than mere surmise or suspicion for directing a judicial enquiry. Before the proceedings under Section 340 to be instituted there must be direct evidence fixing the offence upon the persons whom it is sought to charge either in the preliminary enquiry or in the earlier proceedings out of which the enquiry arises. It is not sufficient that the evidence in the earlier case may induce Some sort of suspicion that these persons had been guilty of an offence but there must be distinct evidence of the commission of an offence by such persons. A complaint under this section should not be made against a person where the indications of his guilt do not amount to anything more than mere suspicion.
10. As pointed out by the Supreme Court in K. Karunakaran v. T.V. Bachara Warner AIR 1978 SC 290: (1978 Cri LJ 339) in a proceeding under Section 340(1) of the Code the reasons recorded in the principal case, in which a false statement has been made, have a great bearing and indeed action is taken having regard to the overall opinion formed by the Court in the earlier proceedings. The only question at an enquiry under Section 340(1) of the Code is whether a prima facie case is made out which, if unrebutted, may have a reasonable likelihood to establish the specified offence and whether it is also expedient in the interest of justice to take such action. The party may choose to place all its materials before the Court at this stage, but if it does not, it will not be, estopped from doing so later if the trial of prosecution is sanctioned by the Court. An enquiry under Section 340(1) of the Code is in the nature of affording a locus paenitentiae to a person and if at that stage the Court chooses to take action, it does not mean that he will not have full opportunity in due course of the process of justice to establish his innocence.

Sri Chand vs State Of U.P. on 28 March, 2003

2. The first appeal from order No. 46 of 1985 preferred under Section 83 of Lunacy Act read with Section 341/195(4), Cr.P.C. challenging the order dated 19-10-1984 passed under Section 340, Cr.P.C. in Misc. Case No. 285 of 1982 (Madan Lal v. Sri Chand) was finally disposed of by the District Judge, Azamgarh on 18-3-1983 where the District Judge has observed that Sri Chand had filed a false affidavit indicating that Madan Lal happened to be his real brother. On that aspect the District Judge had indicated for issuance of show cause notice for institution of a criminal complaint against him. The miscellaneous application No: 205 of 1983 has been originated from the said observation in respect of the alleged false affidavit filed by Sri Chand before the lower Court. Undoubtedly Sri Chand has filed an affidavit in Misc. Case No. 285 of 1982 which is allegedly to be a false affidavit wherein he had averred that Madan Lal happened to be his real brother whereas in another litigation regarding partitions of property Sri Chand the appellant before this Court has made and categorically asserted that Madan Lal is not his brother, that litigation was pending from much before the instant proceeding in which the impugned order in question and the cognizance of alleged false affidavit was noted on this aspect learned lower Court took a view that Sri Chand has filed a false affidavit. Learned lower Court has also made observations in the order dated 19-10-1984 that learned counsel for Sri Chand had very humbly stated before the lower Court that he has not done so intentionally with a view to gain something. However, learned District Judge had viewed such averment of Sri Chand presented on affidavit that definitely it was a false statement in the knowledge of Sri Chand and has been viewed that Sri Chand has deliberately filed a false affidavit touching his relationship with Madan Lal. Learned lower Court has also noted that Sri Chand was not instrumental in drafting of the affidavit as it was got prepared by the then learned counsel engaged in that case and Sri Chand had only made a signature at the bottom of the plain paper and as a common litigant and he could not make an attempt to peruse or he could not realise the necessity; of perusing the entire contents of the affidavit. According to Sri Chand he had simply put a signature under the affidavit in a blind folded manner without making any endeavourance to know the contents. However, learned lower Court has ignored these aspects in the matter and has viewed that such phenomena is uncommon and has considered that it a fit case where criminal’ complaint was to be filed against Sri Chand for filing false affidavit in the miscellaneous case.

State: Represented By Its … vs Baddepudi Penchalaiah, on 11 October, 2007

In the impugned judgment, the learned Special Judge observed that PW.1 gave false evidence before the trial Court, which is different from the version given by him before the Magistrate under Section 164 of Cr.P.C. Therefore, he is liable to be prosecuted for perjury under Section 193 of the Indian Penal Code.
IN THE HIGH COURT OF JHARKHAND AT RANCHI
In view of the admission and also in view of the affidavit and the records now filed by the respondents admitting the fact that the service record showed the date of birth of the petitioner as 12.7.1948, the respondent authorities are prima facie guilty of contempt and perjury.
Considering the peculiar facts and circumstances of the case and also in view of the fact that the petitioner has attained superannuation after completing 60 years of service and has collected retiral dues there is no point to initiate contempt proceedings and or perjury proceeding under Section 340 Cr.P.C. at this stage. However, it will be in the interest of justice to direct the respondent Management to pay a cost of Rs.20,000/- to the petitioner since he suffered at the hands of the respondents authority for making false statement on oath. It is also directed that if the retiral dues has not been released the same should be released within a period of one month from the date of receipt/production of a copy of this order. This writ petition is accordingly disposed of with the aforesaid direction.”


Balshiram Rambhau Awate vs The State Of Maharashtra on 23 March, 1977

6. However, we are sorry to find that the learned trial Judge having taken a correct view of the situation did not proceed logically to issue notices to at least three of the prosecution witnesses for having committed perjury. Two courses were open to him. He could have taken action under Section 344 Cr.PC summarily and arranged to punish them there and then. It was also open to him to hold a summary inquiry Under Section 340 (1) of the Cr.PC and decide whether a complaint should be filed. In this regard the learned trial Judge has shown some inaction. We find that the Police Patil and the Kotwal being public servants could not be allowed to run away scot-free from the Court in spite of committing perjury. In the same manner victim Damo- dar who has received several injuries at the hands of his brother cannot play fast and loose with the Court. We are thus satisfied that it is necessary to take action against these three witnesses for having committed the offence of perjury. We would therefore hold a preliminary inquiry in that behalf as contemplated by Sub-section (1) of Section 340 Cr.PC

Baiju Kumar vs D.E.O. on 10 July, 2003

9. The Manager has raised some new contentions in the counter affidavit which he has not raised either in O.P. No. 14830/99 or before the Government. They are regarding the ineligibility including financial position of the petitioner etc. Those contentions have been raised as a result of an afterthought as a desperate attempt to sustain Ext.P5. In those efforts, he has made conflicting pleas which may amount to commission of perjury warranting an order under Section 340 of the Cr.P.C. directing his trial for perjury by the competent Criminal Court. In O.P. No. 14830/99, the Manager has pleaded regarding the submission of the application by the petitioner in the following manner:-


Jose Kuruvinakunnel vs A.T. Jose on 6 December, 1996

3. The revision petitioner herein filed O. P. (Misc) 7/85 before the Munsiffs Court, Pala under Section 340 of the Criminal Procedure. Code against the respondent herein who is the 3rd defendant in O.S. 68/83 alleging that he had manipulated the official records of the Panchayat and had given false evidence before Court and as such he has committed the offence punishable under Sections 191 and 192 of the IPC.
4. After trial the Munsiffs Court dismissed the Suit. The Munsiffs Court also dismissed the O. P. (Misc.) 7/85 holding that there is no sufficient material to institute proceedings against the respondent herein under Section 340 of the Cri. P. C.
30. Therefore, it is clear that prosecution can be initiated by resorting to Section 340 of Cr. P. C. only in cases where it is expedient in the interests of justice to prosecute the party and prima facie evidence is adduced in that behalf and the provisions of Section 340 of Cr. P. C. cannot be resorted to lightly on the mere allegations, or to vindicate personal vendetta.
29. In the decision in Suntokh Singh v. Izhar Hussain AIR 1973 SC 2190 : 1973 Cri LJ 1176 the Supreme Court observed as follows (Para 11):
Every incorrect or false statement does not make it incumbent on the Court to order prosecution. The Court has to exercise judicial discretion in the light of all the relevant circumstances when it determines the question of expediency. The Court orders prosecution in the larger interest of the administration of justice and not to gratify feelings of personal revenge or vindictiveness or to serve the ends of a private party. Too frequent prosecutions for such offences tend to defeat its very object. It is only in glaring cases of deliberate falsehood where conviction is highly likely that the Court should direct prosecution.
Mahila Vinod Kumar I vs State Of Madhya Pradesh on 11 July, 2008
7. This section introduces an additional alternative procedure to punish perjury by the very Court before which it is committed in place of old Section 479 A which did not have the desired effect to eradicate the evils of perjury. The salient features of this new provision are:
(1) Special powers have been conferred on two specified Courts, namely Court of Session and Magistrate of the First Class, to take cognizance of an offence of perjury committed by a witness in a proceeding before it instead of filing a complaint before a Magistrate and try and punish the offender by following the procedure of summary trials. For summary trial, see Ch. 21. 6
(2) This power is to be exercised after having the matter considered by the Court only at the time of delivery of the judgment or final order.
(3) The offender shall be given a reasonable opportunity of showing cause before he is punished.
(4) The maximum sentence that may be imposed is 3 month’s imprisonment or a fine up to Rs.500 or both. (5) The order of the Court is appealable (vide S. 351). (6) The procedure in this section is an alternative to one under Sections 340-343. The Court has been given an option to proceed to punish summarily under this section or to resort to ordinary procedure by way of complaint under Section 340 so that, as for instance, where the Court is of opinion that perjury committed is likely to raise complicated questions or deserves more severe punishment than that permitted under this section or the case is otherwise of such a nature or for some reasons considered to be such that the case should be disposed of under the ordinary procedure which 7
would be more appropriate, the Court may chose to do so [vide sub-section (3)].
(7) Further proceedings of any trial initiated under this section shall be stayed and thus, any sentence imposed shall also not be executed until the disposal of an appeal or revision against the judgment or order in the main proceedings in which the witness gave perjured evidence or fabricated false evidence [vide sub-section (4)].
8. For exercising the powers under the section the Court at the time of delivery of judgment or final order must at the first instance express an opinion to the effect that the witness before it has either intentionally given false evidence or fabricated such evidence. The second condition is that the Court must come to the conclusion that in the interests of justice the witness concerned should be punished summarily by it for the offence which appears to have been committed by the witness. And the third condition is that before commencing the summary trial for punishment the witness 8must be given reasonable opportunity of showing cause why he should not be so punished. All these conditions arc mandatory. [See Narayanswamy v. State of Muharashtra, (1971) 2 SCC 182].

Vittappan vs State on 9 April, 1987

10. A court directing prosecution for perjury is not vindicating the grievance of any party. The action is mainly to safeguard the prestige and the dignity of the court and to maintain the confidence of the people in the efficiency of the judicial process. What the court is mainly interested in is seeing that administration of justice and dignity of the court is not flouted. The Sessions Judge did not specifically find on which aspect the appellant gave false evidence and whether that evidence was purposely made or whether it had any real impact on the decision of the case. In fact he did not even consider whether any perjury was committed. This is evident when he refused to express any opinion on that aspect and said that what he is concerned under Section 340 is only to see whether an enquiry is necessary or not. The only opinion formed by him for filing the complaint is that interest of justice demands an. enquiry as to whether the appellant committed the offence of giving false evidence in court. I am of opinion that the Sessions Judge has not complied with the mandatory provisions of Section 340 of the Code and filed the complaint after passing the impugned order without the requisite satisfaction and without understanding the legal provision correctly. In fact the materials make it clear that this is not a fit case where it was expedient in the interest of justice to have an enquiry under Section 340 of the Code much less a prosecution. The impugned order and consequently the complaint must go.

Amzad Ali vs Marfat Ali Biswas And Two Ors. on 11 June, 1998

Thereafter, the defendant respondent no.l filed an application under section 340 Cr.PC before the Court of Munslf, Lalbag, praying for lodging a complaint against the plaintifi* petitioner alleging that the plaintiff petitioner fraudulently and dishonestly used as genuine the aforesaid, deed of sale dated 10.3.38, knowing or having reason to believe that it was a forged document and had thereby committed an offence punishable under section 471 I.PC This application was registered as Misc. Case No.34 of 1988 of the Court of Munsiff, Lalbag.

 

Mohanlal vs State Of Rajasthan And Ors. on 1 October, 1980


I am, therefore, convinced that it is time that exploitation abuse and misuse of equitable jurisdiction is stopped, as founding fathers never intended it to make it an “Allaudin’s lamp” for providing protective umbrella to all inequitable evil geniuses and social parasites. Anti-soqial dishonest and unjust litigants cannot use smoke screen of ‘natural justice’ to perpetuate unnatural injustice. Tainted hands cannot be allowed to touch pure fountains of justice.

 

Sardar Harjit Singh vs Sardar Ravel Singh & Ors on 1 January, 1800

TRUTH was the hallmark of the justice delivery system which operated in the country till the establishment of the court system under British rule. The people used to tell truth and truth only without being influenced by its consequences. In the present day judicial system the truth is perhaps the biggest casualty. Unscrupulous litigants like the petitioners leave no stone unturned to mislead the quasi-judicial and judicial authorities and the courts for material gains. The entire system has become victim of such persons. In order to meet this challenge, the courts have evolved new rules, strategies CS (OS) No.690/2005 Page 16 of 23 and techniques. One such rule is that the court will not grant hearing to a person who does not approach it with clean hands. To put it differently, a person who touches the fountain of justice with the tainted hand or who makes an attempt to pollute the course of justice by making false or misleading statements or by suppressing facts must be shown the door at the threshold.”

Shiv Dan Singh vs State Of Rajasthan on 12 January, 1983

Mr. Khan wanted to show to me the record of Order Book of the Police Department for the year 1948, in which at Section No. 188 it is mentioned that the enlistment of the petitioner was done and his age has been mentioned as 20 years. However, it will be unnecessary to travel into any other record, because I am convinced that the very bedrock and the foundation of the allegation that the original entry was 29.11.27 is not only incorrect, but further based on some inter-polation, which is visible to a naked eye and is patent. Tainted hands cannot be allowed to touch pure fountains of Justice.

S.P Chengalvaraya Naidu vs Jagannath on 27 October, 1993

The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who’s case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.

Every allegations do not justify initiation of prosecution under 340 CRPC


IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(CRL) 286/2007
RAJKUMAR INDORIA ….. Petitioner Through Ms. Anu Mehta, Advocate.
versus
NCT OF DELHI NEW DELHI ….. Respondent Through Nemo.
CORAM:
HON’BLE MR. JUSTICE SANJIV KHANNA
ORDER
% 18.08.2010
CRL.M.A. No. 13869/2010
1. The writ petition filed by the petitioner for police protection to him and his family members was disposed of on 9th August, 2010. It was noticed that the petitioner was initially granted police protection in the year 2005 but police protection/PSO was subsequently withdrawn after re-assessment of the threat perception in the year 2007. The order dated 9th August, 2010 notices the fact that the threat perception of the petitioner and his family was examined by Special Cell, Delhi Police, Ministry of Home Affairs and then again by DCP (Special Cell). It was also noticed that there are some FIRs, which are registered against the petitioner.
2. Now the petitioner has filed the present application under Section 340 of the Code of Criminal Procedure, 1973 stating, inter alia, that wrong and false averments have been made in the status report which amount to perjury. Learned counsel appearing for the applicant submits that FIR No. 580/2005, Police Station NDLS, Delhi was registered on the complaint of the petitioner against Mr. Ramchander Khaganwal under Section 325 and not under Section 323 of the IPC. It is further stated that the licence of Mr. Ramchander Khaganwal was cancelled in 2007 by the Northern Railway. She has relied upon In re R. Karuppan 2001 CriLJ 266.
3. These two allegations do not justify initiation of prosecution. In the order dated 9th August, 2010 several aspects and facts have been taken into consideration. The dispute between the petitioner and Mr. Ramchander Khaganwal is noticed and that there are cross FIRs. It is not expedient in the interest of justice to enquire into the alleged offence as has been observed in Pritish vs State of Maharashtra (2002) 1 SCC 253. The relevant paragraph reads:
“16. Be it noted that the court at the stage envisaged in Section 340 of the Code is not deciding the guilt or innocence of the party against whom proceedings are to be taken before the Magistrate. At that stage the court only considers whether it is expedient in the interest of justice that an inquiry should be made into any offence affecting administration of justice. In M.S. Sheriff v. State of Madras1 a Constitution Bench of this Court cautioned that no expression on the guilt or innocence of the persons should be made by the court while passing an order under Section 340 of the Code. An exercise of the court at that stage is not for finding whether any offence was committed or who committed the same. The scope is confined to see whether the court could then decide on the materials available that the matter requires inquiry by a criminal court and that it is expedient in the interest of justice to have it inquired into.”
4. Further, the expediency should be judged by taking into
consideration the impact that commission of such offence has on the
administration of justice. The Supreme Court has held in Iqbal Sigh
Marwah v. Meenakkshi Marwah (2005) 4 SCC 370:
“23. In view of the language used in Section 340 CrPC the court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the section is conditioned by the words “court is of opinion that it is expedient in the interests of justice”. This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(1)(b). This expediency will normally be judged by the court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the court may not consider it expedient in the interest of justice to make a complaint. .”
5. The aforesaid submissions do not justify further proceedings under Section 340 of the Code of Criminal Procedure, 1973. The application is dismissed.
SANJIV KHANNA, J.
AUGUST 18, 2010
VKR
http://indiankanoon.org/doc/1721681/

Wife fined 10,000/- in Perjury case but Husband fighting for further action!!


Court No.27
Criminal Misc. Application No.30509 of 2009
Garima Srivastava Vs. State of U.P. and another
Hon. A.K. Roopanwal, J.
In this petition orders dated 15.7.09 and 7.10.09 passed by the Principal Judge, Family Court, Allahabad have been challenged.
It appears from the record that in a divorce case an application was moved by the husband that the lady had wrongly filed an affidavit that she is not serving in Delhi Public School, Arail, Naini, District Allahabad and therefore, action be taken against her. The lady was ready for inquiry in the matter and the court vide order dated 21.11.06 ordered that the inquiry be made in the matter and the defaulter be punished with a fine of Rs.10,000/-. Subsequent thereto the report from the college was obtained and it was reported by the college that the version of the lady was wrong. In such situation, the court vide order dated 15.7.09 imposed a fine of Rs.10,000/- upon the lady (applicant). By the order dated 7.10.09 the objections filed by the applicant against the maintainability of the proceedings under Section 340, Cr.P.C. instituted by the husband were rejected. Heard Mr. A.N. Tripathi, learned counsel for the applicant, learned AGA and perused the record.
It has been argued by Mr. Tripathi that under the provisions of Section 340, Cr.P.C. the court can make only preliminary inquiry and the final order which may be in the form of imposing fine can be passed by the court of competent jurisdiction and the court of competent jurisdiction would be that court in which the complaint would be filed by the court in which the perjury was committed. The court which made the preliminary inquiry had no jurisdiction to finally conclude the matter and impose the fine, therefore, the order dated 15.7.09 is bad and is liable to be quashed. Regarding the order dated 7.10.09 it was argued by Mr. Tripathi that once a wrong order was passed by the court on 15.7.09 it should have been reviewed and when it was not reviewed, hence, the order dated 7.10.09 is also bad and is liable to be quashed.
So far as the order dated 15.7.09 is concerned, in that regard I am of the view that the matter is liable to be taken further for hearing as there is some substance in the argument advanced by Mr. Tripathi. So far as the argument regarding the order dated 7.10.09 is concerned, in that regard it has been argued by Mr. Tripathi that the court cannot initiate dual proceedings. Once the matter was concluded vide order dated 15.7.09 there could be no propriety at all to continue the proceedings under Section 340, Cr.P.C. Issue notice to O.P. No.2 to file counter affidavit within 2 weeks’. Rejoinder affidavit, if any, may be filed within 1 week thereafter.
Till then, operation of the orders dated 15.7.09 and 7.10.09 passed by the Principal Judge Family Court, Allahabad in misc. case no.2 of 2008, Rajesh Kumar Srivastava Vs. Garima Srivastava, under Section 340, Cr.P.C. shall remain stayed. Dated:19.1.2010/T. Sinha.

Well done Fighter-Argued party-in-person -In Chennai HC-In Perjury Matter


DATE: 26-08-2010
CORAM
THE HONOURABLE MR.JUSTICE M.JAICHANDREN
Review Application Nos.108, 109 and 110 of 2010
S.Deepak ..Petitioner in all Review Applications
Versus
D.Anitha ..Respondent in all Review Applications
Prayer in Review Application No.108 of 2010: Application filed under Order 47 Rule 1 and 2 R/W 114 of Civil Procedure Code praying to setaside the order passed in the Tr.C.M.P.No.422 of 2009 dated 20.04.2010 on the file of this Court. Prayer in Review Application No.109 of 2010: Application filed under Order 47 Rule 1 and 2 R/W 114 of Civil Procedure Code praying to setaside the order passed in the Tr.C.M.P.No.423 of 2009 dated 20.04.2010 on the file of this Court. Prayer in Review Application No.110 of 2010: Application filed under Order 47 Rule 1 and 2 R/W 114 of Civil Procedure Code praying to review the order passed in the Tr.C.M.P.No.424 of 2009 dated 20.04.2010 on the file of this Court. For Applicants : Mr.S.Deepak (Party-in-person)
For Respondent : Mr.M.Palanivel
COMMON ORDER
The Review petition, in Review Petition No.108 of 2010, has been filed against the order, dated 20.4.2010, made by this Court, in Tr.C.M.P.No.422 of 2009. The said petition, in Tr.C.M.P.No.422 of 2009, had been filed seeking to withdraw M.C.No.35 of 2007, filed for maintenance, on the file of the Family Court, Salem, and to transfer the same to the Family Court at Chennai..
2. The Review petition, in Review Petition No.109 of 2010, has been filed against the order, dated 20.4.2010, made by this Court, in Tr.C.M.P.No.423 of 2009. The said petition, in Tr.C.M.P.No.423 of 2009 had been filed seeking to withdraw G.O.P.No.1 of 2008, on the file of the Family Court, Salem, and to transfer the same to the Family Court at Chennai.
3. The Review petition, in Review Petition No.110 of 2010, has been filed against the order, dated 20.4.2010, made by this Court, in Tr.C.M.P.No.424 of 2009. The said Tr.C.M.P.No.424 of 2009 had been filed seeking to withdraw F.C.O.P.No.131 of 2007, on the file of the Family Court, Salem, and to transfer the same to the Family Court at Chennai.
4. This Court, by a common order, dated 20.4.2010, had allowed the transfer civil miscellaneous petitions. Paragraph 13 of the said order reads as follows:
“13. It is not in dispute that both the petitioner and the respondent are, at present, living at Chennai. In view of the difficulties expressed by the petitioner, in her affidavits filed in support of her petitions, in attending the hearings before the family Court, at Salem, in the matters pending before it and as it has been stated that the petitioner has no independent income and that she is living with her aged father, at Chennai, along with her minor female child, this Court finds it appropriate to allow the above Transfer Civil Miscellaneous Petitions, by withdrawing M.C.No.35 of 2007, G.O.P.No.1 of 2008 and F.C.O.P.No.131 of 2007, pending on the file of the Family Court, Salem and transferring the same to the Principal Family Court, at Chennai. After transferring and renumbering, the Principal Family Court, Chennai, is directed to hear and dispose of the cases, on merits and in accordance with law, within six months thereafter. The Transfer Miscellaneous Petitions are allowed accordingly. No costs. Consequently, connected M.P.Nos.1,1 and 1 of 2009 are closed.
5. The main grievance of the review petitioner in the above review petitions is that the respondent, D.Anitha, had committed perjury, with mala fide intentions. He had also submitted that the respondent had suppressed material documents and thereby, had committed fraud on the Court. Further, she had come before this Court, with unclean hands. She had also mislead this Court by suppressing and misrepresenting the facts. As such, the order passed by this Court, on 20.4.2010, is null and void. The petitioner, who had appeared as party-in-person, before this Court, had also submitted that the claim of the respondent that she has no independent source of income is false and misleading.
6. Further, the allegation made by the respondent, in the transfer civil miscellaneous petitions, stating that the petitioner herein is impotent, is totally false. Similarly, the petitioner in the transfer civil miscellaneous petitions had also made various other baseless allegations against the present petitioner. As such, the respondent is liable for perjury. The petitioner had also submitted that the respondent would be legally liable for making such defamatory statements. He had also relied on the decision of the Supreme Court, made in Hamza Haji Vs. State of Kerala and another (AIR 2006 SC 3028) in support of the settled proposition of law that a judgment or decree obtained by playing fraud on the Court is a nullity and non est in the eye of law and that it can be challenged in any Court, even in collateral proceedings, in any Court.
7. In the counter affidavit filed by the respondent, the averments and allegations made by the petitioner had been denied. It had been stated that the petitioner had filed the present review petitions only with the mala fide intention of prolonging the proceedings before the Family Court at Chennai. The learned counsel appearing on behalf of the respondent had also submitted that the review petitions are devoid of merits and therefore, they are liable to be dismissed, with exemplary costs.
8. In view of the grounds raised by the petitioner in the review petitions and in view of the averments made in the counter affidavits filed on behalf of the respondent, and in view of the submissions made by the petitioner, as well as the learned counsel for the respondent, this Court is of the considered view that the petitioner has not shown sufficient cause or reason for allowing the review petitions. No grounds have been made out to set aside the order passed by this Court, on 20.4.2010, in Tr.C.M.P.Nos. 422, 423 and 424 of 2009.
9. The main reason for allowing the transfer civil miscellaneous petitions have been clearly stated in the order passed by this Court, on 20.4.2010. It is also noted that this Court had directed the Principal Family Court, Chennai, to hear and dispose of the cases, on merits and in accordance with law, within six months after the transferring and renumbering of the cases. It is also noted that the matters have been listed before the Family Court, Chennai, on 28.8.2010, for further hearing. In such circumstances, this Court does not find sufficient grounds to review the order passed by this Court, on 20.4.2010, in Tr.C.M.P.Nos.422, 423 and 424 of 2009. Therefore, the review petitions stand dismissed. No costs. However, it is made clear that it would be open to the petitioner in the review petitions to meet all the allegations made by the respondent herein, before the Principal Family Court, Chennai, in the matters pending before the said Court, in the manner known to law. It is also made clear that the Principal Family Court, Chennai, is expected to comply with the directions issued by this Court, in its order, dated 20.4.2010, made in Tr.C.M.P.Nos.422, 423 and 424 of 2009. csh
To
1) The Family Court, Salem.
2) The Family Court at Chennai.
3) The Principal Judge, Family Court,
Chennai


Must read Judgement about CrPC 340/ Court record forgery-Justice Shiv Narain Dhingra


* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: August 13, 2010
Date of Order: August 30th 2010
+ Crl.MC No. 471/2009
% 30.08.2010 J.L. Goel & Ors. …Petitioners Versus
Rajesh Kumar Jain & Anr. …Respondents Counsels:
Mr. M.A. Khan and Mr. Mir Akhtar Hussain for petitioner.
Mr. O.P. Saxena, Additional Public Prosecutor for respondent/State. JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment? Yes.
2. To be referred to the reporter or not? Yes.
3. Whether judgment should be reported in Digest? Yes. JUDGMENT
1. This petition under Section 482 Cr.P.C has been preferred by the petitioners for quashing a criminal complaint no.115/2007 under Section 109/120B/466/468 IPC and for setting aside the summoning order dated 30th November 2007passed by learned MM, Karkardooma Courts, Delhi.
2. Brief facts relevant for the purpose of deciding this petition are that petitioner no.6 Mrs. Anuradha Jain was married to respondent no.1 who is the complainant in complaint number 115 of 2007. A complaint lodged by her with CAW Cell against respondent no.1 and other family members of respondent no.1 culminated into an FIR No.244 of 1995 under Section 498A/406 read with Section 34 IPC and trial is going on in that case. The Crl.MC No.471/2009 J.L. Goel & Ors. v Rajesh Kumar Jain & Anr. Page 1 Of 8 respondent no.1 filed the impugned complaint against the petitioners alleging that during trial of FIR No.244 of 1995, the wife, in collusion with other petitioners and in collusion with the record keeper removed the original complaint and got it substituted with an improved complaint, later she again got removed the improved complaint and substituted it with the original complaint. During this interval, the complainant had obtained a certified copy of the improved complaint. An application was made by respondent no.1 to the trial court under Section 340 read with Section 195 Cr.P.C for filing a complaint against the petitioners. The trial court, however, refused to lodge a complaint under Section 340 Cr.P.C, by a speaking order. The complainant (respondent no.1 herein) then filed a complaint under Section 156(3) Cr.P.C before the Metropolitan Magistrate and the learned MM recorded statement of respondent no.1 as CW-1 and after recording the statement of respondent no.1, summoned the petitioners under Section 466,468, 109, 120B IPC.
3. The record shows that respondent no.1 (husband) during trial before the trial court of FIR No.244 of 1995; tampered with the record of court and removed certain original documents and thrown them into the dustbin. An FIR in this respect was registered at the instance of the trial Court against respondent no.1 (husband) under Sections 380,204,411 and the trial of that case is going on against the respondent no.1.
4. It is submitted by counsel for petitioner that learned MM before whom respondent no.1 filed the complaint alleging replacement/ removal of original complaint by an improved one and then again putting back the original complaint in the judicial record could not have taken the cognizance of the offence in view of bar under Section 195 (1)(b)(ii) of Cr.P.C since the offence was committed during trial of case FIR No.244 of 1995 within the cognizance of the Court concerned hence it was the trial court who could alone have filed a complaint under Section 340 Cr.P.C. The other submission made by Crl.MC No.471/2009 J.L. Goel & Ors. v Rajesh Kumar Jain & Anr. Page 2 Of 8 the counsel for the petitioners are that the complaint filed by respondent no.1 does not disclose any cause of action against the petitioners other than respondent no.1 i.e. Mrs. Anuradha Jain.
5. I find force in both the contentions raised by the counsel for the petitioners. A perusal of statement of CW-1 (respondent no.1 herein) would show that he had alleged that Mrs. Anuradha Jain in collusion with court staff prepared a forged and fabricated document during the court proceedings and manipulated replacement of this document into the court file by removing the original complaint and thereafter getting this forged complaint again replaced with the original complaint. He stated that he obtained certified copy of the replaced complaint. He further submits that Mrs. Anuradha Jain not only got prepared an improved complaint but also obtained stamp of CAW Cell on it. It is his case that the trial court passed an order dated 24th March, 2009 in respect of missing judicial record.
6. The allegations made by respondent against the petitioners (except petitioner no.6) are that they advised Mrs. Anuradha Jain to commit this forgery with the aid of court staff. On the basis of this statement, learned MM summoned all the petitioners observing that the Supreme Court in (2003) 4 SCC 139 laid down that there was no necessity of giving reasons at the time of summoning.
7. I consider that learned MM grossly exceeded his powers and jurisdiction. It has been observed by this Court time and again that initiation of criminal proceedings should not be done in a casual manner by any court and the courts must not act as a tool in the hands of unscrupulous elements. There is no doubt that reasons are not required to be given by the Courts of MM at the time of issuing summoning order, however, the learned MM was supposed to ensure that there was sufficient material disclosed by the Crl.MC No.471/2009 J.L. Goel & Ors. v Rajesh Kumar Jain & Anr. Page 3 Of 8 complainant in the complaint and during evidence, warranting summoning of the accused. A complainant may name 20 persons as accused. A Court of MM cannot blindly summon all the 20 persons without going into the fact whether those 20 persons had been ascribed a role in commission of the offence or not. The learned MM in this case seems to have summoned the petitioners only because their names were mentioned by the complainant in the array of parties, despite the fact that the complainant had not spelt out what was the role played by them in forging the documents or in replacement of documents. I, therefore, find that the order of learned MM summoning the petitioners no.1 to 5 was a mechanical order and the learned MM acted as a tool in the hands of respondent no.1. The Supreme Court judgment relied upon by learned Magistrate did not give him jurisdiction or authority to summon everybody named in the complaint whether he had a role in the crime or not. The relevant part of judgment Dy. Chief Controller of Imports & Exports v Roshanlal Agarwal and ors (2003) 4 SCC 139, relied upon by the learned MM, reads as under: “9. In determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding, and not, whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. This question was considered recently in U.P. Pollution Control Board v M/s Mohan Meakins Ltd. and Ors. 2000 Crl.L. J. 1799 and after noticing the law laid down in Kanti Bhadra Shah v State of West Bengal 2000 Crl.L. J 1746, it was held as follows: “The legislature has stressed the need to record reasons in certain situations such as dismissal of a complaint without issuing process. There is no such legal requirement
imposed on a Magistrate for passing detailed order while
Crl.MC No.471/2009 J.L. Goel & Ors. v Rajesh Kumar Jain & Anr. Page 4 Of 8 issuing summons. The process issued to accused cannot
be quashed merely on the ground that the Magistrate had
not passed a speaking order.”
8. It is obvious from this judgment that the learned Magistrate had to satisfy himself that there were sufficient grounds for proceeding against the accused. Allegations were there against the petitioner no.6 indulging in forgery as she was a complainant but there was no material placed before the learned Magistrate as to how the petitioners no.1 to 5 were involved in forgery. The summoning order qua them was thus absolutely bad in law and amounted to gross misuse of judicial powers by learned Magistrate.
9. It is an undisputed fact that the allegations against the petitioner no.6 Mrs. Anuradha Jain are in respect of committing forgery in the court record. Section 195 (1) (b) (ii) Cr.P.C reads as under:
“195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.
(1) No court shall take cognizance-
(a)xxxxx
(i) xxxxxxxxxx
(ii) Of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any court, or “
10. A bar on taking cognizance of offences regarding administration of justice and offences relating to proceedings in any court or offences described in Section 463 or 471, 475 or 476 (when such offences are alleged to have been committed in respect of Crl.MC No.471/2009 J.L. Goel & Ors. v Rajesh Kumar Jain & Anr. Page 5 Of 8 documents produced or given for evidence in a proceeding by a Court) has been imposed by Section 195 Cr.P.C and cognizance can be taken only on a complaint made by the concerned court.
11. The alleged offence in this case was directly related to the court record. The allegations made by the petitioners are that efforts were made to tamper the court record and the original complaint (FIR) was replaced by an improved FIR and later on improved FIR was again re-substituted by original complaint. Under these circumstances, I consider that the learned Magistrate could not have been taken cognizance of the offence unless a complaint under Section 340 Cr.P.C had been made by the court in writing on this behalf.
12. Counsel for the respondent drew my attention to Sachitanand v State of Bihar (1998) 1 RCR (Crl.) 823 wherein the Supreme Court observed that the bar contained in Section 195(1)(b) (ii) was not applicable to a case where forgery of document was committed before the document was produced in the court. He also relied upon Jitendra Chandrakant Mehta v M/s Shamrock Impex. Pvt. Ltd. and other C.W. P. No.2198 of 2005 decided on 3rd May, 2006, wherein Bombay High Court observed that bar of Section 195 was not applicable to a case when documents already forged was produced by accused in support of his case.
13. It is not a case where the petitioner no.6 had produced the forged documents in evidence or had filed before the Court some forged documents. In fact, it is a case where allegations made by the respondent no.1 against the petitioner no.6 are that the petitioner no.6 in connivance with the court staff had replaced/ substituted a complaint /FIR with an improved one and again substituted the improved complaint/FIR with the original one and in the meantime he got certified copy of it. In fact, respondent no.1 Crl.MC No.471/2009 J.L. Goel & Ors. v Rajesh Kumar Jain & Anr. Page 6 Of 8 himself also had been fiddling with the court record. It would be appropriate to reproduce an order dated 26th November 2009 passed by leaned ACMM which reads as under: “(8) Perusal of record shows that accused is facing trial in a case FIR bearing number 244 of 1995, P.S. Preet Vihar, under Sections 498A/406 IPC. On 28.01.01 Ahlmad Mr. Vijay Kumar Marwa made a written complaint to his presiding officer Ms. Shailener Kaur the then Ld. MM (Mahila Court) Karkardooma Court, Delhi wherein he reported that on the said day accused Rajesh Kumar Jain i.e. the present applicant came for inspection of the case file and while inspecting the judicial file had torn a few pages of the judicial file and thereafter thrown the papers outside the court room. The Ahlmad with the help of Naib Court Vinod was able to retrieve a few papers but the remaining papers could not be retrieved. The matter was reported to the Ld. District and Sessions Judge, Delhi who ordered fact finding inquiry on this issue and Shri Dilbagh Singh, the then ACMM was directed to conduct the inquiry. A detailed inquiry was conducted. The inquiry report was submitted to the Ld. District & Sessions Judge, Delhi. Ms. Shailender Kaur, the then Ld. MM was directed to order for registration of FIR against accused/ applicant Shri R.K. Jain. Accordingly a complaint was made to the Station House Officer, P.S. Anand Vihar and a case FIR bearing number 382 of 2001 under Sections 379 IPC Police Station Anand Vihar was
registered against the accused. The investigation was conducted as per law and the accused was found involved in the commission of offence in the said case, accordingly charge sheet was filed against him and the same is pending trial.”
14. The Court where the trial is going on has already lodged an FIR about missing/ replacement of documents. If there was any effort to fiddle with the court record, it was within the jurisdiction of that court to order an inquiry and proceed against the person responsible for it. The court of another MM who has not been sent a complaint by the trial court cannot be in a position to hold an inquiry into the offence committed in Crl.MC No.471/2009 J.L. Goel & Ors. v Rajesh Kumar Jain & Anr. Page 7 Of 8 administration of justice without proper complaint from the court where this has taken place. I, therefore, consider that the learned MM could not have taken cognizance of the complaint filed by respondent no.1.
15. In the result, the petition is allowed and the criminal complaint no.115/2007 under Section 109/120B/466/468 IPC; the summoning order dated 30th November 2007 summoning the petitioners for offences under Sections 109/466/468/120B IPC; the order dated 19th November 2008 issuing NBWs against the petitioner no.3; the order dated 3rd January 2009 issuing process under Section 82 Cr.PC against the petitioner no.3; and proceedings consequent to the criminal complaint no.115 of 2007 pending in the court of Shri Lalit Kumar, MM, Karkardooma Courts, Delhi are hereby quashed.
16. The petition stands allowed.
August 30, 2010 SHIV NARAYAN DHINGRA, J rd
Crl.MC No.471/2009 J.L. Goel & Ors. v Rajesh Kumar Jain & Anr. Page 8 Of 8


Man held for posting wife's online profile as call girl




If women had done similar thing no action would have happened, she would be roaming the streets free, but why the double standard? Is it that only women integrity is so valuable?  What happens when women who are estranged seek vendetta, and revenge against there husbands, what does society do then?

Oct 22, 2010


CHENNAI: Sleuths of the cyber crime wing attached to the city police on Thursday arrested a 34-year-old man who works in the HR department of a software company in the city for posting on the internet his wife's profile as that of a call girl. Police have also arrested a 27-year-old woman working in his office in connection with the same case.

Mahesh (34), a resident of Nungambakkam, and Subashini (27) were remanded on Wednesday. Police said the duo confessed to having uploaded fictitious materials against the name of Saroja (name changed), with her e-mail and social networking login.

Saroja (28) married Mahesh five years ago and the couple has a son. Mahesh developed contacts with many women and promised to marry them after divorcing Saroja, the investigators said.

A few months ago, Mahesh assaulted Saroja and she was confined inside a dark room in his house. He told his friends that Saroja, then working as an engineering college lecturer, was mentally ill. She later resigned from her job and started working as an assistant manager in a private company. She went to live with her parents, but later returned to live with Mahesh.

Recently, while verifying her mails and social networking site, she found that some one had hacked into her profile and mentioned her as a call girl. She immediately filed a complaint with the city police commissioner's office. The petition was forwarded to the cyber crime wing which found it to be the handiwork of her husband. Police have registered a case under Section 4 (1) of Tamil Nadu Women Harassment Prevention Act. The arrested duo were remanded in judicial custody.



Estranged wife entitled to house, says SC

Simple way to avoid all this mess is to live below your means, so if any problem was to acquire then the Man will pay less for providing house allowance to dear wife. Best to live in Hut or shack with coodhi. 




NEW DELHI: Husbands paying monthly maintenance to cover food, clothing and other expenses of estranged wives may now have to shell out a great deal more. For, the Supreme Court has ruled that maintenance should include provision for a house akin to the husband's.

"Maintenance, as we see it, necessarily, must encompass a provision for residence," said a Bench comprising Justices Arijit Pasayat and Mukundakam Sharma, ruling in favour of Komal Amma from Kerala who struggled to find a house for herself after estrangement.

"Maintenance is given so that the woman can live in the manner, more or less, to which she was accustomed," the Bench said on Friday.

Therefore, if the couple was living in a posh locality, then after estrangement, the husband is bound to give a sum along with maintenance that would enable her to rent a house in a similar locality.

"The concept of maintenance must, therefore, include provision for food and clothing and the like and take into account the basic need of a roof over the head," the Bench said in a significant ruling that would help estranged wives lead a normal life without feeling the pinch.


Friday, October 22, 2010

Demand for too much sex is cruel, grounds for divorce: SC

Only in India can such judgment be given, this will apply only if man demands sex and not women, women can be nympho maniac and demand sex constantly or go and have sexual relations outside of her marriage, that is ok according to Indian laws which are biased in females favor.



NEW DELHI: Persistent demand for excessive sex causing injury can be ground for seeking divorce, the Supreme Court has ruled.

Dealing with the undefined term "cruelty" under Section 13 of the Hindu Marriage Act, which provides grounds for divorce, a Bench comprising Justices P Sathasivam and B S Chauhan said the onus was on the one seeking divorce to prove with evidence that a particular conduct of the other partner had caused him/her cruelty.

The ruling came on a plea by an aggrieved husband.

While dealing with the whole gamut of what can be called "cruelty", entitling a spouse to move court for divorce, the Bench said even a single act of violence which was of grievous and inexcusable nature could fit the definition.

"Persistence in inordinate sexual demands or malpractices by either spouse can be cruelty if it injures the other spouse," said Justice Sathasivam, who wrote the judgment for the Bench.

However, a few isolated instances of cruelty over a certain period of time would not amount to cruelty as married life should be assessed as a whole, the Bench said while rejecting one Gurbux Singh's appeal seeking divorce on the ground of cruelty.

"Making certain statements on the spur of the moment and expressing displeasure about the behaviour of elders may not be characterised as cruelty. Mere trivial irritation, quarrels, normal wear and tear of married life which happens in day to day life in all families would not be adequate for grant of divorce on the ground of cruelty," the Bench clarified.

Having failed to prove cruel behaviour of his wife, Singh tried to impress the apex court to grant him divorce saying the marriage had broken down irretrievably as he and his wife were living separately since 2002 and there was no chance of their reunion.

The Bench said divorce has to be granted strictly under the grounds provided in Section 13 of Hindu Marriage Act though the apex court might have dissolved marriage on account of irretrievable breakdown in one case.


If fear is the key, paying dowry is okay: Delhi High Court

 What kind of Bull crap judgment is this, "its ok if brides family gives Dowry if its given under fear?" So now all brides family will simply say we gave under fear, so this judgment will apply to them.
So will it also be ok to give a Bribe out of fear soon? This judgment should be appealed to the Indian Supreme court.


Oct 21, 2010

Giving dowry under the fear that the proposed marriage may be called off is not an offence, the Delhi High Court has held while quashing an FIR against a bride and her family for conceding to the demands of the groom's family. 

Justice Ajit Bharihoke quashed the criminal proceedings against the bride and her family after they convinced the court that the dowry was given under pressure as the bridegroom's family had threatened to cancel the marriage.
"As per the allegations in the complaint made by the petitioner (bride), the demand for dowry was made by the father of the respondent(bridegroom) at the time of the engagement ceremony when he allegedly asked the father of the girl to concede to his demand for dowry, failing which he would call off the marriage.” 

"From the aforesaid facts, it is obvious that the petitioner and her parents were confronted with the unenviable situation either to concede to the demand or face the loss of honour of their family in the society, and if under that fear, the petitioner and her parents conceded to the demand for dowry, they cannot be faulted as they were victims of the circumstances," the court said. 

Granting relief to the bride, the court said "she cannot be subjected to prosecution for the offence under the Dowry Prohibition Act". 

The court passed the order on a petition filed by bride Pooja Saxena challenging lower court's order which had directed the police to register an FIR against her and her family members, who alleged dowry harassment by her husband and in-laws, for meeting their demands during the marriage. 

Sameer Saxena and his family members were accused of committing cruelty with Pooja by harassing her for dowry. 

The wife, in an FIR with Roop Nagar police station, claimed her family members had given huge dowry to Saxena at the time of their marriage. 

Saxena later on had pleaded before the lower that criminal proceedings should be initiated against his wife and her family as she had herself admitted giving huge dowry, which was an offence under the statute.
The lower court had on March 10 this year passed an order directing registration of the FIR on a petition filed by the husband. 

An Additional Chief Metropolitan Magistrate had asked the police to proceed against the woman and her parents under the provisions of the Dowry Prohibition Act. 

"In my considered view at this stage, it appears that the accused persons (woman and her parents) are accomplice and the present complaint discloses the offence under Section 3 of the Dowry Prohibition Act 1961. Thus, the SHO concerned is directed to register the FIR and conduct investigation as per law," the ACMM had said.

Keep, concubine? Senior lawyer says SC's usage anti-women

 Indra Jaising is a Fascist Feminazi Witch, she is one of the leaders of the trash bag radicals.  
This radical Feminazi Witch is using government funds, (Peoples Tax money) and facilities, to spread false views against men and biased support for women at any cost.  
Is it o.k to arrest 1000's of men and their families for Domestic Violence act, 498a and
false rape?
Is it o.k for to make gender biased laws for women on Sexual harassment, maintenance, and divorce etc? 

Society needs to wake up fast against these atrocities, and make Family laws gender neutral and fair, or sooner or later some families will get caught in this mess. These biased laws impact Men and Women in adverse ways. 

Oct 22 2010

Senior government lawyer Indira Jaisingh created quite a flutter in the Supreme Court on Friday by strongly objecting to the use of the word "keep" in a judgement on the right of maintenance for women in live-in relationships. 

An angry Additional Solicitor General, Indira Jaising, told a Bench of Justices Markandey Katju and T S Thakur that the word used in the judgement was highly objectionable and needed to be expunged. 

"How can the Supreme Court of India use the word 'kept' in the 21st century against a woman. Can a woman say that she has kept a man?" she asked. 

She told a stunned court: "I would like to move an application to get the remarks expunged. I do not want to appear before this court, I would like to withdraw myself." 

Jaising wondered how the highest court of the country could use such an expression against a woman.
At this juncture, Justice Katju, who was heading the Bench, told the ASG to confine herself to the case before the court.

However, Justice Thakur intervened and asked her whether the expression 'concubine' would have been more appropriate than the word 'keep'. 

To this, the ASG submitted that her objection was mainly to the word 'keep' in the judgement delivered yesterday by the Bench. 

Jaising was involved in the framing the Protection of Women from Domestic Violence Act.
In an important verdict, the Supreme Court had on Thursday held that a woman in a live-in relationship is not entitled to maintenance unless she fulfills certain parameters. It had also observed that merely spending weekends together or a one-night stand would not make it a domestic relationship. 

The Bench had said that in order to get maintenance, a woman, even if not married, has to fulfill the following four requirements: 

(1) The couple must hold themselves out to society as being akin to spouses, (2) they must be of legal age to marry, (3) they must be otherwise qualified to enter into a legal marriage including being unmarried, (4) they must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time. 

"In our opinion, not all live-in relationships will amount to a relationship in the nature of marriage to get the benefit of the Act of 2005 (Protection of Women from Domestic Violence Act). To get such benefits the conditions mentioned by us above must be satisfied and this has to be proved by evidence. 

"If a man has a 'keep' whom he maintains financially and uses mainly for sexual purpose and or as a servant, it would not in our opinion be a relationship in the nature of marriage," the court had said. 

The apex court had passed the judgement while setting aside the concurrent orders passed by a matrimonial court and the Madras High Court awarding Rs 500 maintenance to D Patchaiammal who claimed to have married the appellant D Velusamy. 

Women's revenge often more dangerous

Jan 10, 2010

I grew up in Wisconsin so it was with great interest when I read about a revenge story last year. A woman, after finding out her boyfriend was cheating on her, decided to join up with his ex-wife and his new girlfriend to seek revenge. After catching and binding him, they took him to the same hotel he had taken all three of them and then proceeded to super glue his penis to his belly. He ended up in surgery and they ended up with a jail sentence.

What made these women behave so irrationally and desperately to get him back? Revenge is all about the feeling of being wronged while you were defenseless to protect yourself. You may feel emotionally wounded, but more than that you feel the need to take an action so you can feel in control again. Your motivation for the action is to let the person who hurt you knows how angry you are. Revenge is different depending on what sex you are. Men (raised to take action) tend to hit back or use physical means while women (raised with sugar and spice and everything nice) plot. Women's revenge is usually more thought out, which may make it more dangerous.

Have you engaged in revenge? It is usually masked by indirect communication. It may look like this. 

1. Treating your partner poorly and justifying this behavior because s/he treated you poorly for years.

2. Having sex with someone else because your partner had an affair or because your partner doesn't pay attention to you.

3. Plotting or trying to hurt your partner or his/her lover either physically or emotionally due to an affair.

4. Giving your partner the cold shoulder because s/he doesn't share enough or is aloof.

5. Going to a cut-throat attorney for a divorce (in order to make your partner regret s/he was even thinking about a divorce).

6. Being determined to keep the children away from your partner, not because s/he is a danger, but because you are making them pay for what s/he has done to you.

What do you do, if you are full of anger and want revenge but don't want to do something hurtful?

1. As much as possible make yourself happy with other things. Happiness is the best and most productive revenge.

2. Do something. Write a letter and burn it or get active with a boxing class. Holding that anger in can lead to alcoholism as well as illness.

3. Communicate to your partner with words (this may take a mediator) about how angry you are. Revenge is caused by the fact that you are angry and the behavior shows that. Once this is communicated with words you end up feeling mature and in control.

Revenge is toxic to any relationship. No matter how good you think you will feel afterwards, those feelings usually turn into shame, regret, sadness and guilt. Before you think about keying his/her car … think about what words you can say to tell him/her you are angry.

Why Divorcing Women Seek Revenge

July 10, 2008

Don't get mad, get even... Revenge is sweet... An eye for an eye.... Were these clich├ęs drumming through Christie Brinkley's head when she decided to push for divorce proceedings that would be open to the public? She must have calculated the media frenzy that would ensue when her husband's transgressions—18-year-old mistress, swinger websites, porn habits—were blared in open court. Thankfully, they reached a settlement this morning, so we won't need to hear any more.

I can't help agreeing with a psychiatrist who questioned Brinkley's good sense when it came to protecting the couple's two children, ages 10 and 13. What will their lives be like, I wonder, when they return to school in the fall to classmates who have heard all the sordid details about their father?

But I'm even more curious about whether she was motivated by revenge, as so often we are when a person we love lets us down. What compels women, as well as men, to spend thousands on divorce lawyers rather than give their soon-to-be-ex any "undeserved" assets? Or to air all the dirty laundry of their marriage? I asked Michael McCullough, a professor of psychology at the University of Miami and author of Beyond Revenge: The Evolution of the Forgiveness Instinct, to explain what drives us to seek revenge.
It turns out the inclination is entirely natural. "Your brain is doing what it's supposed to be doing," he tells me via E-mail from Amsterdam. "When someone is acting out of revenge, she's in a state of desire or craving and engages in a behavior that she thinks will produce a reward for her." He says the Olympic athletes now training in Beijing experience the same patterns of brain activation when thinking about achieving the gold as someone plotting a stick-it-to-him scenario. Both induce feelings of pleasure and satisfaction. "There was probably some evolutionary process of natural selection put into our brains," he explains, "to make sure we'd be motivated to defend our interests and punish people who have harmed them."

Divorce, McCullough adds, is a common time to experience these emotions, as couples go from trying to live together, with all the sacrifices that entailed, to living in a very self-protective, self-focused way. That said, getting even, while it may yield short-term satisfaction, usually leads to more harm than benefit by triggering a tit-for-tat that escalates the situation. Mediation is better than hiring lawyers, he says, if the couple is willing and able to participate with one mediator. Beyond that, you can work to bring vengeful impulses under control by intentionally trying to forgive the person who has harmed you.

Forgiveness is far easier in the case of betrayal, says McCullough, if the cheating spouse makes a sincere attempt to apologize and displays genuine remorse. When a wronged person feels apologized to, compensated for the injury, and safe, he says, revenge usually becomes beside the point.

Passive Aggressive Minds Think Alike

 

Siblings without rivalry are like thunder without lightening 

Siblings without rivalry are like thunder without lightening. The two just go together, although some storms are more damaging than others. One of the most common sources of family conflict has to do with sibling jealousies and all of the ways that envy rears its ugly head-from physical aggression that pelts like hail to passive aggressive acts that mimic the wind, imperceptible to the eye but obvious in their impact.

Hidden but Conscious Revenge
Here are two classic examples of passive aggressive sibling jealousy:
The first involves two families, four girls, and one sleepover. "Jesse and Hailey" are 7-year old best friends. Their families get together often and all of the siblings have become playmates. When Jesse and Hailey planned a sleepover, both Jesse's 9-year old big sister and Hailey's 4-year old little sister were filled with jealousy. Though the big and little sister pair understood that they were a mismatch for their own sleepover, they both decided on a little passive aggressive revenge to act out their feelings of anger and jealousy.

To the parents' best knowledge, there was no conspiracy or planning on the parts of the left-out sisters-which is what makes the story so hilarious-but when Jesse and Hailey settled down to sleep at about midnight on the night of their sleepover, they both realized that their favorite stuffed animals were missing! Neither girl could sleep without their animal, a commonly known fact among all family members. Jesse knew she had packed her stuffed cat and Hailey kept her Panda bear on the same pillow every single day. How could they both have gone missing?
After hours of late-night searching and little sleep for anyone, both Jesse and Hailey's sisters miraculously "found" their sisters' respective stuffed animals. Coincidence? It seems as though passive aggressive minds think alike!

The second example shared with me centers around cool shoes, trendy outfits, special dresses, and all of the clothing battles that are a source of many fights among close-in-age siblings.
Kelly looks up to her older sister, Sally and wants to be just like her (even dress like her). Kelly asked Sally if she could wear the pettiskirt that Sally had just brought home from the store. Since Sally wanted to be the first one to wear it, she said no. Kelly didn't protest much at the time, but she did sneak into Sally's closet and take the skirt. Knowing she couldn't let Sally see her wearing it, she hid it in her backpack. The next morning Sally looked everywhere for her skirt, but couldn't find it of course. When she got to school, she saw Kelly coming out of the girl's locker room, wearing a pettiskirt. HMMMM!!

Letting a Problem Escalate
Teenage twin brothers Todd and Kevin got along great most of the time. They were soccer team mates who spent most of their time together. When Kevin began dating Courtney, Todd felt left out of his brother's life. One Friday night, when Courtney called with an apology about having to cancel their plans, Todd took the phone message, but "forgot" to pass it on to Kevin.
To ensure the information would not be relayed, Todd also hid Kevin's cell phone and stayed on the computer, blocking e-mails and instant messages. Kevin left for his date unaware of anything unusual and came home bewildered, hurt, confused and angry at being stood up. Before he could pick up the house phone and call Courtney, Todd confessed with an, "Oh! I meant to tell you, but you left the house in such a hurry. Courtney called and said she couldn't go out tonight. I tried to call you, but you didn't answer your cell."

Intentional Inefficiency
Ellie was invited to go to Six Flags with a friend from school. She knew she couldn't go unless her Science Fair project was complete, since the event was to be held at school the following day. Ellie begged her sister, Maddie, to print out the already-complete Data & Results pages from her computer and affix them to her display. Maddie agreed to do so, but in her jealousy over not being included in the amusement park trip, she added a little something to the data. At the science fair, Ellie was confused at first-then humiliated-when her teacher pointed out the errors in her calculations and disqualified her project from the Science Fair.

How do the winds of passive aggressive behavior blow in your household? Please share your stories of sibling jealousies and stormy revenge here.


Snow White Doesn't Live Here Anymore: Sweet Revenge

June 28, 2010

Retribution can be pretty delicious when it's crafted to puncture the pride of the perpetrator.


When con artist Bernie Madoff's alleged mistress wrote a book describing what might be called Madoff's very small endowment, she was taking retribution on an ex-lover who once wielded power. The advance on the manuscript repaid her not only for some of the cash she lost but for the self-esteem she forfeited. Her tell-all shout-out was a classic, if not classy, act of revenge. And a particularly feminine one as well.

Revenge is like prescription medication: A little can cure you, a lot can kill you, and you should avoid getting hooked. And, like medication, it's often best if you can do without it altogether. But if you must have a dose, the best approach is: Get even, get over it, and get on with your life.

Revenge fascinates us all, but we have a particular appetite for women getting mad, then getting even. Lizzie Borden remains an icon in American culture. Exciting, uncomfortable, delicious, and distasteful as they are, we cannot exorcise revenge fantasies completely—that is, if we can exorcise them at all.

It's also possible to execute classy acts of revenge, ones that are perfectly proportional to the original injury in every way. Consider the case of Allison, a fact-checker for a national magazine: "My boyfriend from college and I had discussed marriage from our second date on. After we graduated, he stayed on for a degree in creative writing and I came to New York for work. As far as I knew, everything was perfect. I spent tons of money on phone calls and would shop for the perfect cute cards to send him." She also baked cookies and sent batches weekly.

"Then I get a letter telling me that for the last three months he's been seeing this girl from his class and he feels deeply for her. He went into detail about how wonderful she was, how she eschewed (his word) all commercialism and would tease him about the cards I sent, saying how adolescent our relationship was. The letter was incredibly smug and self-indulgent even as he was trying to sound hip.

"He ended by saying that I needed to find a new life for myself, that I must broaden my circle of acquaintances (since many of our old college friends were more his buddies than mine, he said), and how I shouldn't weep too long after reading what he called 'this missive of misery.'"
She read it over "way too many times."

Allison, who had been fairly subdued as she told her story, suddenly brightened. "But I decided that I was going to take his advice and not weep. Instead, I made photocopies of his letter and sent the pages around to my pals in the office, friends at home, and our old friends from college, asking them to comment on its style and critique the prose generally. Most of them were wonderfully scathing, calling his writing 'turgid' and 'sentimental.' I sent him copies of their responses. I knew that the most important thing to him was his overinflated sense of himself as a great writer and that these letters would land a punch.

"He thought I would be ashamed to admit to people that we'd broken up. Instead I celebrated it, and invited the people who knew us to join in the celebration. I have never regretted convening that impromptu editorial group, because I no longer felt like a sacrificial victim in someone else's script."

Allison managed to break the stranglehold of socially enforced female passivity. She focused on what would make her feel better—and, significantly, make her feel the support and loyalty of her friends—and did not allow an undue amount of time to pass before acting. She dealt a swift blow to her desire to withdraw from everybody and by doing so ensured that the process of grieving over the loss would not be endured alone. The drive toward both symmetry and closure are at the heart of most revenge tales.

Only an intimate would be able to strike so precisely into the heart of vulnerability. And only a very smart, very creative, very hurt woman would be able to imagine and execute such a novel and effective plan—a plan perfectly targeted to wound the perpetrator of the original wound.

Men just don't think about revenge the same way women do. Guys often contemplate destroying somebody's property. Women don't think in terms of keying their ex-lover's car. They want to key their ex-lover. Further, women—especially if they consider themselves to have been "nice" women—act out their vengeance not in order to control but because they are out of control.

Of course, we all start out as nice women. Nice women are not supposed to crave disaster, even when we experience pain, betrayal, humiliation, or ingratitude. We're supposed to turn the other cheek—with the appropriate amount of blush. If we love deeply, it is not surprising that we grieve deeply if that love is taken away. It might also follow that we want to exact recompense and restitution. Somebody stole our sense of self-worth and we want to get it back by stealing theirs.

Perhaps the sweetest revenge is when the impulse for personal justice leads to actual, objective justice. There is such a thing as righteous anger, after all. An elegant 50-year-old female vice-president of a Fortune 500 company once told me such a story in dulcet tones: "The best form of revenge is simply to make the truth known," she began. She had been working for a man who believed women were fine as long as they knew "their place." Before leaving the man's employment, she photocopied private files proving that nearly every woman in the company was paid twenty to twenty-five thousand dollars less per year than her male counterparts. Armed with this information, the female employees filed a grievance and won their case. "I did it for me," the VP smiled, "but I was happy for them."

It is deeply and wonderfully gratifying, when hurt or humiliated, not to be nice. That's not unfeminine; that's human.


Great Moments of Revenge

  • In 2009, lured to a hotel by one of his many lovers and agreeing to be bound by "sheer sheets," one Wisconsin man found himself instead confronted by two more of his lovers and his wife. The three women Krazy Glued the cheating man's penis to his stomach. They face prison for assault.
  • In 2003, Clara Harris ran over her dentist husband—twice—after he told her to get a boob job and lose weight so he'd stop sleeping with his receptionist, only to be caught coming out of a motel with the younger woman. The jurors who convicted her wept—and begged that she be given the lightest possible sentence.
  • In 1970, after serving as Press Secretary for the First Lady in the Johnson administration, Liz Carpenter wrote a book about life inside the White House. One evening Carpenter encountered statesman/author Arthur Schlesinger Jr. at a cocktail party. Approaching her, he smiled and said, "Like your book, Liz, who wrote it for you?" "Glad you liked it, Arthur," she replied. "Who read it to you?"

Estranged wife entitled to house, says SC

 
Nov 18, 2008

NEW DELHI: Husbands paying monthly maintenance to cover food, clothing and other expenses of estranged wives may now have to shell out a great deal more. For, the Supreme Court has ruled that maintenance should include provision for a house akin to the husband's.

"Maintenance, as we see it, necessarily, must encompass a provision for residence," said a Bench comprising Justices Arijit Pasayat and Mukundakam Sharma, ruling in favour of Komal Amma from Kerala who struggled to find a house for herself after estrangement.

"Maintenance is given so that the woman can live in the manner, more or less, to which she was accustomed," the Bench said on Friday.

Therefore, if the couple was living in a posh locality, then after estrangement, the husband is bound to give a sum along with maintenance that would enable her to rent a house in a similar locality.

"The concept of maintenance must, therefore, include provision for food and clothing and the like and take into account the basic need of a roof over the head," the Bench said in a significant ruling that would help estranged wives lead a normal life without feeling the pinch.

Kissing in public by married couple not obscene: HC

Feb 2, 2009

NEW DELHI: The Delhi High Court has stayed criminal proceedings against a couple wondering how and why an "expression of love by a young married couple" in this case allegedly by stealing kisses in public should attract the charge of obscenity.

Justice S Muralidhar stayed an FIR lodged against one Ajit (name changed) and his wife who were booked by the Dwarka police station cops for allegedly kissing each other under the local Metro station even as they awaited word from their lawyer in connection with registration of their marriage.

"The FIR doesn't make a case for offence under Section 294 (obscenity) read with 34 IPC. It is inconceivable how, even if one were to take what is stated in the FIR to be true, an expression of love by a young married couple would attract offence of obscenity and trigger the coercive process of law," observed Justice Muralidhar. The case has been posted for February 25 when the prosecution will have to report about the action taken on the complaint of police harassment lodged by the couple with the police commissioner.

The newly married duo was picked up by ASI Vidhyadhar Singh of Dwarka police station on September 4 last year after he claimed to have found them "sitting in an objectionable position near a Metro pillar and kissing each other due to which passersby were feeling bad." Even though Ajit told them they were married, the cop hauled them to the police station and arrested them. Later, both were granted bail from the police station itself.

HC was surprised how Singh disregarded the fact that the two were married and registered an FIR for obscenity. Moreover, neither in the FIR nor in the subsequent chargesheet did the police attest any statement of witnesses or 'passersby', leaving no doubt in the mind of the court that charges were cooked up.

Ajit alleged both to the police and the bar council that the lawyer who promised to get the marriage registered connived with Singh to extort money from him and his wife as they were unaware of the intricacies of law.

In his petition before HC seeking quashing of the FIR, Ajit mentioned how, while the couple was being 'interrogated' by the cops, his ATM card was misused to polish off Rs 20,000 from his bank account. He said the couple got married in first week of September last year at an Arya Samaj temple without the knowledge of their respective parents. Therefore, both continued to stay separately as they tried to get the marriage registered and sought services of a lawyer who, as it turns out, cheated them. The petition in fact denies that they were kissing each other and says they were just clicking self portraits on the mobile phone camera.

Arguing their case before HC, the lawyer brought out finer distinctions in the law on what constitutes obscenity. Speaking to Times City, the advocate explained, "Obscenity charges get attracted when the act is so obscene that it encourages depravity or annoys the public. In this case both these contents are missing because the chargesheet is silent on any passersby as originally claimed," he added.

Money has no meaning in custody battles: SC

Nov 20, 2008

NEW DELHI: A husband's riches cannot be cited as logical reason to get custody of a child by contrasting it with the humble economic condition of the estranged wife, SC said on Wednesday while entrusting a teacher mother the task of bringing up a minor son.

The husband — Gaurav Nagpal — allegedly snatched his son almost a decade ago and since then played hide-and-seek with his wife and the courts to deny her custodial rights. This weighed heavily with a Bench comprising Justices Arijit Pasayat and G S Singhvi in asking the husband to restore the child to the wife, Sumedha Nagpal. A husband may be taking best care of the child, but could still end up losing the custody battle once the 'welfare of the child' scale judicially tilts towards the mother, the court ruled.

"In determining the question as to who should be given custody of a minor child, the paramount consideration is the 'welfare of the child' and not rights of the parents under a statute," said Justice Pasayat, writing the judgment for the Bench.

"Simply because the father loves his children and is not shown to be otherwise undesirable does not necessarily lead to a conclusion that the welfare of the children would be better promoted by granting their custody to him," the Bench said, adding, "Children are not mere chattels nor are they toys for their parents."

The guardian court, in case of a dispute between the mother and father, was expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them, it said. Contrasting his financial affluence to the humble conditions of his estranged wife, the husband had pleaded for custody saying that he was spending a good amount of money to provide the child with excellent education.

Agreeing with the husband that child's education was of paramount interest, SC said the father would do well to continue providing the educational expenses while the child remained in custody of the mother.


SC lays down conditions for women seeking maintenance in live-in relationships Read more: SC lays down conditions for women seeking maintenance in live-in relationships - The Times of India http://timesofindia.indiatimes.com/india/SC-lays-down-conditions-for-women-seeking-maintenance-in-live-in-relationships/articleshow/6786239.cms#ixzz131Yt3Cqz

Oct 21, 2010

NEW DELHI: A woman in a live-in relationship is not entitled to maintenance unless she fulfils certain parameters, the Supreme Court held today while observing that merely spending weekends together or a one night stand would not make it a domestic relationship.

A bench comprising Justices Markandey Katju and T S Thakur said that in order to get maintenance, a woman, even if not married, has to fulfil the following four requirements:

(1) The couple must hold themselves out to society as being akin to spouses
(2) They must be of legal age to marry
(3) They must be otherwise qualified to enter into a legal marriage including being unmarried
(4) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

"In our opinion, not all live-in relationships will amount to a relationship in the nature of marriage to get the benefit of the Act of 2005 (Protection of Women from Domestic Violence Act). To get such benefits the conditions mentioned by us above must be satisfied and this has to be proved by evidence.

"If a man has a 'keep' whom he maintains financially and uses mainly for sexual purpose and or as a servant, it would not in our opinion be a relationship in the nature of marriage," the court said.

"No doubt the view we are taking would exclude many women who have had a live-in relationship from the benefit of the 2005 Act (Protection of Women from Domestic Violence Act) but then it is not for this court to legislate or amend the law. Parliament has used the expression 'relationship in the nature of marriage' and not 'live-in relationship'. The court in the garb of interpretation cannot change the language of the statute," the bench observed.

The apex court passed the judgement while setting aside the concurrent orders passed by a matrimonial court and the Madras High Court awarding Rs 500 maintenance to D Patchaiammal who claimed to have married the appellant D Velusamy.

Velusamy had challenged the two courts order on the ground that he was already married to one Laxmi and Patchiammal was not married to him though he lived with her for some time.

Interpreting section 125 of CrPC relating to maintenance, the apex court said besides a legally-wedded wife, dependent parents and children alone are entitled to maintenance from a man.

But the Domestic Violence Act expanded the scope of maintenance by using the expression 'domestic relationship' which includes not only the relationship of marriage but also a relationship 'in the nature of marriage'.

"Unfortunately this expression has not been defined in the Act. Since there is no direct discussion of this court on the interpretation of this expression, we think it necessary to interpret because a large number of cases will be coming up before the court in our country on this point and hence an authoritative decision is required," the bench said.

According to the apex court, the legislation was enacted in view of the new social phenomenon in the country in the form of live-in relationship.

"In feudal society, sexual relationship between man and woman outside marriage was totally taboo and regarded with disgust and horror as depicted in Leo Tolstoy's novel 'Anna Karenina', Gustave Flaubert's novel 'Madame Bobary' and the novels of the great Bengali writer Sarat Chandra Chattopadhyay.

"However, Indian society is changing and this change has been reflected and recognised by Parliament by enacting the Protection of Woman from Domestic Violence Act, 2005," the bench said.

The apex court discussed at length the various US courts' rulings on grant of maintenance under the doctrine of 'Palimony'(pals) under which divergent rulings were passed vis-a-vis maintenance to a woman in a live-in relationship.

The bench recalled the California superior court's ruling in Marvin versus Marvin (1976) case wherein maintenance was awarded to the woman in live-in relationship.

The case related to the famous film actor Lee Marvin with whom a lady Michelle lived for many years without marrying him and was then deserted following which she claimed p alimony.

In the present case, the apex court said that since the two lower courts had been given an opportunity to Velusamy's first wife Laxmi to be heard, the directions passed by it was erroneous hence it remanded the matter back to the matrimonial court to examine whether Laxmi was the legally wedded wife of Velusamy.