498a Frequently Asked Questions - FAQOnce imprisoned/remanded; Kids or no kids, never take her back. You will regret forever. The reason is - the next time she gets hurt or dies by a freak accident; then your a** is in jail. The Judge or Advocate who coerced you into a compromise will not go to jail for you. People will say "you deserve it" for taking the B* back. Thursday, July 23, 2009 How women and lawyers negotiate/extort? (In the context of false case booked under Section 498A of IPC). Original article can be read by clicking below links: Part 1-> Part 2. I thank you sir personally for such beautiful articles exposing this extortion racket and multi crore scam which everyone knows but acts like nothing is happening. By B.N.GURURAJ, Advocate In this narration, CL stands for Civil Lawyer of the Accused person. CRL stands for Criminal side Lawyer of the Accused person. OL stands for opposite side lawyer. PP and APP stands for public prosecutor and Assistant public prosecutor respectively. Petition for anticipator bail for patents Having got the accused husband out of Jail, the next urgent task was to obtain anticipatory bail for the parents-in-law. On the Monday following the release of accused husband, the CRL and I worked at fevered pitch and filed a Criminal Miscellaneous Petition praying for anticipatory bail. For this purpose, the previous Saturday, I had spent almost entire day in the magistrate’s court trying to obtain a certified copy of the FIR, accompanying complaint and Bail order. I managed to get it by early evening that Saturday. This was enclosed along with copy of divorce petition already pending before the family court. The CRL knew the ropes. He, as usual, drafted the petition in the typing pool, got photocopies made, got the application and enclosures stitched and filed it in the filing counter of the court. Then he went to the section in charge of office which allocated the matters to different court halls as directed by the Principal City Civil and Sessions Judge. Tipping her with fifty buck note, he requested that matter must come up before particular court hall. This was at 1 O’clock. We waited until 3 O’clock. We went to that office and got the petition number and also found that our matter had been allotted to Fast Trace Court 7, which apparently had a reasonable judge. Eventually, the petition copy arrived at the court through court peon and was called. After seeing that it was for anticipatory bail, the judge ordered the matter to be listed next Sunday for considering the objections of the PP. The CRL pleaded for shorter date. But, the judge helplessly told him “every day, even calling out matters and giving next date takes entire fore noon. Where is time for hearing the matter? This matter cannot be heard before next Monday. Anyway, I can assure you that I shall hear the matter, if the objections have been filed by that date. That was a loud hint to us to ensure that we persuade the PP to file his statement of objections on or before next Monday. We deferred this task by about four days, as the PP might forget the matter by that date. Civil side of the case This narration actually started from the middle of the story. The disputed started about year and a half after marriage when the accused husband complained to his parents that he cannot any longer live with the complainant-wife as the marriage has not been consummated, among many other discords between them. In the meantime, the accused husband was sent to USA by his employer. His wife visited him during this period, of course, at husband’s expense. Thereafter, the accused husband firmly made up his mind to file a divorce petition. For this purpose, a few months later, he visited India, engaged the CL and filed the petition before the Family Court, housed in a rather pompously named court complex known as “Temple of Justice” in Kannada. Next year and a quarter was spent in the family court, trying to serve the process on the complainant wife. Eventually this was done, a counsel came on record, but no statement of objections was filed. At this juncture, one fine day, the learned Judge noted that the petitioner was not appearing before the court and directed that by next date, if the petitioner did not appear before the court, the divorce petition would be dismissed. It is under this circumstance that the accused husband visited India with fifteen days leave, solely for the purpose of participating in the proceeding. He had been assured by the CL that he would see to it that his evidence and cross examination were completed before this period. However, fate and the complainant wife willed otherwise. By the 9th day of his arrival, a false case of harassment for dowry was foisted not only on the husband but also on the parents-in-law. Rest of the story is already known to the readers. String of adjournments leading to Mediation Centre The Monday after the release of the accused-husband on bail, the matter came up for hearing. Prior to the false complaint, on two dates, the matter had come up before the Family Court. The complainant wife had skillfully avoided appearing before the court. On this Monday, in the forenoon, the complainant wife along with string of relatives and a clutch of OLs appeared in the court. However, as coincidence would have it, the regular judge was not available. Hence, the matter would be taken up by the in-charge judge in the afternoon, by 3.00 pm. When the accused-husband was ready before the court, the wife had, thorough her OL send a medical certificate, pleading sickness! Thus, the matter got adjourned to the Wednesday. This became a highly worrisome matter for the husband, who had been left with only another four days of leave to return to England. It must be mentioned here that during the whole period between the period of arrest and this proceeding before the family court, the CL was inaccessible over mobile phone. However, his junior could reach him without fail. He skillfully kept himself out of our way. Even the issue of grant of bail had to be communicated to him after persistent effort. Between Monday and this Wednesday, all of us felt so depressed and desperate that we even considered changing the counsel. But, we could not think of another counsel who too would not play this hide and seek with the client. On this Wednesday morning, I accompanied the accused husband. In an angry mood, I had drafted a detailed affidavit, narrating the happenings of last four days, mainly pointing out that by trying to force a settlement through the police station, the complainant had interfered with the administration of justice, which was an act of contempt of court. This was sworn before notary and kept ready for filing before the Family Court if need be. However, as we were waiting for the court to start, first we learnt that the judge was not available, and the matters would come up before the in-charge judge who sat in the next court hall. In order to ensure that the OL did not take another date from the Bench Clerk, I tipped him before hand and told him that the matter should not be adjourned but be placed before the judge. Having taken money, he did this. In the meantime, the OL approached me and asked what did we intend to do. He was the husband of the plump woman lawyer who did the extortionist talk in the police station. In the course of talk he as much as admitted that in most of these divorce cases, the fault lie with the girls, and hastily added that his comment was not on this particular case! In lighter mood, I told him to say this in the witness box! OL also blurted out that in some cases, he had settled the permanent alimony for as low as Rs.6.75 lakhs, and in another case, for Rs.10 lakhs, but in this case, the complainant wife was demanding far higher sum. However, as the events turned out, the CL and I did not capitalize on this piece of information. At this stage, CL called and wanted to know what was happening. I told him that he must come to court and try to settle the dispute, as time available to the accused husband was not sufficient to protract the litigation. With considerable reluctance, he agreed, only after talking to the OL who was also willing to discuss. Some twenty minutes later, CL reached the family court. He asked accused husband, in case settlement were possible, what was the maximum sum of permanent alimony he could afford to pay. The husband candidly told him that he could afford to pay Rs.15 lakhs. This turned out to be a mistake. When the matter was eventually called by the in-charge judge, both the accused husband and complainant wife were present in the court. Their counsels told that the parties wanted to settle the matter by mediation. Hence, the court directed the matter to be listed for mediation on the next Monday, to be reported to the court, latest after another 45 days. CL told us that even for mediation, it was necessary for the parties to agree on a sum of permanent alimony. The mediators would provide legal frame work for settlement, but would not be in a position to impose any particular figure as permanent alimony on the parties. Therefore, if all of us discussed and agreed on a sum, it was possible for the mediation to be concluded on the very first day. This seemed like quite an optimistic situation. We, i.e., OL, CL and I along with OL’s wife, found a quite corner in the mediation centre waiting room and discussed how best the matter could be settled. The OL’s wife shocked us by stating that the complainant wife wanted Rs.50 lakhs as permanent alimony and she would not accept even 5 paise less! For all his reluctance to come to the court, the CL spoke quite skillfully, but for the mistake of straight away offering Rs.15 lakhs as permanent alimony. I thought that he ought to have started with 9 lakhs or 10 lakhs and yielded little by little to lead up to 15 lakh rupees. But, the arrow had been short and could not be retracted now. CL told the OL “It is not that we are unwilling to pay more. It is simply that your kind of demand is beyond the means available to the husband.”. OL’s wife said, “We know what kind of salary these engineers receive abroad. We believe that he is worth 5 to 6 crore rupees. Therefore our demand is reasonable!” CL explained to her the impossibility of saving that kind of money within about two years that the husband had spent abroad. The accused husband had prepared a statement of affairs showing total receipts during the two years, his expenses, his savings, investments, and sums paid to and spent for the complainant wife. CL pointed out that even to offer Rs.15 lakhs, the husband would have to borrow another Rs.4 lakhs. The OL’s wife went way to confer with the complainant wife and her mother. She returned few minutes later and said that the wife was willing to accept Rs.35 lakhs, and not a rupee less! Of course, paying such ransom was out of question for the reason that the husband simply did not have the means to pay. He also did not have any immovable or movable property in his name. Even the house was in his mother’s name. These facts of life were placed before the OL. Thus, more or less, the talk broke down. As we were walking out of the court complex, the OL approached with a last demand of Rs.30 lakhs. Since even this was unaffordable, we at least agreed that we should not shut out the matter and keep our options till the day of mediation, which was next Monday. On that note, we parted company. Nuisance of weekly attendance at police station The bail order of the court required the accused husband to appear before the police inspector and sign attendance every Sunday. CRL told us to purchase a 200 page note book and accompany him on the first Sunday to meet the ACP, which the accused husband did dutifully. By fortuitous coincidence, the ACP was not available. Therefore, both of them met the inspector. The book was given to the police inspector writing down the case number, name of the accused, and date of bail order. Thus, the accused had to purchase his own attendance book. The police department, enjoined with the duty of keeping attendance could not afford to maintain a register in a police station! The consequence of failure to mark attendance was that the bail order would be cancelled, and the accused sent back to prison and JC. That was a prospect none of us could even dream of facing. Therefore, throughout the period, the accused husband diligently went to the police station every Sunday and marked attendance. Accused husband’s efforts to save his job Now, it was clear that there was no way the accused husband could return to his job. With a criminal case hanging over his head like a democlean sword, requiring his presence in the city indefinitely, the option of returning to England was absent. I thought that he could go to England and wind up his affairs and return to fight this matter out. Even to do this, the weekly attendance at the police station came in the way. He could not have travelled to England and returned to India within a span of six days between two Sundays, after concluding his affairs at England. I spoke to CRL and explained the problem. I asked him to file an application before the magistrate praying for modification of the condition of weekly attendance. Alternatively, dispense with this condition for one week, so that the accused husband could stay in England for two weeks and conclude his affairs, bring back his savings. CRL’s suggestion was incredible to say the least. He said, “I will take you to the ACP. He will adjust. He will allow the accused to mark attendance for next couple of weeks. During that period, your man can travel and return”. I told him, “look, the passport will have exit and entry date stamps. If he marks attendance for a date on which he is out of the country as per his own passport, he would be caught like a sitting duck!” The CRL’s reply was “who is going to check that? If you want your man to go abroad, you have to take risk!” According to him before efflux of at least four weeks, the court will not consider modification of bail conditions. Period. So much for the wisdom and smartness of a criminal side lawyer who has to defend his client. However, the accused husband was made of stronger stuff. He did not consider the option of losing the job at all. Instead, he wrote to his employer placing all the cards on the table. He explained by e-mail that he had been trapped in a criminal case based on false complaint. He stated that he reasonably expected that further four week’s time would be sufficient for him to conclude both the matrimonial and criminal case and return to this job. He had about three week’s leave to his credit. The fourth week would have been leave without pay. The firm he worked for was gracious enough to appreciate the tough predicament faced by their employee. Tentatively, they approved his leave absence, subject to final approval by the managing partner. Thus, the problem of saving the job had been postponed by four weeks. He could concentrate on the cases on hand to liberate himself. Within next few days, his leave of absence was confirmed. That worry was out of the way. A side show amongst counsels On the day when the matter was posted for mediation, a side show developed. The CL has a junior lawyer, who is in his late twenties or early thirties. According to another civil lawyer friend, this person was skilled in fleecing more money from the clients, than his own senior! This collection would be in addition to the payment of fee to the CL. On that day, he talked to the OL for a few minutes and returned to me to inform, “sir, that OL is money-minded! I can make out that if right sum is offered to him, he will prevail upon the complainant to accept settlement for fifteen lakhs. It may be necessary to pay him another fifty thousand.” I told this junior “fifteen lakh rupees is quite a generous offer. None from the other side should be unhappy to accept it. If the OL can prevail upon his client to accept it, we don’t mind compensating OL.” For good measure I added “and you too!” The junior lawyer huddled into conference with the OL. He returned about fifteen minutes later and confirmed that we would have to through the motion of mediation and he would persuade his client to accept the offer of fifteen lakhs. As readers would recall, the last demand of the complainant wife was Rs.30 lakhs. The gap between our offer and their demand was far too wide to be bridged. However, with this work done through the second channel, I felt that negotiation before the mediator would be concluded on Monday. Meeting the PP of sessions court Next day, late evening the CRL called me and complained at length about his not getting paid for filing of anticipatory bail application. He also made much show about my not joining him to meet the PP in the Sessions Court. “It is now too late in the day to do so. You should have approached me much earlier.” By now, I had realized that this was his usual style of talking, always blaming the client for real or imaginary faults. This was to get worse, with every passing day. I asked him, “could we meet the PP on Friday?” He pompously replied that he was busy on Friday and had to appear in several courts including High Court. I persisted, “Can I come to High Court around 1 O’clock and pick you up?” He agreed with much reluctance: “alright, you present yourself at High Court by 1 O’clock. During the recess period of one hour between 1.30 pm and 2.30 pm, we will go to sessions court from High Court and try to meet the PP.” I found the CRL near the court hall of High Court where criminal petitions were heard. The court hall was too crowded. CRL’s matter was 60th in the cause list. At that time, 31st matter was being heard. So, the CRL took me to the next court hall, which was vacant. As soon as we sat there, the first task I did was to pay him another 10K. I told him, “On the day you filed the Cmisc petition, I was not carrying sufficient money. Here is part of your fee.” He beamed broadly and took the money. Thereafter, he was very cordial. Thus, I found that his grumpiness was on account of not getting paid then and there! We waited till about 1.20 pm. The cause list stopped at 44th matter. Therefore, CRL felt that we could safely go to sessions court which was about one kilometer away, in my car, and return in time for the afternoon session of the High Court. We left for the Sessions Court. When we reached there, we found the PP still in the court hall. The court would raise for recess at 2.00 pm. We patiently waited. CRL told me to keep a thousand rupee note ready and handy, which I did. When the PP came out of the court and entered his chamber next door to the court hall, we also followed him and occupied the visitor’s chairs before him. He gave us an interrogative look. The CRL told him “On Monday, a Cmisc is coming up for anticipatory bail.” He paused at this stage and told me to handover thousand rupees to PP, which I did. The PP pocketed it without even a glance at me and without any break in the conversation with the CRL! PP asked the petitioner’s name, name of police station. He located the petition copy served on him. CRL requested him, “the court has agreed to hear arguments on Monday itself, if you can file objections on Monday”. The PP agreed to do so. CRL further requested PP to make a note of the Cmisc number. The PP airily replied, “don’t worry. Once you have told me, I will take care of it!”. With that, we were dismissed and returned to the High Court in another fifteen minutes. I dropped the CRL at the High Court and returned to my office. Before parting, the CRL told me to be present at the Sessions Court on Monday by 1.00 pm itself. Sessions hearing and drama at mediation centre On Monday morning, I kept on trying for the CL. But as usual, he was inaccessible. Since CRL wanted me to be present at the Sessions Court for argument of anticipatory bail application, I could not also be present at the mediation centre on Monday, which was also fixed at 3.00 pm. Eventually, when I managed to get him on the phone at 1.00 pm, I requested him to appear for the mediation, as I would be away at the Sessions Court. But, the CL refused to continue the conversation on the ground that he was in the middle of some discussion or argument! The lack of commitment for the client’s cause was absolutely shocking. After an hour, he called and told me that his junior would accompany the accused husband at the mediation centre. Knowing his proficiency and abilities, I knew that until I returned to the mediation centre, the accused husband would be a lone lamb amongst wolves. This junior was too dumb to contribute meaningfully to the mediation process. I waited for the CRL at sessions court. He turned up at around 1.30 pm. He was coming from some other court. I did some running around with him, as he did some follow up on an execution petition filed by him saw some of the dungeons of the court complex which passed for the offices of the courts. In the meantime, a young man approached the CRL with a request to file anticipatory bail application on behalf of some persons, who were facing recovery proceedings from a bank. Apparently, the debt had been decreed by the Debt Recovery Tribunal. For failing to comply with recovery notice, they must have been facing the threat of criminal proceedings. The CRL heard him for a couple of minutes and told him, “Yours is not a case where an FIR has been filed. Therefore, you cannot approach the Sessions court for anticipatory bail. Go and request the branch manager for some time”. With that, he dismissed that prospective client. We sat in my car, which was parked in a tree shade and shared the lunch I had brought. By 2.40 pm, we returned to the court hall. Within about ten minutes after three, our matter was called. The PP promptly said “I am filing objections!”. He handed over a copy of statement of objections to the court clerk and did nothing more. The judge heard the CRL’s arguments. Sum and substance of the argument was that the complaint under Section 498A had been filed during the pendency of petition for divorce for over year and a quarter. The complaint was retaliation for this divorce petition. That the complaint was false, as the husband was not present in India to make demands, nor did the complainant wife lived in her matrimonial home for over year and a half. The complaint was based on improbabilities and stale facts. The CRL also took the judge through case laws he relied on, especially a constitutional bench decision in a 1980s case, wherein, the Court had set rather liberal guidelines for granting anticipatory bail. The judge impassively heard the arguments. After hearing the arguments, the judge cryptically said, “for orders on next Monday”. I had no experience in the Sessions Court. Just as the magistrate had dictated the bail order in the open court immediately after the argument, I expected the Sessions Judge to do so upon conclusion of the arguments. This meant that the parents in law would have to remain in exile for at least another ten days, assuming that the order would be pronounced on next Monday granting anticipatory bail, and we would be able to get certified copy of the order, the next day. I was dejected. The CRL and another elderly advocate explained to me, “Even the courts are worried about being attributed oblique motive, if they pronounce the order immediately. Hence, the delay.” With that, we left the court complex. The CRL had to return to his office-cum-home. He wanted me to drop him at my place, from where he could go by autorickshaw. On the way back, I explained to CRL the anxieties of the parents-in-law, the fact that the accused husband’s sister was in the family way, how, because of threat of harassment by the police, the family had splintered and dispersed. The CRL’s response was typical of a lawyer who cared about his case and fee. “What can be done? The case will proceed and your people would have to attend the court regularly!” I told him caustically, “As a counsel, it is easy for you and me to expect litigants to regularly attend court. You must appreciate the client’s concern. None would want to come to the criminal courts, stand amidst criminals, pimps and prostitutes and stand in the box of the accused. None would want to go to court as a litigant, and as a patient to a hospital!” That must have hit the target. He kept quite thereafter. Having come so near he stepped into my office, saw my library, met my chamber colleague, shared a cup of tea and then left. Thereafter, I called the accused husband, who must have been facing heavy artillery in the mediation centre. When he spoke, the desperation and anxiety were evident in his voice. He told me, “It is better if you come. These people are playing acting all kinds of drama.” With that message, I left for the family court complex, which also housed the mediation centre. In the mediation centre, which occupied the ground floor of the court complex, there are nearly a dozen mediation rooms. I located the room where our case was in progress. The mediator was a handsome man in his early forties. I stepped in and introduced myself as the accused husband’s relative and told him that since his parents were away, I wanted to accompany him. The CL’s crafty junior was sitting next to the accused husband. The mediator explained to me that the complainant wife had been demanding Rs.30 lakhs as permanent alimony. Whereas, the husband had offered Rs.17.5 lakhs. I was bewildered. According to my last information, the offer was Rs.15 lakhs. According to the assurance of the CL’s junior, the opposite side was expected to accept this offer. I raised this question. Then, the junior explained to me. Apparently, the CL, in a bid to settle the matter had unilaterally offered Rs.17.5 lakhs, with the confidence that he could persuade the accused husband to pay the sum! To me this seemed rank recklessness. I told the mediator, “according to our information on the previous occasion, we had been told that the opposite side would accept our offer of 15 lakhs, which is now hiked to 17.5 lakhs. If the gap was known to be as wide as another 15 lakhs, we would not even have considered mediation. There is just no way can the accused husband manage to meet that kind of demand. Even to pay Rs.15 lakhs, he still has to borrow another four lakhs”. I drew his attention to the statement of affairs drawn up by the accused husband. At this, the plump woman lawyer, the wife of OL jumped to her feet, “You are making allegations against us! We have never agreed to 15 lakhs or 17.5 lakhs. You are trying to bring between us and the party!” I bluntly told her “Think whatever you like. The fact remains that on the previous occasion, your side clearly indicated that it was possible to settle the matter for 15 lakhs. I am not changing my statement”. At this stage, the CL’s junior squirmed in his seat, fearing that I might reveal his little conversation. The woman lawyer told the mediator contemptuously, “He is after all a relative. He has no business to interfere!” I told her, “Mediation is meant for parties and family members. It is not meant for lawyers”. I was in counsel’s dress at that time. The mediator, quite an affable man, helped clam the tempers. At this stage, the complainant wife opened her mouth and revealed the degree of her greed. “If these people have no money to pay, let write their house in my name!” I was astounded to hear this. Since I did not want to escalate the tempers by saying something sharp, I told the mediator, “This is a reckless demand. The house the accused lives in belongs to his mother. Accused husband does not own any movable property or immovable property. Other side cannot make this kind of baseless demand.” The wife muttered something about the family being boastful about their wealth and living beyond their means. I told the mediator that such baseless and wild assertions cannot be taken into consideration for settling the dispute between the parties. The complainant wife once again started the melodrama about joining the marital home, that she wanted to lead peaceful life with husband. But, she did not want to live with her in laws as she feared for her life. She wanted her husband to set up separate family. I firmly told the mediator that living together again was not at all an option, not after the humiliation faced by the family at the hands of the complainant wife by being arrested and sent to jail. If that was the main demand, this mediation would serve no purpose at all. I wondered how this educated wife did not appreciate her own contradictions. On the date of arrest, she told the police inspector to let off her in-laws and arrest the husband, as though she thought that the in-laws were angels and the husband a demon. Now, she was willing to live with this diabolical husband, but feared for life if she had to live under the same roof with the in-laws! But, then for someone whose judgment and intelligence are clouded by greed, logic is highly inconvenient. I told the mediator and the other side lawyer, “At present, the husband is not earning any money. If the matter is delayed, his savings would also dwindle and there would be no significant money left for paying permanent alimony. No court can award alimony which is beyond the means of the petitioner in a divorce case.” The complainant wife again asserted stridently, “I too have to look after my handicapped father. I do not have a project now. I am on the Bench. What should I do for future, if I accept their paltry offer? I cannot accept anything less than Rs. 30 lakhs!”. It was evident that she wanted this opportunity to solve all her life’s problems forever, a mercenary approach if there was ever one. The mediator explained to the accused husband that he will consider the matter once again on Thursday, and in the meantime, both parties could find a meeting ground. He advised the accused husband that if he could conclude the matter by settlement, he could return to his job within next couple of weeks, as the conclusion of civil case would also mean that criminal proceeding can also be closed. That would be a part of mediation agreement. On that note, we left the mediation centre. The accused husband was feeling very depressed. The adamancy displayed by the opposite side worried me too. If the demand remains beyond the means of the husband, there can be no conclusion of civil and criminal proceedings within four weeks. That would mean loss of job for the husband. How long can a person live on savings, and meet the expenses of litigation in two courts? Unfortunately, even his parents were not at hand to console him. They had to remain in exile until the anticipatory bail order was obtained. Husband ready to throw in towel That night and next day, we discussed the situation at home. The husband was feeling desperate to save his job. He blurted, “I am ready to borrow from my friends abroad. I can repay them within a few months, when I return to the job. I am prepared to pay 25 lakh rupees”. Since he had already booked his return journey to England, travel would not be a problem, even after he paid this king’s ransom. But, he would be left with no money at all, not to speak of his family. But, his reasoning was, it was better to sacrifice the savings, rather than job. Savings could be built up, but job could not be found so readily. That decided, we contracted the CL. After playing the usual elusive game, he spoke to us. He said, ‘You need not pay 25 lakh rupees. I will speak to the OL and settle the matter at Rs. 20 lakhs.” He sounded very confident. Matter settled at mediation centre On Thursday morning, the CL called me and told me that he had spoken to CL and told him “I am telling my client to make a final offer of Rs.20 lakhs. If your client does not accept it, you may do whatever you like. I will not participate in the negotiation.” I wondered what kind of ultimatum was this. If he did not participate in the mediation, it would be no skin off the nose of the opposite side! We would be constrained to take help of another counsel or plunge further on our own. The CL continued, “This threat has worked! OL called me a short while back, and has confirmed that his client has accepted the final offer of Rs.20 lakhs”. At last, there seemed to be some light at the end of the tunnel. I informed the accused husband about this development. He was smarter. Anticipating such development, he had already mobilized money, and transferred money from his foreign account to Indian account. He said, he could issue a crossed cheque for that sum! In the afternoon, well before 3.00 pm, I was present at the mediation centre along with accused husband. I saw the notice board and noted that our mediation case was listed. A little while later, the complainant wife and her relations turned up as also their counsels. As usual, our CL did not turn up. Though it was 3 O’clock, even the mediator had not yet appeared. I contacted the CL. He told me “I am at Revenue Court. I will come in another twenty minutes. That time passed. I called him again. But he was inaccessible. In the meantime, the mediator appeared. Both sides went to him. I told him that our counsel would be slightly delayed, but would surely come. We waited upto 4 O’clock and there was no sign of CL. I began to wonder whether this would result in slip between the cup and the lip on account of the counsel playing truant. The mediator, sensing my anxiety told us that we could finalise the details of settlement and commence drafting the mediation agreement-cum-petition which would be presented to the family court. It had to be signed by both the parties and their counsels. Once the details of settlement were known, he could dictate the document so as to save time. We agreed to this sensible suggestion and met in a mediation room. We were in agreement that the husband would pay the permanent alimony in full and final settlement of all claims and neither side would stake any claim against the other in future; that they would not interfere with each other in future; that divorce would be by consent of the party; that the criminal case commenced against the husband would be withdrawn. The other side added one more element “petitioner husband must withdraw all the allegations made in the divorce petition”. After conferring with the accused husband, I told the mediator that we had no dispute about withdrawing the allegations in the petition. Next, the other side wanted the money partly in cash. This I flatly refused. I firmly told that the cheque number, bank name, amount, and date must appear in the mediation agreement for the entire sum. Further, we did not want to run the risk of drawing and transporting cash. The other side did not persist with this demand. Next, there was some discrepancy in the name of complainant wife in the petition and in her bank account. It was agreed that mediation agreement would record the name in which the cheque was issued as abundant measure of caution. The accused husband wrote out the cheque for Rs.20 lakhs and gave it to the mediator. Before leaving the mediation room, he mediator asked the complainant wife, whether she was satisfied with the settlement. He reasonably expected that at least out of politeness he would get a positive answer. But, her answer was a firm NO! We again retired to our corners of the boxing room called mediation centre. At this stage, the CL made his grand entrance. We were waiting in the porch of the mediation centre in that rainy late afternoon. I took him to waiting room and explained the terms of settlement. Then I took him to mediator who was in a secretary’s room, dictating the mediation petition – cum – agreement. Short while later, after the draft was ready, we met again in the mediation room. Both sides read the draft checking each detail carefully. Thereafter, lawyers of both sides as well as the husband and wife signed the mediation agreement. I asked how the criminal case would be solved. The mediator and the OL told us that soon after the divorce judgment, the complainant wife would appear in the magistrate court and withdraw the criminal petition. I looked for confirmation from the CL. He also agreed that this was possible. Since I was not certain of the procedure for withdrawing the case in a cognizable offence, I deferred to his wisdom. This was soon to become a major problem The mediator gave it to the centre staff to affix seals, made copies and give one copy to each party. He called for the court’s case file, and wrote an order directing the matter to be placed before the Family Court on next Monday, for passing the judgment of divorce. On that note, we left the court complex, feeling satisfied that at least the civil side of the crisis was about to get settled. You might also like: During day of arrest & bail proceedings what happens? Most Asked Questions - court procedure/terms. 498a Arrest - New Amendment Interpretation/Directions by UP HC Right to Bail In India How to fight False Allegations ? LinkWithin Posted by Amicus Curiae at 11:35 PM Labels: 498A, 498a andhra pradesh, Dowry, dowry law, extort, free, harassed husband, harassment, husband, india, IPC 498A, legal terrorism, matrimonial, negotiation, scam, Section 498(A), shaadi, wedding 3 comments: 1. yodhaDecember 19, 2009 4:48 PM >>I asked how the criminal case would be solved. The mediator and the OL told us that soon after the divorce judgment, the complainant wife would appear in the magistrate court and withdraw the criminal petition. I looked for confirmation from the CL. He also agreed that this was possible. Since I was not certain of the procedure for withdrawing the case in a cognizable offence, I deferred to his wisdom. This was soon to become a major problem Wisdom in lawyers?... i have been searching for it :-) But very well written narrative ... Reply 2. AnonymousJanuary 6, 2010 9:40 AM The questions " How criminal case will be solved by civil setlement?.". The criminal case will be solved when FIR is closed. To close the FIR the person accused must be aquitted or the cases are quashed on wife's claim that the criminal charges are withdrawn or false. The criminal cases are accused VS state. It can be run by state without the wife's involvement. When wife gives oath under the magistrate that she will not be a witness for this case then it makes state police very difficult to proove the guilty on the hubby. So police has limited evidence against the hubby and will end up closing the case as a mistake. The question .... What is the wife died by suicide?. Can it be done by settlement?. Actually NO. Because the evidence of offence is stong and State Police can close the FIR only if they can prove it is a natural death. So the wise thing before handing over money is "To make the FIR closed on Wife's affidavit". Reply 3. AnonymousSeptember 16, 2011 7:36 PM Dude,i really understand the problem of yours ,because very recently in this month august 11 i became a victim of 498A and my case is almost 95% same to your case,in my case too , wife did not live with me since marriage day and its been one and half years and she came along with her father to live with me and made a huge drama and filed 498A case and left. the situation is both of us live in different states , i live in karnataka and she lives in Orissa and both of us are working in same BANK at same rank. and after filing case they immediately left the state and used the FIR copy as a basis of re-transfer back to her state(orissa). as in Bank gals get transfer on spouse policy and she got relieved after one year of receiving orders from bank and came , in intention to create scene to go back and file case. Then i arranged anticipatory bail,lived in exile for 21 days and parents got too and my parents live in another state UTTAR PRadesh. now the hearing has not started but the gal's parents have asked for some sort of reconciliation or negotiation. what to do advise me please.. Reply Load more... Newer Post Older Post Home Subscribe to: Post Comments (Atom) domestic violence Chicago Daily Herald - Sun City shines light on domestic violence powered by The institution of marriage itself is gradually being put to test in contemporary Indian society with IPC 498A kind of laws, more so in urban pockets. More couples than before are opting not to tie the knot, preferring to simply live together instead. Cohabitation is common in a small number of advanced societies, some of which - like the Scandinavian countries - give live-in couples the same rights as those who are legally wed. Marriage, therefore, is often a mere formality, or a matter of choice, in such societies. However, the reality in India is different. Due to a combination of social and religious factors, as well as the absence of safety nets and welfare, marriage is still an institution that is preferred over any other form of union. It is the fundamental relationship around which families are built and lend stability to social structures in India. That said, it is crucial that we recognise the changes that are taking place. Instead of ruing the loss of old values, we would be better off gearing up for new realities. That includes updating our laws and social attitudes. Add not fire to fire. Do not throw the arrow that will return against you. Beggars can never be bankrupt. You can bear with your own faults, and why not a fault in your wife/husband? Better an egg today than a hen tomorrow. The child who gets a stepmother also gets a stepfather. Where there is dowry there is danger. Anger can be an expensive luxury. The bachelors crave to get married, and the married ones regret why he got married. O daughter, I’m telling you. O daughter-in-law, listen to this….. Pray one hour before going to war, two hours before going to sea, and three hours before getting married. Even the moon has spots. It takes time to save time. Comment is free but facts are on expenses. It is wise to keep in mind that neither success nor failure is ever final. Readers are plentiful, thinkers are rare. It is not whether you get knocked down; it is whether you get up again. There are times when silence has the loudest voice. Do not wait for success, go ahead without it. One does not learn anything that one does not love. When there is no enemy within, the enemies outside can not hurt you. Do not look where you fell, but where you slipped. To know the road ahead, ask those coming back. If you bow at all, bow low. The day you decide to do it is your lucky day. Proof rather than argument. Where you cannot climb over, you must creep under. Faults are thick where love is thin. It is harder to kill a whisper than even a shouted calumny. BE THOU AS CHASTE AS ICE, AS PURE AS SNOW, THOU SHALT NOT ESCAPE CALUMNY. Home Search This Blog 498A arrest after amendment of cr.p.c - s.41 Warrant MUST for arrest in IPC 498A How to get Anticipatory Bail ? How wife-lawyers negotiate/extorts money ? From 50 lakhs to 20 lakhs. How to fight False Allegations ? How to withdraw/compound IPC 498a? What happens after wife complains-arrest-bail proceedings ? When to file for FIR Quash ? What is 498a procedure (Step by Step) ? How to Crack 498A case ? Do I need to appear personally ? How to fight maintenance case Cr.P.C 125 ? Do I file for Divorce or Not ? AP Family Court Rules What is bail procedure ? Right to Bail In India How to file perjury case ? When to file defamation ? What to do if your wife is threatening you with false dowry law ? FIL or MIL is a Government Employee/s ? Legal analysis of what you can expect of this 498A law ? Can I give POA for divorce ? What is Electronic Evidence ? Can E-Mail be used as Evidence ? How to file RTI if you are an NRI ? Can women be charged under PWDVA ? How to dismiss impotency allegations ? Can your ex file PWDVA after filing 498a ? AP HIGH COURT JUDGMENTS IMPORTANT JUDGMENTS !!! What to do after chargesheet (final report by police) ? What to do if my EX is not attending court ? Reasons women file 498A? Do you need one? IS GIVING DOWRY A CRIME ? How to file 498a ? (crash course for women) What are Hyderabad Police Orders to arrest ? Andhra Pradesh Dowry Circulars How to file visitation rights ? What to do when girl files false streedhan list ? How to obtain certified copies of case file from court ? Multiple Maintenance Cases, 24 of HMA and 125 Cr.P.C/DV? Framing of charges ? Do you have right to Speedy Trial ? Getting Passport out of trial court as conditional bail ? How to file temporary restraining order ? How to file discharge in trial court ? How to get proof-of-income-of-fil/mil/bil ? How to get PAN of FIL/MIL in govt sector? How to get SMS/Phone records from Service providers ? How to get info from private entity? What to do if Police not investigating and arrogant? Can DV Petitioner be cross examined by respondent ? How to file DVC Quash ? Marriage jokes/Notable truths. Why Interpol stop issuing RCN's? Addresses and Websites Amicus Curiae Beware. The next scuttlebutt for the Indian Male - False rape cases by Maid Servants or Domestic help. Bill was recently stalled in Parliament @ winter session 2011. Its a clause in the Sexual Harassment Bill. The modus operandi is that the Maid Servants search for used condoms in the trash and wipe them on to their saree. What happens next is obvious and predictable. "Wives who have gone to the police and publicly invoked the criminal process and accused somebody of a serious crime such as dowry harassment must be identified." Moreover: "In this country there is no such thing and should not be such a thing as anonymous accusation with face covered and husbands photos flashing on TV. If your name is in court it is a logical extension that it should be printed in the media. How can you publish the name of the presumptively innocent accused but not the name of the accuser wife or show her face?" View my complete profile Blog Archive IPC 498a is depriving many young children of a happy childhood, many youth of productive careers and many senior citizens of mental peace in the last leg of their lives. A woman misusing IPC 498a and PWDVA should be at the minimum be prosecuted for perjury and harassment, denied maintenance, lose custody of children, penalised, put under probation act & divorce automatically granted. This blogger states that some of the material is sourced from and links are provided therefor from third party websites, as you know - this is a fight for justice and not for any financial gains or commercial benefits. Where the idea has originated from such third party, it is a total credit to them for their endeavor, research and on the negative side their negligence, slander etc. This blogger takes no responsibility. Recent Comments 498a Frequently Asked Questions - FAQ Once imprisoned/remanded; Kids or no kids, never take her back. You will regret forever. The reason is - the next time she gets hurt or dies by a freak accident; then your a** is in jail. The Judge or Advocate who coerced you into a compromise will not go to jail for you. People will say "you deserve it" for taking the B* back. Tuesday, July 21, 2009 During day of arrest & bail proceedings what happens? Please see original article at his blog which is written with amazing clarity and wit. Truly eye-popping. This man is god for me because I could not describe what I had gone through but he explained in detail what the matter was. Hence, I salute him and my regards for him. Here is the link: "http://gururajbn.blogspot.com/2009/07/somespecimens-of-nobel-and-learned.html". Monday, July 20, 2009 :Some Specimens of the Nobel and Learned Profession (In the context of false case booked under Section 498A of IPC) By B.N.GURURAJ, Advocate This paper is the sequel to the blog I have written about abuse of Section 498A of IPC, which was originally intended to put the scare of God into the husband and In-laws who harassed the daughters-in-law and their maternal family for dowry and other demands. What this provision has come down to in the hands of unscrupulous married women, wily lawyers and corrupt policemen, I have given a fairly detailed account in that blog. Now, you must know how the matters are complicated by the lawyers who connive with complainant in filing false complaint, not to speak of callous attitude and ineptness of the lawyers who have to defend the accused. I shall give blow by blow account of specific scenes. In this narration, CL stands for Civil Lawyer of the Accused person. CRL stands for Criminal side Lawyer of the Accused person. OL stands for opposite side lawyer. Day of arrest Typically, the police sent for the parents of the husband and kept them in the police station. The parents were told to get their son to the police station. The implicit message was that they would not be allowed to go home until the son reported to the station. As an instinctive reaction, the near relations of the husband and parents contacted the CL for guidance in the matter, a person with over four decades standing in the profession. He said he would send the CRL to the police station, though it would take some time for the CRL to reach. At around 7.00 pm, the son reached the police station. Even by 7.30 pm CRL did not reach the police station. Frantic relatives contacted CL and asked him where is the CRL. Then the CL casually said that I will call him over the phone! In the meantime, a plump woman lawyer in mufti, with a mobile phone stuck to her ears was strutting around in the police station. A little later, the complainant wife joined her. They were seated in the chamber of the woman police inspector. Then the parents and husband were summoned. The woman lawyer asked “What is the figure you have in mind?”. The husband was baffled not knowing what figure he should think of. I was summoned into the chamber as the near relative of the accused persons. The lawyer spoke again impatiently, “name a figure, the matter will be settled”. Thereafter, some blame game ensued. Again the woman lawyer spoke “decide quickly. No one has time!” as though she were about to catch a flight. All the time, the police inspector paid little attention to the goings on and went busily about her work. Suddenly she barked: “Are you through or not? If not I will arrest these persons!”. I told the woman lawyer “You cannot use police station to force a settlement. This is a civil matter to be decided by the family court, where the divorce petition is pending.” “That is different, this is different. If he does not agree to settle, he will be arrested.” The husband refused to yield. The woman police inspector asked “Who should I arrest”. The complainant wife magnanimously said “don’t arrest my in-laws, but arrest this husband!”. Within next few minutes, the Police Inspector completed the arrest formalities. An arrest memo was given to me within few minutes informing me that the husband had been arrested under Section 498A (dowry harassment), 506 (criminal intimidation) read with Section 34 (common intention) and Section 4 of Dowry Prohibition Act. For good measure, this memo stated that since it was too late to produce the accused before the magistrate, the accused would be produced in the court next day. That meant that the husband would spend the night in some police station. At this stage, which was around 8.00 pm, there was commotion outside the police inspector’s chamber. “How can you arrest a person on the basis of bare complaint? What statements have you taken? Where is the investigation?” That was the CRL, a plump middle aged man in late fifties, barged into the Police Inspector’s chamber and questioned how could she arrest the husband without investigation. The police inspector screamed back hysterically “we don’t care! As soon as we receive a complaint, we are bound to take steps to arrest!” CRL shouted back, “I know your Commissioner. I shall report the matter to him by next evening. I have contact with media. I will expose your malpractices. We will tell court how casually you have acted without investigation, based on stale facts. You will be chastasised (sic) by the courts!” Amidst this commotion, I introduced myself to the CRL and told him that I was related to the arrested person and also a practicing lawyer. CRL gave me a cavalier look and told me “you people don’t know law! You should not have come here without a lawyer. Now, see what has happened.” I told him rather humbly, “look, we had called CL. He was supposed to have called you at 6.30 pm. But, he called you only after 7.30. In the meantime, the accused persons had no choice but to come here”. “Oh, that CL! What does he know about criminal law!” He asked me to join him to go to next building, where the ACP, the boss of this station would sit. Unfortunately, he was not available. CRL called him over phone and told him of the arrest without investigation. The ACP took some to revert back, with the predictable answer that if we had contacted him before arrest, he could have done something. Now, he was helpless. Since the station was an all women’s police station, keeping a male prisoner would offend the modesty of police women. Hence, the arrested husband was shifted to another nearby police station, who refused to take him in on jurisdictional ground. Finally, he was taken to another police station. The husband was subjected to a thorough search. All the valuables were collected and given back to the parents who had chased him to this destination station. Parents were told that they could supply some food to the accused, who was to spend the night, until taken back to the all women’s police station. In the meantime, I spoke to CL and told him of what had happened. He took it very casually. “These things will happen. It can’t be helped. What will the police do? They are not going to kill him! Your person has also made mistakes. He should not have come to India. He should have abandoned the divorce petition and stayed abroad!” These were the words from the very lawyer, who wanted the accused husband to present himself before the family court, so that evidence and cross-examination could be completed! He did not think that he as the counsel with four decades of experience, had a duty to anticipate such developments and advise the client suitably. It gradually emerged that the CL was clueless about criminal proceedings. He told me “Let the CRL handle the bail matter tomorrow. Tomorrow morning, go to my office, collect a copy of divorce petition along with enclosures and give it to CRL. He will need it for moving bail application.” With that piece of advise, all of us, rather dejectedly, retired for the night, leaving the accused husband to brave it out in the police station along with street thugs, and petty thieves. In the meantime, I had called the CRL and requested him to handle the matter of getting bail for the accused husband. He told me to bring copies of house property deed so as to give surety to the accused, as a condition of bail. *********************************************** Bail application moved Next morning, after collecting the divorce petition copy from CL’s office, I waited for CRL at the City Civil Court which also houses the Sessions Courts. CRL had given me clear instructions to contact him after 11 O’clock, which I dutifully did. He told me to join him in the court library, where he was doing case law research. In the meantime, I had found Suresh Nanda case, which had held that except the passport authorities, none, including the courts could seize the passport. I was very anxious that under any circumstance, the husband must not be deprived of his passport, which was indeed passport to his job and freedom. I gave this decision copy to CRL. He was apparently unaware of this decision. He condescended to accept the decision from and told me to locate the citation in the Criminal Law Journal, which I dutifully did. After selecting some decisions, CRL gave it to the library attendant, and told him to get two photocopies each, for which I paid. We next went to the typing pool. CRL selected a typist with computer and commenced dictation of bail application. The CRL did a fairly articulate and competent job of dictating the bail application, got it printed. I paid the typist. Next we got the application photocopied, for service of one copy to the Assistant Public Prosecutor, without the enclosure of divorce petition. Thereafter, we went out to a lean-to shelter, where a middle aged person sat whose sole job was to stitch the applications, plaints, and petitions for advocates. He expertly did a tidy job and charged a modest sum of Rs.30 for that. Then the CRL asked me whether I would mind walking with him to the magistrates’ court which was about a kilometer away. I did not mind, and we walked together. In the meantime, the anxious parents, who had spent sleepless night had come to magistrate court complex with photocopies of property documents. The house property was in the mother’s name, who was willing to give surety for bail. In the morning, these people along with their son-in-law had gone to the police station to ensure that the accused husband was provided some breakfast and was reasonably comfortable in the station. By that time, he had been brought back to the all-women’s’ police station. Now, the CRL saw the photocopies of property documents and asked “where are the originals?” Of course, he hadn’t told that originals were required and these had not been brought. The father rushed back to his house to fetch these originals. The CRL went to the typing pool again and dictated a surety affidavit on behalf of mother declaring willingness to stand as surety for the accused husband. By this time, it was 1.00 p.m., and the father returned with original documents. We got these photocopies, and got the copies and affidavit notarized and were now ready to file the bail application in the court as soon as the accused husband was produced in before the magistrate. But, there was another important detail to be attended. That was about the Assistant Public Prosecutor. In any criminal proceeding where the State is the complainant, it is represented by the public prosecutor, or assistant public prosecutor. In matters where the offences are bailable, bail is granted as a matter of routine subject to the accused giving personal bond and surety, or security. In non-bailable offences, such as the one under Section 498A, section 437 of the Cr.P.C provides that no court shall grant bail unless the PP has the opportunity to oppose the bail application. Therefore, we had to request the APP in this court to file his objections on the same day, so that the magistrate could consider the objections and release the accused husband on bail. We went to the APP’s office, armed with couple of notes of one thousand. When the CRL asked the APP for this favour, he, an aging, balding and slimy character proclaimed his uncompromising sterling character: “I have never done it for any one, nor will I do it now!” The persistent requests from me and CRL fell on deaf ears. “How can I do that now, when I have not filed objections on the same day for any other case?” He added, “I don’t want money. My children are earning well. You come and sit in PP’s chair for a day. You will know the heat!” We came out of his office. The CRL asked some court staff for solution. He was advised: go to so and so, who is an office bearer of advocates’ association. If he puts in a word, APP will definitely agree. The CRL and I went in search of this office bearer. After searching through dozen court halls and the association lounge, we located him. He was of course willing to help and accompanied us to the APP’s office. He told the APP, “Look, two senior counsels are here with a request for small favour. You need not do anything out of the way. Just file the objections today itself”. The APP objected, “you should know, in your own case where a CA was the accused, I did not do it, he went to Judicial Custody for a day. How can you ask me to do it now?”. The office bearer said, “That’s alright. What you did to me is different. Now oblige them!”. He discreetly told us to slip the APP three thousand rupee notes. The APP vehemently protested, but nevertheless accepted the money! This done, the CRL and I went to the court’s bench clerk though whom the bail application and surety affidavit would be placed before the court. We tipped him suitably and told him of our anxiety to obtain bail on the same day. He rather airily replied, “Don’t you know the practice of this magistrate? None is granted bail on the same day in non-bailable offences. At least for one day, the accused will be sent to JC (judicial custody). Even if the APP files objections, this magistrate won’t consider it the same day. Cases under Section 498A are explosive. If the court hastily grants bail, even the court fears that it might be accused of leaning in favour of the accused!” With that, my heart sank. The accused husband was destined to spend a night and next day in the hell called Parappana Agrahara Central Jail. I gave the bad news to the parents and the accused, who had, by now been brought to the court. I think, I merely added to their misery by announcing this. In the meantime, CRL was searching in the court’s Pending Branch for the copy of the First Information Report. After a short while, we rushed to me in near panic and told me, “come and see the FIR and complaint! That woman has said all sorts of things against the husband and in-laws.” I read the FIR and complaint which was with the Section head of the Pending Branch. The in-laws and husband had been accused of harassing her for dowry of Rs.2 lakhs to buy immovable property (I wonder where would one get immovable property for this princely sum in Bangalore?), treated her like animal, did not care whether she had food or not, that they physically and mentally tortured her. That they were influential people and could harm her including threat to her life and they had to be proceeded against in accordance with law. In the complaint and FIR, even the parents had been named as accused persons. The vehemence of language in the complaint and the string of lies shocked me. I knew from personal knowledge that her mother-in-law would deliver food plate to wherever the complainant sat, when she returned home from work. I also knew that the complainant would leave the food standing for long time, thereafter reject it as cold or stale. But that was besides the point. The immediate concern were two fold: one, being accused, the mother could no longer stand as surety for the accused; two, being the accused, the parents ran the risk of being sent to JC, if the court noticed their presence in the court hall. CRL told them, “Go downstairs, and go away wherever you like, until I obtain anticipatory bail for you”. The panicked parents dashed out of the court complex, not to be seen or heard for next two weeks. Since there was no question of obtaining bail on the same day, I agreed to be the surety for obtaining the bail. I did not have to rush to get the documents, as my surety affidavit would be moved only next morning supported by my property documents. While waiting for our matter to be called, we were entertained by a cross examination by a counsel speaking Kannada with heavy Tamil accent. The issue was same, under section 498A. The complainant wife was in the witness box. The counsel grilled her, a person qualified in law and working for a leading law book publishing house, to expose that though she was earning Rs.40,000 a month, she took Rs.3000 as monthly maintenance allowance from a husband, whose reported annual income was Rs.1.03 lakhs! Eventually, at about 4.50 pm, our matter was called. CRL told the court that he was moving bail application, and submitted the copies of decisions he was relying on for supporting the grant of bail. The APP, for all that Rs.3000 was worth told the court that the accused person’s passport should be seized! There was no question of his obliging us by filing objections then and there. The magistrate routinely asked the accused whether the police had treated him badly. He replied in the negative. Equally routinely, ignoring the CRL’s pleas to grant bail, the magistrate remanded the accused to JC for the day, and posted the matter for next day to consider APP’s objections. The CRL gravely approached the accused husband and told him “tomorrow we will definitely get you out on bail. Be brave and put up with this for a day!” The police approached me and asked to provide transport to take the accused husband to Parappana Agrahara Central Jail, failing which, he would be taken there along with criminals. Horrified at that prospect, the brother in law of the accused lent his service by agreeing to take the police and the accused in his car. Couple of more cops also joined the trip. All were amply fed on the way including the accused, as we did not want him to eat jail food at least for that night. Dejected, and feeling depressed, all of us returned home, thinking of the accused husband, who was destined to spend time on hard cold floor with other under trials, while we were going to sleep in the comfort of warm bed. Bail was granted Next day, the CRL asked me to be present in the magistrate court campus by 1200 hours. Till that morning, I was under the impression that the accused person would be brought from the Parappana Agrahara Central Jail and the bail application would be decided in his presence. The basis for this assumption, as an advocate who had done some work on criminal side, I had seen that the proceedings usually took place in the presence of the accused persons. Much to my distress, I learnt from a colleague whom I met in the court that at the stage of grant of bail, the accused will remain in JC until the bail order is communicated to the jail authorities. In some unlucky cases, I was told, the accused had remained in JC even for a week! All the while I was thinking that spending a night in the jail was bad enough, but here was worse news. Now, my prayer to the Lord Upstairs was to bless the accused with freedom at least today. I waited there along with original property documents as I was going to be the surety for getting the accused husband on bail. CRL came and straight away entered the typists’ pool, choose a typist with an aged typewriting machine and dictated the surety affidavit, after gathering my particulars and the particulars of the property I owned. We went to notary public to get the affidavit and enclosures notarized. I asked the notary what is the fee, although I knew that it should be around Rs.30. The notary said, “whatever you decide to pay!” CRL told me to pay his Rs.30, which I did. The CRL did not have any tools for stitching or stapling the papers together. I too did not carry either the stapler, or sewing needle or thread, which I usually did when I have to do some filing. Eventually, he managed to borrow stapler from a court staff and bunched the paper together. The manner in which he was handling the papers left them crumpled and creased. I had to wince at this treatment of papers, for I was used to meting out far gentler treatment to the document I handle. Be that as it may, by 1.30 pm, we were in the court hall. Before going to the court hall, we sent to APP’s office outside the court hall to ensure that he had his objections ready with him. He indeed had it ready, though he did not serve us any copy. We waited with bated breath for our matter to be called. In the meantime, I had to step out for a short while as a client wanted to urgently consult me on some matter. While I was discussing with my client, CRL suddenly rushed out of court hall and frantically beckoned me. “Matter is about to reach! What are you doing standing there!”. Duly chastised, I joined him in the court. Within next few minutes, the bench clerk called out our case. APP said “I am filing my objections”. The magistrate heard the CRL for just two minutes and exclaimed “what do you want? Release of your client, isn’t it?” CRL exhaled a breath of relief and uttered a relieved “Yes!” APP again opened his mouth to say that passport of the accused should be impounded. CRL jumped to his feet and said “your honour!, this Hon’ble court has no power to impound the passport! I am producing Suresh Nanda case, where the Supreme Court has so held. Your honour may read it at convenience.” APP saw the decision and said “your honour!, that decision is distinguishable. That was a case where the passport had been seized during search. In this case, there is no seizure. Therefore, it can be impounded!” But, the magistrate ignored this intervention by the APP and went about dictating the bail order. Suddenly he paused and asked, “Who is giving solvent security?” I stepped forward. I was in counsel’s dress. He looked at me quizzically and asked me whether I was indeed the surety. I assured him that I was a counsel and also a relative of the accused and was willing to stand a surety. I described the property to him. The magistrate saw the originals, returned all the originals and completed the bail order, with usual conditions (1) not to threaten the opposite party, (2) to mark attendance in the police station on every Sunday, until further orders, or until charge sheet was filed. Personal bond and surety bonds were fixed at Rs.30,000 each. Thereafter, the magistrate heard another bail application and allowed it and the court rose for recess. This was a case, where a high ranking executive of a company had been grabbed by the police from his office, also on false complaint, by a wife who was in comatose condition in a prestigious hospital of Bangalore! This husband was spending close to Rs. 40,000 a day towards hospitalization for this complainant wife. He too was in early thirties. Evidently, the complaint had been filed by the wife’s relatives, as a means of extracting money from the husband, whom they considered as a money bag. After the court rose, I shook hands with CRL and found to my surprise, it was clammy and cold as dead fish! It was perversely reassuring for me to know that even lawyers with decades of experience feel diffident while representing the client in a critical matter such as this! The paper work for getting the accused out. Immediately, we rushed to the court typist and tipped him heavily to ensure that he typed the order immediately. Next we tipped the bench clerk to ensure that he placed the typed copy for signature of the magistrate. After securing that end, we went to the court’s Pending Branch and tipped the Assistant, whose job it was to write the bail bond, surety bond and release order. He had not reported to duty in the morning! We anxiously waited for some news about who else would write these documents. Fortunately, after about ten minutes wait, the person arrived there like an angle. Apparently, he had to perform certain religious ceremonies in the morning. The call of the duty (and the handsome tips it fetches) was so important that he reported to duty in the second half! The CRL thereafter explained to me that mere dictation of order in the court did not ensure release of he accused. We had to ensure that the order was typed and signed by the magistrate; that the signed order reached the Assistant who wrote down the release order and bonds; that these documents had to be again placed before the magistrate for his signature; thereafter, both the documents had to be delivered to the court courier, whose job it was to deliver the orders to the Parappana Agrahara Central Jail by 6 O’clock in the evening. Therefore, we could not rest or think of eating food, until the release order duly signed by the magistrate reached the court courier. Between 2.00 pm and 3.00 pm, we made certain that the order was typed, and reached the bench clerk for obtaining the magistrate’s signature. Promptly, as promised, when the court re-assembled at 3.00 pm, within minutes, the bench clerk got the bail order signed by the magistrate. Then, we tipped the court peon so that he would carry the signed file to the Assistant in the Pending Branch who wrote the bail bonds and release orders. The Assistant was quite helpful. Within next ten minutes, we had both documents ready. The court peon took it back to the bench clerk in the court. We anxiously hovered behind the Bench clerk to ensure that he placed it before the magistrate. In a few minutes that was also done. However, I found that in the surety bond, the magistrate had not signed. Once again, I told the bench clerk to place the paper before the magistrate for signature. This was also done. The court peon, rather grudgingly took the papers back to the Assistant in the Pending Branch. The Assistant wrote the details of the bail bond and release order in a register, and sent it through the same peon to the court courier, whose office was located in the ground floor. The court courier was not available, someone else in that office took the orders and acknowledged it. We were told that it would be in our interest to be ready with our cars, so that we could expeditiously take the court courier with us. We were advised to be present at that office by 5.00 pm positively. Thereafter, CRL and I went out to eat some snacks in a restaurant few buildings away. When we returned, the brother in law of the accused was waiting for us, to pay the fee of the CRL. Previous evening, though the accused was sent to JC, I felt that for that day’s running around, the CRL must be rewarded. I had paid him 10K. Now, the brother in law asked what the fee was. The CRL hemmed and hawed a lot and finally demanded 15K, including the 10K I had paid the previous day. For all the running around he had done since yesterday, all of us felt that he had understated the fee. I told the brother in law to pay another 10K to the CRL. A relieved and broadly grinning CRL took the additional fee of 5K with happiness writ large on his face. Thereafter, the CRL introduced us to a policeman who worked in Parappana Agrahara police station and lived in the vicinity of that jail. He told us that this constable could be of some help to us. The police seemed nice enough a person. He praised the court courier as a very nice and helpful person. To me, it meant that for certain money consideration, he might be able to speed up the release process from Jail, which I had learnt by now, could go on until 10.00 pm. The CRL left for the day, cautioning us about the nefarious characters we were dealing with. He cautioned us, rather exaggeratedly I thought, that the opposite party would not hesitate to snatch away the accused husband as he came out of jail. Therefore, we must go there in strength! We faithfully followed this advise. Three of us got ready to proceed in two cars. The accused husband got out at last! By 5 O’clock, we went to the court courier’s office and found him over there. He seemed like a nice, well behaved person. He joined us by 5.10 pm and asked us to leave. The policeman, the court courier, and one of his relatives, who had just landed in Bangalore also joined me in my car. The brother in law and a cousin of the accused followed us to the Jail in another car. After going through the terrible traffic of Hosur Road, by the time we reached the vicinity of the Jail, it was about 6.15 pm. The place remote and foreboding. Police station was on the left hand side and the imposing structure of the jail occupying perhaps a hundred acres was on the right. We parked the car at the end of the road. I accompanied the court courier and the policeman to the entrance of jail. The Policeman had promised me to take me inside the jail. However, at the entrance, the guard on the inside of the entry door refused to allow me entry, although I was in counsel’s dress. During the waiting time for next hour and a quarter, I saw the rude and wild behaviour of jail guards. If you think the police are arrogant, you would change your opinion after seeing the jail guards. I wondered what kind of training had been imparted to them. Perhaps, it was necessary for them to deal with hardened criminals inside the jail. But, should they have same abrasive and attacking behaviour with the public outside the jail compound? The policeman and the court courier had promised to get our accused person out of that place in about fifteen minutes. True to his word, during our journey, he actually called someone inside the jail and requested him to keep the person ready for release. However, this did not happen. We had to wait upto 7.30 pm before we could see our person. We were chased from the entrance of jail to the outer compound. From outer compound, we were chased to the opposite side of the road. Our cars had to be removed hastily from where they had been parked, as a wandering guard threatened to deflate the tyres! We saw a huge crowd of people, about forty of them, unmistakably ruffian characters. Remembering the scare put into us by the CRL, we began to wonder, which of them might to snatch away our accused person? To our relief, it turned out that a big thug was released at around 7.10 pm. These people had arrived to receive him. The thug was given a hero’s welcome and the cavalcade left the place in about ten minutes. Next our person came out by about 7.30 pm. He had given message to his father through a public phone installed within jail to send Rs.4000 in hundred rupees currency. This was for repaying the ‘facilities’ given to him in the jail such as clean meal plate, a blanket and pillow, and for not troubling him during the night and day. However, having come out of jail, he had no way of taking back the money for distribution. We left the place, with the accused husband in the car with his brother in law and cousin, and I escorted back the court courier who came out after about ten minutes. I believe that the presence of these people certainly helped our person to come out within an hour and a quarter. Many more persons for whom release orders had been delivered had not been let out yet. We thanked what little luck we had and started our journey back to the city. Once we reached the city, I gave Rs.200 to the court courier. He looked at it rather dubiously and said “I have to pay the jail staff who made it possible to get your man out within an hour. Give me another one thousand rupees”. Without demur, I paid him, dropped him near the court complex and left for home. All of us reached home, within half an hour of each other. At night, the accused husband was recounting the experience of being State guest for a day. It included story about caste-wise group formation within the admission area of the jail, casually beating up the under trials, setting them on the jobs such as cleaning of toilets and so on. It seems that one person was caned on the leg for refusing to tell his caste! I was too tired to listen to these tragic-comic stories and retired for the day. the B* back. Thursday, December 15, 2011 498a Arrest - New Amendment Interpretation/Directions by UP HC Please read the below directions. These are directions to the Police and are like advisories from the Home Ministry. The court has threatened them with contempt and misconduct charges. The Police can still choose to avoid and act selectively as per their own discretion in select 'rich and high profile cases'. It is not statute law. At best it is another partial eye wash by the judiciary, to mitigate sufferings of many poor families - not the middle and upper class, at this draconian law. Please do not be misled. It applies to people of UP state only. I just hope that the Hon'ble Justices of AP take notice of this and issue similar directions with modifications. If somebody can send regd post to Chief Justice of AP - it might work. Or to Andhra Pradesh Justices A.Gopal Reddy, Raja Elango, T GopalKrishna Reddy or whoever has criminal portfolio. A couple of years back Justice thomas of the supreme court issued arrest guidelines but their are several loopholes until this draconian law is amended and made proper statute law. HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 46 Case :- CRIMINAL MISC. WRIT PETITION No. - 3322 of 2010 Petitioner :- Re: In The Matter Of Matrimonial Disputes Respondent:- State Of U.P. & Others Petitioner Counsel :- P.N. Gangwar Respondent Counsel :- Govt. Advocate,Abhay Raj Singh,Pankaj Naqvi Hon'ble Amar Saran,J. Hon'ble Shyam Shankar Tiwari,J. On 8.8.2011, there was an extensive hearing in this case when Ms. Leena Jauhari, Secretary (Home), Government of U.P. Lucknow, Smt. Poonam Sikand, Additional L.R and Tanuja Srivastava, I.G.( Public Grievances), Ms. G. Sridevi, Secretary, U.P. State Legal Services Authority, Sri Ashok Mehta, Organising Secretary, Allahabad High Court, Mediation and Conciliation Centre, Sri Pankaj Naqvi, Sister Sheeba Jose Advocates on behalf of the intervenor 'Sahyog,' Sri D.R. Chaudhary, learned Government Advocate and Sri Bimlendu Tripathi, learned A.G.A appeared and were heard at length. An affidavit has also been filed on behalf of the Director General of Police on 10.8.2011. Another affidavit was also filed on behalf of Special Secretary (Home), U.P. on 12.8.2011. An application was also moved by the intervenor 'Sahyog.' This Court appreciates the positive contributions and suggestions of all the aforesaid advocates and other State officials and that this pro bono litigation is being taken up in the right non-adversarial spirit, with the aim to ensure that wherever allegations are not very grave, in order to save families, and children and indeed the institution of marriage, an effort be first made for reconciling matrimonial disputes by mediation before steps can be taken for prosecuting offenders, if they are called for. In Preeti Gupta v. State of Jharkhand, AIR 2010 SC 3363 the learned members of the bar have been reminded of their noble profession and their noble tradition and of their responsibility to ensure that the social fibre of family life is preserved by desisting from over-implicating all inlaws and their relations as accused persons in 498-A IPC reports, and from filing exaggerated reports. They are also to make an endeavour to bring about amicable settlements to this essentially human problem. It has also been rightly pointed out in Sushil Kumar Sharma v Union of India, AIR 2005 SC 3100 (para 18) whilst upholding the vires of section 498-A IPC, that it should be ensured that complaints are not filed with oblique motives by unscrupulous litigants so that a "new legal terrorism" is not unleashed, and that the well-intentioned provision is not misused. In Kans Raj v State of Punjab, AIR 2000 SC 2324, it has been held that there is a tendency in cases of 498-A IPC and 304 B IPC to rope in a large number of in-laws of the victim wife, and not only the husband. In para 5 of the law report it has been observed: "....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." Specifically as a result of the interaction and suggestions which emerged after a dialogue with the Advocates and officials, this Court requires to formulate its opinion on the following points: 1. Whether registration of an FIR is mandatory once an aggrieved woman or the eligible family members as specified under section 198A Cr.P.C approaches the police station giving information that an offence under section 498A IPC or allied provisions such as under section D.P. Act or under section 406 I.P.C have been committed by the husband or other in-laws and their relations. 2. Should the concerned police officers immediately proceed to arrest the husband and other family members of the husband whenever such an FIR is lodged. 3. Can a distinction be made between the cases where arrest is immediately necessary and other cases where arrest can be deferred and an attempt be first made for bringing about mediation between the parties. 4. What is the appropriate place where mediation should be conducted. 5. Should a time frame be laid down for concluding the mediation proceedings. 6. Who should be the members of the mediation cell in the district. 7. What is the procedure to be followed by the police when a report of a cognizable offence under section 498A IPC or allied provisions is disclosed. 8. Is training of mediators desirable and who should conduct the training? 9. Should the offence under Section 498A be made compoundable and what steps the State Government may take in this direction. Discussions on the points requiring formulation by the Court: 1. Whether registration of an FIR is mandatory? Section 154 of the Code of Criminal Procedure mandates that when any information regarding information of a cognizable offence is given orally to the officer in charge of the Police Station, he is required to reduce it in writing and to enter it into the general diary. The said provision gives no option to the concerned Police Officer to refuse to lodge the F.I.R. once information of a cognizable offence is given to the police officer. In paragraph No. 30 and 31 in State of Haryana and others Vs. Bhajan Lal, 1992 Cri. L.J. 527, it has been laid down that section 154 (1) of the Code provides that whenever an information is given that a cognizable offence has been committed, the Police Officer cannot embark upon an inquiry to ascertain as to whether the information was reliable or genuine or refuse to register the case on that ground. The officer in charge of the Police Station is statutorily obliged to register the case and then to proceed with the investigation, if he even has reason to suspect the commission of an offence. (2) Whether arrest of husband and family members mandatory once FIR is lodged . It is noteworthy that section 154 Cr.P.C. which deals with the powers of investigation and the necessity of lodging an FIR when a cognizable offence only speaks of "information relating to the commission of a cognizable offence" given to an officer. No pre-condition, as pointed out above, is placed under this provision for first examining whether the information is credible or genuine. In contrast section 41(1)((b) Cr.P.C dealing with the powers of the police to arrest without a warrant from a Magistrate requires the existence of a "reasonable complaint," or "credible information" or "reasonable suspicion" of the accused being involved in a cognizable offence as pre-conditions for effecting his arrest. The two provisos to section 157 also speak of two exceptions when investigation (and consequent arrest) may not be necessary. These two situations are: (a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot; (b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case. However in such situations the police officer is to mention in his report the reasons for not investigating the case. In the second case, where a police officer is of the opinion that there is no sufficient ground for investigating a matter, he is to also inform the informant of his decision. The proviso (b) to section 157 (1) Cr. P. C. has been discussed in paragraphs No. 53 and 54 in Bhajan Lal (supra). The law report clarifies that clause (b) of the proviso permits a police officer to satisfy himself about the sufficiency of the grounds even before entering on an investigation. However, at that stage, the satisfaction that on the allegations, a cognizable offence warranting investigation is disclosed, has only to be based on the F.I.R. and other materials appended to it, which are placed before the Police Officer. Therefore, if it appears to the Police Officer that the matrimonial dispute between the spouses is either not of a grave nature or is the result of a conflict of egos or contains an exaggerated version, or where the complainant wife has not received any injury or has not been medically examined, he may even desist or defer the investigation in such a case. Recently by Act No. 5 of 2009, the newly introduced section 41 (1) (b), has been given effect to from 1.11.2010. This sub-section provides that if some material or credible information exists of an accused being involved in a cognizable offence punishable with 7 years imprisonment or less with or without fine, the Police Officer has only to make an arrest, if he is satisfied that such arrest is necessary (i) to prevent such person from committing any further offence, (ii) for proper investigation of the offence; (iii) to prevent such person from causing the evidence of the offence to disappear or tampering with the evidence in any manner; (iv) for preventing such person from making any inducement, threat or promise to a witness to dissuade him from disclosing such facts to the Court or the Police Officer (v) or unless such a person is arrested, he may not appear in the Court when required. This new provision has forestalled any routine arrests simply because a person is said to be involved in a cognizable offence punishable with imprisonment up to 7 years. The arrest is only to be effected if any or all of the five conditions abovementioned are fulfilled. For making or for not making such arrest, the Police Officer has to record his reasons. In contrast to this provision, under section 41 (1) (ba) such a limitation has not been provided for those cases, where credible information has been received that a person has committed an offence punishable with imprisonment of over 7 years. A new provision, section 41 A Cr.P.C has also been added by Act No. 5 of 2009 (with effect from 1.11.2010) which gives powers to a Police Officer to issue a notice directing the person against whom a reasonable complainant has been made or credible information or reasonable suspicion exists to appear before him or at any place that he may specify in the notice where the police officer is of the opinion that the arrest is not required under the provisions of section 41(1) Cr.P.C. but the accused is to comply with the notice and he would not be arrested, if he continues to comply with the terms of the notice. However, where the person fails to comply with the notice, the police has all powers to arrest him, unless there is some order of the Court granting him bail or staying his arrest. Now an offence under section 498A IPC is punishable with imprisonment only up to three years and fine. If there are no injuries on a victim, in our opinion, it constitutes a fit case for the police officer to exercise powers conferred by the newly introduced section 41(1)(b) read with section 41 (A), where instead of straight away arresting the accused, it would be a better option at the initial stage for the police officer to require the said person to appear before him or before the Mediation Centre. As pointed out above section 41 A Cr.P.C. permits calling the person concerned before the police officer himself or to any specified place. Hence a notice can be given to the accused to appear before the mediation centre. This restraint on arrest, and placing of conditions or terms for arrest would also apply a fortiori to the accused family members of the husband of the aggrieved wife. It may be pointed out that if the FIR is immediately registered that will placate the concerns of the aggrieved wife to some extent that action is being taken on her complaint, and it has not been put on the back burner. (3) Whether distinction possible between cases necessitating immediate arrest, and cases where attempt for mediation should first be made. Arrest may be necessitated, if the husband or other in-laws have given a grave beating to the wife endangering her life or where the wife has been subjected to repeated violence or there are any other circumstances of exceptional cruelty against the wife, where future recurrence of violence or cruelty seems likely, or for preventing the husband and his accused family members from trying to browbeat witnesses or to tamper with the course of justice, or for ensuring the presence of the husband or his accused family members at the trial, or for effective investigation. In all other cases, we are of the opinion that an attempt should be first made for bringing about reconciliation between the parties by directing the complainant wife and her natal family members and the husband and other family members to appear before the Mediation Centre when the wife or other eligible relations under section 198-A Cr.P.C. approaches the police station for lodging the report. The advantage of not immediately arresting the accused husband and his family members in a trivial case where there appear to be no injuries on the aggrieved wife, is that in sudden matrimonial disputes, because of clash of egos between the wife and her natal family members and the husband and in-laws, the wife's side at the initial stage usually insists on effecting the arrests of the husband and other in-laws. Once the husband or his family members are arrested, and subsequently bailed out, little motivation remains for the parties to try and resolve their disputes by mediation. This may prove disadvantageous for the wife in the long run who may not have a source of independent livelihood for running her life in the future. 4. Appropriate place where mediation should be conducted. The officials as well as the learned Government Advocate and other lawyers present unanimously recommended that the Mediation Cell should not be at the police station. The I.G. (Public Grievances) pointed out that the police officer before whom the report is lodged lack proper training for conducting mediations sessions. Also if the police officer refrains from arresting the accused persons pursuant to the wife's FIR, by attempting to mediate in the dispute between the parties, even if it is a case of no injury, and even where he is only acting in accordance with the general directions of the Court, questions about his integrity are unnecessarily raised. Moreover it is pointed out by the Secretary of the Legal Services Authority that now Mediation or Conciliation Centres have been established in all the District Courts. We, therefore, think that the mediation proceedings should be carried out in the said Mediation Centre. 5. Need for time frame for concluding the mediation proceedings. The I.G. (Public Grievances) and others present rightly pointed out that a time frame must be laid down for concluding the mediation proceedings as when an aggrieved wife approaches the police for relief, because she has been subjected to cruelty. If the matter is unduly prolonged in the mediation process, the delay could act as a shield to protect the accused from facing the penalty of law, causing frustration and bitterness for the aggrieved wife. Notice should as far as possible be served personally on the accused and the parties should be directed to appear before the Mediation Centre within a week or 10 days of the lodging of the report by the aggrieved wife or family members. Thereafter we think, that as far as possible, the mediation proceedings should be concluded within two months of the first appearance of both the parties before the Mediation Centre. 6. Who should be the members of the mediation cell in the district? The Mediation Cell in the district should be headed by the Secretary of the Legal Services Authority in the district, (at present, the Civil Judge, Senior Division has been made the Secretary), other panel or retainer lawyers appointed by the District Legal Services Authority, other lawyers, who volunteer for giving free services before the Mediation centre, especially female lawyers should also be made members of the Mediation Cell. It is also desirable to have three or four social workers (especially female) in the Cell. A female police officer of the rank of Dy. S.P. may also be appointed an ex-officio member of the Mediation Cell. 7. Procedure to be followed by the police when a report of a cognizable offence under section 498A IPC or allied provisions is reported. The report regarding commission of cognizable offence under section 498A IPC or other allied sections may be lodged at the concerned police station where the incident takes place or at the 'Mahila Thana' especially created in the district for investigation of such cases. The police officer concerned will get the aggrieved woman medically examined for injuries if the same are present. If the report has been lodged at some police station other than the Mahila Thana, the injury report and relevant police papers shall be forwarded to the Mahila Thana for investigation of the case, and in appropriate cases the investigating police officer at the Mahila Thana may refer the matter to the mediation centre in the Civil Court, and direct the complainant to be present at the mediation centre on a fixed date 7 to 10 days thereafter. The accused should as far as possible also be personally given notice to appear before the mediation centre on the date fixed. We would also like the presence of trained social workers (especially female) or legal aid panel lawyers to be present at the Mahila Thana for counselling the aggrieved woman and her family members for first trying to solve their dispute by mediation, when the case is registered at the mahila thana. The notice to the husband and other family members should mention that in cases the husband or the family members of the aggrieved wife fail to appear on the date fixed or on future dates, as directed by the Mediation Centre or fail to comply with any condition that may be imposed by the police officer or Mediation Centre, steps shall be taken for arresting the accused. The accused husband or other in-laws should be directed to report before the police officer on a date two months after the date of first appearance before the Mediation Centre and inform the Police Officer about the progress in the mediation. The in-charge of the mediation proceeding may also direct the husband or other family members to appear before the Police Officer at an earlier date fixed in case mediation has failed or it has been successfully concluded and the parties concerned shall appear before the Police Officer on the said date. It would also be open to the complainant wife to inform the police officer about the progress (or lack of it) of the mediation process. The notice should also clarify that in case mediation is pronounced as unsuccessful at an earlier date, and information is given by either party or the Mediation centre to the Police Officer, he may require the presence of the accused husband or his relations at an earlier date. If mediation has been successfully concluded, it will be open to the Police Officer to submit a final report in the matter. In cases, where it has not been successfully concluded and the Police Officer is of the view that arrest may not be necessary in a particular case, he may direct the accused persons to obtain bail from the Competent Court. In case, he is of the opinion that the arrest is necessitated at a subsequent stage, it will be open to the Police Officer to take such accused persons in custody. He should of course record his reason for making the said arrest as provided under section 41 (1) (b) (ii). 8. Necessity of training to mediators. We endorse the opinion of the intervening lawyers, the learned Government Advocate, Sri Ashok Mehta, Organizing Secretary of the Mediation Centre of the Allahabad High Court and the Government officials present, including the Secretary of the Legal Services Authority, that training for mediators is a sine qua non for effective mediation. The Organizing Secretary of the Allahabad High Court Mediation Centre (AHMC) and Secretary of the U.P. Legal Services Authority (UPLSA) stated that the centre and authority are prepared to impart training to the mediators. We welcome this offer and direct that there should be coordination between the AHMC and UPLSA for giving effect to this offer. By and by as the State Government is able to create a cadre of trainers for mediation, their services may also be utilised for training mediators in the districts. We think training is necessary because the responses to our queries from the subordinate district courts reveal the poor success rate in the cases referred by the High Court or where the concerned subordinate court has itself initiated the process of mediation. By contrast the success rate at the Mediation Centre in the Allahabad High Court, which has independent trained mediators (usually lawyers) is much higher. The first requirement for successful mediation is the patience on the part of the mediator, and his willingness to give sufficient time to the contesting parties and especially to the wife to express her bottled up grievances. Thereafter, in a disinterested manner, the mediator should encourage the parties to come up with solutions, giving useful suggestions for bringing about reconciliation, as the mediator cannot impose his solution on the parties. The guidelines hereinabove have been spelt out by the Court because of the specific request of the officials and lawyers present to spell out the terms of the same, as guidance for the State government (esp. the home department), the Legal Services Authority and the police for issuing appropriate circulars or government orders. (9) Should offences under section 498-A IPC be made compoundable? We have received considerable feedback from subordinate judicial authorities that unless the offence under section 498-A IPC is made compoundable, much benefit cannot be derived by trying to bring about mediation between the parties. A dilemma then arises before the concerned Court, (which cannot close the trial because the spouses have compromised their dispute) or even before the aggrieved wife, if she decides to settle her dispute with her spouse and in-laws either by agreeing to stay with them or to part amicably, usually after receiving some compensation. Even if she is no more interested in repeatedly visiting the court for prosecuting the accused, in the absence of provisions for compounding the offence, she has willy nilly to perjure by making a false statement that her initial report was untrue or lodged under influence of X or Y. If on the basis of this statement the trial Court acquits the husband and his family members, and the aggrieved wife returns to her matrimonial home, in the cases where she is again maltreated, if she lodges a fresh report, its reliability will be open to question. The Apex Court in Ramgopal v. State of M.P., 2010 SCALE 711 observed that an offence under section 498-A IPC is essentially private in nature, and it should be made compoundable if the parties are willing to amicably settle their dispute. Directions were given to the Law Commission of India to consider the matter and to make appropriate recommendations to the Government to bring about suitable amendments in the statute. In Rajeev Verma v. State of U.P., 2004 Cri.L.J. 2956, which was a decision given by a bench in which one of us (Amar Saran J) was a member, a similar suggestion was made to the Law Commission of U.P. to recommend to the State government to make the offence under section 498-A IPC compoundable with the permission of the Court under section 320 Cr.P.C. The reasons for the suggestion were that such FIRs are often lodged in the heat of the moment, without reflection after a sudden quarrel, and sometimes as a result of wrong advice or influences. But the complaining wife, who usually has no source of independent livelihood (as a key problem in our society is the lack of economic and social empowerment of women) and is unable to provide for herself in the future, may have to suffer later if the relationship with her husband is irrevocably ruptured due to the hasty filing of the criminal case, particularly in view of the fact that the offence is non-compoundable. To meet this situation B.S. Joshi v State of Haryana, AIR 2003 SC 1386, Manoj Sharma v State, 2008 SC(Suppl) 1171, and Madan Mohan Abbot v State of Punjab, AIR 2008 SC 1969 recommended quashing of the complaint in proceedings under section 482 Cr.P.C or in the writ jurisdiction where the aggrieved wife compounded the offence. In the latter case it was observed that where the dispute is purely personal in nature, (i.e. the element of the offence being a crime against society is secondary), and the wife decides to compound the offence, as there would be little likelihood of conviction, quashing of the offence should not be refused on the hyper-technical view that the offence was noncompoundable "as keeping the matter alive with no possibility of a result in favour of the prosecution is a luxury which the Courts, grossly overburdened as they are, cannot afford and that the time so saved can be utilized in deciding more effective and meaningful litigation" The following passage in paragraph 12 in G.V. Rao v L.H.V. Prasad, AIR 2000 SC 2474 has been cited with approval in B.S. Joshi: "There has been an outburst of matrimonial disputes in recent times. The marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counseled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a Court of law where it takes years and years to conclude and in that process the parties lose their "young" days in chasing their "cases" in different Courts." In Rajeev Verma however relying on B.S. Joshi it was mentioned that whilst the trial could be quashed in an application under section 482 Cr.P.C or under Article 226, being a fruitless prosecution where there was little likelihood of conviction as the parties had settled their dispute, but the proper forum for deciding the matter whether the compromise application was voluntary and bona fide or whether it was coerced was the lower court which could decide whether it was a fit case for granting permission to the wife to compound the offence under section 320(2) Cr.P.C. This was only possible if the offence under s. 498-A IPC was made compoundable with the permission of the Court. A good option for providing recompense to the maltreated woman is "The Protection of Women from Domestic Violence Act, 2005" which provides for a gamut of civil rights for the aggrieved woman who has entered into a domestic relationship with a man, with or without marriage. Such civil rights include "Protection orders" (section 18) prohibiting the respondent from committing any act of violence, visiting the place of work, operating the common bank locker, making telephonic contact etc. "Residence orders" (section 19), which restrain the respondent from dispossessing a woman from the shared household, or from alienating or renouncing his rights to the property or by directing him to remove himself, or by providing alternate accommodation to the aggrieved woman at the existing level. By providing "monetary reliefs" (sections 20 and 22) by paying for loss of earnings or medical expenses, or loss due to destruction of property by domestic violence, or for maintenance of the woman and her dependent children, or by payment of compensation for causing injuries (including mental torture). "Custody orders" (section 21) for custody of the child to the woman (including visiting rights) for the respondent. Criminal proceedings under this Act have been allowed only as a last resort, under section 31 when the respondent commits a breach of a protection order, or where at the stage of framing charges for breach of the protection order he finds that an offence under section 498-A IPC has also been committed by the respondent. The Act also provides under section 14 for the Magistrate to send a matter for "counselling" before a registered "service provider," who is qualified to provide counselling in such matters to the contesting parties or to provide shelter etc. to the aggrieved woman. In the counter-affidavit dated 12.8.11 filed on behalf of the Home Secretary, U.P., it has specifically been mentioned that the State government has given its consent to the Union of India to make offences under section 498-A IPC compoundable, and the letter of the Home (Police) Section-9 to the Union Home Ministry dated 4.2.10 has been annexed. Whereas we appreciate this positive attitude of the State government in not objecting to section 498-A IPC being made a compoundable offence. However we find that Andhra Pradesh, by Act 11 of 2003 (w.e.f 1.8.03) has added section 498 A (wrongly described as 494 A) after section 494 in the table in section 320(2) Cr.P.C. and has permitted the woman subjected to cruelty to compound the offence with the permission of the Court, but added a proviso that a minimum period of three months be allowed to elapse from the date of application for compromise before a Court can accept the request, provided any of the parties do not withdraw in the intervening period. The U.P. government may consider bringing out a similar amendment, as it has already expressed its opinion that the offence under section 498-A IPC be made compoundable. Before parting we must clarify that the Court is of the firm view that acts of cruelty or violence against women have neither ceased, nor have they been reduced, and the special provision for meeting this problem must be retained in the statute book. We quote with approval the view expressed in paragraph 11 of the recent Law Commission of India, Consultation Paper-cum-Questionnaire regarding section 498-A of Indian Penal Code: "While the Commission is appreciative of the need to discourage unjustified and frivolous complaints and the scourge of over-implication, it is not inclined to take a view that dilutes the efficacy of s. 498-A to the extent of defeating its purpose especially having regard to the fact that atrocities against women are on the increase. A balanced and holistic view has to be taken on weighing the pros and cons. There is no doubt a need to address the misuse situations and arrive at a rational solution legislative or otherwise." List this case on 8.11.2011 before the regular bench to be headed by one of us (Hon'ble Amar Saran J) The State government through the Chief Secretary, U.P., the Principal Secretary, (Home), U.P., Secretary Law/ L.R. U.P., Director General Police U.P., and Member-Secretary, U.P. Legal Services Authority may issue appropriate guidelines or circulars for laying down a system for proceeding in matters where reports are lodged of commission of offences under section 498 A IPC where immediate arrests may not be necessary, for laying down the appropriate criteria in this regard, and for sending the matters for mediation before the mediation cells in the Civil Courts, in accordance with the aforesaid directions of this Court. The Principal Secretary, (Finance), U.P. may apprise the Court as to the provision for finance for appointing social workers/panel lawyers at the Mahila Thanas, for ensuring that appropriate training is given to the social workers, legal aid lawyers, and concerned police officers for facilitating the mediation process, for making available adequate infrastructure/ manpower at the mediation cells in the Civil Courts, and for meeting expenses on other contingencies. Let the aforesaid authorities submit their compliance reports within 4 weeks. We would also like reports from all the Secretaries of the District Legal Services Authorities to submit their compliance reports (through the District Judges) for getting the aforementioned minor matters relating to offences under section 498 A IPC settled through mediation and the difficulties they encounter or forsee in complying with the directions of this Court by the next listing. The State government is also directed to submit its report on the next listing on the suggestion of the Court to take steps for making the offence under section 498-A IPC compoundable with the permission of Court by amending section 320 Cr.P.C in U.P. as has been done in the case of Andhra Pradesh. Registrar-General is directed to forward copies of this order within a week to the Chief Secretary, Principal Secretary, (Home), Law Secretary/LR, U.P., Principal Secretary (Finance), U.P., D.G.P., U.P., Member-Secretary, U.P., Legal Services Authority, U.P., Secretaries/ Civil Judges (Senior Division) through District Judges in all districts in U.P., Sri Ashok Mehta, Organizing Secretary, Allahabad High Court, Mediation Centre, Sri Pankaj Naqvi, and Sister Sheeba Jose, Advocates for the intervenors, Government Advocate, U.P. and other advocates and officials present in the hearing on 8.8.11 for information and compliance. Order Date:- 30.9.2011 HSM. ALLAHABAD HC_ Direction given to police & Magistrates on manner of remanding accused in offences punishable upto 7 years in accordance with newly introduced section HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. 46 Case: Criminal Misc. Writ Petition No. 17410 of 2011 Petitioner: Shaukin Respondent: State of UP and others Petitioner counsel: Mrs. Tabassum Hashimi, Ashwani Kumar Srivastava Respondent counsel: Government Advocate Hon'ble Amar Saran, J. Hon'ble Kalimullah Khan, J. 1.A personal affidavit of the DGP, U.P. dated 11.10.11 has been filed and this Court is pleased to note that in compliance of our earlier order dated 15.9.11. the DGP, U.P. has issued a circular dated 3.10.11 addressed to all the regional IGs/ DIGs/ SSPs/SPs in-charge of all districts and departmental heads of other police units to strictly enforce the newly introduced amendments, viz. sub-section 41(1)(b) and section 41 A Cr.P.C and the directions contained in the order of this Court dated 15.9.11 in Cr. Misc Writ Petiton No. 17410 of 2011, Shaukeen v State and order dated 23.9.11 in Cr. Misc. Writ Petition No. 18661/ 2011, Ram Abhilash and others v State. 2. It was also pointed out in the circular that the investigating officers who file counter-affidavits before the High Court do not have any knowledge about these provisions and how they are to be applied. 3. The following observations in the order dated 15.9.11 have been quoted in the DGP's circular: "Let a copy of this order be forwarded to the DGP, U.P. within one week by the registry. The DGP may circulate this order to all police stations and investigating officers in U.P. with directions to ensure strict and honest compliance with the provisions of sections 41(1)(b) and 41 A Cr.P.C and to refrain from routinely arresting persons wanted in cases punishable by imprisonment up to 7 years, unless in particular cases the exceptional circumstances enumerated in section 41(1)(b) Cr.P.C. exist, after recording his reasons for arrest. Let the DGP submit his compliance report of this direction within three weeks." 4. Annexure 2 to the DGP's affidavit in compliance of our dated 15.9.11 also contains the following endorsement from all 72 districts in U.P.: "जनपद / थाना तर पर आदे श का अनुपालन कड़ाई से कया जा रहा है " 5. The directions were issued by the DGP's circular dated 3.10.11 to the subordinate police officials to clarify that ordinarily the police shall not immediately arrest accused persons wanted in matters punishable with imprisonment upto 7 years. This limitation was subject to the exceptions mentioned in the aforesaid amended sections. 6. By the present order we proceed to explain the import and meaning of the amended provisions 41(1)(b) and 41 A Cr.P.C, and to give some illustrations where accused could be arrested straightaway on the lodging of the FIR, and other illustrations where immediate arrests may not be needed, because we think that in many cases the police is still routinely proceeding to arrest accused persons even if they are involved in offences punishable with up to 7 years imprisonment, in contravention of the express terms of sections 41(1)(b) or 41 A Cr.P.C. 7. It would be useful to extract the material provisions, sections 41(1)(b) and 41 A, which have been introduced by Act No. 5 of 2009, with effect from 1.11.2010 and also section 170(1) of the Code of Criminal Procedure, here : 41. When police may arrest without warrant. -- (1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person – (a)-----------------(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:(i) the police office has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence; (ii) the police office is satisfied that such arrest is necessary— (a) to prevent such person from committing any further offence; or (b) for proper investigation of the offence; or (C) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or (d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or (e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing. Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest. – 41 A. Notice of appearance before police officer- (1) The police officer shall in all cases, where the arrest of a person is not required under the provisions of sub-section(1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received,or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice. (2) Where such a notice is issued to any person, it shall be the duty of the person to comply with the terms of the notice. (3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested. (4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent court in this behalf, arrest him for the offence mentioned in the notice. 170. Cases to be sent to Magistrate when evidence is sufficient. -(1) If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial, or if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed. 8. The import of the said provisions is that normally where an accused has been named in the FIR, and the offence is punishable with upto 7 years imprisonment, the arrest of the accused may not be necessary at the initial stage and his attendance may be secured by issuing a notice to him to appear before the police officer under section 41 A Cr.P.C. In such cases it would be advisable to arrest the accused only after sufficient evidence of his involvement in the crime has been collected and the charge sheet needs to be submitted. Under section 170(1) Cr.P.C. it has been provided that on completion of investigation if sufficient evidence has been collected the accused shall be forwarded in custody to the Magistrate concerned, unless he has been released on bail (if the offence was bailable), in which event security may be taken for his appearance before the Magistrate. This practice of not arresting the accused straightaway and arresting them only after sufficient evidence has been collected is normally followed by the CBI, and CB (CID) in their investigations. 9. Where however the accused has not been named in the FIR, or at the time when the co-accused have been picked up, for example in a case of vehicle theft or recovery of other stolen goods, or where the co-accused has been arrested while committing a crime, and he names another accused as also having participated in the crime, whose custodial interrogation may be necessary and the police officer is of the opinion that the disclosure furnishes credible information or gives rise to reasonable suspicion for inferring that this accused whose arrest is sought could also be involved, or there are chances that such an accused would abscond or not respond to a notice under section 41A to appear, looking to the nature of the crime and the background of the particular accused, these maybe appropriate cases where immediate arrests may be needed. Likewise where the accused whose arrest is sought appears to be habitually engaged participating in some accused repeating the it may be necessary to in committing crimes or appears to be organized crimes, and there is probability of the offence, these would also be circumstances where arrest such accused without delay. 10. However in a case under section 498 A IPC where the wife subject to violence has gone back to her "maika" following the violence, it may not be necessary in a particular case to immediately arrest the husband and other family members who have been made accused in the FIR until adequate evidence has been collected, as she is unlikely to encounter violence when she is away from her "sasural." In E.C. Act offences again where the licences of a ration card dealer named in the FIR has been suspended, he may not have any opportunity to again indulge in blackmarketing or to commit a new offence under the E.C. Act. Here too arrests can be deferred until sufficient evidence to submit a charge sheet has been collected, when he needs to be produced before the trial court. But where the dealer is trying to obtain affidavits from ration card holders and it appears that he is trying to win over witnesses, then it may be open to the police to arrest him straight away. We have mentioned these examples as illustrations for situations where arrests may or not be immediately needed and they are by no means exhaustive. 11. It is with the objective of striking a balance on the need to provide the Constitutional protection from arbitrary arrest guaranteed under Article 21 and the restraint on arrests for offences punishable with imprisonment up to 7 years, subject to certain exceptions as provided for under section 41(1)(b) Cr.P.C. and the need of the police to carry out its investigation without interference, that we have refrained from passing blanket orders staying the arrests of the accused in all such cases. 12. But we do expect the police officer to record reasons in a bona fide and honest manner, why it has become necessary to arrest the accused in a particular case punishable with imprisonment with upto 7 years. The police officer should not mechanically and routinely write down in the case diary that there is likelihood of the accused running away, or presume that the accused would not respond to the notice to appear under section 41 A Cr.P.C, or that he would tamper with the evidence, unless there are strong reasons with concrete material for taking such a view, and this satisfaction along with the concrete reasons for taking the view need to be spelt out clearly in the case diary before the accused is arrested. 13. Thus strong reasons are needed for arresting an accused with respectable antecedents, who is an income tax payee with roots in the community, and a permanent abode, no history of earlier abscondance or non-cooperation with the police and who is not likely to tamper with the evidence or to again commit a crime unless he is immediately arrested. 14. The propriety, honesty and genuiness of the reasons given for arrests in particular cases punishable with imprisonment up to seven years and whether they conform to the requirements of sections 41(1)(b) and 41 A Cr.P.C. therefore need to be strictly monitored by the superior officers, i.e. C.O.s/ S.P.s/SSPs or DIGs in the districts, as has been emphasized in the DGP's circular dated 3.10.11. We make it clear that in the event that this Court finds that the accused who are wanted in cases punishable with up to 7 years imprisonment are being arrested in a routine and mechanical matter, without the existence of the conditions necessary for arresting them as mentioned in sections 41(1)(b) and 41 A Cr.P.C. this Court will have no hesitation in summoning the concerned police officers or even the superior police officers and they may even have to face contempt charges. For persistent unwarranted arrests in such matters in violation of the provisions of sections 41(1)(b) and 41 A and the DGP's circular dated 3.10.11. we may even recommend disciplinary action against such errant police officers to the DGP, U.P. 15. Section 167(1) of the Code of Criminal Procedure also requires production of the case diary before the Magistrate before whom the accused is produced for remand. 16.Section 167(1) reads thus: 167. Procedure when investigation cannot be completed in twenty-four hours. ----(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. 17. As rightly pointed out in Bir Bhadra Pratap Singh v D.M., Azamgarh, 1959 Cri.L.J 685 the forwarding of case diary entries under section 167(1) Cr.P.C. is not an empty formality, and the Magistrate is not simply to "rubber stamp" the prayer of the police officer seeking remand of the accused, but he is to apply his judicial mind to satisfy himself that the requirements of law are met when the police produces an accused for remand. At the time of granting the remand we expect the Magistrate to examine the case diary for satisfying himself whether the police officer's reasons for immediate arrest in the cases punishable with imprisonment upto 7 years was held by him in a bona fide manner and whether the reasons for remand are restricted to the pre-conditions for arrest mentioned in the newly introduced sections 41(1)(b) and 41 A Cr.P.C. The Magistrate needs to closely examine as to how the police officer could reach a conclusion that unless the accused was arrested he would repeat the offence, or why without arrest the investigation could not proceed, or whether the particular accused was as a matter of fact likely to cause the evidence to disappear, or would tamper with the evidence, or the accused would try and influence witnesses, or without arrest the particular accused would not appear in Court. These opinions of the police officer are to be based on concrete material and cannot be the mere ipse dixit of the officer. If he finds that no genuine reasons which accord with the requirements of sections 41(1)(b) and 41 A exist the Magistrate may even refuse to grant remand to the accused, and allow the accused to be released on a personal bond with a direction to appear before the competent court or before the police when called upon to do so, with or without security. 18. There would be no impediment in the Magistrate remanding the accused to judicial custody at later stages as authorized under section 41(1)(b)(ii)(e) and section 170(1) Cr.P.C. when the accused is produced before the Magistrate and the case diary shows that sufficient evidence for submitting a charge sheet has been collected. Needless to mention that in case the accused has already secured bail, then the police officer would be disentitled to arrest an accused person for seeking his remand because the charge sheet is to be submitted. The accused could then be summoned to appear by the Magistrate taking cognizance of the offence in exercise of powers under section 204 Cr.P.C. 19. If accused who are required in cases punishable with upto 7 years sentence are not routinely arrested by the police, or are granted bail by the lower court itself, without any undue delay in disposing of their bail applications, and in appropriate cases the facility of releasing the accused on interim bails on personal bonds pending consideration of their regular bails with or without security with a direction to appear when required is also extended to them, as has been laid down in the Apex Court Court in Lal Kamlendra Pratap Singh V State of U.P., (2009) 4 SCC 437, the Full Bench in Amaravati and another v State of U.P., 2005 Cri.L.J. 755, and the Division Bench in Sheoraj Singh @ Chuttan v State of U.P. and others, 2009(65) ACC 781, considerable time of the High Court could be spent more productively in hearing single judge and two judge appeals, or bails in grave matters. At present we find that most of the High Court single and division benches on the criminal side are engaged in considering an inordinately large number of applications for bail, applications under section 482 Cr.P.C., and Division Bench criminal writ petitions in such matters punishable with imprisonment up to 7 years, which could easily be dealt with by the Magistrates and Sessions Courts. DIRECTIONS: 20.We therefore direct the Magistrates that when accused punishable with upto 7 years imprisonment are produced before them remands may be granted to accused only after the Magistrates satisfy themselves that the application for remand by the police officer has been made in a bona fide manner and the reasons for seeking remand mentioned in the case diary are in accordance with the requirements of sections 41(1)(b) and 41 A Cr.P.C. and there is concrete material in existence to substantiate the ground mentioned for seeking remand. Even where the accused himself surrenders or where investigation has been completed and the Magistrate needs to take the accused in judicial custody as provided under section 170(1) and section 41(1)(b)(ii)(e) Cr.P.C, prolonged imprisonment at this initial stage, when the accused has not been adjudged guilty may not be called for, and the Magistrates and Sessions Courts are to consider the bails expeditiously and not to mechanically refuse the same, especially in short sentence cases punishable with upto 7 years imprisonment unless the allegations are grave and there is any legal impediment in allowing the bail, as laid down in Lal Kamlendra Pratap Singh V State of U.P., (2009) 4 SCC 437, and Sheoraj Singh @ Chuttan v State of U.P. and others, 2009(65) ACC 781. The facility of releasing the accused on interim bail pending consideration of their regular bails may also be accorded by the Magistrates and Sessions Judges in appropriate cases. 21. The Magistrate may also furnish information to the Registrar of the High Court through the District Judge, in case he is satisfied that a particular police officer has been persistently arresting accused in cases punishable with upto 7 year terms, in a mechanical or mala fide and dishonest manner, in contravention of the requirements of sections 41(1)(b) and 41 A, and thereafter the matter may be placed by the Registrar in this case, so that appropriate directions may be issued to the DGP to take action against such errant police officer for his persistent default or this Court may initiate contempt proceedings against the defaulting police officer. 22. The District Judges should also be directed to impress upon the remand Magistrates not to routinely grant remands to police officers seeking remand for accused if the pre-conditions for granting the remands mentioned in sections 41(1)(b) and 41 A Cr.P.C. are not disclosed in cases punishable with 7 year terms, or where the police officer appears to be seeking remand for an accused in a mala fide manner in the absence of concrete material. The issue of compliance with sections 41(1)(b) and 41 A Cr.P.C and the directions of this Court in this regard may also be discussed in the monthly meetings of the District Judges with the administration and the superior police officials. 23. We are also of the view that the Registrar General may issue a circular within a period of one month with directions to the Sessions Courts and Magistrates to monitor and oversee the applications for remand sought by the arresting police officers and to comply with the other directions mentioned herein above. 24. The DGP, U.P. is directed to send a status report with better particulars by the next listing as to the extent to which arrests are only being effected in cases punishable with upto 7 years imprisonment strictly in accordance with the conditions mentioned in sections 41(1)(b) and 41 A Cr.P.C. We are not satisfied by the mechanical incantation of the words by the police of 72 U.P. districts: "जनपद / थाना तर पर आदे श का अनुपालन कड़ाई से कया जा रहा है ." 25.As already indicated above we are of the view that by routinely mentioning in the case diary that a particular condition referred to in sections 41(1)(b) or 41 A Cr.P.C. has been met for seeking police remand, would not provide adequate reason for effecting the arrest. The DGP is also directed to circulate the present order to all subordinate police officers. 26. We are also of the view that the UP Legal Services Authority be directed to bring out pamphlets for distribution in the legal literacy camps etc., or even issue news paper announcement with headings such as "सात साल तक क सजा पाने वाले अिभयु को राहत," informing the public that henceforth accused wanted in cases punishable with upto 7 years imprisonment would get relief and not be routinely arrested because of the recent amendment to the Code of Criminal Procedure, which has been enforced from 1.11.2010. 27. Let a copy of this order be sent to the DGP, U.P., Member Secretary, U.P. SLSA and District Judges in all districts of U.P. for compliance and communication to all the concerned judicial magistrates before whom the accused are produced for remand by the police officers within ten days. 28. Let a copy of this order be also furnished to the learned Government Advocate forthwith. 29. Let a compliance report be submitted by the DGP, U.P., Member Secretary, U.P. SLSA and District Judges by the next listing. The said authorities may also indicate the difficulties if any, faced in complying with the aforesaid directions. List on 14.12.2011. Dated: 11.10.2011 Ishrat ***************************************** **** the B* back. Tuesday, September 8, 2009 Most Asked Questions - court procedure/terms. Is there any difference between civil and criminal proceedings? In criminal proceedings, the aim is to punish an offender and proceedings is always between the State and the accused. In a civil proceeding, the aim is to recover property or money, and to order compensation or to grant relief based on a right which has arisen in favor of the person seeking the relief. What are the rights, which can be enforced, in a civil proceeding? Under Section 9 of the Code of Civil Procedure, every right of a civil nature can be enforced in a civil court. Can the State be a party to civil proceeding? The State can be a party, if a civil right is claimed by or against the State. What is the meaning of a "cause of action"? a) "Cause of action" is the set of facts which a person must prove in court, to win a civil suit. It has two aspects, factual and legal, though lawyers often confuse the two. b) From the factual point of view, a person suing in court (the plaintiff) has to all Facts that make up or support his claim. c) The concept of cause of action has a legal aspect also. A person suing in court may be able to establish all facts he has in mind to seek relief. But if those facts themselves do not give rise to a legal right, then even on the established facts, no ground for relief arises. How does a civil suit begin? A civil suit begins by ' presenting ' a ' plaint ' to court. This can be done personally or through a pleader or an authorized agent. What are the matters to be borne in mind regarding the jurisdiction of courts? A suit should be filed only in the court competent to try the particular suit. Limits on the jurisdiction of a court may be (a) monetary limits (b) limits regarding nature of the subject matter (c) local limits. Lower courts can try cases not exceeding a certain value. Again, some suits can be filed only in specified courts. For example suits regarding public trusts can be taken up by the District Judge. "Writs are extraordinary proceedings and can be taken up only in High Courts or the Supreme Court. Most important are local limits on the court's jurisdiction". What is pleading? Pleading necessarily means plaint or written statement. The facts upon which a suit is based or a defense is raised should be specifically pleaded. Pleadings must be liberally construed. The object of the pleading is to ascertain the real dispute between the parties (Order VI). What particulars must be given in the pleadings? a) The pleading must contain only the statement in concise form of the material facts on which the party pleading relies for his claim or defence. pleas and facts constituting them should be clearly expressed. Evidence need not be pleaded. Pleadings need not refer to provisions of law when necessary averments are made. There is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. In a pleading (plaint or written statement) only facts are required to be pleaded while in a writ petition or counter affidavit not only the facts but also the evidence in proofs of such facts have to be pleaded and annexed to it. A plaintiff is not entitled to relief upon the facts and documents which are neither stated nor referred to in the pleadings. b) If a party relies on any misrepresentation, fraud, breach of trust, willful default or undue influence, then all such particulars must be stated in the pleading. c) Every pleading shall be signed by the party and his pleader. In cases where the plaintiff or the respondent is not able to sign due to any reasonable cause, then the pleading may be signed by any person duly authorized by the parties concerned. d) Address must be furnished in every pleading. e) Every pleading shall be verified by the party or one of the parties pleading or other person who is acquainted with the facts of the case (Order VI). What particulars should a plaint contain? a) The name of the court in which the suit is the brought. b) The name, description and place of residence of the defendant, as far as they can be ascertained. c) The name, description and place of residence of the plaintiff. d) Where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect. e) The facts constituting the cause of action and when it arose. f) The facts showing that the court has jurisdiction. g) The relief, which the plaintiff claims. h) Where the plaintiff has allowed a set-off or relinquished a portion of his claim the amount so allowed or relinquished. i) A statement of the value of the subject matter or the suit for The purpose of jurisdiction and court fees, so far as the case admits. j) The relief which the plaintiff claims either simply or in the alternative; and k) Relief in respect of several distinct claims or causes of action funded upon separate and distinct grounds must be stated separately and distinctly. Is there a form prescribed for the "plaint"? a) No particular form is prescribed. (Although some forms are given as specimen in a schedule to the code, they are not obligatory. b) However, it is necessary that the plaint should be divided into numbered paragraphs. c) Facts should be stated briefly and there should be not repetition. d) Legal propositions are not required to be stated in the "plaint" What is the reply to the "plaint" called? The reply to the "plaint" as given by the defendant is called " written statement" (Order VIII). What are rules for drafting written statement, set off and counter-claims? The dependent must raise all matters in his plead which show that the suit is not maintainable or such ground for defence. New facts must be specifically pleaded. It is the duty of defendant to produce the document upon which relief is claimed by him. What is the proper way of denying an allegation made by the plaintiff? The denial must be specific and not evasive. Can a judgment be passed by the court without hearing the arguments? If the Judge commences to write a judgment before the completion of entire evidence and does not hear the arguments of the counsel, then it is considered as gross irregularity in the trial of the case. The court is bound to hear the party and an application presented before the passing of final decree cannot be rejected without hearing. What are the consequences if the Witness fails to appear before the court? As such it is the duty of the person or witness summoned to give evidence or produce document at the time and place named in the summons. But if the person does not appear or appears but fails to satisfy the court, the court can impose a fine not exceeding five hundred rupees or attach his property. if the witness is confined or detained in a prison, then the court has power direct the officer-in-charge of the prison to bring such person before the court for giving evidence. What is "Adjournment" and what is the procedure for seeking adjournment in the court? ' Adjournment ' in legal sense means putting off or deferring proceedings in a case before court to another day. Adjournment is a matter of discretion of the Court which must be exercise, assorting to the well established principles and not in an arbitrary manner. Sufficient cause must be shown to seek adjournment of the hearing of the suit, at any stage of the time ( Order XVII). The court can also impose cost on the party seeking adjournment if the court postpones the further hearing of the suit. Is it necessary to engage a lawyer? No. A party can appear in person in court and conduct his or her own case. What happens to the suit if the plaintiff does not appear at the hearing of the suit? a) If the plaintiff does not appear at the first hearing, the suit must be dismissed. The law is mandatory on the point (O. X - Rule 8). b) However, if the plaintiff can later satisfy the court that he was prevented by sufficient cause, from appearing at the earlier hearing he can apply to the court for restoring the suit. What are the consequences of plaintiff failure to pay either the court fee or the posted charges ( called talbana in District Courts ) for service of summons? On the failure of the plaintiff to pay the court fee or postal charges for service, the court may make an order that the suit be dismissed (O.IX - R.2). What will be the fate of the suit if neither party appears? The court may make an order that the suit be dismissed ( O.IX - R.3). But, if the plaintiff satisfies the court that there was sufficient cause for such failure to either pay the court fee or talban or non appearance in court, then the court must restore the suit ( O.IX - R.4). What is the position if the defendant does not appear at the hearing of the suit? a). If the defendant does not appear the court can proceed to hear the suit in his absence, that is to say, the suit is heard 'ex-parte'. b). However, if the defendant can later satisfy the court that his absence at the earlier hearing was due to sufficient cause, he can apply to the court for an order that he be join the proceedings. Can a judgment be passed ex-parte? a). Yes, if the court has ordered that by reason of the defendant's absence, the Case should proceed ex-parte. After such an order, the court can proceed even To pronounce judgment ex-parte if the stage for judgment arrives. b). However, such an ex-parte judgment can be set aside by the court if the defendant subsequently applies for setting it aside on the ground that (i) he had not been served with "summons"(notice of suit) or (ii) that though he had been served with the notice, he could not appear and that his nonappearance was due to sufficient cause.(AIR 1955 SC 425). Can a civil court give an oral judgment? No. A judgment must be in writing and must contain the points for decision, the decision on those points and reasons for the decision. What is the distinction between "judgment" and "decree"? 'Decree' means judicial determination of the matter in dispute by the court in which the court determines the rights of parties to the dispute. Such determination of rights must not be subject to terms of conditions. Thus, the decision should be complete and final as regards the court which passes it. 'Judgment' means a statement given by judge of the grounds of a decree or order. A judgment includes points of dispute, the decision and the reasons for such decision. It is not necessary to give a statement by the judge in a decree but it is necessary in a judgment. What is procedure for procuring copies of judgment? The copies of type written judgment are available to the parties after the pronouncement of the judgment on payment of such charges as prescribed by the High Court Rules. What is meant by 'execution'? 'Execution means the enforcement of the decree. What is the meaning of 'affidavit'? a) An affidavit is a statement in writing made on oath before the competent authority ( say, an Oath Commissioner). This is later produced in court to support the case of the party at whose instance the affidavit was sworn by a witness. b) Generally, witnesses must themselves give evidence in court. But the law allows affidavits to be given in evidence for certain purposes e.g.in support of applications for temporary orders Can a suit be withdrawn? Yes, but once a suit is withdrawn, the plaintiff cannot file a fresh suit on the same cause of action i.e. for enforcement of the same claim unless he had obtained. from the court, permission for filing a fresh suit. Can a suit be compromised or settled? Yes, the parties can, by mutual agreement, settle the dispute and reach a compromise. Can a suit be filed by or against the Government or public officers in their Official capacity? Yes, a suit can be filed by or against the Government. But, no suit can be instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity until two months, next has expired after the notice in writing has been delivered to the Central Government of State Government or any other functionary of the Government (Section 80 of Civil Procedure Code). The Government pleader in any court is the agent of the Government for the purpose of receiving processes against the Government issued by such courts.(O.XXVII). Has a poor person ( indigent person) any privileges in litigation? A person is considered as an indigent person if he is not possessed of sufficient means to enable him to pay the fees prescribed by law for the plaint in such suit. Every application for permission to sue as an indigent person, in proper form and duly presented, will be examined by the court regarding the merits the claim and the property of the applicant. If the court grants permission to the applicant to sue as indigent person, then such a plaintiff is not liable pay any court fee in respect of his petition. The court may also assign a pleader to an un-represented indigent person. If the indigent person succeeds, then the court can order the Government to recover the court fees from any party ordered by the decree to pay the same ( Order XXIII ). What is injunction? An 'injunction' is a judicial process whereby a party is ordered to refrain from doing or to do a particular act or a thing. What are the consequences of breach of an injunction? The consequences are : 1. The court may order that the property of the person guilty of such disobedience be attached. 2. Such person may also be arrested for 3 moths ( maximum punishment) unless the court directs his release. 3. If such breach continues for more than one year, the court may sell such propertyand award suitable compensation to the injured party. What are Interlocutory Orders and why are they passed? Any order, which is not the final order in a suit, is called an Interlocutory Order. Interlocutory orders are passed to assist the opposite parties in its prosecution of their case. They are intended to prevent the ends of justice from being frustrated. What is appeal? Appeal means judicial examination of the decision by a higher court. It is a remedy for getting the decree of the lower court set aside. What is meant by "revision"? "Revision" connotes the power of the High Court to interfere with the Judgment of a lower court in interests of justice. While appeal is a right, revision is a matter of discretion of the High Court. It is an extraordinary power. What is the distinction between appeal, revision and review? Appeal lies to a superior court which may or may not be a high court But revision application lies only to High Court. Appeal is a right given by the Statute while revision is only a privilege. Power of revision is exercised by a superior court to a court which decides a case, but the power of review is exercised by the same court which passed the decree or order. Power of revision is exercised only when there is no appeal To the High Court but review can be made ever when such appeal lies. What is the meaning of "res judicata"? 'Res' in Latin means thing a 'Judicata' means already decided. This rule operates as a bar to the trial of a subsequent suit on the same cause of action between the same parties. Its basic purpose is - "One suit and one decision is enough for any single dispute". The rule of 'res judicata' does not depend upon the correctness or the incorrectness of the former decision. ( AIR 1983 NOC 69 (All). It is a principle of law by which a matter which has been litigated cannot be re-litigated between the same parties. This is known as the rule of "res judicata" (thing decided). The aim of this rule is to end litigation once a matter has been adjudicated. It aims to save the court time and prevent harassment to parties. What are the objects of summary procedure? The object of summary procedure is to prevent unreasonable obstruction by the defendant who has no defence and quick disposal of a suit. Under this procedure, the defendant is not allowed to defend his case unless he obtains leave to defend from the court. What are the forms of "cruelty" recognized by the Courts? * Persistent denial of food, * Insisting on perverse sexual conduct, * Constantly locking a woman out of the house, * Denying the woman access to children, thereby causing mental torture, * Physical violence, * Taunting,demoralising and putting down the woman with the intention of causing mental torture, * Confining the woman at home and not allowing her normal social intercourse, * Abusing children in their mother's presence with the intention of causing her mental torture, * Denying the paternity of the children with the intention of inflicing mental pain upon the mother, and * Threatening divorce unless dowry is given. What is a " matrimonial home" ? What rights do women have in their matrimonial home? The matrimonial home is the household a woman shares with her husband; whether it is rented, officially provided, or owned by the husband or his relatives. A woman has the right to remain in the matrimonial home along with her husband as long as she is married, though there is no definite law regarding this right. If a woman is being pressurized to leave the matrimonial home, she can ask the Court for an injunction or "restraining order" protecting her from being thrown out. This can usually be obtained quite easily. It is generally advisable not to leave the matrimonial home; it is easier to get a court order preventing a woman being thrown out than to get an order enforcing her right to return to it once she has left or been thrown out. What is an " Injunction" and how does it apply to domestic violence cases? An injunction is a court order directing a person to do or not to do something. A woman has a lot of flexibility regarding what she can request the Court to order. For instance, If she is being stalked by somebody ( including her husband), she can obtain injunctions against the person coming near her home of place of work, or even telephoning her. What can be done in the case of dowry-related harassment or dowry death? Section 498-A of the Indian Penal Code covers dowry-related harassment. As with other provisions of criminal law, a woman can use the threat of going to court to deter this kind of harassment. The Indian Penal Code also addresses dowry death in Section 304-B, If a woman dies of "unnatural causes" within seven years of marriage and has been harassed for dowry before her death, the Courts will assume that it is a case of dowry death. The husband or in-laws will then have to prove that their harassment was not the cause of her death. A dowry death is punishable by imprisonment of at least seven years. When filling an FIR ( First Hand Report), in a case where a woman is suspected to have been murdered after a history of torture due to dowry demands, the complaint should be filed under section 304-B rather than under section 306, which deals with abetment to suicide. Section 306 should be invoked when a woman commits suicide because of dowry-related harassment. Can you refuse to have sex with your husband? is there a law on marital rape? Since India does not have a law on marital rape, even If a woman's husband has sexual intercourse with her without her consent, he cannot be prosecuted for rape. However, excessive and unreasonable demands for sex, or demands for unnatural sex have been considered forms of cruelty and may entitle a woman to a divorce. If a woman is judicially separated, her husband cannot have sexual intercourse with her without her consent. If he does, he can be prosecuted under section 376-A of the IPC. Note that consent under pressure ( e.g. because of threats to injure or to stop paying maintenance) is not considered valid. What can a woman do to prevent domestic violence? One option is to get the woman's husband to execute a "bond to keep peace", or a "bond of good behaviour" through the Executive, Magistrate who can order the husband to put a stop to domestic violence. The husband can also be asked to deposit securities ( i.e. money of property) that will be forfeited if he continues to act violently? Distinction between Civil and Criminal Law The distinction between civil and criminal law is a basic part of the Indian legal system. Civil laws deal with the rights and obligations of people and what is needed to protect them, While criminal law deals with offences and their punishment. In a criminal offence, the State takes upon itself the responsibility to investigate and collect evidence ( through the police), to fight the case in court (through a public prosecutor) and enforce the punishment. Robbery, murder and kidnapping are examples of criminal offences. Criminal offences are dealt with by the Indian Penal Code (IPC). The Procedure by which a criminal trial is conducted is quite different from the processes involved in a civil trial. An important difference is that the "standard of proof" required in criminal cases is much higher than in civil cases. Since criminal law is centrally linked with issues of punishment, allegations and facts must be proved "beyond reasonable doubt", so that innocent people are not punished. In civil cases, the courts scrutinise the "balance of probabilities" before deciding in chose favour to make a judgement. However, there are some situations in which both civil and criminal law apply. Inflicting physical violence on a wife or daughter-in-law as well as subjecting her to cruelty - physical, mental or emotional - in a marriage is not only a civil offence and provides ground for divorce ( a "matrimonial offence") , but is also a criminal offence under the Indian Penal Code, for which a person can be imprisoned. The laws dealing with marital abuse have been made very stringent through amendments in the Indian Penal Code and the Evidence Act. How long after marriage can a person seek divorce Under Hindu Law ? Under Section 14 of the Hindu Marriage Act. 1955, no petition for divorce can be filed within one year of the marriage. But in case the petitioner's case is of exceptional hardship High Court is empowered to grand leave to file the case before the expiry of one year. If the Husband marries another woman, What action can be taken Under Hindu Law ? Under Section 17 of the Hindu Marriage Act, bigamy is punishable Under Section 494 & 495 of the Indian Penal Code. Section 494 prescribes for imprisonment, which may extend to 7 years and fine. So a complaint be lodged against the husband with the police. What is the minimum required age to marry under The Hindu Law ? According to Section 5 (iii) of the Hindu Marriage Act, the bridegroom has to complete 21 years of age and the bride 18 years of age. Any marriage in contravention of this attracts simple imprisonment, which may extend to 15 days or fine, which may extend to Rs. 1000/- or with both. How do you obtain divorce by mutual consent ? when can a person re-marry after obtaining a decree of divorce? Divorce by mutual consent can be obtained by Husband and Wife in terms of Section 13 B of the Hindu Marriage Act, 1955. The provisions of the said Section require that the husband and wife should be living separately for a period of more than 1 year and they are not able to live together any further. "Living Separately" has been now defined by the Supreme Court as "not living as husband and wife and not performing marital obligation", even if the husband and wife are living under the same roof. A joint petition has to be filed in this regard and after the filing of the same, the Court grants a minimum period of six months (and maximum 18 months) for the parties to come again and make a statement confirming the said consent. It is only after this second consent having been given by both the parties after six months of the filing of the petition for mutual consent, that a decree for divorce is passed by the Court. If during this period of six months after the filing of the petition, any of the parties withdraws the consent, the divorce can not be granted. Further, apart from the same, before passing a decree of divorce, the court has also to be satisfied that the consent has not been obtained by force, fraud or undue influence. With regard to the re-marriage after divorce, Section 15 of the Hindu Marriage Act, 1955, provides that after a decree of divorce has been granted, in case there is no right of appeal against the decree or if there is a right, the time has expired without an appeal having been presented or if the appeal filed has been dismissed, it shall be lawful for either party to marry again. The period of appeal as provided under Section 28 of the Hindu Marriage Act is 30 days from the date of the decree or order. If the Wife has left the house of her husband and was living away from him without any reasonable cause, can the husband be entitled to judicial separation or divorce? Is there a time period for filing of divorce petition? In case the wife has left the house of the husband and is living away from him without any reasonable cause, the husband is entitled to judicial separation or divorce. The condition however, is that the desertion of the wife should be for a continuous period of not less than two years, immediately preceding the presentation of the petition for grant of judicial separation or divorce. If one of the spouse is not at all ready to give the divorce at any cost, then how much maximum time it can take to get the decree for divorce? If one of the spouse is not ready to give divorce at any cost, then the remedy for the other spouse is to file a petition for divorce before the court. However, a divorce can only be granted under certain prescribed circumstances under Hindu Law which are described in Section 13 of the Hindu Marriage Act. These grounds include cruelty; desertion; voluntary sexual inter-course with another person; the other spouse being of unsound mind; conversion of religion by the other spouse; Leprosy; venereal disease; a spouse having renounced the world or being missing for a period of more than 7 years. The period of time for seeking a divorce decree can really not be specified, because it depends upon a number of circumstances. However, still a general estimate which can be given in an average litigation of such a nature is around 4 to 5 years before the District Court. Once a joint petition for divorce is filed by mutual consent, is their a way ( Legal loopholes / by pass procedure) to get the decree for divorce within 2 months of filing the petition and not after 6 months? If one manages to get the decree for divorce in 2 months (with the help of some X lawyer at some Y Court)then later on, can anyone of husband or wife at any point of time in his/her life appeal against the decree? Although under the provisions of Section 13-B of the Hindu Marriage Act 1950, the requirement is that after the presentation of a petition for divorce by mutual consent, the court has to adjourn the matter for a minimum period of 6 months ( and not later than 18 months) where after the parties have to again come back to the court for making s second motion confirming the mutual consent earlier given by them. However, In a number of judgments the courts have held that this period of six months can be waived if the court is convinced that the provisions of the said section have been complied with and that there in no force, undue influence or coercion exercised by one spouse against the other. The courts are a such granting decree for divorce by mutual consent without waiting for a period of six months specified under the Hindu Marriage Act. Such divorce decree granted prior to the period of 6 months cannot be normally challenged. It is only under vary rare circumstances where it is proved by the spouse that the said mutual consent was not given out of his/her free will or was given under some grave force or threat of life can the said decree for divorce be cancelled. But the same is also applicable to a divorce decree granted by mutual consent after waiting for a period of six months. What is the right of husband on the child at the separation? After divorce/separation, the husband can move an application for the custody of a child under Guardian & wards Act and if the parties are Hindu then under Hindu Minority & Guardianship Act. The husband also has a right to claim the right of meeting the child and to take the child during holidays till the disposal of the petition for custody. The parties can ask for the above said interim relief from the Court. What is the punishment for a man who tortures a woman mentally,physically or verbally? It is an offence punishable under section 498A of the Indian Penal Code, 1860, which is imprisonment for a term which may extend to three years and shall also be liable to fine. Mental Cruelty can be pleaded as a ground for devorce.? Mental Cruelty can certainly be pleaded to claim divorce from the other spouse. Under Section 13(1) (ia) of the Hindu Marriage Act, 1955, either spouse can seek divorce or judicial separation on the grounds of cruelty, which includes mental cruelty. The wife is fully justified in living away from the husband in case she is suffering mental cruelty at the hands of the husband. A petition for divorce or judicial separation can be filed detailing each and every incident of mental cruelty. The instances are required to be specific and should be of such a nature as to be construed of causing mental agony to the wife and should not be merely day to day minor quarrels which normally take place in a married life. After separation I want to give one my houses to her and also give some amount of money. How can I do this. Is any registration required for giving her the house can the husband give any property to the wife at time of divorce? The husband can give a house or any amount of money to his wife while agreeing for divorce by mutual consent. However, as the consent can always be withdrawn within the period of six months it is always better if the said transaction is carried out when the second consent statement is made after six months of the filing of the petition and when the divorce decree is being granted. The transaction of property requires registration with the Sub-Registrar. Since, no amount of consideration would be paid by the wife for acquiring the said property, It would be appropriate if a gift deed is executed and registered with the Sub-Registrar, after paying the requisite stamp duty on the same. How can divorce be obtained Hindu Law? In the event of your being a Hindu, that is Hindu, Sikh, Buddhist or Jain by religion, your would be governed by the provisions of the Hindu Marriage Act, 1955. Divorce under the said Act can be obtained only on the grounds specified under Section 12, whereby a person can seek divorce on the following grounds: (a) If the other party after the marriage had voluntary sexual inter-course with another person. (b) If the other party after marriage has treated the complainant with cruelty. (c) If the other party has deserted the complainant for a continuous period of not less than two years. (d) If the other party has seized to be Hindu by converting to another religion. (e) If the other party has been in curably of unsound mind or has been suffering from mental disorder of such a nature that the complainant cannot be reasonably expected to live with her/him. (f) If the other party has been suffering from an incurable form of leprosy. (g) If the other party has been suffering from venereal disease in a communical form. (h) If the other party has renounced the world. (i) If the other party has not been heard of being alive for a period of over 7 years. Divorce can also be obtained by mutual consent by husband and Wife in terms of Section 13 B of the Hindu Marriage Act, 1955. The provisions of the said Section require that the husband and wife should be living separately for a period of more than 1 year and they are not able to live together any further. A joint petition can be filed in this regard and after the filing of the same the Court grants a period of six months for the parties to come again and make a statement confirming the said consent. It is only after this second consent having been given by both the parties after six months of the filing of the petition for mutual consent, that a decree for divorce is passed by the Court. If during this period of six months after the filing of the petition, any of the parties withdraws the consent, the divorce can not be granted. What is a will? How do you make it ? How do you register it? 1. A WILL is a legal declaration of the intention of a person with respect to his property or will, which he desires to take effect after his death. WILL is an untitled document which take effect after the death of the person making the Will and it can be revoked, modify or substituted by the person executing the will at any point of his time during his life time. For executing the Will the person must be fully competent, he should not be a minor and should not be person of unsound mind. 2. The Will has to be in writing and has to state that the person executing the same is making it out of his own free will and in a sound disposing state of mind. It has to be signed by the executor of the Will and has to be attested by two witnesses atleast. 3. In the event of the person desiring WILL to be registered, he has to approach the office of the Sub-registrar and has to be accompanied by the person who have signed as witnesses on the said WILL. The executor of WILL as well as the attesting witnesses have to put their signatures and thumb impressions in the register maintained by the Sub-registrar. There are Sub-registrars for each district and you have to inquire from the concerned office as to which Sub-registrar you are required to get your WILL registered. The Sub-registrar would be as per the place of the residence of the person executing the WILL. the B* back. Sunday, November 22, 2009 Right to Bail In India - BY SUDERSHANI RAY Article Source: http://EzineArticles.com/?expert=Sudershani_Ray Introduction When you are arrested, you are taken into custody. This means that you are not free to leave the scene. Without being arrested, you can be detained, however, or held for questioning for a short time if a police officer or other person believes you may be involved in a crime. For example, an officer may detain you if you are carrying a large box near a burglary site. You can also be detained by storekeepers if they suspect you have stolen something. Whether you are arrested or detained, you do not have to answer any questions except to give your name and address and show some identification if requested. The object of arrest and detention of the accessed person is primarily to secure his appearance at the trial and to ensure that in case he is found guilty he is available to receive the sentence. If his presence at the trial could be reasonable ensured otherwise than by his arrest and detention, it would be unjust and unfair to deprive the accused of his liberty during the pendency of the criminal proceedings against him. The provisions regarding the issue of summons or those relating to the arrest of the accessed person under a warrant or without a warrant or those relating to the release of the accessed at his trial but without unreasonable and unjustifiably interfering with his liberty. Thus this article is related with the provisions related with the release of a person on a bail. In words of Krishna Iyer J. .. the subject of bail:" ..... belongs to the blurred area of criminal justice system and largely hinges on the hunch of the bench, otherwise called judicial discretion. The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden of public treasury all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process." Thus release on bail is crucial to the accused as the consequences of pretrial detention are given. If release on bail is denied to the accessed it would mean that though he is presumed to be innocent till the guilt is proved beyond the reasonable doubt he would be subjected to the psychological and physical deprivation of jail life. The jail accessed loses his job and is prevented from contributing effectively to the preparation of his defense. Therefore where there are no risks involved in the release of the arrested person it would be cruel and unjust, to deny him bail. The law bails " has to dovetail two conflicting demands namely, on one hand, the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence. The presumption of innocence of an accused till he is found guilty". In order to sub serve the above said objective, the Legislature in its wisdom has given precise directions for granting or granting bail. Why Bail? Before actually determining the place of bail within human rights framework as conferred by the Constitution, it is important to examine the object and meaning of bail, such that an analysis of these fundamental objects and change therein may reveal a change. The object detention of an accused person is primarily to secure her/his appearance at the time of trial and is available to receive sentence, in case found guilty. If his/her presence at the trial could be reasonably ensured other than by his arrest or detention, it would be unjust and unfair to deprive the accused of his liberty during pendency of criminal proceedings. Thus it is important to note the relevant provisions enshrined in the Universal Declaration of Human Rights:Article 9- No one shall be subjected to arbitrary arrest, detention or exile. Article 10- Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. Article 11(1)- Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense. There are thus several reasons which have been enumerated as to why bail ought to be allowed to prevent pre-trial detention MEANING OF BAIL Bail, in law, means procurement of release from prison of a person awaiting trial or an appeal, by the deposit of security to ensure his submission at the required time to legal authority. "Bail has been defined in the law lexicon as security for the appearance of the accused person on giving which he is released pending trial or investigation." According to Black's Law Dictionary, what is contemplated by bail is to "procure the release of a person from legal custody, by undertaking that he/she shall appear at the time and place designated and submit him/herself to the jurisdiction and judgment of the court.". MEANING OF BAIL IN INDIA According to Criminal Procedure Code, 1973 (Cr.P.C. hereinafter), does not define bail, although the terms bailable offense and non-bailable offense have been defined in section 2(a) Cr.P.C. as follows: " Bailable offense means an offense which is shown as bailable in the First Schedule or which is made bailable by any other law for the time being enforce, and non-bailable offense means any other offense". That schedule refers to all the offenses under the Indian Penal Code and puts them into bailable and on bailable categories. The analysis of the relevant provisions of the schedule would show that the basis of this categorization rests on diverse consideration. However, it can be generally stated that all serious offenses, i.e. offenses punishable with imprisonment for three years or more have seen considered as non bailable offenses. Further, Sections 436 to 450 set out the provisions for the grant of bail and bonds in criminal cases. The amount of security that is to be paid by the accused to secure his release has not been mentioned in the Cr.P.C. Thus, it is the discretion of the court to put a monetary cap on the bond. Indian Courts however ,have greater discretion to grant or deny bail in the case of persons under criminal arrest, e.g., it is usually refused when the accused is charged with homicide. It must be further noted that a person accused of a bailable offenses is arrested or detained without warrant he has a right to be released on bail. But if the offense is non-bailable that does not mean that the person accused of such offense shall not be released on bail: but here in such case bail is not a matter of right, but only a privilege to be granted at the discretion of the court. Provisions under the Code of Criminal Procedure, 1973 The Code of Criminal Procedure, 1973, makes provisions for release of accused persons on bail. Section 436 of the Code provides for release on bail in cases of bailable offenses. Section 436 provides that when person not accused of a non-bailable offense is arrested or detained he can be detained as right to claim to be released on bail. The section covers all cases of person s accused of bailable of fences cases of persons though not accused of any offense but against whom security proceedings have been initiated under Chapter VIII of the Code and other cases of arrest and detention which are not in respect of any bailable offense. This section entitles a person other than the accused of a non-bailable offense to be released on bail, it may be recalled that S. 50(2) makes it obligatory for a police officer arresting such a person without a warrant to inform him his right to be released on bail. Section 436 (1) of the Code signifies that release on bail is a matter of right, or in other words, the officer-in-charge of a police station or any court does not have any discretion whatsoever to deny bail in such cases. The word " appear in this sub- clause is wide enough to include voluntary appearance of the person accused of an offense even where no summons or warrant has been issued against him. There is nothing in S. 436 to exclude voluntary appearance or to suggest that the appearance of the accused must be in the obedience of a process issued by the court. The surrender and the physical presence of the accused with the submission to the jurisdiction and order of the court is judicial custody, and the accused may be granted bail and released from such custody. The right to be released on bail under S. 436(1) cannot be nullified indirectly by fixing too high amount of bond or bail-bond to be furnish by the person seeking bail. Section 440(1) provides the amount of every bond executed under this chapter shall be fixed with due regard to the circumstances of the case, and shall not be excessive. Further S. 440(2) empowers the High Court or the Court of Sessions may direct that the bail required by a police officer or Magistrate be reduced. Sub-section (2) of S. 436 makes a provision to effect that a person who absconds or has broken the condition of his bail bond when released on bail is a bailable case on a previous occasion, shall not as of right to be entitled to bail when brought before the court on any subsequent date even though the offense may be bailable. In Maneka Gandhi v. Union of India [1978] 2 SCR 621 The amount of the bond should be determined having regard to these relevant factors and should not be fixed mechanically according to a schedule keyed to the nature of the charge. Otherwise, it would be difficult for the accused to secure his release even by executing a personal bond, it would be very harsh and oppressive if he is required to satisfy the court-and what is said in regard to the court must apply equally in relation to the police while granting bail-that he is solvent enough to pay the amount of the bond if he fails to appear at the trial and in consequence the bond is forfeited. The inquiry into the solvency of the accused can become a source of great harassment to him and often resulting denial of bail and deprivation of liberty and should not, therefore, be insisted upon as a condition of acceptance of the personal bond. It also stated that there is a need to provide by an amendment of the penal law that if an accused willfully fails to appear incompliance with the promise contained in his personal bond, he shall be liable to penal action. J. Per Bhagwati & Koshal, JJ. further observed that it is now high time that the State Government realized its responsibility to the people in the matter of administration of justice and set up more courts for the trial of cases. In Moti Ram & Others. v. State of M.P [1978] 4 SCC 47 Urgent need for a clear and explicit provision in the Code of Criminal Procedure enabling the release, inappropriate cases, of an under trial prisoner on his bond without sureties and without any monetary obligation. Criminal courts today, are extremely unsatisfactory and needs drastic change. In the first place it is virtually impossible to translate risk of non- appearance by the accused into precise monetary terms and even its basic premise that risk of financial loss is necessary to prevent the accused from fleeing is of doubtful validity. There are several considerations which deter an accused from running away from justice and risk of financial loss is only one of them and that too not a major one. In this case the court also pointed out the enlightened Bail Projects in the United States such as Manhattan Bail Project and D. C. Bail Project shows that even without monetary bail it has been possible to secure the presence of the accused at the trial in quite a large number of cases. The Court laid down following guidelines, that determine whether the accused has his roots in the community which would deter him from fleeing, the Court should take into account the following factors concerning the accused: 1. The length of his residence in the community, 2 His employment status, history and his financial condition, 3. His family ties and relationships, 4 His reputation, character and monetary condition, 5.His prior criminal record including any record or prior release on recognizance or on bail, 6. The identity of responsible members of the community who would vouch for his reliability. The nature of the offense charged and the apparent probability of conviction and the likely sentence in so far as these factors are relevant to the risk of non appearance, and If the court is satisfied on a consideration of the relevant factors that the accused has his ties in the community and there is no substantial risk of non-appearance, the accused may, as far as possible, be released on his personal bond. Of course, if facts are brought to the notice of the court which go to show that having regard to the condition and background of the accused his previous record and the nature and circumstances of the offense, there may be a substantial risk of his non-appearance at the trial, as for example, where the accused is a notorious bad character or confirmed criminal or the offense is serious (these examples are only by way of illustration), the court may not release the accused on his personal bond and may insist on bail with sureties. But in the majority of cases, considerations like family ties and relationship, roots in the community, employment status etc. may prevail with the court in releasing the accused on his personal bond and particularly in cases where the offense is not grave and the accused is poor or belongs to a weaker section of the community, release on personal bond could, as far as possible, be preferred. But even while releasing the accused on personal bond it is necessary to caution the court that the amount of the bond which it. Section 436A . Maximum period for which an under trial prisoner can be detained - The new provision Section 436Awas introduced in order to solve the problems of undertrials' who were languishing in jails as they will now be given an opportunity to be set free instead of endlessly waiting for their trial to take place. This move has been made due to a faulty criminal justice system and provides a makeshift method of providing justice and relief to undertrial prisoners. This seems to suggest that the Legislature and the Government have accepted the existence of the faulty system and their inability to do anything about it. For this purpose section 436 A was inserted. According to S. 436-A, a person who has undergone detention for a period extending upto half of the maximum period of imprisonment imposed for a particular offense, shall be released on her/his personal bond with or without sureties. The procedure provided is that the Court has to hear the Public Prosecutor and give its decision with reasons in writing. The Court may release the applicant, or if not satisfied may order for the continued detention of the applicant. However, no prisoner can be detained for a period longer than the maximum period of imprisonment provided. The exception to the section is that it is not applicable to offenders who have been sentenced to death. Moving onto the (de)merits of the provisions itself, S. 436-A gives discretion to the Court to set the prisoner free or to make him/her continue imprisonment. There is no mention of any applications having to be filed under the section. The first part of the section states that any prisoner who has served more than half the term of his/her imprisonment 'shall' be released. However, the proviso puts a restriction on the mandatory provision by giving discretionary powers to the courts. This raises questions regarding the implementation of the provision. There is every chance that a prisoner may be sent back to jail to serve a period longer than the half term of his/her sentence. Till the Judges give their written reasons for the same, one will not know on what grounds a continuation of the term can be ordered as the section does not provide any guidelines. Will the undertrial prisoner continue to serve term till the maximum period of the Granting of Bail with conditions Section 437 of the Code provides for release on bail in cases of nonbailable offenses. In such cases, bail is not a matter of right. Court has sufficient discretion to deny or to grant bail. First Schedule to the Code provides the list of bailable and non-bailable offenses. Further cases often arise under S. 437, where though the court regards the case as fit for the grant of bail, it regards imposition of certain conditions as necessary in the circumstances. To meet this need sub-section (3) of S. 437 provides: When a person accused or suspected of the commission of an offense punishable with imprisonment which may extend to seven years or more or of an offense under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abatement of, or conspiracy or attempt to commit, any such offense, is released on bail under subsection (1), the Court may impose any condition which the Court considers necessary: (a)In order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or (b)In order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or (c)Otherwise in the interests of Justice. It will be noticed that: 1)The power to impose conditions has been given to the court and not to any police officer 2)The power to impose conditions can only be exercised i)Where the offence is punishable with the imprisonment which may extend to seven years or more or ii)Where the offence is one under Chapter VI (Offences against the State), Chapter XVI (offences against the human body), or Chapter XVII (offences against the property) of I.P.C, or iii)Where the offence is one of the abetment of or conspiracy to or attempt to commit any such offence as mentioned above in (i) and (ii). CANCELLATION OF BAIL According to S. 437(5) any court which has released a person on bail under (1) or sub sec (2) of S. 437 may if considers it necessary so to do, direct that such person be arrested and committed to custody. The power to cancel bail has been given to the court and not to a police officer. Secondly, the court which granted the bail can alone cancel it. The bail granted by a police officer cannot be cancelled by the court of a magistrate. For cancellation of bail in such a situation, the powers of the High Court or Court of Session under S. 439 will have to invoked. Rejection of bail when bails applied for is one thing; cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable cases than to cancel a bail granted in such case. Cancellation of bail necessary involves the review of a decision already made and can large be permitted only if , by reason of supervening circumstances it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. However, bail granted illegal or improperly by a wrong arbitrary exercise of judicial discretion can be cancelled even if there is absence of supervening circumstances. If there is no material to prove that the accused abused his freedom court may not cancel the bail. In Public Prosecutor v. George Williams1951 Mad 1042 The Madras High Court pointed out five cases where a person granted bail may have the bail cancelled and be recommitted to jail: (a)Where the person on bail, during the period of the bail, commits the very same offence for which is being tried or has been convicted, and thereby proves his utter unfitness to be on bail; (b)If he hampers the investigation as will be the case if he, when on bail; forcibly prevents the search of place under his control for the corpus delicti or other incriminating things; (c)If he tampers with the evidence, as by intimidating the prosecution witness, interfering with scene of the offence in order to remove traces or proofs of crime, etc. (d)If he runs away to a foreign country, or goes underground, or beyond the control of his sureties; and (e)If he commits acts of violence, in revenge, against the police and the prosecution witnessed & those who have booked him or are trying to book him. RIGHT TO BAIL AND ARTICLE 21'S RIGHT TO PERSONAL LIBERTY The right to bail is concomitant of the accusatorial system, which favours a bail system that ordinarily enables a person to stay out of jail until a trial has found him/her guilty. In India, bail or release on personal recognizance is available as a right in bailable offences not punishable with death or life imprisonment and only to women and children in non-bailable offences punishable with death or life imprisonment. The right of police to oppose bail, the absence of legal aid for the poor and the right to speedy reduce to vanishing point the classification of offences into bailable and non-bailable and make the prolonged incarceration of the poor inevitable during the pendency of investigation by the police and trial by a court. The fact that under trials formed 80 percent of Bihar's prison population, their period of imprisonment ranging from a dew months to ten years; some cases wherein the period of imprisonment of the under trials exceeded the period of imprisonment prescribed for the offences they were charged with- these appalling outrages were brought before the Supreme Court in Hussainara Khatoon v. State of Bihar AIR 1979 SC 1360 Justice Bhagwati found that these unfortunate under trials languished in prisons not because they were guilty but because they were too poor to afford a bail. In Mantoo Majumdar v. State of Bihar AIR 1980 SC 846 the Apex Court once again upheld the under trials right to personal liberty and ordered the release of the petitioners on their own bond and without sureties as they had spent six years awaiting their trial, in prison. The court deplored the delay in police investigation and the mechanical operation of the remand process by the magistrates insensitive to the personal liberty of the under trials, remanded by them to prison. The Court deplored the delay in police investigation and the mechanical operation of the remand process by the magistrates insensitive to the personal liberty of under trials, and the magistrate failure to monitor the detention of the under trials remanded by them to prison. The travails of illegal detainees languishing in prisons, who were uniformed, or too poor to avail of, their right bail under section 167 Cr.P.C. was further brought to light in letters written to Justice Bhagwati by the Hazaribagh Free Legal Aid Committee in Veena Sethi v. State of Bihar (1982) 2 SCC 583. The court recognized the inequitable operation of the law and condemned it- "The rule of law does not exist merely for those who have the means to fight for their rights and very often for perpetuation of status quo... but it exist also for the poor and the downtrodden... and it is solemn duty of the court to protect and uphold the basic human rights of the weaker section of the society. Thus having discussed various hardships of pre-trial detention caused, due to unaffordability of bail and unawareness of their right to bail, to under trials and as such violation of their right to personal liberty and speedy trial under Article 21 as well as the obligation of the court to ensure such right. It becomes imperative to discuss the right to bail and its nexus to the right of free legal aid to ensure the former under the Constitution- in order to sensitize the rule of law of bail to the demands of the majority of poor and to make human rights of the weaker sections a reality. RIGHT TO BAIL AND RIGHT TO FREE LEGAL AID -: ARTICLES 21 AND 22 READ WITH ARTICLE 39A Article 21 of the Constitution is said to enshrine the most important human rights in criminal jurisprudence. The Supreme Court had for almost 27 years after the enactment of the Constitution taken the view that this Article merely embodied a facet of the Dicey on concept of the rule of law that no one can deprived of his life and personal liberty by the executive action unsupported by law. If there was a law which provided some sort of procedure, it was enough to deprive a person of his life and personal liberty. In the Indian Constitution there is no specifically enumerated constitutional right to legal aid for an accused person. Article 22(1) does provide that no person who is arrested shall be denied the right to consult and to be defended by legal practitioner of his choice, but according to the interpretation placed on this provision by the Supreme Court Janardhan Reddy v. State of Hyderabad, AIR 1951 SC 227. in this provision does not carry with it the right to be provided the services of legal practitioners at state cost. Also Article 39-A introduced in 1976 enacts a mandate that the state shall provide free legal service by suitable legislations or schemes or any other way, to ensure that opportunities for justice are not denied to any citizen by reason of economic or other disabilities - this however remains a Directive Principle of State Policy which while laying down an obligation on the State does not lay down an obligation enforceable in Court of law and does not confer a constitutional right on the accused to secure free legal assistance. However the Supreme Court filled up this constitutional gap through creative judicial interpretation of Article 21 following Maneka Gandhi's case. The Supreme Court held in M.H. Hoskot v. State of Maharashtra a AIR 1978 SC 1548nd Hussainara Khatoon's case that a procedure which does not make legal services available to an accused person who is too poor to afford a lawyer and who would, therefore go through the trial without legal assistance cannot be regarded as reasonable, fair and just. It is essential ingredient of reasonable, fair and just procedure guaranteed under Article 21 that a prisoner who is to seek his liberation through the court process should have legal services made available to him. The right to free legal assistance is an essential element of any reasonable, fair and just procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21. Thus the Supreme Court spelt out the right to legal aid in criminal proceeding within the language of Article 21 and held that this is.... "a constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation and the State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, provided of course the accused person does not object to the provision of such lawyer." Conclusion It is indisputable that an unnecessarily prolonged detention in prison of under trials before being brought to trial is an affront to all civilized norms of human liberty and any meaningful concept of individual liberty which forms the bedrock of a civilized legal system must view with distress patently long periods of imprisonment before persons awaiting trial can receive the attention of the administration of justice. Thus the law of bails must continue to allow for sufficient discretion, in all cases, to prevent a miscarriage of justice and to give way to the humanization of criminal justice system and to sensitize the same to the needs of those who must otherwise be condemned to languish in prisons for no more fault other than their inability to pay for legal counsel to advise them on bail matters or to furnish the bail amount itself. While concluding, it seems desirable to draw attention to the absence of an explicit provision in the Code of Criminal Procedure enabling the release, in appropriate cases, of an under trial prisoner on his bond without sureties and without any monetary obligation. There is urgent need for a clear provision. Undeniably, the thousands of under trial prisoners lodged in Indian prisons today include many who are unable to secure their release before trial because of their inability to produce sufficient financial guarantee for their appearance. Where that is the only reason for their continued incarceration, there may be good ground for complaining of invidious discrimination. The more so under a constitutional system which promises social equality and social justice to all of its citizens. The deprivation of liberty for the reason of financial poverty only is an incongruous element in a society aspiring to the achievement of these constitutional objectives. There are sufficient guarantees for appearance in the host of considerations to which reference has been made earlier and, it seems to me, our law-makers would take an important step-in defence of individual liberty if appropriate provision as made in the statute for non-financial releases. hursday, September 24, 2009 Is PWDVA a disaster or catastrophic ? Dreamland Delusions : The new Domestic Violence Act is wellintentioned but over-ambitious—as if wishful thinking is all that is needed to protect women from all kinds of real and imagined harm. We are likely to see this law make a mockery of itself. MADHU PURNIMA KISHWAR AS IN OUTLOOKINDIA.COM The new Domestic Violence Act (DVA) has made some significant improvements over the existing laws but it is not as if prior to this Act civil laws did not exist to protect women’s rights in the family. Astute and determined lawyers have successfully pleaded and got adequate relief for their female clients under the existing matrimonial, civil and criminal laws as the article by Flavia Agnes demonstrates. But, the tardiness of court procedures and judicial bias often resulted in miscarriage of justice.The biggest shortcoming of this Act is its overweening ambition and lack of sense of proportion. Ordinarily, when handling such deep rooted problems sincere regimes start their interventions with more focused and manageable victimised groups; they set themselves modest goals for dealing with blatant and clear cut cases of abuse and bring those worst offenders to swift justice. For example, they target their laws and welfare measures at those women who have suffered severe physical injuries in their homes and are commonly recognised in their communities as abused wives. But what the framers of this Act have done is to anticipate all possible ways that the law could protect all aggrieved females from any and all sorts of harm and humiliation. At the same time they have put all their faith in all women being essentially good and honest victims while they view the government and the NGO networks as being capable of righting all kinds of wrongs, and in using all the claims of all women to get them justice, without worrying about proof of claims, or the current state of the society and of the government machinery. It is as if the framers of this law live in a Dreamland where wishful thinking is all that is needed to protect women from all kinds of real and imagined harm. In the process we are likely to see this law make a mockery of itself. The Positive Aspects A major plus point of this Act is that it acknowledges domestic violence as a problem in itself rather than keeping it forcibly tied to the pallu of anti dowry laws. The previous law carried an absurd assumption that domestic violence was invariably linked to dowry demands and hence a new and exotic variety of crime called "dowry death" was added to the statute book. Consequently, lawyers, police, and even some women’s organizations encouraged women to register violence cases under the Anti Dowry Act even when there was no basis to the allegations of dowry demands because they felt stringent provisions of the anti dowry law made it easier for them to press charges and get a sympathetic hearing. Thus our courts came to be filled with cases with exaggerated or patently false charges of dowry demand related cruelty, while other dimensions of cruelty got pushed under the carpet. This new law frees women from the need to make bogus dowry related charges in order for their abuse to be taken seriously. This may enable us to know the real face of domestic violence in India and dispel the simplistic notion that dowry is the sole or main cause of violence against women. A major shortcoming of earlier laws against domestic violence was that they assumed women are abused only in their roles as wives and daughters-inlaw. The DVA provides for comprehensive and speedy relief within a set time frame. [See:Provisions For Speedy Relief, linked from below the page]. So far the remedies available to a victim of domestic violence in the civil courts and criminal courts vide Section 498A of the Indian Penal Code (IPC) were limited. They could file for divorce under civil law and or get the abusive spouse arrested and tried for cruelty under Section 498A of the Indian Penal Code. Thus the earlier laws hinged mainly on threatening the use of penal provisions to get the accused arrested and jailed on registration of a complaint in order to negotiate relief with an allegedly abusive spouse. Many women learnt to use the law to arm-twist their husbands to agree to financial settlements before divorce. The new Act moves in the direction of providing positive protection of women’s civil and matrimonial rights, without using the threat of imprisonment under criminal laws as the first step towards seeking redress, as was the case with Section 498A. Under this law, imprisonment comes as a second stage remedy. The law lists out in detail different forms of violence faced by women so that interpretation of what constitutes violence is not left solely to the discretion of the judges. Earlier, victimised women found it hard to get emergency relief unless a very determined lawyer was willing to walk the extra mile and use the skillful techniques described by Flavia Agnes elsewhere. But even in those cases they had to combine legal means with extra-legal ones. Since court proceedings are invariably protracted, the victim had to often live at the mercy of the abuser or walk out of the house. A major shortcoming of earlier laws against domestic violence was that they assumed women are abused only in their roles as wives and daughters-in-law. The new Act takes a more balanced and nuanced view of domestic abuse by including daughters, sisters, mothers, mothersin- law, sisters-in-law and even grandmothers in its purview. As the story of Pratima Singh in this issue, illustrates, a woman can also be brutally victimised by her own father. Many women are also victimised by their sons and daughters-in-law, especially if widowed. Even a single act of commission or omission may constitute domestic violence. This new Act provides for swift, time bound and comprehensive civil remedies for maintenance, right to the matrimonial home, protection against violence as well as custody of children. It would have marked a significant improvement over the earlier civil remedies available to abused women had the framers of this law been more focused, realistic and balanced in their approach. However, it has done very little to allay the fears of all those who have witnessed widespread abuse and misuse of the existing laws against domestic violence. If anything, it has added more reasons for concern and alarm. Beneficiaries of this Law Section 2(a) of the Act enables a woman to seek protection against any adult male family member who has been in a domestic relationship with her. This includes her own father, brother, her husband or male partner as well as his male and female relatives. Thus, a father-in-law, mother-in-law, or even siblings of the husband and other relatives can be proceeded against even if they are not living under the same roof. No budgetary allocation has so far been provided by the Centre to assist states in paying for the It also covers sisters, widows, mothers, daughters, expenses women in relationships of cohabitation, single women, involved in adopted children, etc. The types of offenses that would providing such make fathers or brothers subject to the Act have been comprehensive expanded in ways that make it much easier for the assistance to women to enter a case under PWDVA. While this marks women. an improvement, it has the potential to create very conflicting situations. For example, what if a mother-inlaw alleges abuse by her daughter-in-law who in turn seeks an injunction against her mother-in-law? Given that battles between women in the family tend to be no less ferocious than those between spouses, this is not an unlikely scenario. Under this law children can also file a case against a parent or parents who are tormenting or torturing them physically, mentally, or economically. In case the child is not in a position to approach the court on his/her own, "any other person" can file a complaint on behalf of the child. The law does not specify that a person has to be closely related or well known to the child in order to qualify for filing a complaint on the child’s behalf. However, men are not entitled to seek relief under this Act, which is based on the assumption that only women and children suffer domestic abuse. Thus an old father-in law who may suffer abuse, taunts and even violence at the hands of his son or daughter-in-law cannot get relief under this law while a mother-in law supposedly can. State governments who are usually cash starved would find good reason to delay forever the setting up of this machinery Definition of Abuse Section 3 of the law defines "domestic violence" as any act/ conduct/omission/commission that harms or injures or has the potential to harm or injure a woman or child. This law considers physical, sexual, emotional, verbal, psychological, and economic abuse or threats of violence and abuse as equally serious offences. The law lists out in detail different forms of violence faced by women so that interpretation of what constitutes violence is not left solely to the discretion of the judges. Even a single act of commission or omission may constitute domestic violence. This has been done with the intention that women should not be required to suffer a prolonged period of abuse before the law takes them seriously. The court may conclude that an offence has been committed by the accused upon the sole testimony of the woman alleging abuse. Given that lying in court has never been taken seriously enough to invoke punishment, laws which presume guilt even before the trial has begun are prone to great misuse. Physical Abuse is defined as any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health, or an act that impairs the health or development of the person aggrieved, or that includes assault, criminal intimidation and criminal force. Sexual Abuse is any "conduct of a sexual nature that abuses, humiliates, degrades, or otherwise violates the dignity of woman." The law also covers instances where a woman is forced to have sexual intercourse with her husband against her will. While it is important to respect a women’s right to say ‘No’ to sex even in a marriage, it is not easy to assess whether a particular sexual act is against a woman’s will or was with her consent, in case of married couples especially if there are no signs of struggle or resistance on the woman’s body. Verbal and Emotional Abuse have been defined as "insults, ridicule, humiliation, name-calling,especially with regard to not having a child or a male child and; repeated threats to cause physical pain to any person in whom the aggrieved person is interested." So, for example, if the abuser were to threaten the children, or relatives of the woman, this will also be considered an offence under this law. The new law has cast its net so wide that it leaves enormous scope for flimsy claims with a view to harassment and blackmail. However, putting verbal taunts or abuse at par with physical violence amounts to very shoddy thinking. For example, calling someone a "moron" cannot be treated at par with beating up a woman. Economic Abuse: Even under existing laws, a woman is entitled to seek maintenance for herself and her children from her husband. However, under the new law, economic deprivation or denial of financial resources to which the aggrieved woman or child is entitled under law or custom, or which the person aggrieved requires out of necessity, now falls under the category of economic abuse. The habitation rights of livein partners in the same house in case of already married men cannot be protected under this law without serious damage to the rights of legally married wives and their children. A husband would be held guilty of economic abuse if he were to sell or use her stridhan (dowry), her jewelry and/or any other property jointly or separately held by the wife. But the law does not specify what happens if a certain asset has been alienated with the written consent of the wife but later she makes a case that it was done against her will. Most important of all, under this provision a man cannot dispose of household assets, nor can he alienate her assets, nor for that matter any other property, in which the aggrieved person has an interest or entitlement by virtue of the domestic relationship. Even a recent live-in partner can prevent a man from selling his own property for his business requirements. This clause too is likely to cause havoc, unless used judiciously. Live-In Relationships The most important new element in this law is that it recognises live-in relationships and offers the same degree of protection to a woman who is living with a man without marriage. According to section 2(g), any relationship between two persons who live, or have at any point of time lived together in a shared household when they are related by marriage, consanguinity, or through a relationship similar to marriage, or are family members living in a joint family, is considered a "domestic relationship". It also protects women in fraudulent or bigamous marriages, or in marriages considered invalid by law. However, the law does not make explicit whether it also applies to same sex marriages or gay relationships. The wide ranging definition of "domestic relationship" may bring the needed relief for those women whose husbands dupe them into cohabitation without going through proper ceremonies and then dump them at will on the grounds that theirs was not a valid marriage. But it has cast its net so wide that it leaves enormous scope for flimsy claims with a view to harassment and blackmail. The Act does not specify how long a couple has Family Courts have failed to deliver because the Government did not allow them the space and resources to function well. to have lived in the shared household in order for a woman to claim benefit under the Act. Thus, as per the letter of this law, a woman who may have lived with a man for two or three months without being married to him can at any point seek relief under this law at par with a legally wedded wife. This amounts to making a mockery of laws against bigamy. The habitation rights of livein partners in the same house in case of already married men cannot be protected in this way without serious damage to the rights of legally married wives and their children. It is perfectly legitimate to protect a woman from violence and punish a man for inflicting it on her, whether or not she is married to the man. However, to give her the right to claim maintenance and get injunctions barring her male partners’ entry into his own house is going a bit too far, especially if he already has a wife and children living in that house. No Eviction or Harassment An important addition to the law ensures that an aggrieved wife or partner who takes recourse to the law, and gets a "protection order" or an injunction barring the entry of the husband into the house, cannot be harassed for doing so. Thus, if a man is accused of any of the above forms of violence, he cannot, during the pending disposal of the case prohibit/ restrict the wife’s or partner’s continued access to resources or facilities to which she is entitled by virtue of the domestic relationship, including access to the shared household. If he does so he invites a fine of Rs 20,000 and/or a jail term of up to one year. Section 17 of the law, which gives all married women or female partners in a domestic relationship the right to reside in a home that is known in legal terms as the ‘shared household’, applies whether or not she has any legal right, title or beneficial interest in the same. Sections 18-23 provide a large number of avenues for an abused woman to get relief. Courts are obliged to give her Protection Orders, Residence Orders, Monetary Relief, custody of her children, Compensation Order and Interim/ ex parte Orders. The law provides that if an abused woman so desires, she has to be provided alternative accommodation comparable to the standard of living she is used to and in such situations. The cost of the accommodation and her maintenance has to be paid for by her husband or partner. Thus there is provision for rapid temporary rights for the woman pending disposal of the case. This makes perfect sense as far as wives are concerned. But to put the same weapons in the hands of a temporary live-in partner amounts to letting our notion of gender justice run haywire. In effect it means that a man has no right to break off a love affair without paying through his nose. A woman who is the victim of domestic violence will have the right to the services of the police, shelter homes and medical establishments. She also has the right to simultaneously file her own complaint under the existing laws against domestic violence, such as Section 498A of the Indian Penal Code. Thus, an accused person will be liable to have charges framed against him under both the old law and the new one. Further, the offences are cognisable and non-bailable. No Safeguards against Abuse of Law It is unfortunate that despite widespread complaints of misuse of earlier laws the new Act pays scant attention to building safeguards against malafide use of 498A and the anti-dowry laws. All it has done is to pile on more provisions with similar potential for abuses. Section 498A of IPC enacted in 1983 defined "cruelty by husband or relatives of husband" as a new cognizable offence. As in the new DVA, under Section 498A too, cruelty was given a very wide ranging definition to include violence that leads to bodily harm, or danger to life, limb or physical health, but also includes endangerment of mental health, harassment and emotional torture through verbal abuse. In addition, Section 498A made it obligatory for the police to take prompt action and arrest all those named by a woman alleging cruelty by her husband and in laws. The bail in such cases could be opposed and delayed. Thus in many cases those accused of "cruelty" to wives or daughters-in-law got punished even before the trial actually began. Given the corrupt and lawless ways of police, this provision came to be misused and abused widely by the police to extract bribes as well as by unscrupulous women and their lawyers to blackmail the groom’s family even on trumped up charges. Manushi has dealt with numerous cases whereby innocent men and their families have been devastated by unscrupulous wives and daughters-in- law. It is not just men but even a lot of women, who have suffered the consequences of irresponsible use of Section 498A, believe that it is extremely one sided and an instrument of blackmail rather than of securing justice. On the other hand many genuine victims of violence hesitate to seek legal redress under 498A because it would mean getting their husbands and in laws sent behind bars. While many kids may support their abused mother in seeking divorce, most do not support their mothers in getting their fathers sent to jail even if they have personally been victims of abuse because having a father convicted and sent to jail mars and stigmatises the life of children as well (See my article: "Underused and Abused: Laws against Domestic Violence" in issue No. 120 also available on the Manushi website). So deep is the reaction against this easy-to-manipulate-law that in recent years senior police officers, including women officers in-charge of Crime Against Women Cells (CAWCs), have let it be known to those handling such cases to go slow on booking cases under 498A. This means even genuine cases of abuse end up being viewed with mistrust. Implementation Machinery Section 8 of the law provides for the creation, and stipulates the responsibilities of Protection Officers (POs). These officers, to be appointed by state governments, will be under the jurisdiction and control of the court, and will be responsible to the court for monitoring the cases of domestic abuse. The PO has to assist the court in making a Domestic Incident Report (DIR) or an application for a Protection Order on behalf of the aggrieved woman and/or child. POs will ensure that aggrieved people are provided legal aid, medical services, safe shelter and other required assistance. POs are supposed to ensure that necessary information regarding Service Providers is made available to the woman or child alleging violence and that orders for monetary relief are complied with. Most important of all, the PO can be penalised for failing/ refusing to discharge his/her duty, provided that prior sanction of the state government is obtained for this purpose. They invite a penalty of Rs 20,000 and/or a prison term of up to one year for failing to do their job. Service Providers POs have been given the power to register Service Providers who are defined by the law as private organisations, which are recognised under the Companies Act or Societies Registration Act. They will have to register with the state government in order to qualify as Service Providers. An organisation can be registered as a SP if it has provided services to women in distress for at least two years prior to seeking registration under Section 10 (1) of the DVA. In addition, Magistrates who are to hear cases under DVA are empowered to appoint counselors under Section 14 (1) of the Act who are to assist the petitioner and report to the Magistrate’s Court. The new law, thus, recognises the role of voluntary organisations in addressing the issue of domestic violence and enables NGOs working for women’s rights to register as Service Providers under the Act. A Service Provider is protected for all actions done in good faith, in the exercise of the powers under this Act, towards the prevention of commission of domestic violence. The Service Providers will, among other things, have to record the Domestic Incident Report, arrange for medical examination of the complainant, ensure that she is provided accommodation in a shelter home, if she so requires. Unrealistic Expectations How many NGOs even in metropolises, leave alone small towns and villages, have the resources and capacity to provide such comprehensive services? Genuine shelter homes do not exist in most cities leave alone in rural areas. The few government run shelter homes that exist are often dens of corruption. Also, there is no provision for reimbursing the NGOs for providing these services. Thus the responsibility for making this law work has been put on a non-existent machinery. The speed with which bogus and corrupt NGOs have come up in India, it is not unreasonable to fear that a whole range of goons and anti social elements will manage to register themselves as Service Providers much faster than genuine NGOs. No budgetary allocation has so far been provided by the Centre to assist states in paying for the expenses involved in providing such comprehensive assistance to women. To insert a state level government official, a PO, into the machinery without considering the financial burden put on the states is likely to lead to grief. Chances are that in most states, this function is likely to be added to the existing job responsibilities of government officials already on the ground without figuring out if they can handle the burden of their new job along with their other tasks. Alternatively, state governments who are usually cash starved would find good reason to delay forever the setting up of this machinery. Some state governments have already refused to operationlise the Act on the ground that Protection Officers have not been appointed yet. If such comprehensive services were indeed available to the DV victim as a consequence of her complaint, and these same services are difficult to obtain otherwise because of their scarcity, what would prevent poor women from filing false charges simply to avail shelter, medical help and financial support? Giving Exaggerated Hopes? This Act raises several new problems, repeats some of the mistakes of the old laws and raises many unresolved questions. The "Rules" that define the institutional framework for the new Act came into force with effect from October 26, 2006 — a full year after the DVA was added to the statute book. This delay is itself instructive and points out that the new law may remain a paper tiger or used haphazardly since the elaborate countrywide machinery mandated under the DVA is nowhere in sight. The enactment of the new DVA is an open admission that the existing provisions of law against violence are a failure. If such a strong law as Section 498A proved ineffective or came to be misused widely, why should we expect that the new law will act as a magic wand to be used honestly against genuine offenders? As a supportive measure for 498A, provisions were made for the creation of Crimes Against Women Cells in every police district. They are in principle supposed to do what POs have been assigned to do in the new Act. The performance of the CAWCs depends largely on the level of commitment and sensitivity of the person heading a particular Cell. Given that their personnel are drawn from the normal police cadre CAWCs functioned as well or as badly as their parent body. In many places they have not afforded protection to women even against the most blatant and devastating forms of domestic violence. Why should we expect that the new officials would be correctly chosen, well trained, and made to do an honest job for victims of domestic violence? What is to be the role of CAWCs after the creation of new machinery as envisaged by the new Act? Will they be folded up or will they exist as a parallel system? The state governments have been given a year to work out these problems; little is known of their preparations for implementation of the Act. The Family Courts Act of 1984 was enacted with the purpose of providing civil remedies for domestic disputes and a more conducive atmosphere for the settlement of marital conflicts. They had the following provisions : The jurisdiction for claiming maintenance was shifted from the Magistrate’s court to de-link matrimonial matters from those which deal with ordinary criminal cases like thefts, kidnapping and pickpocketing. Counselling of couples as a first step to see if their differences could be settled through negotiation and neutral but womanfriendly mediation rather than take them straight for legal remedies which have adversarial processes inbuilt into them. Reduce the role of lawyers who tend to complicate matters by dragging out cases for their personal benefit, and cut down litigation costs by allowing petitioners to argue their case in person. Club together divorce and maintenance proceedings and bring them under one roof so that women need not have to fight parallel battles in different courts for different types of relief. Family Courts have failed to deliver because the Government did not allow them the space and resources to function well. It is noteworthy that during the more than two decades since the law was passed, 18 states and union territories (including Delhi) have still failed to set up Family Courts. Lawyers in many states have succeeded in stalling these institutions because matrimonial disputes have become a very lucrative business. They lose business if litigants can manage without them, as envisaged by the Family Courts Act. Where Family Courts exist they function poorly because the government has not provided enough resources for the required infrastructure. Nor have the costs of litigation come down. The system of counselling has also remained at best a mere formality and at worst turned into a system that forces women to accept unfavourable settlements because no serious effort has been made to train and orient the required number of social workers to support women claimants. If skilled and professional family counsellors in adequate numbers were not appointed to assist Family Courts, why do we assume that the Government will somehow manage to get Protection Officers of the required calibre and commitment with the passing of DVA? DVA in a way amounts to a step backwards because the cases will be tried in a Magistrate’s Court along with petty criminal cases whereas Family Courts are presided over by District and Sessions judges who are higher in status than Magistrates. Will the Family Courts exist as a parallel and competing institution after the coming into force of the DVA? Or will they be allowed to languish even further now that the government is required to set up a whole new machinery? Can the new DVA be operationalised if state governments fail or refuse to set up the required machinery, as happened with the Family Courts? Guns without Trained Soldiers Though a product of good intentions, this Act is likely to open the floodgates of messy litigation even further because it is too pompous and ambitious. Furthermore, it has not has not provided any deterrents for litigants, lawyers and police found misusing the law with bogus allegations. Nor does it provide compensation for families who are falsely implicated and suffer the ignominy of arrests and jail terms under Section 498A without deserving to do so. Laws are akin to weapons. Just as the best of guns cannot help win a war if the soldiers in whose hands they are placed are ill trained, irresponsible, cowardly and prone to mindless violence. Similarly, without an honest, efficient and accountable law enforcement machinery, even the best of laws become useless. In India we have not yet learnt to craft our laws judiciously because we have no experience of their honest implementation. And yet, every time a law shows signs of dismal failure, the Government responds by passing yet another new law or amending the existing law to make it more stringent and/or more wideranging, and then pretending it has handed over a new magic wand for the empowerment of women. In the process, the government makes a mockery of its own intentions as well as its ability to deliver justice. Unless the task of introducing far reaching police and judicial reforms is undertaken with urgency, attempts at new legislation are not likely to yield much good. You might also like: Most Asked Questions - court procedure/terms. 498a Arrest - New Amendment Interpretation/Directions by UP HC Why women can be included in PWDVA complaint ? According to madurai bench of Madras HC. Right to Bail In India Dowry Prohibition Act - All details - Statement of Objects and Reasons, Amendments of various States. LinkWithin Posted by Amicus Curiae at 12:26 AM Labels: 498 procedure, Dowry, DVA, IPC 498A, PWDVA 0 comments: Post a Comment the B* back. Friday, August 7, 2009 Women as Respondents ? Among all the states, in only Delhi and Assam, the courts were dismissing applications against women respondents. In Delhi, in 7.3 percent of all the orders examined, female respondents were deleted from the array of respondents. The Delhi High Court, in Varsha Kapoor v. UOI, WP (Crl.) No. 638 of 2010 (discussed in Chapter 7) has held that the PWDVA allows for female respondents. Since this settles the law in Delhi, the lower courts should not delete women as respondents in the coming years. In Assam also, female respondents were deleted from the array of respondents and the courts there are relying upon Ajay Kant v. Alka Sharma, 2007 (4) RCR (Cri) 930. The lower courts and high courts across the country differ on this issue. The Madhya Pradesh HC has held that complaint can be filed and proceedings can be initiated against adult male persons only under DV Act. In one case, the Andhra Pradesh High Court has taken similar view that women cannot be made respondents, but in another case a division bench of the same high court took a different stand. The division bench in AP High Court on June 2 this year concluded that the complainant under DV Act has to be a woman and if she is a wife, the female relatives of husband can be named as respondents. Thus, DV Act does not exclude women completely. ************ Women can also be included in PWDVA complaint. The act is made only for wives and living partner of husbands. http://judis.%20nic.in/chennai/%20qrydisp.asp? BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED: 28/04/2009 CORAMTHE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAHCrl.O.P.(MD) No.11066 of 2008andM.P.(MD)No.1 of 20091.K.Kamala2.K.Pasungili3.C.Vasantharaja ... PetitionersVs.1.M.Parimala2.The District Social Welfare Office cum The District Dowry Prohibition Officer, Dindigul. ... Respondents PRAYERPetition filed under Section 482 of the Code of Criminal Procedurepraying to call for the records relating to the impugned order in C.C.No.465 of2008 on the file of the learned Judicial Magistrate No.II, Dindigul, and toquash the same. !For Petitioners ... Mr.Veera Kathiravan^For Respondents ... Mr.R.R.Kannan for R1 Mr.L.Murugan for R2 Govt. Advocate (Crl.Side): ORDER This petition has been filed by the petitioners seeking to quash the cognizance order passed by the learned Judicial Magistrate No.II, Dindigul, inC.C.No.465 of 2008 as illegal and abuse of process of law and misuse of provisions of the Protection of Women from Domestic Violence Act, 2005 (hereinafter called as 'Act'). 2. The brief facts of the case are as follows:The first petitioner is the mother-in-law, the second petitioner is thesister-in-law and the third petitioner is the husband of the sister-in-law ofthe first respondent. The first respondent preferred a complaint against thepetitioners under the said Act. The allegation against the first petitioner/mother- in-law is that she wrote a letter to the Secretary, L.I.C.Employees Association, Dindigul, where the first respondent is working and asecond letter to the Public Relation Officer, Deputy Commercial Tax OfficerIV,Commercial Tax Office, Dindigul, where the first respondent's husband is working, with some allegations against the petitioner, under the guise of seeking for certain informations. The only allegation as against the petitioners 2 and 3 is that the 2nd petitioner/sister- in-law had written complaint where the first petitioner/mother- in-law had put her signature. Further, on 09.05.2008 the petitioners 2 and 3 were attacked the first respondent and based on which, a complaint has been given and based on thecomplaint a case has been registered in 128 of 2008 which is pending on the fileof the Police. Further, the first respondent claimed compensation of Rs.10lakhs under the Act. The learned Judicial Magistrate concerned has also taken cognizance of the same, as if the complainant is entitled for compensation. The offence said to have committed by the petitioners are under Sections 18, 20,21, 22 and 23 of the Act. Based on the complaint, the 2nd respondent has forwarded it to the trial court for prosecution and a criminal case was registered in C.C.No.465 of 2008 on the file of the learned Judicial MagistrateNo.II, Dindigul and they were arrayed as respondents/ accused. The learned Judicial Magistrate No.II, Dindigul has taken cognizance and issued summons in the said complaint. Challenging the same, the petitioners have come forward with the present Criminal Original Petition for the relief as stated supra. 3. Heard Mr.Veera Kathiravan, learned counsel appearing for the petitioner and Mr.R.R.Kannan, learned counsel appearing for the first respondent and Mr.L.Murugan, learned Government Advocate(Crl. Side) appearing for the secondrespondent. 4. The learned counsel for the petitioner would submit in his argumentthat the petition given by the first respondent against the petitioners herein,who are the mother-in-law, sister-in-law and husband of the sister-in-law of thefirst respondent, was without any verification to be submitted by the protectionOfficer before the learned Judicial Magistrate No.II, Dindigul and the same was taken cognizance and summons were issued in contravention of the provisions ofthe Act and therefore, the order of cognizance passed by the learned JudicialMagistrate No.II, Dindigul, in C.C.No.465 of 2008 has to be quashed. 5. The learned counsel for the petitioners would further submit in hisargument that the first respondent's husband was not included as respondent andtherefore, it cannot be said that the petitioners are liable to be proceeded under the provisions of the said Act. The said inclusion of female members, asthe relatives of the husband, as respondents, is not sustainable under Section2(q) of the Act. He would further submit that the allegations said to have been made against the petitioners in Form-I under the Act, are not adequate, to take cognizance and on the face of it, the offence against the petitioners pertaining to the 3 days' cause of action viz., 26.04.2008, 30.04.2008 and 09.05.2008 are not sustainable and admittedly, on 09.05.2008, a complaint has been alreadylodged before the Police, North Police Station, Dindgul Town, Dindigul, and thePolice have also given the receipt in C.S.R.No.128 of 2008. Now, the very samecause of action, has been repeated here and it would amount to 'double jeopardy'against the petitioners. 6. The learned counsel would further submit that the allegations as against the 2nd and 3rd petitioners in the said complaint would be that they helped the first petitioner to write the petition against the first respondent on 26.04.2008 and another petition against the husband of the first respondent on 30.04.2008 to their respective offices. He would state that no material has been produced for the purpose of incriminating the 2nd and 3rd petitioners andmerely because they are living with the first petitioner, it cannot be said thatthey have instigated the first petitioner to write so. Moreover, he would alsosubmit that the dispute between the first petitioner and her son namely, thehusband of the first respondent and another younger son, in respect of theproperty, bequeathed by her husband in her favour for enjoying the property tillher lifetime and the vested remainder to the sons. The first petitioner is inpossession of the said property, situated in Salem, in pursuance of her lifeinterest, the first respondent wanted her to get out of the property and immediately she caused disturbances by harassing the first petitioner by givingthis complaint. He would further submit that the allegations in the letterdated 26.04.2008, written by the first petitioner to the Secretary, L.I.C.Employees Association might not have been disclosed to the first respondent forwarranting a cause of action. For this, an enquiry has to be conducted by theL.I.C. Employees Association, where the first respondent is working andtherefore, there could not be any mental stress or domestic violence as told bythe first respondent in the petition. 7. He would further submit that the letter dated 30.04.2008 written by thefirst petitioner seeking for information about the particulars of the employmentof her son from his employer, and her son was not in any way prejudiced by thefirst petitioner and absolutely there was no cause of action for the aggrievedperson. If any stress is emanating out of the letter dated 30.04.2008, it wouldbe the first petitioner's son and the second cause of action is also notsustainable both in law and on facts. Without following of the legal formalities, the learned Judicial Magistrate No.II, Dindigul, has taken the complaint on file, which has to be quashed. 8. The learned counsel for the first respondent would submit in hisargument that after taking cognizance of the complaint, about 39 hearings havepassed and the petitioners have appeared for 5 hearings only and now, they havecome forward with this case at the belated stage only. He would further submitthat the petitioners are certainly attracted under the definition of 'domesticrelationship' as per Section 2(f) of the said Act and the first respondent isentitled to give such a complaint against the petitioners, who are defined as'respondents' , as per Section 2(q) of the said Act and this petition has beenfiled only for prolonging the case so as to defeat the provisions of Section12(5) of the Act, regarding the disposal of the case made under Sub-Section (1)within a period of 60 days from the date of taking cognizance. Therefore, herequests the Court to dismiss the petition as not sustainable. 9. The learned Government Advocate (Criminal Side) would reiterate theargument of the first respondent and he would also submit that the ProtectionOfficer has promptly filed the application in time and it has been takencognizance and there is no infirmity in the order passed by the learned JudicialMagistrate No.II, Dindigul in taking cognizance of the case and therefore, thepetition may be dismissed. 10. I have carefully considered the submissions made on either side. 11. The foremost contention of the petitioners would be that theimplication of the petitioners, as respondents in C.C.No.465 of 2008 on the file of the learned Judicial Magistrate No.II, Dindigul, cannot be sustained as female relatives of the husband are not attracted under the definition of therespondents under Section 2(q) of the said Act. For the better understanding themeaning of the term 'respondent' , we have to extract the said provision itself.Section 2(q) runs as follows:"(q)"respondent" means any adult male person who is, or has been, in a domesticrelationship with the aggrieved person and against whom the aggrieved person hassought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner;" 12. According to the main part of the said Section, the respondent in anycase means any adult male person who must be in a domestic relationship with theaggrieved person. However, the proviso to Section 2(q) of the said Act, wouldgo to show that an aggrieved wife or a female partner may also file a complaint against a relative of husband or male partner. Whether the term 'a relative'will spread its ambit to attract the petitioners, who are the female relatives of the husband, is a question to be decided. No doubt, the first petitioner is the mother and the second petitioner is the sister and the 3rd petitioner is thebother-in-law of the husband of the first respondent. Therefore, a relative ina 'domestic relationship' , shall be the 'respondent' in a case. The definitionof domestic relationship under Section 2(f) runs as follows:"(f)"domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;" 13. According to the said Section, two persons should live at any point oftime together in a shared household, when they are related by consanguinity,marriage or through a relationship in the nature of marriage, adoption or asmembers of the joint family. This domestic relationship qualification is given to a relative member of her husband, to be impleaded as 'respondent' . Accordingto the petitioners they are not attracted by the said provisions.The insistence of the learned counsel for the petitioners would be that when the term 'respondent' is defined with a qualification as to be an adult male person inthe Section, the reference "a relative" should also be a male relative of thehusband or male partner and therefore, the case against the 1st and 2ndpetitioners, who are the female members, cannot be sustained. For the purpose of determining as to whether a female relative of the husband cannot be arespondent in view of the mentioning of any adult male person in the Section,and therefore it would also apply to the proviso of 2(q), we have to necessarily to apply our mind to find the intention of the legislation, from the Statement of Objects and Reasons for enactment of this Act. In the sub Section(i) of the 4th paragraph of the Statement of Objects and Reasons, it has beencategorically mentioned as follows:"4.The Bill, Inter alia, seeks to provide for the following: (i) It covers those women who are or have been in a relationship with the abuser where both parties have lived together in a shared household and are related by consanguinity, marriage or through a relationship in the nature of marriage oradoption. In addition, relationships with family members living together as ajoint family are also included. Even those women who are sisters, widows,mothers, single women, or living with the abuser are entitled to legal protection under the proposed legislation. However, whereas the Bill enables the wife or the female living in a relationship in the nature of marriage to file a complaint under the proposed enactment against any relative of the husband or the male partner, it does not enable any female relative of the husband or the make partner to file a complaint against the wife or the female partner." 14. The objects and reasons would categorically show that the aggrieved wife or female partner can file a complaint against any relative of the husband or male partner. Thus it helps us to understand the word 'a relative' mentioned in the proviso to section 2(q), could be construed as any relative. Will the words any relative include both female and male relatives? is an importantquestion to be decided at this juncture. According to 'Concise Oxford EnglishDictionary - Eleventh Edition', "any" means, to refer to one or some of a thingor number of things, and it does not matter how much or how many. As regards,the meaning of 'any', it does not restrict to a singular and a particular category, it applies to all categories or classes of persons. In thisbackground, when we approach the object and reasons, it has been categorically mentioned that the bill was prepared to enable the wife or the female partner living in a relationship in the nature of marriage to file a complaint under theproposed enactment against any relative of the husband or the male partner, eventhough, it does not enable any female relative of the husband or of the malepartner to file a complaint against the wife or the female partner. Therefore,the Act has been enacted to protect the wife or the female partner, who is living with her husband or a male partner in a relationship in the nature of marriage from the harassment or violence emanated from any of the relative ofher husband or male partner living in a including the adult female persons of the family. The benefits and protection relationship in the nature of marriage, given under this Act is not available to other female members of the family.Therefore, the meaning given in the proviso of Section 2(q) would be against any relative of the husband or male partner which includes, the petitioners 1&2 being the adult female persons as per the allegations made by the firstrespondent. 15. As regards, the maintainability of the allegations, we have to see the ingredients of the complaint made by the first respondent against the petitioners as 'respondents' in the said case which is pending before the courtbelow. The allegations against the 2nd and 3rd petitioners would be that theyhelped the first petitioner to write and send a petition to the Secretary,L.I.C. Employees Association, where the first respondent is working and to thePublic Relation Officer, Deputy Commercial Tax Officer-IV, Commercial TaxOffice, Dindigul, where the first respondent's husband is working. Except thesaid allegations, nothing was mentioned against the petitioners in respect ofcause of action dated 26.04.2008 and 30.04.2008. 16. On 26.04.2008, the first petitioner was stated to have written acomplaint to the Secretary, L.I.C.Employees Association, Dindigul Branch I, 45,New Agraharam, Palani Road, Dindigul. Similarly, on 30.04.2008, the firstpetitioner is said to have sent a letter seeking for information under the Rightto Information Act, to the Public Relation Officer, Deputy Commercial TaxOfficer-IV, Dindigul. These letters were signed by the first petitioner only.Either the letters were neither signed nor attested by the second and thirdpetitioners or nothing is available to show that both the letters were preparedby the 2nd and 3rd petitioners. 17. In the aforesaid circumstances, it cannot be said that there is aprima facie case against the petitioners 2 and 3 in respect of the cause ofaction dated 26.04.2008 and 30.04.2008. 18. So far as the second cause of action dated 30.04.2008 is concerned, itwas a letter alleged to have been written by the first petitioner to the PublicRelation Officer, Deputy Commercial Tax Officer-IV, Dindigul seeking for certaininformation from the said office regarding the employment of the firstpetitioner's son. The allegations in the said letter is in respect of the firstpetitioner's son's employment and he is a male member and the first respondentis in no way aggrieved as it was not addressed to her office. Moreover, the sonof the first petitioner, who is the husband of the first respondent, is theaggrieved person and not the first respondent. The said letter would in any wayaffect or harm the first respondent to give a complaint against the petitionersunder the provisions of the said Act. 19. Regarding the third cause of action dated 09.05.2008, it has beencategorically mentioned in the complaint that the petitioners 1 and 2 and twoother persons had come to the office of the first respondent and the secondpetitioner had abused the first respondent, slapped on her cheek and twisted herhand. It was also alleged that the first petitioner had criminally intimidatedthe first respondent and for that the first respondent had given a complaint toNorth Town Police Station, Dindigul and she was given with a receipt inC.S.R.No.128 of 2008. It has been also told that the Police is yet to takeaction against the petitioners. It has not been averred by the first respondentthat the Police, North Town Police Station, Dindigul had dropped the action.When the said case is pending for the same cause of action, the complaint givenby the first respondent in the third cause of action is not sustainable. It hasbeen taken cognizance by the learned Judicial Magistrate No.II, Dindigul, whichwould be certainly amounting to 'double jeopardy', as prohibited by theConstitutional Law. Whenever a complaint is given by the Protection Officerbefore the Court, the Court must apply its mind and go through the provisions ofthe special enactment and to take cognizance of the cases, if the allegations are attracting the provisions of the said Act. But, in this case, it is evident that it had abruptly taken the complaint without going through the provisions ofthe said Act. 20. For the foregoing discussion, I am of the considered view that the complaint does not disclose any cause of action against the petitioners 2 and 3 even though they are the relatives of the husband of the aggrieved wife and nocase is made out in all the three causes of action namely, 26.04.2008,30.04.2008 and 09.05.2008. As regards, the first petitioner is concerned, thefirst respondent, who is said to be the aggrieved wife, had chosen to file complaint against the first petitioner being the closest relative of her husband for all the three cause of action. It is found that the cause of action dated 30.04.2008 and 09.05.2008 can not be sustained against the first petitioner. The second cause of action dated 30.04.2008 had pointed out only at the husbandof the first respondent and not against the first respondent. Regarding the third cause of action dated 09.05.2008 already a Police complaint is pending before the Dindigul North Police and the present complaint based on the samecause of action dated 09.05.2008 would be certainly amounting to a 'doublejeopardy'. The cause of action dated 26.04.2008 could alone be taken cognizanceby the court and that too only against the first petitioner. It is alreadyconsidered that an adult female relative of the husband of the aggrieved personmay also be proceeded under the provisions of the Act. For the foregoing discussions, it has become necessary for this Court to quash the entire case against the 2nd and 3rd petitioner and the case in respect of causes of action dated 30.04.2008 and 09.05.2008 against the first petitioner. Accordingly the cognizance taken by the learned Judicial Magistrate No.II, Dindigul, inC.C.No.465 of 2008 has been partially quashed and the learned JudicialMagistrate No.II, Dindigul is competent to proceed against the first petitioneralone in respect of the cause of action dated 26.04.2008 only and nothingelse. 21. The submission of the learned counsel for the petitioner at thisjuncture regarding the claim for compensation of Rs.10 lakhs should have beenreferred to. According to the provisions of the said Act, only the penalty has been envisaged under Section 31 of the Act. Therefore, there is no provision for awarding compensation. 22. According to the provisions of the Act, there is no reference as tothe awarding of compensation. Therefore it is open for the learned JudicialMagistrate No.II, Dindigul, to apply his mind at the time of trial and to pass appropriate orders in accordance with law. 23. With the aforesaid observation, the petition is ordered partially andthe cognizance taken by the learned Judicial Magistrate No.II, Dindigul inC.C.No.465 of 2008 is quashed in respect of the case taken on file against thepetitioners 2 and 3 and in respect of the causes of action namely, 30.04.2008and 09.05.2008 against the first petitioner. The learned Judicial MagistrateNo.II, Dindigul is competent to proceed with the case against the firstpetitioner in respect of the cause of action dated 26.04.2008 alone. Petition isordered accordingly. Consequently, connected M.P. is closed.nbj To1.The District Social Welfare Office cum The District Dowry Prohibition Officer, Dindigul.2.The Judicial Magistrate No.II, Dindigul.[Non-text portions of this message have been removed] You might also like: 498a Arrest - New Amendment Interpretation/Directions by UP HC Is PWDVA a disaster or catastrophic ? Most Asked Questions - court procedure/terms. Right to Bail In India When to file for FIR Quash ? Tuesday, September 22, 2009 When to file for FIR Quash ? INHERENT POWERS OF HIGH COURTS (Quashing of F.I.R): Inherent powers of the High Courts are the powers which are not additional to the powers conferred upon the High Courts. The most important aspect of such power is the Quashing of FIR by the court . Section 482 CrPC talks about the inherent powers of the high courts. This section reproduces section 561-A of the code of 1898 without any change. It does not confer any new powers on the high courts but saves such inherent powers which the court possessed before the enactment of CrPC. Though the jurisdiction exists and is wide in its scope it is a rule of practice that it will only be exercised in exceptional cases. The section was added by the Code of Criminal Procedure(amendment) Act,1923 , as the high courts were unable to render complete justice even if in a given case the illegality was palpable and apparent. The section is a sort of reminder to the high courts that they are not merely courts n law, but also courts of justice and possess inherent powers to remove injustice. The inherent power in the high is an inalienable attribute of the position it holds with respect to the courts subordinate to it. These powers are partly administrative and partly judicial. They are necessarily judicial when they are exercisable with respect to a judicial order and for securing the ends of justice. The expression ‘ends of justice’ is not used to comprise within it any vague or nebulous concept of justice, nor even justice in philosophical sense, but justice according to law, statute law and the common law. Inherent powers are in the nature of etxtraordinary powers available only where no express power is available to the high courts to do a particular thing, and where the express power does not negativate the existence of such inherent power. The jurisdiction under section 482 is discretionary , the high court may refuse to exercise the discretion if a party has not approached it with clean hands. OBJECTIVE: To highlight the use of inherent powers by the high courts under the Code of Criminal Procedure especially for quashing of FIR or criminal complaints before the filing of a chargesheet. SCOPE : The scope of the report is limited only to the quashing of FIR and highlighting some judgements delivered by the Supreme Court and the high courts in this context. As per the scope of this section is concerned , it has a very wide scope. The inherent powers are only with the high courts and no other court can exercise these powers. The high courts are bound to exercise such powers whenever there is injustice done by the court below. Some of the inherent powers of the high courts are: a) b) c) quashing of FIR quashing of complaint quashing of any order passed by the court below in revision etc. In this report we are mainly concerned with quashing of FIR and criminal complaints. MAIN TEXT: 1. Section 482 : It reads as follows : “Saving of inherent power of High Court- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.” The section was added by the Code of Criminal Procedure (Amendment) Act of 1923. The section envisages 3 circumstances in which the inherent jurisdiction may be exercised, namely: 1. To give effect to an order under CrPC, to prevent abuse of the process of the court, to secure the ends of justice. The jurisdiction of the high court is confined to the courts subordinate to it in the state for which the high court has been constituted. An application under section 482 cannot be entertained by any court other than the high court. The inherent jurisdiction possessed by the high court under this section is not confined to cases pending before it, but extends to all the cases which may come to its notice whether in appeal revision or otherwise. Inherent powers under section 482 can be invoked only in the event when there is no other remedy open to the aggrieved party. 2. INHERENT JURISDICTION VESTED IN THE HIGH COURTS : The inherent jurisdiction of the high court preserved under this section is vested in it by law within the meaning of article 21 of the constitution . The procedure for invoking the inherent powers may be regulated by rules which may have been or be framed by the high courts. The power to make such rules is conferred on the high court by the constitution. Where the rules were previously framed, they continue in force by virtue of article 372 of the constitution. 3. HIGH COURT NOT TO FUNCTION AS A COURT OF APPEAL OR REVISION : While exercising powers under section 482 the court does not function as a court of appeal or revision. It also would not enter into the appreciation of evidence (You cannot show 498a evidence or proofs here - It will be done in trial court). Inherent powers are to be very sparingly exercised for compelling reasons, when where there has been any abuse of process of law or any glaring injustice. 4. NO INHERENT POWERS OF SUBORDINATE COURTS : Under CrPC , inherent powers are vested only in the high courts and the courts subordinate to the high courts have no inherent powers. In bindeshwari Prasad singh v kali singh, the supreme court held that a magistrate has no inherent power to restore a complaint dismissed in default. 5. INHERENT POWER NOT TO BE INVOKED IN MATTERS COVERED BY SPECIFIC PROVISIONS : The inherent power of the high court under this section cannot be invoked in regard to matters which are directly covered by specific provisions of CrPC. Eg. the petitioner who has a remedy under s. 397 cannot be permitted to invoke s 482. The powers of high court under this section are indeed very wide . However, they can only be exercised in cases where there is such a palpable want of jurisdiction in the proceedings initiated, as would result in unnecessary harassment and oppression to the accused concerned. The section cannot be invoked to supplant the normal processes and inquiries by a tribunal prescribed in CrPC. 6. WHETHER A PERSON WHO HAS NOT APPLIED UNDER SECTION 482 CAN BE GIVEN RELIEF : When the matter comes before the high court, it can exercise its power under s.482 irrespective of the consideration as to which of the parties has come before it. The high court can give relief even to the other accused who did not file any petition under this section. When the matter is pending before the supreme court and that court has ordered the session judge to issue non bailable warrant for the arrest of the petitioners, the high court cannot exercise its power under this section. 7. WHEN ALTERNATIVE REMEDY AVAILABLE: If an effective alternative remedy is available , the high court will not exercise its powers under this section, specially when the applicant may not have availed of that remedy. The powers of this section are not usually invoked when there is another remedy available. 8. APPRECIATION OF EVIDENCE : In a proceeding under section 482, the high court will not enter into any finding of facts , particularly when the matter has been concluded by concurrent finding of facts of two courts below. When the high court quashed a criminal complaint on consideration of certain documents produced by the petitioner , it was held by the supreme court that the order of the high no prima facie case is made out , based on the complaint and the documents accompanying it, that the court could quash the complaint. court was illegal, as only when the high court comes to a conclusion that VIEW OF THE SUPREME COURT: The Supreme Court has recently ruled that the High Courts can quash an FIR against a person if it did not prima facie disclose any offence. A two judge bench said that ordinarily criminal proceedings instituted against an accused must be tried and taken to logical conclusions under the Criminal Procedure Code (Cr.P.C.) and the High Courts should be reluctant to interfere into the proceedings at an interlocutory stage. "However, if upon the admitted facts and the documents relied upon by the complainant or the prosecution and without weighing or sifting evidence, no case is made out, the criminal proceedings instituted against the accused are required to be dropped or quashed", the bench said. Where the allegations in the FIR or the complaint or the accompanying documents taken at their face value, do not constitute the offence alleged, the person proceeded against in such a frivolous criminal litigation has to be saved, ruled the bench. In the landmark case State of Haryana v. Bhajan Lal ( 1992 Supp.(1) SCC 335) : A two-judge bench of the Supreme Court of India considered in detail the provisions of section 482 and the power of the high court to quash criminal proceedings or FIR. The Supreme Court summarized the legal position by laying the following guidelines to be followed by high courts in exercise of their inherent powers to quash a criminal complaint: 1. The criminal complaint can be quashed when allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, prima facie constitute any offence or make out a case against the accused person. 2. The criminal complaint can be quashed when allegations made in the complaint are so absurd and inherently improbable that on the basis of which no prudent person can ever reach a conclusion that there are sufficient grounds for continuing the proceedings against the accused person. 3. The criminal complaint can be quashed when the allegations made in the complaint and evidence collected in support of the complaint does not disclose the commission of any offence against the accused person. 4. The criminal complaint can be quashed when the complaint is manifestly attended with malafide or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused person and with a view to spite him due to private and personal grudge. 5. The criminal complaint can be quashed when there is an express legal bar under any of the provisions of the CrPC or any other legislation (under which a criminal proceeding is instituted) to the institution and continuance of criminal complaint. Thus, if the high court is convinced that the criminal complaint does not disclose a cognizable offence and the continuation of an investigation is not based on sound foundations and would amount to an abuse of power of the police necessitating interference to secure the ends of justice, the high court will exercise its inherent power to quash the proceedings. In Pepsi Foods Ltd. v. Special Judicial Magistrate (AIR 1998 SC 128) : the Supreme Court of India observed that: “Though the magistrate can discharge the accused at any stage of the trial if he considers the charges to be groundless, this does not mean that the accused cannot approach the High Court under section 482 to have the complaint quashed if the complaint does disclose the commission of a cognizable offence against the accused person. In this case the Supreme Court held that the order of the High Court refusing to quash the complaint on the ground that alternate remedy was available under the CrPC to the accused person was not proper.” However it has been held by the Supreme Court of India in Om Prakash Singh v. State of UP (2004 CrLJ 3567) : That ‘if a complaint discloses the commission of a cognizable offence, it would not be a sound exercise of discretion to quash the criminal complaint’. In Indian Oil Corporation v. NEPC India Ltd. and Others (2006) 6 SCC 736 ) : A petition under section 482 was filed to quash two criminal complaints. The High Court by common judgments allowed the petition and quashed the two complaints. The order was challenged in appeal to Supreme Court of India. While deciding the appeal, the Supreme Court of India laid down following principles: 1. The high courts should not exercise their inherent powers to stifle or scuttle a legitimate prosecution. The power to quash criminal complaints should be used sparingly and with abundant caution. 2. The criminal complaint is not required to verbatim reproduce the legal ingredients of the alleged offence. If the necessary factual foundation is laid in the criminal complaint, merely on the ground that a few ingredients have not been stated in detail, the criminal proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is bereft of even the basic facts which are absolutely necessary for making out the alleged offence. 3. It was held that a given set of facts may make out (a) purely a civil wrong, or (b) purely a criminal offence or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of civil proceedings are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not. View of the High Courts : In Pasupati Banerji v. King (AIR 1950 cal 97) : The court has observed that “In order to attract the provisions of section 182 of the IPC, it must be established that the person gave information to a public servant which he knew or believed to be false and that he intended thereby to cause the public servant to use his lawful power to the injury or annoyance of any person. It is not sufficient that the person had reasons to believe it was false or that he did not believe it to be true; what is necessary that the person must have positive knowledge or belief that it was false.” In state of maharashtra v mohd yusuf noormohammad and others [1990 CrLJ 2106 (bom)] : The high court held that, in the interest of peace, the right of an individual to prosecute his complaint may be curtailed by the high court under section 482. CONCLUSION : So as per the following report we have seen that how the high courts uses its inherent powers and how important it is for the high courts to use these powers. Section 482 has a very wide scope and its really important for the courts to use it properly and wisely. Many a times it has been observed that when there is an issue of money for eg. Any money matter then the petitioner instead of filing a civil suit files an FIR against the other person just to harass him. In such cases it becomes very important for the high courts to quash such complaints as it leads to the abuse of the process of the lower courts. Thus section 482 is very important for acquiring proper justice and to stop the public from filing fictitious complaints just to fulfill there personal grudges. Example: Not sure if people are already aware of this, but DP4 can be quashed in Bihar/ Jharkhand if a prior sanction of state government/ officer appointment by Government has not been taken before initiating process under DP4. This is because of amendment introduced by Bihar Government in 1976 through "Bihar Act 4 of 1976". This is also applicable in Jharkhand because Jharkhand has de facto considered all acts of Bihar after its separation until it passes any new amendment to this effect. Refer below judgement to this effect from Jharkhand highcourt. It also refers to some supreme court judgement which I am not able to trace as of now. If anybody gets a hand on it, please share in the group. http://www.indiankanoon.org/doc/1439411/ So if anyone has DP4 going on against them where above mentioned sanction has not been taken then the person can go for quash of DP4 on this ground. You might also like: Most Asked Questions - court procedure/terms. 498a Arrest - New Amendment Interpretation/Directions by UP HC Is PWDVA a disaster or catastrophic ? Right to Bail In India Why women can be included in PWDVA complaint ? According to madurai bench of Madras HC. the B* back. Friday, January 28, 2011 Now, Warrant must to arrest for offence punishable for less than 7 years. HYDERABAD: Along with the advent of new year, 2011, a strange thing happened in Nampally court in the first week of January. When Hyderabad city police did a routine job of producing a youth in court on charges of petty theft, his lawyer K Surender told the court that the arrest of his client was illegal as it was against the provisions of a newly-amended CrPC Act-2008 that came into force at the end of 2010. The cause he showed for this was that the police did not obtain an arrest warrant from the court prior to the arrest as mandated by the new law. The magistrate verified with the circular available with him that was sent to him by the AP High Court and found that what the counsel said was right and let the accused off then and there itself. On Saturday, when several TV channels began beaming stories about the new law and also certain incorrect notions about the new law, the DGP office issued a press note clarifying that the CrPC Amendment Act had not made any provisions for release of arrested persons on bail. It only stipulated that the police officers have to give sufficient reason while requesting for remand of the arrested persons, the note said, acknowledging the fact that they have to go by the new law now onwards. To put it in simple terms, police cannot straightaway arrest people in offences like cheating, theft, forgery, etc., which are punishable up to seven years of imprisonment only. They have to convince a court and obtain a warrant of arrest to do so. Prior to that they have to issue a notice of appearance before the police to the accused. If the accused fails to comply with the notice, then he is liable for arrest. But then, the police officer has to identify himself clearly and get an arrest memo countersigned by one of the relatives of the accused before making such an arrest. The amended Act also gives several rights to the arrested person like having an opportunity of meeting a lawyer of his choice during interrogation, though not throughout the interrogation. These and many new provisions have been brought into force now. Speaking to TOI on the new law, state public prosecutor Vinod Kumar Deshpande described this Act as a new piece of legislation that prevents illegal detentions. The provisions incorporated in Sections 41 A, 41B, 41C, and 41 D of the Act give relief both to the people and to the police also. Apart from providing several protections to the personal liberty of a citizen, the new law also prevents unwarranted criticism against upright police officers who go strictly by the rule book, the PP said. Moreover, the state has to now set up a police control room in every district and has to display the names of the arrested, the names of those police officials who effected these arrests and the details of the cases, Deshpande said. This new law will also prevent third degree methods because it is now mandatory for the police to get the accused examined by a government doctor immediately after the arrest, he said. This will help the accused in two ways. The doctor's version will carry the date of his arrest and the condition of the body of the accused after the arrest. This way there cannot be any delays in producing the accused in the court, he said. You might also like: 498a Arrest - New Amendment Interpretation/Directions by UP HC During day of arrest & bail proceedings what happens? Most Asked Questions - court procedure/terms. Is PWDVA a disaster or catastrophic ? How women and lawyers negotiate/extort ? LinkWithin Posted by Amicus Curiae at 4:46 AM Labels: 41 D, 41B, 41C, 498A, arrest, Sections 41 A 2 comments: 1. AnonymousJanuary 30, 2011 2:24 AM I think you are not exactly right. Going by the amendment provisions, Magistrate's warrant is a must only where the offence is non-cognizable. For cognizable offences, it is basically left to the police officer's discretion whethere an arrest is necessary or not. It is considered necessary when any of the five grounds stated in clauses 41(1)(b)(ii) 'a' through 'e' exist, otherwise it is considered not necessary. In either case the police officer has to record reasons in writing. I am not sure that, in regard to cognizable offences, it will change the police arrest practices much. If anything, it might spawn more corruption to get the police officer to view the necessity of arrest favorably. Just my view. Kishore Kumar Reply 2. Wonder why women cover their faces on TV - looks so stupid. As if covering their face will get them innocent man and they will live happily ever after when they can't live with one now.February 2, 2011 7:52 AM The reason for the amendment was the large discretionary powers, though not completely erased. If it is read with the arrest precedent by Justice Thomas you get a lethal weapon against the Police if they don't give proper reasons. For the present the Indian Police genius is under test (:-) ) , they will have to cook up several reasons that the courts will accept. If the courts (in Collusion with Police) don't implement in the true spirit, then, your fears might as well become true. If the Police did what they are doing or continuing to do they will certainly face demotion/reduction in rank and penalties --- same as detaining illegally or unlawfully. Ignorantia non excusat. The law is above what you think or what I think or what the police think. It has the force of law and can be diminished only if declared unconstitutional. For time being the courts will keep warning and riding piggy back. Soon, the pig will be difficult to shake off as always. :-) FYI: Your assumption is way off. Previously, Police could arrest only in cognizable cases and certain other distinguished offences(like deserter, habitual offenders, suspicious (Upon relevant info ). They MUST issue notice, hospital check up, lawyer rights read etc etc. Here we are bothered about only IPC 498A. The new amendment says only offences less than 7 years and covers ALL offences whether cognizable or not. They MUST and have to give adequate reasons sufficient to satisfy/convince a court of law to issue arrest warrant - especially for IPC 498A. So you get sometime to apply for AB. It is a death knell to their income source in a big way. Look in the Home Ministry site for free version of amendment. Many interesting things in it. the B* back. Monday, October 19, 2009 How to fight False Allegations ? More often than not, the "X" sees that her case isn't as strong as she thought it would be, so is stooping to making ridiculous and hurtful claims as a legal tactic. This is so incredibly harmful, as it hurts the relationship that completely innocent Fathers have with their children, and the "X's" even hurt their own children in order to gain the 'upper hand'. Many "X's" will exaggerate or downright lie in order to get more child support or limit the child custody as a power play. The courts are favorably disposed toward the "X's" and the "X's" know that and take advantage of it. As I know and many other fathers know all too well, few things will beat a man down more or faster than false allegations. One of the first things that you need to remember is, don't get caught up in trying to prove these false and hurtful allegations which you and your "X" both know aren't true. All you have to do is to simply state that these lies are not true and are very hurtful and then move on. Remember, the 'burden of proof' is on your "X", not you. When she is unable to prove any of the allegations, she will look even more foolish than she already does. If you spend a lot of time and energy trying to prove the allegations to be false, you will look guiltier and like you have something to hide. Spend the minimal amount of time necessary to defend yourself, but don't let your attention be taken away from preparing the rest of your case. This is what your "X" ultimately wants, so don't give it to her! Unfortunately, you cannot control your "X" and what she chooses to say or not say in her pleading. What you can do is focus on the things you can control and spend your time and energy there. You can't completely ignore the allegations, but spend the minimal amount of time necessary addressing them, and then even point out in your paperwork that her case is so weak that she has resorted to out right lying in order to improve her odds. Don't engage with her, and keep your energy where you can do the most good: Make your case as strong as it possibly can be. Protecting Yourself Against Allegations of Abuse Avoid Conflict: In the context of domestic abuse it can be truly said that an ounce of prevention is worth a pound of cure. When there is marital conflict, particularly when a divorce is threatened, it is important to de-escalate any conflict. Remember, what constitutes a "threat of harm" as it relates to domestic abuse is subjective. Something as innocent as blocking a person's egress from a room so that you can "talk about things" may be interpreted as domestic abuse. Hanging up the telephone on a person for the same purpose, may be sufficient to sustain a domestic abuse order. Use Witnesses: When a divorce is threatened, it is always a good idea to have independent witnesses available when events are planned that could possibly result in conflict. Even after a conflict a witness may play a role by observing the environmental condition, whether any obvious injuries were suffered or the demeanor of parties involved. File for a Reciprocal Order: If the allegations of abuse stem from a particular domestic conflict, you may wish to file for a restraining order first. Even if that does not occur, many jurisdictions may allow you to seek an order after the fact resulting in a potential for reciprocal orders. In some jurisdictions the allegations of each petition may be addressed in the same hearing. In others separate hearings are held. Address the Legal Standard: All too often affidavits are filed seeking a restraining order where the allegation, if proven true, do not meet the legal standard for the entry of a restraining order. As a result, knowing the legal standard in your state can be important. Where insufficiencies in the pleadings are exposed, the case can be dismissed without an evidentiary hearing. For example, allegations that a defendant told a third party that he would harm the victim may be insufficient because it is based on hearsay or other unreliable evidence, and that the threat was not directly made or made with the intent that it would create a fear of harm in the victim. Incidents of abuse that occurred long ago are also often insufficient to support a case for domestic abuse if there are not allegations of current harm or instilling a fear of harm. Expose Factual Inconsistencies: Once domestic abuse has been alleged, a primary goal would be to expose inconsistencies in the allegations made. The strongest inconsistency would be having a strong alibi for the time in question. Is there any independent evidence to refute the allegations? Did you make a phone call during the time in question that can be borne out by telephone records or independent witnesses? Do you have any store receipts, cash machine receipts, work time sheet or records that can demonstrate your unavailability at the time of the alleged abuse? Are there any potential witnesses who may have seen bruises or injuries allegedly sustained in a domestic incident, dating to times before the incidents alleged? Expose Documentary Inconsistencies: The more statements a person makes about their allegations of abuse, the greater chance there may be that inconsistencies in their statements will exist. Carefully compare affidavits against police reports or other records that may exist including statements appearing in child protection records or medical treatment reports. Expose Behavioral Inconsistencies: After domestic abuse has been alleged, it may be critical to point out that the victim acted inconsistently from the way a victim would have reacted. How much time elapsed between the alleged incidents of abuse and the complaint filed? Did the victim initiate friendly contact after the abusive incidents that are alleged? Did the victim allow parenting time after the abusive incidents alleged? Did the victim contact the police, parents, friends or any other individuals at the time or shortly after the alleged incident of abuse occurred? Who did the person call after the alleged incidents of abuse occurred? Expose Motivation to Fabricate: Any evidence that an alleged victim had a motive to lie is valuable. The most relevant evidence is independent evidence such as letters, emails or other documentation from the victim threatening a custody battle or implying that they may allege abuse has occurred. Challenge General Allegations: Allegations of abuse can often be rambling and generalized so that no specific dates or times are included. Such allegations may be challenges as too general in nature and insufficient to meet the burden of proving that abuse occurred with a preponderance of the evidence. Object to New Allegations: Many Court will not allow a victim to supplement her initial pleadings with improved allegations at the time of the hearing. This often occurs where the victim's initial allegations were generalized or where she feels that the case is not going well. An objection may be made that the testimony being presented is outside the scope of the original pleadings and, as a result, prejudices the defendant's ability to respond. In many jurisdictions, such testimony may be excluded. Presenting Your Case At a return hearing, the court will hear evidence related to the allegations of abuse. Before that occurs, the Court may ask the defendant if he objects to the entry of the protective order or if he will agree to its entry without any findings that abuse occurred. The petitioner or plaintiff is the person making the allegations of abuse. That person would present their case first by calling their witnesses to testify and presenting any supporting evidence through those witnesses. The respondent or defendant is the person defending against the allegations of abuse. He will have the opportunity to make objections to testimony or evidence that is improperly offered and to cross examine any witnesses that testify including the petitioner. During direct examination, listen for testimony that is not based on personal experience. Such testimony should be objected to as inadmissible hearsay. Key phrases to listen for to identify hearsay statements include: "she said"; "I was told"; "I learned"; "it said." When documents are presented as evidence, listen to the testimony to determine whether there has been any foundation laid for the document presented. "Foundation" means that the witness has testified to establish facts demonstrating that there is a sufficient basis to believe the document is authentic and reliable. If not, you may object to the exhibit as "lacking foundation." A witness may also not testify to the content of a document unless and until it has been offered and accepted by the court as an exhibit. With regard to your cross examination, it is important to prepare an outline of questions for each witness that you will cross examine including the testimony that you intend to illicit. In cross examination, you should focus on exposing inconsistencies in the petitioner's claims including the timing of the events alleged, location where they occurred, persons present, inconsistent behaviors of the victim after the alleged incident, motives for the witness or victim to lie, and inconsistencies with other statements made by the victim. In cross examination, you do not argue with the witness. You will have the chance to present your own version of facts as part of your case in chief. Instead, cross examination questions should be leading and state a particular fact. Or example, instead of asking the open ended questions of "what happened." You should tell the witness what happened. Some examples include: "Isn't it true that you spoke with the victim in preparing for your testimony today?" "In fact, you spoke to her more than once?" "You consider her a friend of yours?" "You would like to see her prevail today, isn't that right?" "Isn't it true that you weren't present at the time the abuse alleged occurred?" "Isn't it true that the only information that you have comes from what the victim told you?" After the petitioner has presented all of her witnesses, the court will afford you the opportunity to present your case. At that time you would call any witnesses testifying on your behalf. You would question those witnesses first. After your questioning is completed, the other party has an opportunity to cross examine them. It is generally not a good idea to call a witness who may be hostile to your position or who have do not know what they will say. You should prepare your witnesses in advance by discussing the potential questions that you will ask each of them and what you believe may be asked by the opposing party on cross examination. Direct examination of your own witnesses is vastly different from cross examination. On direct examination, your witness is the star. You should ask them open ended questions and allow them to explain to the court what occurred in narrative fashion. You cannot lead them. A good question may be as simple as "what happened next?" When presenting evidence such as a photo or a document, you must establish foundation for that record through your witness. Having good documentary evidence is entirely useless, if you cannot have it admitted into evidence. Foundation may be established by demonstrating how and when the record or photo was created and that it is a true and accurate depiction of the statements or images it represents. For example, foundation questions may follow a pattern similar to the example below: "Your honor, may I approach the witness?" (You may have to have the exhibit marked by the clerk if that was not done in advance of the hearing. That means a sticker is placed on the record with a number or letter on it identifying it as "exhibit 1" or "exhibit A"). "Mr. Anand, I am showing you what has been marked as Exhibit 1. Do you recognize this photograph?" "Who took the photograph?" "When was it taken?" "Were you present at that time." "Is it a fair and accurate depiction of the home on that day?" (After foundation has been laid, you publish the photograph by showing it to the opposing party or counsel and move the court for its admission into evidence.) "Your honor, defendant offers Exhibit 1." (Once the exhibit has been accepted into evidence, only then may you question the witness about its contents). After the defendant has called their last witness, they would rest. At that time, the Court may allow the parties to make short closing arguments why they believe the court should or should not enter the protective order. This is a time to summarize the weaknesses in the evidence and to argue that the plaintiff has not met her burden of proof under the statute. After these brief arguments, the Court will issue its ruling. Conclusion: There is no silver bullet to prevent you from being a victim of false allegations of abuse. The threat will continue to exist so long as the present definitions of abuse and legal standards of proof remain in place without additional procedural protections. As a result, it is extremely important to be vigilant for the warning signs that allegations of abuse may be made and, if they are made, being aggressively proactive in contesting them. *********************************** You're probably like most people and think that being accused of something you didn't do by your ex in an attempt to keep you from spending time with your child is unthinkable. Well think again, because it is actually very common to use this as a diversionary tactic. But what could be worse than being falsely accused, how about being falsely accused of more than one thing. That's right, it may not be just a one time deal. You may be accused of several of these things. Now if you want to know the bright side, preparing yourself by familiarizing yourself with the list is your best defense. Here are the 11 most common false allegations: 1. Physical abuse of the child * Hitting, spanking, or otherwise doing bodily harm. 2. Mental abuse of the child * Yelling, profanity, degrading, or otherwise making the child feel badly about themselves (including being with the other parent). 3. Sexual abuse of the child * Inappropriate touching, fondling, play or other inappropriate behavior. 4. Neglect of the child * Leaving the child alone, not caring for the child, leaving the child in an unsafe place. 5. Abandonment of the child * Taking off without the child, leaving the child without letting some know where you are going or if you will return. 6. Physical abuse of the spouse * Laying hands or harmful implements on your ex spouse (harmful for custody if in front of the child). * Actions leading to a Domestic Violence Restraining Order (DV) 7. Mental abuse of the spouse * Yelling, profanity, degrading, or otherwise making the them feel badly about themselves. 8. Financial abuse of the spouse * Withholding or denying payment of expenses including child support, spousal support, or other agreed payments. 9. Drug use * Problems with prescription drugs or controlled substances. 10. Alcohol * Abuse of liquor, including driving while under the influence. 11. Infidelity * Inappropriate relationship with another person that causes problems the child is aware of. Now that you know what you have to look forward to (in a not so good way) here's a bit of good news. If you meet these challenges head on and prove that they are truly false, you my have recourse to use the false allegation against them. If you met these challenges head on and can make a good argument that they are false you can flip it and turn the allegation in your favor. It changes the negative allegation into the positive of the ex not being trustworthy. If they would lie about that, what else would they lie about? The key to proving the allegation is false it simply this. A liar cannot keep a straight story. Since the lie was made to cover one issue, when another rises up the liar won't be able to remember the details well enough to weave them together. Ask the person investigating the lie to challenge it. For example, if Women Cell is called, let them know you are in the middle of a custody battle. This will give them a plausible explanation for the call. It never fails to amaze me at how cruel parents can be with each other when it comes to visitation with their children. During high conflict custody battles it is all too common for emotions to be running high and parents to be focused on hurting each other and using the child to do it. Yes, it is far more common than you might think. But how do you defend yourself against the false allegations of abandonment? First let's look at the circumstances. As it turns out these accusations come about as a result of a hurt parent taking advantage of the caring parent who is putting their child's interests first. The caring parent drops off the child, or allows the hurt parent to pick up the child for visitation. Then the hurt parent tells the caring parent that they will never see their child again and that they will file charges of abandonment. But how does a caring parent fight back? First things first. It is very common in this circumstance for the hurt parent to be abusive. If this is the case file for a restraining order immediately. If you have an existing order you will want to call the police and ask them to enforce it. This will end this episode but you need to document this and go back to court and ask for sanctions if it happens again. If you don't have an order you need to make sure you do your due diligence. You need to make sure you document that you have asked to have the child returned to you at the expected time. Document your phone calls, text messages, and emails. The word routine is very important here. Courts love when children have routines and hate when they don't. A parent who causes the routine to be broken can be in for a tough time in court. After you've made your calls, texts, and emails you need to contact the police and ask them to have the child returned to you for your normal schedule (routine). The police may help you and they may not, but you are establishing a pattern here that will clearly show that you have not abandoned your child. If you don't get the child back then you need to ask the police to do a welfare check. This is a normal activity that they perform for the public. Just explain that you are in a custody battle and you need to know your child is ok. Again, this shows you have not abandoned your child. In the mean time you need to file a motion for an emergency screening. An attorney is preferred but the self-help people at your local family courthouse can help you file the correct paperwork. The court can help you through the process of screening and meditation. Once you have an order in place your life should be much smoother. *************** The child custody process can be long and painful especially if parents are in high conflict. High conflict parents already don't like each other but when they can't agree on who should raise the child, where the child should live and any of the other day-to-day activities of the child then the wheels may come off altogether. When a high conflict parent feels trapped they may resort to lying about the other parents character just to gain the upper hand. But what if you were expecting that? It is far more common than you might imagine that parents find themselves faced with false allegations when going for mediation or evaluation. The two problems it throws up in your way are: It creates a new issue that you must address head-on. It takes your focus off of your agenda and makes you focus on their agenda. But what if you could set yourself up to diffuse the issue as soon as it arose? Wouldn't that keep you focused on your agenda? Of course it would. And wouldn't it be much better if the false allegation came full circle and caused the same problems for the other parent that they attempted to force onto you? Of course it would. While I generally despise people who create problems for others, I have no issue with the problem causer getting a taste of their own medicine. I believe that if you go looking for trouble, don't be surprised when it finds you. Here is the trap. Before you head off to mediation, evaluation, or any other event where issues are discussed, make sure you email the other parent with the concerns you know you both have. Ask for input in how to solve the problems and ask if there are any other issues you missed. Leave out one or two obvious ones that are triggers for them. They get to remind you that you are an idiot that needs to be reminded of the issues and in a perfect world, they could also suggest a solution. This where you get to spring the trap. When you get to mediation or evaluation, the accusation gets made. You pull out the list of issues you agreed on while everything from pencils to the type of toilet paper might be listed, there are no allegations of misconduct on your part. If this is such a big problem why is it not mentioned along with the pencils and toilet paper? The court can figure this out. Now the parent making the allegations is focused on an different agenda. They are left to explain why these allegations were never mentioned. I have no empathy for them. If they had taken your email seriously and offered a solution they wouldn't be in this situation now. ********************* I was recently reminded of how personal an attack can be when a false allegation is made against you. The truly terrifying thing is that there is an air of being guilty until you prove you are innocent. While we grow up with the ideal that a person is innocent until proven guilty, family court is a civil court and has a completely different agenda from its criminal court cousin. The 2 biggest problems you are faced with when being accused of a false allegation are: The element of surprise - not being able to plan for it. The problem of being unable to conclusively disprove a negative So now that you understand what you are up against, let's take a look at the 2 biggest tools you have to work with: The lack of an historical track record of the allegation. The motivation causing the false allegation. The first things you must do when faced with a false allegation are to deny it to the authorities (be it CPS or another agency) and inform them that you are in a high conflict custody battle, and, then put together all the documentation that you can find that shows there is no concern by the other parent of any kind of problem of this nature. You must realize that false allegations are the other parents way of letting you know you are doing far better at custody than they can deal with. They are typically controlling in nature and are attempting to gain control again and stuff all of that anger and pain back into the background where it belongs. After all, if you have control over your own life and part of your child's life, how can they possibly control what you do, where you go, or what you say? This is why historical documentation is so important. You see a controlling person cannot help but leave a trail of everything they have controlled. Emails about minor things like food choices, bath times, clothes, money, the list goes on. But with all of that controlling behavior, there is no mention of the horrible allegation against you. If this is such a horrible problem, why was it not mentioned before the food choices, bath times, or money. Simple, because until it appeared that they would lose control of you there was no immediate need to trigger this emergency response in them. This is a tactic of last resort. Now move beyond reacting personally and emotionally to acting with an intentional purpose. Show the history and that there is no mention of a problem until desperation set in for them. ********************* On the other hand you do have to tools that work in your favor. 1: The complete lack of a documented history. While you probably have loads of email or texts complaining about clothes, food, or something trivial. Where's the major allegations complaints? 2: The motivation driving the allegation. Why resort to false allegations? You must be doing something right. Because it caught you off guard, you were not prepared to deal with it as quickly as you should. Depending on the type of allegation and how it came about, you may find yourself kept from your child, or finding it in court documents that were served on you. Either way it is an unpleasant feeling. If you find yourself talking to a court worker unexpectedly, you should make sure you ask the question, if they know you are in a high conflict custody battle. This in most instances is all they need to hear. If you don't say that and find yourself in much more dire straits, then share some email or texts with the investigator. Then ask the question, if this is such a horrible crime, why is the other parent concerned with daily tasks in their communication with you? Why not address this horrible accusation directly? While you cannot directly disprove a negative, you can point the light and ask why now? Above all, don't panic. This normally means you were doing well and they fear losing control. Keep your cool and ask why now? Why this? Why not before? These cases are painful but they can be won if you ask the right questions. You might also like: Is PWDVA a disaster or catastrophic ? Most Asked Questions - court procedure/terms. How women and lawyers negotiate/extort ? During day of arrest & bail proceedings what happens? Right to Bail In India - aturday, July 10, 2010 How to withdraw IPC 498A case ? In a warrant case such as the present one under section 498A, under Section 245 of the Cr.P.C, after examining the evidence, a magistrate could discharge the accused if he were of the opinion that there was insufficient ground to proceed further with the trial. That stage would require the police to file charge sheet, evidence to be taken by the court for framing the charges and thereafter, making application for discharge of the accused. The result of such application is not an assured one, as the magistrate could also form opinion that the case has to proceed. Same provision also provided for the discharge of the accused at any previous stage also if the considers the charges to be groundless. There is another provision in Section 239, which allowed a magistrate to dscharge the accused after considering the report of the police filed after investigation. This required hearing of the prosecution as well as the accused and was not a provision readily applicable to a case where the complainant had agreed to withdraw the case. There was also an alternative route, available through the police. This was probably same as the provision in Sectino 239, though the provision did not refer to any B Report. For filing the charge sheet, the police have to investigate the matter, take depositions, gather evidence, material objects and so on. After gathering all the evidence, or if any evidence fails to turn up at all, or if the police form the opinion that there is no material for filing charge sheet, they file a report known as B Report to the court. Upon receipt of the B report, the court would close the matter. But, B Report is open to challenge by the complainant. If the complainant applies to the court once again, the magistrate may take suo motucognizance of the case and proceed further. One, based on the mediation agreement, and the judgment of divorce, the police could file B report, which cannot be challenged by the complainant later on as she herself had agreed to withdraw the case. Other alternative was to file a petition under Section 482 of Cr.P.C before the High Court for quashing the criminal case. "if the police are decent, they must accept the judgment copy of the family court and mediation agreement and must readily agree to file B report. If they are attempting to do anything else, it is clear that their motives are not good." The Deputy Director advised, “there is only one remedy for you. You must move a petition under Section 482 of Cr.P.C, duly supported by the mediation agreement, and judgment of divorce. If you want expeditious hearing, enclose the confirmed air ticket also. The High Court will go out of the way to provide remedy to you, especially when your case has been settled through mediation centre!” *************************** An analysis of Section 320 reveals the following salient features: No offence other than that specified in the Section can be compounded. The offence can only be compounded by the persons specified in Col.3 of the Table concerned and such person is the person directly aggrieved in the sense that she/he is the victim of the crime. As a result of composition of the offence under Section 320, the accused will stand acquitted of the offence of which he/she is charged and the Court loses its jurisdiction to proceed with the case. Unlike in some of the provisions of special laws, no one on behalf of the State is empowered to compound the offences. However, the public prosecutor may withdraw from prosecution with the consent of the Court, as provided for in Section 321 CrPC. Therefore, only a High Court or Court of Session acting in the exercise of its powers of revision under section 401 may allow any person to compound any offence which such person is competent to compound under this section. Sample order in AP High Court:THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL PETITION Nos.1579 and 1578 of 2011 COMMON ORDER: Since the parties in both the criminal petitions are one and the same, they are being disposed of by this common order. The petitioners approach the Court with a prayer to quash the proceedings against them in P.R.C.No.9 of 2010 on the file of the IV Additional Chief Metropolitan Magistrate, Visakhapatnam, registered for the offence punishable under Sections 307, 498-A, 420, 406,495 read with 34 of IPC and 3, 4 and 6(2) of the Dowry Prohibition Act, and in D.V.C.No.15 of 2009 on the file of the IV Additional Chief Metropolitan Magistrate, Visakhapatnam. 2. Heard both sides. 3. Today, the de facto complainant – Baru Andela Madhurima and the revision petitioners-accused are present. She filed her driving licence card bearing No.DLFAP03773692004 in proof of her identity. Petitioners filed affidavit given by the complainant, wherein the complainant stated that the matter is settled between herself and the accused with some terms and conditions, which runs as follows: That the petitioners shall pay Rs.8,00,000/-(Rupees eight lakhs only) towards full and final settlement including permanent alimony; Out of the said amount, Rs.50,000/- was already paid in cash and the remaining amount of Rs.7,50,000/-(Rupees seven lakhs fifty thousand only) was paid by way of D.D. No.006668 drawn on HDFC Bank, Jubilee Hills Branch, Hyderabad; both the parties agreed to take divorce with mutual consent and that they have no further disputes or differences whatsoever against each other. That the parties hereby withdraw all the allegations made against each other; and That the complainant agrees to quash the proceedings against the accused in P.R.C.No.9 of 2010 on the file of IV Additional Chief Metropolitan Magistrate, Visakhapatnam, arising out of Cr.No.497 of 2009 of III Town Police Station, and in D.V.C.No.15 of 2009 on the file of the IV Additional Chief Metropolitan Magistrate, Visakhapatnam. It is reported by the complainant that the matter is settled out of court between herself and her husband and prays to acquit the accused. 4. The matter arises out of matrimonial disputes and the complainant herself reported that the matter is settled. In view of the same, this Court is of the view that further proceedings in both the matters would not be of no use. Hence, the proceedings in P.R.C.No.9 of 2010 on the file of IV Additional Chief Metropolitan Magistrate, Visakhapatnam, arising out of Cr.No.497 of 2009 of III Town Police Station, and in D.V.C.No.15 of 2009 on the file of the IV Additional Chief Metropolitan Magistrate, Visakhapatnam, are hereby quashed. _______________ RAJA ELANGO, J. 1 February 2011, Rns. st i. ii. iii. iv. v. * * * * * * In a case involving dowry harassment under S.498A and the criminal petition itself had been filed stating that the second respondent and the elders of both the families have settled the matter agreeing to withdraw criminal case. The second respondent stated before the Court that she compromised the matter and compounded the offences and hence, the further proceedings may be quashed. The documentation showed that the disputes were purely personal in nature not involving any public policy. In view of the compromise, it was held that any continuance of the prosecution would be a futile exercise. The inherent powers were invoked to secure the ends of justice. The proceedings were quashed and criminal petition was allowed. In my opinion even though the offence under S.498A is compoundable in Andhra Pradesh; the Chief Metropolitan Magistrate refers the case to the Lok Adalat(which does not have powers to decide non-compoundable cases) because if they compound it - it is appeal able in High Court. Lok Adalat has powers to decide compoundable cases but they don’t. They deal only in civil matters like divorce, custody or other family reconciliation issues. They in turn suggest to proceed to High Court for quash so that appeal or other irregularities can be rectified. The HC Judge asks for identification, affidavit from the complainant and then proceeds to order as aforesaid. Lok Adalat is merely a compromising place - no power to compound. A mediation centre; where the parties agree to some mutually acceptable terms and the agreement is drafted by the mediator and forwarded to court for settlement under S.89 of CPC. Thats it. Any disagreement is also forwarded/returned to court referring the subject matter, if one party disagrees. Thereafter, it is as usual adjudicated court matter. For details check S.89, Rule 1A, 1B, 1C,1D and order XXXII A, rule 3A, 3B, 3C of Civil Procedure Code, 1999 & 2002 amendment acts. Check out reports 237 $ 238 of the Law Commission reports for further clarity here. You might also like: How to withdraw a IPC 498A ? How to file IPC 498a ? 498a for dummies When to file for FIR Quash ? Most Asked Questions - court procedure/terms. How to write a letter to your judge ? aturday, July 10, 2010 How to withdraw IPC 498A case ? In a warrant case such as the present one under section 498A, under Section 245 of the Cr.P.C, after examining the evidence, a magistrate could discharge the accused if he were of the opinion that there was insufficient ground to proceed further with the trial. That stage would require the police to file charge sheet, evidence to be taken by the court for framing the charges and thereafter, making application for discharge of the accused. The result of such application is not an assured one, as the magistrate could also form opinion that the case has to proceed. Same provision also provided for the discharge of the accused at any previous stage also if the considers the charges to be groundless. There is another provision in Section 239, which allowed a magistrate to dscharge the accused after considering the report of the police filed after investigation. This required hearing of the prosecution as well as the accused and was not a provision readily applicable to a case where the complainant had agreed to withdraw the case. There was also an alternative route, available through the police. This was probably same as the provision in Sectino 239, though the provision did not refer to any B Report. For filing the charge sheet, the police have to investigate the matter, take depositions, gather evidence, material objects and so on. After gathering all the evidence, or if any evidence fails to turn up at all, or if the police form the opinion that there is no material for filing charge sheet, they file a report known as B Report to the court. Upon receipt of the B report, the court would close the matter. But, B Report is open to challenge by the complainant. If the complainant applies to the court once again, the magistrate may take suo motucognizance of the case and proceed further. One, based on the mediation agreement, and the judgment of divorce, the police could file B report, which cannot be challenged by the complainant later on as she herself had agreed to withdraw the case. Other alternative was to file a petition under Section 482 of Cr.P.C before the High Court for quashing the criminal case. "if the police are decent, they must accept the judgment copy of the family court and mediation agreement and must readily agree to file B report. If they are attempting to do anything else, it is clear that their motives are not good." The Deputy Director advised, “there is only one remedy for you. You must move a petition under Section 482 of Cr.P.C, duly supported by the mediation agreement, and judgment of divorce. If you want expeditious hearing, enclose the confirmed air ticket also. The High Court will go out of the way to provide remedy to you, especially when your case has been settled through mediation centre!” *************************** An analysis of Section 320 reveals the following salient features: No offence other than that specified in the Section can be compounded. The offence can only be compounded by the persons specified in Col.3 of the Table concerned and such person is the person directly aggrieved in the sense that she/he is the victim of the crime. As a result of composition of the offence under Section 320, the accused will stand acquitted of the offence of which he/she is charged and the Court loses its jurisdiction to proceed with the case. Unlike in some of the provisions of special laws, no one on behalf of the State is empowered to compound the offences. However, the public prosecutor may withdraw from prosecution with the consent of the Court, as provided for in Section 321 CrPC. Therefore, only a High Court or Court of Session acting in the exercise of its powers of revision under section 401 may allow any person to compound any offence which such person is competent to compound under this section. Sample order in AP High Court:THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL PETITION Nos.1579 and 1578 of 2011 COMMON ORDER: Since the parties in both the criminal petitions are one and the same, they are being disposed of by this common order. The petitioners approach the Court with a prayer to quash the proceedings against them in P.R.C.No.9 of 2010 on the file of the IV Additional Chief Metropolitan Magistrate, Visakhapatnam, registered for the offence punishable under Sections 307, 498-A, 420, 406,495 read with 34 of IPC and 3, 4 and 6(2) of the Dowry Prohibition Act, and in D.V.C.No.15 of 2009 on the file of the IV Additional Chief Metropolitan Magistrate, Visakhapatnam. 2. Heard both sides. 3. Today, the de facto complainant – Baru Andela Madhurima and the revision petitioners-accused are present. She filed her driving licence card bearing No.DLFAP03773692004 in proof of her identity. Petitioners filed affidavit given by the complainant, wherein the complainant stated that the matter is settled between herself and the accused with some terms and conditions, which runs as follows: That the petitioners shall pay Rs.8,00,000/-(Rupees eight lakhs only) towards full and final settlement including permanent alimony; Out of the said amount, Rs.50,000/- was already paid in cash and the remaining amount of Rs.7,50,000/-(Rupees seven lakhs fifty thousand only) was paid by way of D.D. No.006668 drawn on HDFC Bank, Jubilee Hills Branch, Hyderabad; both the parties agreed to take divorce with mutual consent and that they have no further disputes or differences whatsoever against each other. That the parties hereby withdraw all the allegations made against each other; and That the complainant agrees to quash the proceedings against the accused in P.R.C.No.9 of 2010 on the file of IV Additional Chief Metropolitan Magistrate, Visakhapatnam, arising out of Cr.No.497 of 2009 of III Town Police Station, and in D.V.C.No.15 of 2009 on the file of the IV Additional Chief Metropolitan Magistrate, Visakhapatnam. It is reported by the complainant that the matter is settled out of court between herself and her husband and prays to acquit the accused. 4. The matter arises out of matrimonial disputes and the complainant herself reported that the matter is settled. In view of the same, this Court is of i. ii. iii. iv. v. the view that further proceedings in both the matters would not be of no use. Hence, the proceedings in P.R.C.No.9 of 2010 on the file of IV Additional Chief Metropolitan Magistrate, Visakhapatnam, arising out of Cr.No.497 of 2009 of III Town Police Station, and in D.V.C.No.15 of 2009 on the file of the IV Additional Chief Metropolitan Magistrate, Visakhapatnam, are hereby quashed. _______________ RAJA ELANGO, J. 1st February 2011, Rns. * * * * * * In a case involving dowry harassment under S.498A and the criminal petition itself had been filed stating that the second respondent and the elders of both the families have settled the matter agreeing to withdraw criminal case. The second respondent stated before the Court that she compromised the matter and compounded the offences and hence, the further proceedings may be quashed. The documentation showed that the disputes were purely personal in nature not involving any public policy. In view of the compromise, it was held that any continuance of the prosecution would be a futile exercise. The inherent powers were invoked to secure the ends of justice. The proceedings were quashed and criminal petition was allowed. In my opinion even though the offence under S.498A is compoundable in Andhra Pradesh; the Chief Metropolitan Magistrate refers the case to the Lok Adalat(which does not have powers to decide non-compoundable cases) because if they compound it - it is appeal able in High Court. Lok Adalat has powers to decide compoundable cases but they don’t. They deal only in civil matters like divorce, custody or other family reconciliation issues. They in turn suggest to proceed to High Court for quash so that appeal or other irregularities can be rectified. The HC Judge asks for identification, affidavit from the complainant and then proceeds to order as aforesaid. Lok Adalat is merely a compromising place - no power to compound. A mediation centre; where the parties agree to some mutually acceptable terms and the agreement is drafted by the mediator and forwarded to court for settlement under S.89 of CPC. Thats it. Any disagreement is also forwarded/returned to court referring the subject matter, if one party disagrees. Thereafter, it is as usual adjudicated court matter. For details check S.89, Rule 1A, 1B, 1C,1D and order XXXII A, rule 3A, 3B, 3C of Civil Procedure Code, 1999 & 2002 amendment acts. Check out reports 237 $ 238 of the Law Commission reports for further clarity here. You might also like: How to withdraw a IPC 498A ? How to file IPC 498a ? 498a for dummies When to file for FIR Quash ? Most Asked Questions - court procedure/terms. How to write a letter to your judge ? the B* back. Sunday, May 31, 2009 DIFFERENT MODES FOR CRACKING 498A CASE Special mention - How to file RTI complaints/appeals online- Goes to CIC directlyClick the link below. http://rti.india.gov.in/rti_direct_complaint_lodging.php . 1. FOLLOWING THE TRIAL & PROVING INNOCENCE. Advantages: 1. Text book method by following judicial system & get the formal acquittal order. 2. Post acquittal, we can file perjury U/s 340 & Defamation suit, which will destroy the 498a family completely. 3. Scope for financial compensation thru defamation suit. Disadvantages: 1.Time consuming; have to be patient with great Indian Judiciary’s efficiency. 2.Will take anything between 1 – 5 Yrs. 3.Need to cope up with half baked lawyers. 2. FILING COUNTER-CASES AGAINST 498a FAMILY. Advantages: 1. By giving the same medicine to the opponents, 498a case may get over in short time. Disadvantages: 1.Very delicate in nature. Needs to do lot of home work & legal analysis before retaliating with counter-cases. 2.Costly affair & time consuming. 3.Counter-cases may back fire, if not launched properly. 4.Some counter-cases may be of cooked nature, which will be a “misuse of law”. 3. COMPLAINING TO HIGHER AUTHORITIES: Advantages: 1.Taking the case details to all levels of higher authorities such as Human rights, DGP, Collector, Commissioner, Home Secretary, Income tax Dept. etc, will solve the case in shorter time. 2.Cheaper mode & can close the case in shorter time duration.(1- 6 Months) 3.Can handle without much legal aid. Disadvantages: 1.This mode will be applicable based on 498a family members’ profile. 2.Complaints have to be placed immediately after the threats. 3.Government machinery may not work with expected efficiency. 4. USING RTI APPLICATIONS AGINST 498A FAMILY: Advantages: 1.Cheaper mode & consumes relatively lesser time to close the case.(2 – 6 Months) 2.We can screw the 498a family royally, with this “Legal Cruelty” tool. 3.May cause irretrievable damage to the opponents, apart from closure of 498a case. 4.Can handle without legal aid. 5.No limit & can fire numerous RTIs based on the opponents’ profile.. Disadvantages: 1.498a family members or witnesses needs to be government job. 2.Needs to cope up with time delay for RTI replies from govt. departments & information commission response for appeals. 3.Government machinery may not work with expected efficiency. 4.Very indirect method of attacking the opponents. -----------------------------------------------Since you have read so much - you must be tired. So, on a lighter side of things read the below article to cheer you up. Bottom line is it is hard work and patience-- see how one person quashed his case by sheer persistence and hard work. GENERAL 1.Sent CrPc 161 witness statements with all the blatant lies to 498a family's relatives, family elders and neighbours. 2.Sent copies of newspaper & magazine articles about 498a misuse, to their relatives, family elders and neighbours. 3.Called up 498a gang’s relatives, family elders and neighbours & explained about the false 498a case. 4.Complained to Tamilnadu Revenue Secretary, & District Collector about the false 498a case & extortion threats. 5.Complained to State Human Rights Commission on extortion threats by 498a gang, police & lawyers. 6.Complained to Lok Adalat Judges on extortion threats by 498a gang, police & lawyers. 7.Complained to DGP of the state, on extortion threats by 498a gang, police & lawyers. AGAINST 498a FAMILY 8.Sent RTIs to FIL's Dept., to get his pay scale & asset declaration details, as per Tamilnadu Govt. Servants Conduct Rules. 9.Sent RTI to FIL's Dept., to get Compliance of Dowry Prohibition Act, by Govt employees, as per Tamilnadu Govt. Servants Conduct Rules. 10.Sent RTI to FIL's dept., to get his declaration on list of gifts received for her daughter's marriage, as per Tamilnadu Govt. Servants Conduct Rules. 11.Sent 12 RTIs to FIL's office to get his office deliverable, accounts maintenance and Govt. money spending details in last 25 years. 12.Complained to Revenue Dept. on disproportionate asset accumulation details by FIL. 13.Complained to Revenue Dept. to report non-compliance of Dowry Prohibition Act by FIL, with respect to his CrPc statement. 14.Complained to DSP-Vigilance & Anti Corruption Dept.in person, to report disproportionate asset accumulation details by FIL. 15.Complained to State Water Board dept about the use of electric motor to fill water from public pipeline, at FIL’s residence. 16.Complained to Revenue dept. about misuse of official post by FIL to get 10 Birth certificates to his grand son. 17.Complained to HR department of 498a girl's brother's company, who had submitted fake certificate to get job. 18.Sent RTIs to Directorate of Technical Education, to get details of the employment of 498a girl, who is working as Lecturer in a private engineering college. 19.Sent RTIs to Directorate of Technical Education, to get details of pending cases, complaints and arrears during graduation of 498a girl, who is working as Lecturer in a private engineering college. 20.Complained to State Information Commission on refusal of information for one of the RTI by FIL. 21 Complained to State Revenue Secretary & District collector on RTI reply delays by Revenue department. 22.Sent RTI to District Collector on actions taken on the complaint on 498a family's extortion & atrocities. 23.Called up Public Information Officer of FIL's office & explained the case details & warned about repercussions on PIO, if the RTI replies are delayed. 24.Called up Principal of 498a girl's college & explained her activities to extort money by filing false case. 25.Visited 498a family's residence area with completely shaved head, to know the details of the houses they have rented out for Complaining to Vigilance department.( Since 506 IPC also in FIR, i had to go in disguise) 26. Visited FIL's office with shaved head to watch his activities & befriended a local big shot's son to set up bribe trap for FIL, as advised by DSP - Vigilance & Anti-corruption Dept. of TN Police. AGAINST THE WITNESSES 27.Sent RTI to BSNL, to get Pay scale & asset declaration details of one of the witness (Retired), with the intention to complain to BSNL, Central Vigilance Commission & Pension Directorate. 28.Sent RTI to TN State Hand-loom Dept. to get Dowry Prohibition Act compliance declaration for their daughters’ marriages, pay scale & asset declaration details of one of the witnesses (Retired), with intention to complain to Vigilance dept & State pension directorate. 29.Sent RTI to Sales Tax department, to get details of the sales tax paid by the company run by one of the witness. 30.Sent RTIs to one of the witness’s son’s parents-in-laws’ offices (Govt. Job) to get Dowry Prohibition Act compliance declaration for their daughters’marriages, pay scale & asset declaration details. 31.Sent CrPc 161 statements to one of the witness’s son’s parents-in-laws & neighbours. 32.Visited parents'-in- law of one of the witness's son, & explained their Son-in-law family's false statements in 498a case. AGAINST THE INSTIGATORS: 33.Sent RTIs to Police department to get Dowry Prohibition Act compliance declaration for their daughters’ marriages, pay scale & asset declaration details of one of the instigators of the 498a case, who was working as DSP. 34.Sent RTIs to Police department to get details of NOC obtained from govt. to get passport, by one of the instigators of 498a case, who was working as DSP. 35.Complained to Enforcement Directorate to report disproportionate asset details by the retired police DSP, who used to visit USA frequently. 36.Sent RTI to Medical Council of India to get pay scale & asset declaration details of a doctor, who is the Son-in Law of one of the instigators of 498a case. 37.Sent 498a case details & 498a gang’s malicious plans to Sons-in Law's family of the DSP, who was instrumental in filing false 498a case. 38.Sent RTI to SEBI (Securities & Exchange Board of India), to get details of the leave details and travel expense details of 498a girl’s uncle, who used to attend the hearings, when he is on duty. (Working in a Private Listed Company) 39.Sent RTI to Reserve Bank of India to get locker details of one of witness, who has stored the 498a girl's jewels. >> AGAINST THE POLICE: 40.Sent complaints to DGP, Commissioner and IO (Who registered 498a) to register case U/s 406 IPC for non return of Jewels by the 498a gang.IO refused to accept 3 registered letters. She called me up & asked not to press the 406 complaint & assured for return of Jewels worth of Rs.1.8 Lakhs.IO blasted the 498a girl & her father in my presence, for not informing about Jewels given by me.(All my Jewels were returned before Quash proceeding) 41.Sent RTIs to Police department to get pay scale & asset declaration details of 2 Investigative Officers who filed 2 FIRs. 42.Office of Commissioner of Police, Chennai, sent a warning letter to PIO (Add.Commissioner) & IO, for severe departmental action with State Information Commission's Recommendation, for non reply of RTI in time. 43.Sent RTI to Police department to get “498a case Registration Guideline Adherence” details by 2 Investigative Officers who filed 2 FIRs. ****************** Got married in 2001 to a girl from xxx, haryana. That ill mannered and uncouth lady left my home in oct 2006. In Feb 2007 when I received the threat of false dowry case from a common relative , I sent e mail to DGP Haryana and CP Delhi immediately expressing their threatening and other details. With intervention of common relatives a fair settlement was done and signed by her and my relatives in Oct 2007. Luckily no child was born out of this wedlock. But they went back on this agreement and asked 10 lakh more and that too in cash. When all efforts failed , I filed for Divorce in May 2008 ( my mistake) following the guidance of my advocate Comrade R P Chugh, the owner of so called "Man cell". His signboards are spread all over Delhi and somehow that quack gets his name and interviews published in media ,TV talkshows ,radio etc. He told me that if I file DIVORCE first ,her 498A will be considered as counterblast.I got convinced that if I approach court first then I will be safe. After receiving summons she submitted 498a/406 complaint at local PS at Panipat in June 2008. Police under their influence registerd FIR bypassing the Women Cell of Panipat. That Quack filed my bail application in Delhi court, which I did not get. Then he filed at Delhi High court for bail and FIR transfer. Since I was having zero knowledge of law, the money for all these exercises in futility he looted from me was approx 4 lakh. As I told in my earlier mail I was arrested in july 2008 and spent four days in police remand at police station Panipat. My two counter attacks which cracked them were1. My criminal complaint case filed under section 384,386,500,506 against girl,her mother and brothers.The ACMM finding merit in my case admitted it under Crpc 200. At the time of complainant's evidence (mine), I submitted a list of witnesses and included her two relatives (who signed the agreement dated Oct 2007) in that list . When the police reached their house and served summons for appearance in court, panick gripped their entire family.One relative appeared in the court on the date and admitted that a mutual agreement between two families had indeed been signed in oct 2007 and confirmed his signature on that agreement paper.The other relative ,out of fear, did not receive summons by paying to the server. 2. My second attack was complaint to the Income Tax Office , Panipat by way of Tax Evasion Petition (TEP). I attached their FIR copy (with TEP) in which they claimed to have spent over Rs 20 lakh in marriage. In reality they had spent hardly 6 lakh. So IT guys started investigations in their assets. I followed up my complaint with RTIs asking progress. Therefore my dear friends , never bow in front of "Kaminey" people and have faith in GOD that if you are right and innocent,you will prevail upon all odds. Its just a matter of time. Have killer instict and never become timid, come whatever may. Show your enemies that you dont mind even getting hanged , leave alone going to jail, but will not meet any of their unwarranted demands. **************** CIC decision below for tax evasion petition: Facts: ‘The petitioner was married in 2000 to Smt. Saroj Nirmal. In November 2000 she filed a criminal complaint alleging that she had spent/paid as dowry an amount of Rs. Ten Lakhs. Alleging that these claims were false, the Petitioner, with a view to defend the criminal prosecution launched against him, approached the Income Tax Department with a tax evasion petition (TEP) dated 24.09.2003. Thereafter, in 2004 the Income Tax Department summoned the Petitioner's wife to present her case before them. Meanwhile, the Petitioner made repeated requests to the Director of Income Tax (Investigation) to know the status of the hearing and TEP proceedings. On failing to get a response from the second and third Respondents, he moved an application under the Act in November, 2005. He requested for the following information: (i) Fate of Petitioner's complaint (tax evasion petition) dated 24.09.2003 (ii) What is the other source of income of petitioner's wife Smt. Saroj Nimal than from teaching as a primary teacher in a private school ' iii)What action the Department had taken against Smt. Saroj Nimal after issuing a notice u/s 131 of the Income 'tax Act, 1961, pursuant to the said Tax Evasion Petition. The petitioner filed a second Appeal on 1st March, 2006, before the Respondent No. 1, the Central Information Commission (hereafter 'the]*20 The CIC, on 8th May 2006 allowed the second appeal and set aside the rejection of information, and the exemption Clause 8(1) (j) cited by Respondents No. 2and3. The CIC further held that as the investigation on TEP has been conducted by DIT (Inv), the relevant report is the outcome of public action which needs to be disclosed. This, therefore, cannot be exempted u/s 8(1) (j) as interpreted by the appellate authority. Accordingly, DIT (Inv) is directed to disclose the report as per the provision u/s 10(1) and (2), after the entire process of investigation and tax recovery, if any, is complete in every respect. the B* back. Saturday, July 24, 2010 Do I need to appear personally ? THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL PETITION No.2577 OF 2011 DATED 22nd MARCH, 2011. BETWEEN : D.Pradeep Kumar & others .. Petitioners-R.1 to R.3 and 1) D.Hema Sri 2) The State of A.P. ..Respondents THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL PETITION No.2577 OF 2011 ORDER: Petitioners approach this Court with a prayer to dispense with their personal appearance in D.V.C.No.32 of 2009 on the file of the IX Metropolitan Magistrate, Kukatpally, Cyberabad. Heard. Since the offence is arising out of matrimonial disputes wherein the question of identity of the petitioners-respondents does not arise, the presence of the petitioners before the trial Court is dispensed with except on the dates the learned trial Judge insists for the same and the petitioners shall be properly represented by their counsel during the trial. Accordingly, the Criminal Petition is allowed. Miscellaneous petitions filed in this Criminal Petition, if any, shall stand closed. ________________________ JUSTICE RAJA ELANGO Dated : 22.03.2011 sur * * * * * * * * * * * * The Andhra Pradesh Criminal Rules of Practice and Circular Orders, 1990 says that Rule 30: When an accused is released on bail during investigation, he shall be bound over to appear in Court after the chargesheet is filed and summons served on him. It is not necessary to bind him to appear on any earlier date or dates. This rule is framed in almost every state which the High Court of that respective state enforces on ALL magistrates or criminal courts under it(their jurisdiction). Basically it dictates the code and procedure/guidance to be followed in the criminal courts. It derives its power from the Cr.P.C 477 and is notified. Hence, mandatory. Unnecessarily many people are attending court and many Magistrates are issuing Non-Bailable Warrants i.e exercising their powers ultra vires the rules. They are bound by it. This must be brought to the notice of the magistrate and if he does issue , then HC will give you respite even after chargesheet - dispense with appearance petition. These rules are mandatory and binding not directory on them but due to ignorance and prodding by opposite side lawyers to make arrest for all silly reasons. The fear of arrest is pervasive and must be resisted by all. The reason the advocates do not tell you this is that every time you attend court, the advocate gets some extra walking money. You get an adjournment(next date) and you take leave from office the next date and have to pay again. This is harassment on the part of the Magistrate. However, this rule will apply only before chargesheet is filed and summons issued. Notice the word 'AND' summons issued to you. You should be informed through summons and thereafter it is the Magistrates discretion. ********************************************* In Maharashtra there is some good news recently - state relief where couples are sent for counselling when wife has complained of IPC 498a and not immediate arrest unlike what is being done to satisfy lust of their wives. These corrupt bastardized Indian Police who openly flout Supreme Court directions and cannot understand when 'arrest' is warranted just to get a new necklace or lingerie for their wives. . http://timesofindia.indiatimes.com/city/mumbai/State-relief-for-harassedhusbands/articleshow/6193511.cms ************************************* Even under S.313 in “special exigencies” the Court should adopt a pragmatic and humanistic approach, particularly when insistence for the personal presence of the accused in Court would result in undue hardship and grave prejudice to him. It was in this context that Their Lordships had distinguished and explained the dictum laid down by the Apex Court in Usha K. Pillai v. Raj K. Srinivas, AIR 1993 SC 2090, wherein it was held that even in cases where the Court had dispensed with the personal attendance of the accused under Section 205(1) or Section 317 of the Code, the Court cannot dispense with the examination of the accused under Clause (b) of Section 313(1) of the Code because such examination was mandatory except if undue hardship or huge expenditure or grave prejudice being caused to accused. 2 options are available to the accused under s.313; either to make a plea before the learned Magistrate to allow him to answer the questions without being physically present in Court through his counsel or to forgo his right to give answers at all. See : Chandu Lal Chandraker v. Puran Mal and Anr., 1988 Supp. SCC 570 and Basavaraj R Patil Vs karnataka for S.313 presence and compliance. You might also like: Can Maintenance under Cr.P.C 125 & HMA 24 be allowed ? -- DVC Violative of Art 21 ? -- Parents Maintenance 125 and Residence Quash ? Husband fights against wife,parents,kids. Most Asked Questions - court procedure/terms. Google employee story - IPC 498A - Wife harassment ! How to file IPC 498a ? 498a for dummies Right to Bail In India LinkWithin Posted by Amicus Curiae at 9:04 AM Labels: 313 Cr.P.C, Dowry, IPC 498A, personal a the B* back. Wednesday, May 20, 2009 Maintenance Under 125/DV/24 etc ? A judgment in point is Sanjay Bhardwaj and Ors. v. The State and Anr.,108 where the husband filled a petition before the Delhi High Court challenging the order of maintenance granted by the trial court. It was argued that the husband had lost his employment and source of income, and therefore, the Appellate Court was wrong in upholding the order of maintenance on the ground that since the husband had been earning well earlier, he was liable to maintain the wife. The Court clearly observed that the PWDVA does not create any additional right in favour of the wife regarding maintenance. It only enables the Magistrate to pass a maintenance order as per the rights available under existing laws. Referring to the right of maintenance under Section 125 CrPC and other personal laws, the court pointed out that no law provides that a husband has to maintain a wife, living separately from him, irrespective of the fact whether he earns or not. Emphasis was also given to the fact that the parties in this case were both equally qualified and were in the past gainfully employed. Under these circumstances, the court held that awarding maintenance to the wife without any prima facie proof of his employment is contrary to the provisions of the law. In a second judgment in Rachana Kathuria v. Ramesh Kathuria,109 the issue before the Delhi High Court was whether an application under the PWDVA could be filed seeking enhancement of the maintenance awarded under Section 125 CrPC. The trial court in this case, however, dismissed the petitioner’s application on the ground that the remedy lies with the concerned court, which can modify the existing maintenance order. Upholding the dismissal of the application under the PWDVA, the court held that under the Act, a Magistrate has the power to grant maintenance and monetary reliefs on an interim basis in a fast track manner only in those cases where the woman has not exercised her right of maintenance either to the Civil Court or under Section 125 CrPC. If the woman has already moved the court and her right to maintenance has been adjudicated upon by a competent court, she will have to move the same court for any enhancement of maintenance already granted. ONE month jail for non-payment of maintenance. No more. See judgment below. This way if you go to jail - then all the wives will think 2-3 times before they kidnap/deprive you of your child. It is emotional blackmail. Unless you do something drastically contrary to there expectations, they will milk and harass you for eternity. To each his own imagination. Pay back the kindness they showed upon you, by filing 498A, 125, job loss etc. IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.810 of 2010 MANOJ KUMAR PATEL @ MANOJ PATEL SON OF JOKHI PATEL, RESIDENT OF MOHALLA NONIA TOLA, CHAKKI PAKRI, P.S. SHIKARPUR, DISTRICTWEST CHAMPARAN, BETTIAH——PETITIONER . Versus 1. STATE OF BIHAR THROUGH HOME SECRETARY, BIHAR, PATNA. 2. MUNITA DEVI WIFE OF MANOJ KUMAR PATEL, D/O MADAN PD. PATEL 3. RAMBABU @ SONI 4. SHYAM KISHORE, BOTH SONS OF MANOJ KUMAR PATEL ALL ARE RESIDENTS OF SAGAR POKHARA, P.S. BETTIAH TOWN, DISTRICT-WEST CHAMPARAN—– RESPONDENTS.. ———– For the petitioner:- Mr. R.S.Sahay & Mr. J.J.Sahay,Advs. For the State:- Mr. Kaushal Kishore Jha, SC- 18 5 16 .09.2010 Petitioner is the husband of Respondent no.2 Munita Devi and father of respondent Nos. 3 and 4. Respondent no.2 and her children, respondent nos. 3 and 4 were deserted by the petitioner; as such she filed a petition under Section 125 of the Code of Criminal Procedure for maintenance of herself as well as her two children, from the petitioner. The case was registered as Maintenance case No. 308M/2005 and heard by Principal Judge, 2 Family Court, West Champaran, Bettiah. The case, on contest was decided in favour of respondent nos. 2 to 4 and vide order dated 16.12.2009 the petitioner was directed to pay maintenance of Rs. 1000/- Per month to all three (respondent nos. 2 to 4) from the date of filing of maintenance case i.e. 27.9.2005. The order passed by the Family Court granting maintenance in favour of respondent nos. 2 to 4 was challenged by the petitioner by filing Criminal Revision No. 248 of 2010 which is still pending in the High Court. However, despite the fact that there was no stay order passed in favour of the petitioner, he did not pay a single penny to his legally wedded wife and children. He has also filed matrimonial suit (Divorce No. 188 of 2007) which is pending for adjudication. Since the monthly maintenance amount was not 3 being paid to the respondents, as such respondent no.2 filed a petition before the Principal Judge, Family Court, West Champaran, Bettiah in order to get the maintenance order complied. Notice was issued to the petitioner to show cause, as such he appeared before the Court and made a prayer for staying the operation of the order passed in the maintenance case or for a direction that the petition be considered along with matrimonial divorce case. On perusal of the order-sheet of the maintenance case No. 308M/2005, it transpires that in response to show cause notice, the petitioner appeared before the Principle Judge, Family Court, West Chmparan and on 20.4.2010 the petitioner as well respondents were heard. One months time was allowed to the petitioner either to bring stay order or to make payment of entire 4 arrears amount as well as month to month maintenance amount to the respondents. On 22.5.2010, when again the matter was taken up, both the parties were heard. Since, no stay order could be obtained by the petitioner from the High Court, as such the petitioner was asked to deposit the entire arrears of maintenance amounting to Rs. 1,65,000/-. Petitioner showed his reluctance in making payment, as such warrant of arrest was issued against the petitioner and in exception of it he was taken into custody. The matter was again directed to be listed on 5.6.2010. On 22.5.2010 petitioner has filed a petitio for staying the operation of order dated 16.12.2009, passed in maintenance case allowing maintenance in favour of respondents, but that was rejected and an order for taking the petitioner into 5 custody was passed as provided under Section 125(3) of the Code of Criminal Procedure. On 2.6.2010 again the matter was taken up and the petition filed by the petitioner challenging the order taking into custody was taken up for consideration. Petitioner had challenged the order stating that he could not have been ordered to be imprisoned without taking recourse to the procedure for recovery of fine as provided under Section 421 of the Code of Criminal Procedure. There should have been a proper order of sentencing, before taking him in custody. However, the Principal Judge, Family Court, West Champaran, Bettiah, rejected the plea taken by the petitioner stating that Section 125(3) of the Code of Criminal Procedure in itself is a complete provision which provides that in case of failure to comply with the order for 6 payment of maintenance amount warrant of arrest can be issued, till the realization of the amount. There is no necessity to follow the procedure provided for levying fines. The person may be sentenced for the whole or any part of each months non payment of maintenance amount in execution of the warrant. For unpaid maintenance amount the person concerned may be imprisoned for a term of one month or until payment is sooner made. Only required for issuance of warrant for the recovery of any amount due under this section is that there must be an application filed by the aggrieved wife / children before the court for realization of such amount within a period of one year from the date on which it became due. The Court if satisfied that there is just ground for not making payment of such amount was 7 on filing such application, no warrant can be issued. Since, there was no ground available in favour of the petitioner and he refused to make payment the maintenance amount without there being any reasonable ground for it, the provision under Section 125(3) was applicable. Section 125 (3) Cr.P.C. provides jurisdiction to the court for issuance of warrant of arrest and for taking into custody in execution of it. Counsel appearing for the petitioner submits that on simple reading of the provision under Section 125(3) Cr.P.C., it is apparent that before issuance of warrant of arrest or taking the defaulter into custody, he should be given proper opportunity to show the reason for non-payment and only in case the Court is satisfied that without any obvious reason the direction of the Court has been 8 flouted, any order regarding issuance of warrant of arrest could have been passed. The period of imprisonment in any case could not have been exceeded beyond one month as for each period of default; there should have been fresh application and fresh order of custody for the unpaid maintenance amount for each month. In this regard the counsel for the petitioner placed reliance on a decision reported in the case of Ashok Prasad Vs. State of Bihar (2000 (1) PLJR 578) and also in the case of Shahada Khatoon and others vs. Amjad Ali and others (1999 (5) SCC 672). However on perusal of the impugned order, it transpires that the Court below has placed reliance on a decision of the Apex Court reported in the case of Kuldip Kaur vs. Surinder Singh (AIR 1989 SC 232), wherein it has been held that a person cannot be released 9 from the custody till he makes the payment. In the decision reported in (1999) 5 SCC 672, the short question which arose for consideration was whether the single Judge of Patna High Court has correctly interpreted the provision under sub-section (3) of Section 125 Cr.P.C., by directing the Magistrate that he can only sentence for a period of one month or until payment, if sooner made. The Apex Court held that the language of subsection (3) of Section 125 Cr.P.C. is quite clear and it circumscribes the power of the Magistrate to impose imprisonment for a term which may extend to one month or until the payment, if sooner made. This power of the Magistrate cannot be enlarged and therefore the only remedy would be after expiry of one month. For breach of non-compliance 10 with the order of the Magistrate the wife can approach the Magistrate again for similar relief. By no stretch of imagination can the Magistrate be permitted to impose sentence for more than one month. In that view of the matter, the High Court was fully justified in passing the impugned order and we see no infirmity in the said order to be interfered with by this Court. Counsel for the petitioner placing reliance on a decision of Division Bench of Patna High has submitted that the provision of sub- section (3) of Section 125 Cr.P.C. has been considered in the reported decision 2000 (1) PLJR 578. The facts in the reported decision were identical to the facts of the present case. Petitioner of that case had also filed a petition for his release and for 11 holding that his detention in the custody is illegal. The petitioner- husband had been arrested on 7.8.1995 in execution of warrant of arrest issued on 1.8.1995 by the Judicial Magistrate for default in payment of maintenance amount and its arrears. Since then, after every 14 days he was being remanded to judicial custody and continuously for three and half years he was in custody, the Division Bench while interpreting the jurisdiction of the Court under Section 125(3) Cr.P.C. held as follows:” From a reading of Section 125(3) Cr. P.C. it is clear that if any person who has been ordered to pay maintenance under section 125(1) Cr.P.C. fails without sufficient cause to comply with the order, the Magistrate may take such steps for realization of amount which are 12 provided for levying fines and after execution of distress warrant it is found that any amount has remained unpaid the Magistrate may sentence such person for the whole or any part of each months allowance remaining unpaid to imprisonment for a term which may extend to one month or until payment, if sooner made. So it is clear that the Magistrate has first to satisfy that the order has not been complied by a person without sufficient cause and if he finds that there is failure of the compliance of the order without sufficient cause he will issue a distress warrant for levying the amount due for every breach of the order in the manner provided for levying fines. It is further provided that after execution of distress warrant if the Magistrate finds that any amount has remained unpaid he may sentence such 13 person for the whole or part of each months allowance remaining unpaid to imprisonment for a term which may extend to one month or until payment whichever is earlier. The manner provided for levying fines is prescribed under section 421 Cr.P.C. So, two conditions before sentencing a person to imprisonment for non-payment of maintenance allowance are required. First the Magistrate must be satisfied that the person without any sufficient cause is not paying the maintenance and violating the order and secondly to issue warrant for levying the amount due in the manner provided for levying fines and after its execution to ascertain the amount which has remained unpaid. If any amount is found to have remained unpaid the Magistrate may sentence such persons to imprisonment for a period of one month for the whole 14 or any part of each months allowance remaining unpaid. In other words, if after issuance of warrant for levying the amount due in the manner provided for levying fine it is found that no amount has remained due, the question of sentencing the persons to imprisonment does not arise. So the Magistrate, has to see the result of execution of warrant issued for levying amount due.” We find that the Court below has placed reliance on a decision reported in the case of Smt. Kuldip Kaur Vs. Surendra Singh and another ( AIR 1989 SC 232). But the question for consideration before the Apex Court in the matter was whether, in case of person refusing to comply the order of the Court to maintain his neglected wife or children, without reasonable cause, will be absolved of his 15 liability, merely because he prefers to go to jail. Considering every aspect of the provisions under Sub-section (3) of Section 125 Cr.P.C., it was held that sentencing a person to jail is mode of enforcement and not mode of satisfaction. The liability can be satisfied only by making actual payment of arrears. The Supreme Court directed the defaulting husband be put in jail till he makes the payment of maintenance allowance. However, there is no finding whether this period can be only one month or more than one month. On the other hand, counsel appearing for the State has raised objection regarding maintainability of the application of habeous corpus challenging legality of the detention, stating that since the petitioner is detained in jail for flouting the order 16 of the Court under Section 125(3) Cr.P.C. and there is a provision for issuance of warrant of arrest under sub-section 3 of Section 125 Cr.P.C. for issuance of warrant of arrest and taking into custody, due to non-payment of arrears as well as monthly maintenance amount, the detention cannot be considered as illegal detention and writ of habeous corpus is not maintainable. Counsel for the State has submitted, at best, the petitioner can challenge the legality of the order by filing criminal revision application before the appropriate forum. He has placed reliance on a decision reported in the case of Kanu Sanyal Vs. District Magistrate, Darjeeling (AIR 1974 SC 510), where the finding has been recorded as follows;“Where a person is committed to 17 jail custody by a competent Court by an order which prima facie does not appear to be without jurisdiction or wholly illegal.” On consideration of different decisions on which reliance has been placed by the parties and the provision under Section 125(3) Cr. P.C., we find that the issue has been settled by the Apex Court in (1999) 5 SCC 672 and by decision reported in 2000(1) PLJR 578. The Principle Judge, Family Court, after taking the petitioner in custody has not passed any fresh order for extension of the period in custody for fresh default of each month. Since the condition for keeping in custody as provided under Sub-section (3) of Section 125 Cr.P.C. has not been observed by the principle Judge, Family Court, the detention of petitioner beyond one months period cannot be 18 held to be legal. Once it is held that the detention is illegal, there cannot be any question regarding maintainability of the writ application. Keeping in view that the petitioner has remained in custody beyond one months period, in the facts and circumstances of the case, his detention is illegal. Accordingly direction is being issued for release of the petitioner forthwith in connection with Maintenance Case No. 308M/2005, if not wanted to remain in custody in any other case. The writ application stands allowed. (Mridula Mishra,J.) (Dharnidhar Jha,J.) ******************************* Satendra Kumar Gupta vs State JUDGMENT - A.K. Of U.P. And Anr. on Roopanwal, 22/2/2008 J. 1. This criminal revision is directed against the order dated 27.9.06 passed by the Family Court, Gorakhpur in criminal case No. 340/03, Smt. Kanchan Gupta v. Satendra Kumar Gupta, under Section 125, Cr.P.C. whereby the court allowed the application and granted maintenance of Rs. 3,500/- p.m. to O.P. No. 2 and Rs. 3,500/- p.m. for her son from the date of the petition under Section 125, Cr.P.C. 2. It appears from the record that an application under Section 13, Hindu Marriage Act was moved by the revisionist against O.P. No. 2 before the Family Court, Gorakhpur and this was registered as case No. 54/03. The wife Smt. Kanchan Gupta also filed an application under Section 125, Cr.P.C. against the revisionist Satendra Kumar Gupta for her maintenance and for the maintenance of her son and this case was registered as case No. 340/03. 3. The case of the revisionist was that O.P. No. 2 had neglected him and is not taking his care and therefore, their marriage be desolved by a decree of divorce. The Case of O.P. No. 2 was that the husband had neglected her and her son and therefore, the divorce suit filed by the husband was liable to be dismissed and she and her son are entitled to maintenance. Both the parties led oral and documentary evidence in support of their cases. The trial court framed as many as six issues for decision of the case. After perusal of the evidence the trial court dismissed the application for divorce which is not the subject matter of this revision as the only prayer has been made before this Court is about the maintenance under Section 125, Cr.P.C. filed by the wife. The application for maintenance was allowed in the manner stated above which gave rise to this revision. 4. I have heard Mr. Dilip Gupta, learned Counsel for the revisionist, Mr. K.K. Mishra for O.P. No. 2 and perused the record. 5. Mr. Gupta argued that the trial court has wrongly assessed the income of the revisionist and has also wrongly fixed the quantum of maintenance, therefore, findings in this regard are liable to be quashed. In this regard he argued that the trial court based his findings on the basis of that record which was subsequently found to be not reliable by the court itself and therefore, the above findings should be quashed and matter be remanded back to the court for afresh decision. The above argument was refuted by the other side. 6. A look at the impugned judgment would reveal that the findings regarding the income and the quantum of maintenance have been recorded by the trial court on the basis of the record of the income tax assessments for certain years relied upon by the wife. The husband challenged the truthfulness of these records by moving an application under Section 340, Cr.P.C. even during the continuance of the proceedings but the trial court decided the application under Section 125, Cr.P.C. without deciding the application under Section 340, Cr.P.C. However, after the decision of the application under Section 125, Cr.P.C. on 27.9.06 the same court decided the application under Section 340, Cr.P.C. vide order dated 26.2.07. In the last paragraph of this order it was observed by the court that the judgment in case No. 340/03 has been obtained by the wife on the basis of forged evidence. The application under Section 340, Cr.P.C. was allowed by the court and criminal proceedings were instituted against the wife and others. Learned Counsel for the revisionist says that in view of the decision on the application under Section 340, Cr.P.C. judgment passed in the proceedings under Section 125, Cr.P.C. cannot be allowed to stand and therefore, this should be set aside. 7. Learned Counsel for O.P. No. 2 argued that the procedure adopted by the trial court for the decision of the application under Section 340, Cr.P.C. is not a correct procedure and therefore, the argument advanced by the learned Counsel for the revisionist should not be accepted. 8. In my opinion, it cannot be a valid consideration for deciding the controversy between the parties as to whether the procedure in initiating the proceedings under Section 340, Cr.P.C. adopted by the trial court was correct or wrong. The only consideration for testing the propriety of the judgment under Section 125, Cr.P.C. is as to whether the decision on the application under Section 340, Cr.P.C. can be a valid consideration or not for deciding the application under Section 125, Cr.P.C. and in that regard it can safely be said that once findings recorded on the application under Section 340, Cr.P.C. have not been set aside by any competent court of law, hence, these findings are binding upon the parties and in view of these findings this can very well be said that the evidence on the basis of which the wife got judgment in the proceedings under Section 125, Cr.P.C. cannot be said to be a good judgment as this judgment is based on that evidence which has been held to be forged by that very court which had decided the proceedings under Section 125, Cr.P.C. 9. In view of the above, I am in agreement with the argument advanced by the learned Counsel for the revisionist that the judgment and order passed in the proceedings under Section 125, Cr.P.C. registered as case No. 340/03 are liable to be quashed and the matter is liable to be remanded back for afresh decision. 10. Accordingly, revision is allowed. Judgment and order dated 27.9.06 is set aside so far as it relates to the proceedings under Section 125, Cr.P.C. registered at case No. 340/03. The matter is remanded back to the trial court for afresh decision on the basis of the evidence on record. The parties may be allowed to lead fresh evidence, if they so like. Src : http://indiankanoon.org/doc/157028/ ********* The idea of any maintenance cross examination is simple . You need to prove to the court that she is lying and here are the steps to go about doing that .The startrgy is called "peeling the onion". Expose her lies slowly and steadily . 1) First ask harmless open ended questions that you know the answers to . Like whats your name and date of birt etc etc .Get the tension out of you in the first few minutes . 2) Next start by asking the questions that you know she will lie . Ask are you working now . She will say no .Then you say why ? She might say Recession , or no jobs . Then show the court the employment oppurtunities in her area and ask did you apply for these ? She will say yes she applied but she did not get the call . Then say that in your area more than 1 lakh women are working and you say that you did not get a job . Also cite judgments like mamta jaiswal etc at this stage . 3) If she has hidden her qualifications then you have a silver bullet . Ask her how much she is qualified and then cross her on why she has not mentioned that in her petition ? Ask her if she aware of the consequences of coming to court with unclean hands . Then cite the supreme court judgements on unclean hands and how the court must treat a person coming to court with unclean hands . 4) By this time she would have pissed her pants since she and the court knows that she is lying . Then try to proe that she left on her own accord and give evidence for that . 5) Conclude by saying that she left on own accord , she has voluntarily incapacitaed herself and demanding money , she has filed cases to harrass you . She has come to court with unclean hands and the apex court has clearely said that a person coming to court with unclean hands must be shown no quarter. The court can never diregard a supreme court judgement under any circumstances . ****************** Under the law the burden is placed in the first place upon the wife to show that the means of her husband are sufficient. But there is an inseparable condition which has also to be satisfied that the wife was unable to maintain herself. These two conditions are in addition to the requirement that the husband must have neglected or refused to maintain his wife. It has come to the knowledge of fellow victims that judges oftenn threaten the man to pass ex-parte interim orders. Or your ex will try to get ex-parte orders. In that case Send a Caveat under section 148-A of CPC to the Honorable court to NOT pass Ex-Parte order without hearing yourself. You can specify reasons for doing so, which is not necessary, as it is your right to defence yourself, which is by default under constituition of india. Also, do not forget to mention in the reply that it is your wife who is no willing to cohabit with you. There is no neglection/ refusal from your end. If court orders interim maintenance do not pay it. Let your wife file execution, once execution is filed u/s 125 (3) file reply that there is no neglect or refusal to maintain your wife from your end let your wife come and stay with you. Meanwhile file revision petition in sessions court. ***************** Apply under section 127 for reducing the amount of maintenance money under sec 20 ("Father and earning mother, held, both bound to contribute to maintenance of their children in proportion to their income - Law does not enjoin that father is exclusively responsible regardless of mother being affluent." Without any basis directing the husband to pay a large sum is not in accordance with law. When maintenance is ordered, basic factor to be taken note of is that what is the paying capacity of a person who is directed to pay amount. It is equally true that the need of the receiving person also is to be taken into consideration, but the striking balance has to be on the basis of the capacity to pay. Otherwise it will be an order in paper which cannot be implemented. *********************************************************** Maximum imprisonment for non-payment of maintenance ? For a Nagpur case, it was not that the husband was willingly selling organs. He was told by the judge in open court, "Even if you have to sell your kidney, do it, but pay your wife". He wanted to bring out this in open and thus gave an application in High Court, asking permission to sell his kidney as this is what the lower court judge wanted him to do. The judge has been suspended. It is illegal to sell your organs and one cannot earn money from it. So, why do people advertise such an illegal thing? Obviously, to show it to judge that he really does not have money and make it a ground to reduce his maintenance.Judges are playing with the fear psychosis. There are several instances where husbands have been jailed. It is true that the maximum punishment is 1 month jail for non payment. The reason is that there is only one month of jail punishment for non payment. Now, if you are jailed then your punishment is already over and you cannot be punished for the same offense twice. And in that case the wife also does not get any money. And the judges basic objective is to reward the wife with some money in a failed relationship, no matter whose fault (husband or wife).So on each date the judge threatens the hubby for jailing, sometimes angrily throwing away the file but actually does NOT give orders to jail him, as the moment the judge orders for arresting, the last tool in the hand of the judge also goes away. The judge basically tries to play with the FEAR PSYCHOSIS of jail. The judge has already ordered execution also, so that the wife gets something. Now the wife pays money to the court and then the police go to the hubby's house to recover something. The hubby pays 100rs and the police constable then goes back and reports that the house was found locked. And again the same execution process starts. And the entire process gets repeated with neither the wife getting anything, nor the hubby getting jailed. Just imagine for a moment that you are a judge and I am the husband who is not ready to pay maintenance. What would you do? Would you give orders to jail me for non payment (in which case it becomes guaranteed that the wife would get zero after completion of jail period) or would keep threatening me of jail, date after date and play with the fear psychosis? So, the bottom line is that if you are bold and ready to face jail, neither you need to pay up, nor would you be jailed. The judgment of the Bombay High court in the matter of Ravindra Haribhau Karmarkar vs Mrs. Shaila Ravindra Karmarkar And Another which reads "The applicants could not be allowed to ride two horses at a time (two simultaneous proceedings in two different Coruts) and could not be permitted to continue the maintenance proceedings u/s. 125 of Cr.P.C. when they had already chosen the alternative remedy in Reg. C.S. No. 227/86. It is well settled law that the judgment of Civil Court shall prevail over the judgment of Criminal Court. The natural justice demands that parallel proceedings cannot be allowed to continue in different Courts." There is another Judgment of Punjab Haryana HC in the matter of "Paramjit Kaur vs Surinder Singh " where also the judge allowed that the wife can avail any 1 option. ************************* 11 lakh monthly maintenance case -- read and learn Equivalent Citation: 142(2007)DLT377, II(2007)DMC469, (2008)149PLR18 IN THE HIGH COURT OF DELHI C.R.P. Nos. 1111 and 1114/2003 and CM(M) No. 16/2005 Decided On: 25.07.2007 Appellants: Mr. Rajat Taneja Vs. Respondent: Ms. Harmeeta Singh Hon'ble Judges: Pradeep Nandrajog, J. Counsels: For Appellant/Petitioner/Plaintiff: Shyamla Pappu, Sr. Adv. and R. Krishnamoorthy, Adv For Respondents/Defendant: Aanchal Mullick, Adv. Acts/Rules/Orders: Hindu Marriage Act - Sections 12(1), 13, 14 and 24; Civil Procedure Code (CPC) - Sections 151 and 152 - Order 9, Rules 7 and 13; Constitution of India - Article 227 Cases Referred: United India Insurance v. Patricia Jean Mahajan 2002 (6) SCC 281; Shiv Shakti Coop. Housing Society, Nagpur v. Swaraj Developers and Ors. AIR 2003 SC 2434; Arjun Singh v. Mohindra Kumar and Ors. AIR 1964 SC 993 Citing Reference: * Mentioned *** Discussed United India Insurance v. Patricia Jean Mahajan *** Shiv Shakti Coop. Housing Society, Nagpur v. Swaraj Developers and Ors. * Arjun Singh v. Mohindra Kumar and Ors. *** Case Note: Family-Section 24 of Hindu Marriage Act - Order 9 Rule 7 CPC -Petitioner /husband challenged the order passed by the learned Matrimonial Judge under Section 24 of the Hindu Marriage Act, granting monthly maintenance of Rs. 11 lacs to the wife for 9 months and 16 days and dismissing his application under Order 9 Rule 7 CPC-Held, no proceedings pending before the Matrimonial Judge- matter cannot be remanded back to the Matrimonial Judge for fresh adjudication on respondent's application under Section 24 of the Hindu Marriage Act when he became functus officio on the day when decree for divorce was granted- where arguments have been concluded and suit stands adjourned for decision, only remedy is to await the decision and file an application under Order 9 Rule 13 CPC -Amount of compensation of 11 lakh monthly and litigation cost is based on the denial of principles of natural justice to petitioner- As held by the Supreme Court in United India Insurance v. Patricia Jean, when compensation has to be paid in India to the claimants from the person living abroad, standard of living in India, cost of living in India and other related factors have to be considered -Order awarding monthly maintenance to the respondent and her litigation expenses is disposed of. Ratio Decidendi: While awarding compensation under S.24 of The Hindu Marriage in India from the person living abroad, standard of living in India, cost of living in India and other related factors have to be considered JUDGMENT Pradeep Nandrajog, J. 1. Vide CRP No. 1111/2003 petitioner/husband has challenged the order dated 6.8.2003 passed by the learned Matrimonial Judge deciding respondent's application under Section 24 of the Hindu Marriage Act, granting monthly maintenance of Rs. 11 lacs to the wife with effect from the date of her application i.e. 21.10.2002 till date of the order dated 6.8.2003. I note that the period for which maintenance has been awarded is 9 months and 16 days. Litigation expenses in sum of Rs. 1 lac have been awarded in addition. 2. Vide CRP No. 1114/2003 petitioner (husband) has challenged the order dated 21.7.2003 dismissing his application under Order 9 Rule 7 CPC. 3. Vide CM(M) No. 16/2005 petitioner (husband) has challenged the order dated 6.8.2003 passed by the learned Matrimonial Judge allowing application filed by the wife under Section 24 of the Hindu Marriage Act. 4. It is stated in CM(M) No. 16/2005 that revision petition against the order dated 6.8.2003 granting interim maintenance to the wife cannot be challenged by way of a civil revision petition in view of a decision of the Supreme Court reported as Shiv Shakti Coop. Housing Society, Nagpur vs Swaraj Developers and Ors [2003]3SCR762 . therefore remedy is being invoked under Article 227 of the Constitution of India. 5. Thus, at the outset I dismiss CRP No. 1111/2003 as withdrawn. 6. For the sequence of events and various orders passed by the learned Matrimonial Judge, and as noted here-in-under, a fairly comical situation has come into existence. 7. The parties got married on 24.3.2002. The marriage broke down in less than 5 months. Petitioner, a resident of the United States of America filed a divorce petition in the United States of America. Admittedly, he has obtained an ex-parte decree of divorce from a Court having matrimonial jurisdiction in the United States of America. 8. The respondent was served with the notice of motion taken out by the petitioner before the Matrimonial Judge in the United States of America. She opposed grant of divorce by challenging the jurisdiction of the Courts in United States of America. But after filing the reply she absented. Thus, it resulted in the grant of an ex-parte decree for divorce in favor of the petitioner. 9. In India, respondent sought annulment of the marriage by seeking a decree for divorce. The petition was filed within less than 1 year of the marriage. Remedy under Section 12(1)(c) read with Section 13 of the Hindu Marriage Act was invoked. 10. As per the mandate of Section 14 of the Hindu Marriage Act respondent sought waiver of the statutorily prescribed period i.e. 1 year with effect from the date of the marriage within which period except after obtaining from the court after showing special circumstances petition seeking annulment of the marriage could not be filed. 11. A strange thing happened before the learned Matrimonial Judge on 3.10.2002 when the petition seeking divorce accompanied by the application under Section 14 of the Hindu Marriage Act was filed. 12. 2 orders of even date were passed. 13. Vide first order dated 3.10.2002 notice was issued in the petition seeking annulment of the marriage by way of decree for divorce. The notice was returnable for 2.12.2002. 14. A second order of even date was passed. It records as under: I have heard the learned Counsel for the petitioner on the application under Section 14 of the Hindu Marriage Act. No valid and legal ground is made out by the petitioner for moving this application before the expiry of one year. Accordingly, the application is dismissed. 15. It could be argued that having dismissed the application filed by the respondent invoking Section 14 of the Hindu Marriage Act, learned Matrimonial Judge was obliged to dismiss the petition seeking divorce and thereforee proceedings conducted by the learned Trial Judge thereafter are without any authority of law. 16. Per contra, it could be argued that it was a curable defect and proceedings are irregular and not illegal. 17. Be that as it may, since notice was issued in the main petition, learned Judge awaited return of the notice for the next date i.e. 2.12.2002. In the meanwhile, on 8.11.2002 the learned Judge took cognizance of an application filed by the respondent under Section 151 CPC praying that the petitioner be served through the employer. 18. On 8.11.2002 learned Judge allowed respondent's application filed under Section 151 CPC and directed service upon the petitioner returnable for 2.12.2002 at the address of the employer. Learned Judge was on leave on 2.12.2002. The Court Reader adjourned the matter for 16.12.2002. On which date, once again the learned Judge was on leave. Reader renotified the matter for 17.12.2002. On said date, fresh notice was issued returnable for 27.1.2003. Service not being effected, fresh notice was issued returnable for 18.3.2003. On said, petitioner was served at the address of the employer. None appeared for him. He was proceeded against ex-parte. Matter was renotified for 23.4.2003 for ex-parte evidence. On said date, ex-parte evidence was led. Arguments were advanced immediately thereafter. Matter was adjourned for 1.5.2003 for orders. 19. On 1.5.2003 counsel appeared for the petitioner before judgment could be pronounced and requested for adjournment stating that petitioner intends to file an application under Order 9 Rule 7 CPC seeking recall of the order dated 18.3.2003. 20. On same date, necessary application under Order 9 Rule 7 CPC was filed. Another order of even date was passed issuing notice of the said application to the respondent. 21. In the interregnum, as noted above, on 21.10.2002, the respondent filed an application under Section 24 of the Hindu Marriage Act, notice whereof was issued to the respondent. 22. Learned Judge vide order dated 21.7.2007 dismissed petitioner's application under Order 9 Rule 7 CPC. Vide a separate order of even date, petition for divorce filed by the respondent was allowed. 23. The learned Judge consigned the file to the record room without realizing that respondent's application under Section 24 of the Hindu Marriage Act was pending. 24. On an oral mention by the respondent to the learned Judge, he took up respondent's application under Section 24 of the Hindu Marriage Act on 6.8.2003 and disposed of the same granting to her monthly maintenance in sum of Rs. 11 lacs. 25. The learned Judge also took cognizance of an application filed by the respondent under Section 152 CPC praying that the order dated 3.10.2002 dismissing her application under Section 14 of the Hindu Marriage Act be corrected. The learned Judge passed the following order on 6.8.2003: By this order, I shall dispose of application Under Section 152 read with Section 151 CPC filed by the petitioner for decision of the application under Section 14 of the Hindu Marriage Act filed by them along with the petition. The said application was dismissed on 3.10.2002, but in this case proceedings kept going on and petitioner was granted ex-parte decree for divorce on the ground of cruelty and decree have already been passed and petitioner has taken the copy of decree. Accordingly, order dated 3.10.2002 is recalled and application under Section 14 of the Hindu Marriage Act is allowed. 26. Surprisingly enough, petitioner has not challenged the aforesaid order dated 6.8.2003. 27. Fortunately for the petitioner he was rightly advised by the counsel to seek setting aside of the ex-parte decree for divorce by filing an application under Order 9 Rule 13 CPC for the reason when application under Order 9 Rule 7 CPC was filed by the petitioner, as noted above, arguments had concluded in the petition filed by the respondent and matter was renotified for judgment. Thus, on the date when application under Order 9 Rule 7 CPC was filed it could not be said that the Court had adjourned the hearing of the suit ex-parte. 28. I note the decision of the Supreme Court reported as [1964]5SCR946 Arjun Singh v. Mohindra Kumar and Ors. wherein it was held that where arguments have been concluded and suit stands adjourned for decision, only remedy is to await the decision and file an application under Order 9 Rule 13 CPC. 29. For record, I may note that the petitioner's application under Order 9 Rule 13 CPC was dismissed. I may further note that the petitioner has filed an appeal registered as FAO No. 301/2004 challenging the ex-parte decree dated 21.7.2003 and the order dated 25.8.2004 dismissing his application under Order 9 Rule 13 CPC. 30. Thus, issues pertaining to the legality of the ex-parte decree, the order dated 6.8.2003 allowing respondent's application under Section 152 CPC and recalling order dated 3.10.2002 and granting permission under Section 14 of the Hindu Marriage Act to present the petition within 1 year of the date of marriage would be adjudicated in said appeal. 31. The question, whether the entire proceedings were vitiated or not and whether order dated 6.8.2003 could be passed rectifying the order dated 3.10.2002 and what is the effect of the learned Judge not recording, even in the order dated 6.8.2003, that a case of exceptional hardship or exceptional depravity has been made out entitling respondent to have the statutory cooling period of 1 year waived would be adjudicated in the said appeal. 32. Thus, CRP No. 1114/2003 is disposed of as infructuous but clarifying that issue as noted herein above would be decided in FAO No. 301/2004 and all permissible pleas would be available to the petitioner to question the ex-parte decree for divorce as also the legality of the order dismissing his application under Order 9 Rule 13 CPC. 33. Pertaining to the challenge laid to the order dated 6.8.2003 granting monthly maintenance of Rs. 11 lacs to the respondent suffice would it be to note that the learned Judge became functus officio when he granted the decree of divorce on 21.7.2003. That apart, learned Judge failed to appreciate that petitioner had already filed an application under Order 9 Rule 7 CPC pointing out that he was not served in the petition for divorce. Learned Judge failed to appreciate that he ought to have at least ensured that the petitioner receives a copy of the application filed by the respondent under Section 24 of the Hindu Marriage Act. He ought to have granted an opportunity to the petitioner to file reply thereto. Surprisingly enough, on an oral mention, after he had consigned the file to the record room on 21.7.2003 learned Judge recommended the file from the record room and passed the order dated 6.8.2003 allowing respondent's application under Section 24 of the Hindu Marriage Act. 34. On the short ground of denial of principles of natural justice, petitioner is entitled to have the order dated 6.8.2003 granting monthly maintenance to the wife to be set aside. 35. Ordered accordingly. 36. There is another reason why the order has to be set aside. 37. Learned Judge has treated the income of the husband in the United States of America as the measure to grant monthly maintenance to the wife who is in India. 38. As held by the Supreme Court in the decision reported as [2002]3SCR1176 United India Insurance v. Patricia Jean Mahajan, when compensation has to be paid in India to the claimants of a deceased working abroad, standard of living in India, cost of living in India and other related factors have to be considered and in light of the said facts considering income of the husband in a foreign country further taking note of the fact as to what is the cost of living in the said foreign country, loss of dependence has to be worked out. 39. Similar principles would apply to grant of monthly maintenance to a wife stationed in India but husband being abroad and earning in foreign currency. 40. Unfortunately, no proceedings are pending before the Matrimonial Judge. Thus, no useful purpose would be served in remanding the matter to the learned Matrimonial Judge for fresh adjudication on respondent's application under Section 24 of the Hindu Marriage Act, more so when he became functus officio on 21.7.2003 when decree for divorce was granted. 41. I draw the curtains by recording that it would be open for the respondent to move an appropriate application in FAO No. 301/2004 pending in this Court wherein the husband has challenged the ex-parte decree of divorce as also the order dated 25.8.2004 dismissing his application under Order 9 Rule 13 CPC. Respondent would be permitted to pray before the learned Appellate Judge to take a decision on her right to seek interim maintenance pursuant to the application filed by her under Section 24 of the Hindu Marriage Act. 42. Subject to the clarificatory rights of the respondent herein above noted, CM(M) No. 16/2005 stands disposed of quashing the order dated 6.8.2003 awarding monthly maintenance of Rs. 11,00,000/- to the respondent as also granting her litigation expenses in sum of Rs. 1,00,000/-. 43. No costs. You might also like: What happens when you are abroad and Cr.P.C 125 is filed in India ? In Maintenance cases - Should you file appeal or revision ? Important Judgements: How to mother Trial Court Judges ? Proclaimed Offender and Attachment of Property. Can she file both Section 24 of HMA and 125 Cr.P.C? the B* back. Tuesday, September 22, 2009 Do I file for Divorce or Not ? The SIF philisophy on filing divorce has varied . If you see some of the original posts in 2005/2006 say that men must file divorce first to safeguard themselves againt 498A and DV act . In any case the time taken for the divorce is the same if the woman has filed it or the man . Personally I believe there are inherent advantages that a man has when he files for divorce . 1) Divorce must not be filed with an intention to quickly get rid of her . That is not possible . It will take time either way if you file or she files . 2) If you file in your location she has to travel or go to the supreme court to tranfer the case .Thats not all that simple. You can also block the transfer.So harrasment to her and to her family , while you fight on your home turf.You may be asked to pay sleeper class rail fare , but the trouble is for them to come on all dates . 3) 498A and DV filed after divorce will be taken as a clear way of retaliation on the part of the wife and the case becomes much strongers on the husbands side . 4) Most wifes follow a standard sequence and file 498A first and then CrPC 125( this is the standard sequence ) and then DV and of asked what is the reason for staying separately they say that dowry harrasment ( 498A ) is the reason for staying separately . The court has no other option but to grant interim maintenance under CrPc 125 pending 498A investigations . DV maintenance is also granted since 498A is a strong case and DV accussed will have to pay maintenance pending 498A investigations . But if the husband files for divorce first then a argument can be used that it is clear retaliation and nothing else , which I feel is a very strong argument and can be used to deny maintetance in CrPC 125. 5) HMA 24 case is the same no matter who files for divorce . If wife files divorce first I have seen courts deny the reduction of maintenance saying the wife filed for divorce because of cruelty so how can she work when she has this state of mind . This will not work if the husband files first and claims that he has been subected to cruelty by the wife. 6) Easy bail in 498A if the wife files a retaliatory 498A . Some people may think that husband files for divorce first for the sole reason to " quickly get rid of the first wife and marry another one" by entering into an extortion compromise , but a divorce case must not be used for that EVER. It actually needs to be used to safeguard against the other cases and show that the husband is the agrrieved one and seeks justice first and actions of the wife are retaliatory and nothing else . Divorce will take the same time no matter who files it . ************* Filing Divorce/RCR is a personal choice and one has to evaluate one's own situation before forming the strategy and also listen to other's cases, read judgments and understand the ground reality. What the judiciary thinks: "Divorce is relief if woman asks for it and a cruelty if a man asks for it." "Women file for divorce to come out of the clutches of a torturous man while men file to escape responsibilities or to remarry again to have sex with another female" There is no concept of allowing a man live away from his wife because he is being tortured by her. In such a situation, one needs to evaluate the pros and cons of filing for divorce before taking the plunge. Because, once filed in a hurry it will be very difficult to withdraw it and even if one withdraws it, the mere filing can be held against the man. We need to understand that its not only the law, but the whole attitude and mindset against men. Everyone just needs an excuse to castrate a man and pamper a woman. Always file criminal cases based on evidence and negotiate for divorce. If you demand it directly, it will never be given to you. And as far as maintenance is considered, it is again a different kind of a battle where it is very necessary to first get on order (or no order if you are lucky enough) and then form your strategy because the moment the husband starts trapping the wife in multiple cases, maintenance is the only weapon through which he can be finished. But, once you have an order, you become reasonably safe, as you know your liabilities, you can challenge the order and many other options open up. Of course, goal should be a ZERO MAINTENANCE ORDER, however, it cannot become a norm in fortnight. It is always good to have a backup plan in place and a multidimensional strategy. ******** Marrying dancers - 'an invitation for divorce' ANI7 December 2009, 12:00am IST s, are more likely to divorce than vets, agricultural engineers and teachers, says a new research. Dr Michael Aamod University in Virginia, came up with the formula to work out on the occupation of one of the partners. The study, to be published in the Journal of Police and choreographers, massage therapists and bartenders have aroun courts. Nurses, psychiatrists and those who help the elderly and of a relationship breakdown with around 28 percent chance, rep Dai Williams, a chartered occupational psychologist and mem the Observer: "This is a fascinating piece of research containing "It won’t amaze anyone that relationships frequently break do hours and unpredictable working patterns. Or that if you wor more chance to meet other people and develop competing rela rate, meet lots of people, but don’t have the time to chat them up. "But what is interesting is that those involved in caring professions experience a high level of break-up. This might be people at the cost of their own families, or because they are naturally sensitive people who are more vulnerable and sensitiv Jobs with the highest chance of a divorce: 1. Dancers and choreographers 43.05 percent 2. Bartenders 38.43 percent 3. Massage therapists 38.22 percent 4. Nursing, psychiatric, and home health aides 28.95 percent 5. Entertainers and performers, sports and related workers 28.49 percent 6. Baggage porters and concierges 28.43 percent 7. Telemarketers 28.10 percent 8. Waiters/waitresses 27.12 percent 9. Roofers 26.85 percent, and maids and housekeeping cleaners 26.38 percent 10. Chefs/head cooks 2 Before you file IPC 498A or Before Divorce consider this - wh 1> 2> 3> 4> 5> 6> 7> 8> Children in repeat divorces earned lower grades and their peers rated them a Children from divorced homes have more A Child in a female-headed home is 10 times more likely t Children tended to be "lonely, unhappy, a Children who come from broken homes are almost twice as likely to attempt su Usually children under the age of 5 react with rage and grief thinking that they are actual Children with divorced parents are usually more delinquent and shows lower A majority suffers a huge amount of traum 9> Unlikely to report emotional or p For the children it is often the beginning - of sadness, of conflicting emotions, of divided loyalties, often feel overwhelmed by · · · · · How Will my Will How Where will often will I mum marry her new boyfriend? my parents get on can I get see What them with Anger - is often the most intense emotion that lasts the longest. Children are often unable to express divorce so it gets directed to other areas of their lives generally not Loneliness - with parents moving on with their lives, dating and attempting to fill their lives up with n left out and as if there is no one Tension - Family events and milestones - birthdays, weddings, graduations, even funerals - often bec they going to invite? Are the different families able to get along? Can their mother and father be in the a Souring of current relationships - Unfortunately our kids learn from what happens around them. As own childhood and divorce experience will impact on their own ability to sustain relatio GUIDELINES: There are a few basic rules to consider when discussing di Consider each child's age and maturity level; tell them only what he or she can understand. The ab comprehend certain aspects of your divorce will depend upon your child's age. The majority of four ye divorce. If they know the word, they may simply think it means "Daddy and Mommy don't live toge seven years of age, they may be able to realize that courts and lawyers are involved and that divor family. When children are eleven or twelve years old, they are very interested in how custody is developed a sense of fairness, and they may want to be sure custody Always be honest with your child. If your child asks you something about your divorce, always an possible (taking into consideration what the child can absorb). Sooner or later, fabrication will be d child about the real reasons for the divorce. Being dishonest about the divorce will also cause your c statements. Take initiative; do not wait for your child to ask you questions. Oftentimes, children are reticent abo Their silence does not mean that they don't have any questions or don't want more information. It ma cues from you and sense your reluctance to discuss the divorce. If you remain open, not blaming, an divorce, then the pertinent facts, feelings, and information will be shared naturally a It can be very tempting to vent your hurt and anger at your former spouse to your children. Resist the t to other adults or to a support group for divorced people. Voicing destructive comments about the children is very harsh, and it tears down their confidence and self esteem. Most children love both pa into loving one parent or the other. Actions of this kind almost always backfire, leaving a trail of happens between you and your former spouse, your kids should be encouraged to love and respect both one. Many parents aren't aware of the kind of damage that they do to their children by openly and brutall other. A well adjusted child will be reduced to being fearful and withdrawn. Some children repeat the or as adults they repeat it when going through their own divorce. Others are unable to have happy a with anyone, because the deep and disconcerting injuries that their parents inflicted on them made them deserving people. Trust is an issue. They sometimes you need to say enough so your children understand the "wh Some times I tell parents to create a narrative - that is, a brief story - that accurately describes why they might go something like this: We've been fighting an awful lot and we are both unhappy. We've tried t able to. We think it will be better if we live apart. We want you to know that we love you and we will to live in separate houses. Part of the week you'll stay with me and part of the week you'll stay with y much more than this. Stop and let them absorb It's normal for your children to feel shocked, confused or very upset. Don't try to fix their feelings b upset. Divorce is upsetting. If they are silent - ask how they feel about what you've said. I'm sure they as simply and completely as you can. If the plan is for one of you to be the custodial parent, then you the visitation schedule. Hopefully you will have worked this out before If your situation is one where only one of you wants the divorce or if there's too much animosity or res to have separate conversations with your children. While you may be tempted to blame your spouse criticism and making negative comments about your spouse places your children in the middle. This i of you as parents. Also, in my experience, the parent who's most critical and negative about the other their children. Children don't want to take sides. Asking them to One of the most important things you can do as a parent is to work out a specific visitation sched transition, children need predictability. While it may seem easier or more convenient for you to keep t good idea for your children especially Once you and your spouse have separated and the visitation schedule is in place, talk to your childre sometimes think it will be better for their children if they de-emphasize the divorce by avoiding any d discourage their children from talking about it. This is a BIG mistake. Children need to talk about th need help doing Asking young children how they feel or if they're alright is too vague. One approach is to talk with the than they were when you were all living together. Ask them what they think has changed and which c be discouraged if your children don't like anything! Maybe they're angry. If so - they have a right to idea. You can talk about what you miss from the way things used to be too. This gives them permissio They won't feel like they have to protect you by acting like everythi It's not uncommon for children to develop behavioral symptoms related to divorce. Young children h and may act them out instead. They might become listless in school, have trouble sleeping, compla home, become clingy, act aggressive towards playmates, throw tantrums at home, refuse to do their s None of these symptoms are unusual. They are an expression Again - it's wise to give your children an opportunity to talk about their anger and upset. Let them kno devastate you - but set some limits about how they express it. Talk with them about constructive wa Share what you do when If you are divorcing and your children are teenagers - you may be entering a rocky couple of years. they want to live with. This may mean you have to deal with disappointment if they choose to live wi might try to talk with them honestly about why they're making this choice. It's important not to appear you. Also, it's good to see if you can dig a little deeper into why they feel this is best for the If you think your teen is choosing to live with the parent who's going to provide the least amount sincerely about your concerns. While this may seem like an easy ride, reinforce the fact that they will b of their life that may impact their future. It's wise to support their independent decision-making, but like they can talk with you about what is in their best interest. It's difficult and often painful but try t and minuses of them staying with you versus your spouse. Let them It's often difficult to get teenagers to open up about their feelings. They're more likely to be open w strong relationship prior to It's not unusual for teens to act indifferent about the divorce and to say things like, "It's no big deal. I anyway." Don't buy it! They're still kids. They still need parents and a stable home.If they become wi house more or act angry and hostile towards one or both of you, you need to talk to them. Again disappointment, though they may not admit it. Kids who aren't able to talk about their feelings behaviors as a way to distance themselves from their feelings. This includes drug a The teen years are difficult for parents and children alike, but divorce in the midst of this period can trying to figure out their identity. They are beginning to make choices about their future. They are s outside the family. A teenager's ability to successfully launch themselves into adulthood has a lot to d You don't want your teen to leave home prematurely - before their ability to handle independe Children, especially young children, often hope their parents will reunite. In fact, many children har lasts for years. Others act-out in school or at home so their parents have to work together to address th attempt to reunite th If you sense that your child is holding on to a fantasy of reunification, it's best to address it. This is difficulty coming to terms with and accepting the divorce. Again, the best remedy is open conversation your spouse are not getting back together. You need to help your children accept the Dating is a challenge for divorced parents with children. If your children are young, they are suscep love interest. This is dangerous. It's best for parents to keep their dating life separate from their chi relationship is a substantial one and that it is going to be longer term. Your children don't need to g young children often feel caught in a loyalty bind between the new romantic partner An awkward dynamic occurs when teenagers and their divorced parents are both dating. Teens feel aw parents as sexual people - especially in light of the fact that they are beginning to explore their own s remember that how you handle your sexuality may impact how they Teens may be slower to accept your new boyfriend or girlfriend than younger children. They may mo person or treat the person rudely. This is their way of acting out their anger and disappointment over th being loyal to the same sex parent. On the other hand, they may have some legitimate reasons for no smart to explore what their feelings, attitudes, observations and objections are. You might learn With adult children who are out of the house, anger and disappointment over your divorce are often adult children may have a lot of questions about what was going on in your marriage, about why you adult children, it's easier to be open and honest and to go into a bit more depth about your reason understand your decision to a greater degree because they have a better grasp of who each of you are parents. They will have observed and developed their own attitudes and feelings about each of y shortcomings in your marriage. Still, adult children often feel cheated. They may have an understand having had an intact family - regardless of how difficult the circumstances may have been. There ma sides, because they've developed their own attitudes and perspective on In summary, the single best step you can take is to keep the lines of communication open with your c need to place your own feelings about the divorce on the back burner long enough to take an active in with the Tip 1 - It is important that as parents you encourage your children to be honest about what they are fe By doing this your children can see that their feelings are being taken into consideration even though th not what they use Tip 2 - Although you may find it hard it is important that you hide any animosity towards your partne you are both in their presence. If not it is going to lead to tension between all those involved and cou more Tip 3 - It may prove difficult initially but it is important that where your children are concerned you d So make sure that you keep up the same routines you had when you and your partner were together make to your children's lives will ensure that far less stress is being placed upon them during w You must remember that your child is not your emotional confidant. Sharing facts about your divorce i to share these facts amid your feelings and discussing everything related to the divorce, because yo When spouses divorce, they usually want to go over the numerous small events that lead up to the div divorce process with someone. Do not make your children bear this burden; they are Younger children are more likely to think they are somehow at fault, while older children often get a lot, others show no emotion. No matter how they act outwardly, they have a lot going on internally as They aren't capable of fully understanding adult relationships (even when they're teenagers), so it's a v them. Let them know they can talk to you about how they are feeling and that you understand their anger, sa them that everything is fine. Instead let them say what they're thinking and simply let them know yo them and that you will do all you can to help them Don't share too much information with them about why you are getting divorced. They aren't old enou can be very painful for kids. Regardless of who did what, the children need to see their parents just as let the children discover and decide that for themselves as they get older. For children, anything nega them feel that they, too, are bad since they come from that parent. So if you bad-mouth your ex, you a in mind when you have the urge to say something not-so-nice in front of If your kids are in school or some kind of child care, talk with their teachers and care-givers regularly. ask them to let you know if they see changes in your child. They spend a lot of time with your childr different, and your kids are more apt to act out when Divorce is so difficult on the two adults going through it, it's often hard to muster the energy to take children need you now more than ever. Do your best to be present with your kids, to check in with th care. Plan some activities that you can enjoy together, so you can all get a break from the heaviness Laughter truly is great medicine. The more you're able to still have fun and laugh, the more your c going to be The following points will give you highlight some of the ways you as a parent can make your d By all means, do not fight in front of your children, particularly about issues which directly concern the divorce, such as child support, custody and other related topics. This will only exacerbat face in the area of adjustment, and typically forces them to feel as though they need Never use your children as pawns in the fight against your spouse. Children suffer irreversible damag being constantly criticized. When the criticism is by the other parent, it is very hard for the child to rec frequently used in custody battles, especially when one spouse wants to hurt the other. However, this but in the long run it will greatly damage the parent's own Your children are neither messengers nor spies. Although communication is generally not at its best du have something to discuss with the other parent, then make direct contact, and keep it civil. In spite o this is also the children's parent, and they still love that parent, Minimize unnecessary changes. The change that divorce brings to a child's life is major and dramatic. minimum so the child can adjust gradually to this new life. Try to avoid changing residences or scho parent who has to move out of the family home, frequently remind your children that you are still the them. the B* back. Wednesday, July 8, 2009 What is bail procedure ? 1. Any bail application must be presented before the Superintendent, District Court, District. He receives it, puts his initials and the date stamp of the District Court on every page and transmits it to the Inward Section. 2. The Inward Section Clerk enters the name/s of the petitioner/s, name of the Advocate, Crime Number and name of the Police Station in the 12-Register (Inward Register) and sends it to the Translator, Criminal Section of the District Court. 3. Then the Translator of the District Court or his Assistant checks the application, writes a brief note on the bail application and the Translator places the same before the District Judge, District for orders. 4. After obtaining orders from the District Judge, the Translator of the District Court allots Cr.M.P.Nos. to the bail applications and enters them in the Cr.M.P. Register (6 A Register). He also enters the orders passed by the District Judge on each application in the Diary Register (11-Register). If they are made over to any of the Additional District Courts, the said order would also be mentioned in both the Registers. 5. If the bail application is ordered to be made over to any of the Additional District Courts, the Translator sends it to the concerned Court along with the Cr.M.P. Register. The Criminal Section Clerk in the I-Additional District Court and the Translator in the IIAdditional District Court receive bail applications after putting their initials in the Cr.M.P.Register, in token of having received these application. They place the applications before the concerned Additional District Judges for orders, after making a note on the application "Received from Sessions Court". 6. Then the Additional District Judges order notice to the Additional Public Prosecutors of their Courts. The Criminal Clerk of the I-Addl. District Court and Translator of the IIAddl. District Court enter the particulars of these applications in their respective Cr.M.P. Registers (6-A Register) as well as the Diaries (11-Register) of their courts. 7. The Steno-Typists of both the Additional District Courts take down the orders, in short hand, as and when the Additional District Judges dictate them and transcribe them on the bail applications. The Typist in the II-Addl. District Court types the fair orders, while in the I-Addl. District Court the Steno-Typist does it. 8. Whenever any bail application is made over to any Additional District Court in any Crime Number, all subsequent bail applications filed in the same Crime number either for the same accused or for the co-accused will also be made over to that particular Additional district Court only. the B* back. Thursday, October 1, 2009 How to file perjury in India ? In order to sustain and maintain sanctity and solemnity of the proceedings in law courts it is necessary that parties should not make false or knowingly, inaccurate statements or misrepresentation and/or should not conceal material facts with a design to gain some advantage or benefit at the hands of the court, when a court is considered as a place where truth and justice are the solemn pursuits. If any party attempts to pollute such a place by adopting recourse to make misrepresentation and is concealing material facts it does so at its risk and cost. Read a judgment about the above in Vijay Syal Vs. State of Punjab PROSECUTION OF PERJURY: 1. Legal obligation to state the truth 2. The making of a false statement . 3. Belief in its falsity . Criteria for establishing offense: (a) The statement is false (b) The parson making the statement knew or believed it to be false or did not believe it to be true. (c) The statement was made intentionally. All three criteria must be proved for conviction. Intention is most important. False evidence is said to be given intentionally, if, the person making the statement is aware or has knowledge that it is false and has deliberately used such evidence in a judicial proceeding with the intention of deceiving the court . ELEMENTS OF PERJURY: 1) False statement made by a person Who is -a) Bound by an oath b) By an express provision of law c) A declaration which a person is bound by law to make on any subject d) Which statement or declaration is false and which he either knows or believes to be false or does not believe to be true. 2. Oath must be administered by a person of competent authority. The authority must be competent to administer the oath. The proceedings where oath is administered must be sanctioned by law. 3. Express provisions of law include—Plaints, Written Statements, and other pleadings. a)CPC casts a legal duty to speak the truth b)Verification of pleadings is a legal obligation. 4. Affidavits are declaration made under oath. 5. A statement could be verbal or otherwise. a) Statement that he believes a thing which he does not believe. b) Statement that he knows a thing which he does not know. c)Statement that he knows to be false or does not believe to be true . d) Statement need not be on a point material to the proceedings. Due to this the related other section which can be used are : IPO 191: Giving false evidence, judicial perjury IPO 192: Fabricating false evidence IPO 193: punishment for offenses u/s 191 & 192 IPO IPO 194 & 195: Aggravated forms of offenses u/s 191 & 192 IPO IPO 196 to 200: Offenses punishable in the same way as giving or fabricating false evidence IPO 201 to 229: Offenses against public justice OFFENCES U/S 195 CrPC: (a) IPO 172 to IPO 188 relate to contempts of the lawful authority of public servants and also of attempt to commit or conspiracy to commit such offense or abatement there of. (b) IPO 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offense is alleged to have been committed in, or in relation to, any proceeding in any court. CrPC 195: Generally any person can lodge complaint of an offence and set the law in motion. Exception to this rule is offences. Specified u/s 195 CrPC. Section 195 lays down rules to be followed by the court to take cognizance of an offence specified under it. Court has full discretion in deciding whether any prosecution is necessary or not. Considerations for sanctioning prosecution: a) Administration of justice is not hampered b) Not to be used as a means for wreaking vengeance by people c) Every incorrect or false statement does not make it incumbent upon the court to order prosecution. d) Judicial discretion to order prosecution only in the larger interest of administration of justice. e) When police finds that complaint was false and case is cancelled u/s 173 CrPC, the police can start proceeding u/s 211 IPO against person who lodged false complaint. CrPC 340: Section 340 CrPC lays down directions for the guidance of the court which desires to initiate prosecution in respect of an offence covered under IPO 195. Court can take action and make a complaint to concerned magistrate u/s 340 either suo motu or on an application made to it on that behalf. Sanction of the public servant court is a must for offenses in (a) under Criteria for establishing offence. Sanction of the court is a must for offenses in (b). under Criteria for establishing offense. Any Civil, Revenue or criminal court can proceed under this section. Person against who proceedings are initiated has no right to participate in preliminary Inquiry. The trial for the offence will be held by the magistrate based on complaint by the court acting u/s 340 sanctioning prosecution. The order is appealable only once and no second appeal or revision lies. Requirements for starting prosecution: The court is not bound to start prosecution. Only if it is expedient in the interest of justice and affects administration of justice. Contradictory evidence is not enough for prosecution. Offence must have been committed intentionally. Perjury should appear to be deliberate and conscious. Conviction is reasonable probable or likely. Reasonable foundation for the charge must exist. Statement given by complainant in FIR u/s 154 cannot be basis of prosecution u/s 340. Statements given to police u/s 161 are not evidence. PROCEDURE: Receive application or suo motu – application can be filed by a person not party to the proceedings in relation to which the offense is committed. The court where application is filed only decides if inquiry should be made Hold preliminary inquiry (not essential in law). Record findings . Make a complaint in writing - include offence, facts on which it is based and evidence available for proving it. The judge has to sign the complaint himself. Forward it to a first class Magistrate having jurisdiction. IPC 192: No condition to be bound by oath. Reasonable prospect of proceedings and intention to use the fabricated evidence in such proceedings. Proceedings need not be in progress. Material omission is made in an entry or a statement Affidavit- making a document containing false statement to be used as evidence in a judicial proceeding. Criteria: Particular Intention that false document so made should appear in evidence in a judicial proceeding. Reasonable prospect of using the document is sufficient to establish offence. Should be material to the result of the proceedings- Judge is made to entertain an erroneous opinion touching nay point material to the result of such proceeding based on such fabricated evidence. IPO 199: False statement made in declaration which is by law receivable as evidence. IPO 200: Using as true such declaration knowing it to be false. ********* http://timesofindia.indiatimes.com/city/chandigarh/Court-serves-notice-to-woman-for-falseevidence/articleshow/5337893.cms **************** 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. You might also like: the B* back. Monday, October 26, 2009 When to file for Defamation ? A mans reputation is his property. It is a jus in rem, a right good against all the world. IPC 498a libel comes under libel(written) and when published in newspapers. It is of permanent form and criminal in nature. Cause of action arises when statement or complaint is (i) false, (ii) in writing; (iii) defamatory; and (iv) published. http://timesofindia.indiatimes.com/city/delhi/How-fair-is-Dowry-Law/articleshow/3456467.cms Now, falsity of charge is presumed in plaintiff's favour, malice is also assumed. Writing can be in any form complaint, printing, caricatures etc. Defamatory is deemed when plaintiff (you) are exposed to hatred, contempt, ridicule, obloquy; or tends to injure your profession or trade; or shunned by ralatives, neighbours; or published in newspapers with exaggeration and spiced up to impute your reputation/character. Also go through legal innuendo. In some cases it applies. If libel appears in newspaper, the proprietor, the editor, the printer and the publisher are liable to be sued separately or together. During cross examination if the witnesses exaggerate without proof or add extra impunity against your character- You can sue for damages for slander. Newspapers are subject to same rules as other critics. They have no special right to make unfair comments, or to make imputations upon a persons character, every communication is not in public interest. A journalist who publishes without verifying FIR or witnesses and reports is not specially privileged. They do so at their own risk and donot enjoy qualified privileges when publishing accusations of criminal guilt. After Acquittal from IPC 498a prosecution file for defamation on wife. Journalists - during proceedings they can be compelled to disclose their source of information if it falls under these 4 categories- in the interests of justice, national security, prevention of disorder, crime. Defamation comes under section 499 IPC. Insult is also a criminal act under IPC 502. Use Specific Relief Act, 1963 under section 38 or 39 to restrain by injunction in a civil court. Similarly use corresponding sections under 21 (power of court to award compensation). Go for maximum compensation - the court is bound to grant maximum relief. Limitations to filing defamation: Shri Bhattacharjee has also submitted that if the respondents had not filed the complaint on time or if they were asked to file complaint subsequently, the question of limitation will be applicable and the complaint may be barred by limitation as the offence under Section 500 IPC is punishable upto two years imprisonment and, as such, in view of the provision contained in Section 468(2)(C) of the Cr.PC the period of limitation is 3 years. Learned counsel has referred to the decision of the Apex Court in the case of Surinder Mohan v. Asharaj 1978 (2) SCC 403, the Apex Court held that the limitation shall commence from the date on which the accusation has been made and not from the date of acquittal in the criminal case. It is also submitted that the period of limitation cannot be extended by the Court even, I do not find much force in the above submission in view of the provisions of Section 473 Cr.PC which reads as follows : "Extension of period of limitation in certain cases. - Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may take cognisance of an offence after the expiry of the period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice." Defences your wife or newspaper will take are - Justification by truth, Fair or Bonafide comments, Privilege. No action for libel lies for any statement in the pleadings. You will need to pursue determinedly for closure. Victory will be yours and it smells wonderful when you taste it. Good Luck. Malicious Prosecution: Plaintiff(498a victim) needs to prove 1> he was prosecuted by defendant - Where the magistrate takes cognizance of a complainant under s.190 of the Cr.P.C, examines the complainant on oath under s.200, holds an inquiry in open court under s.202 which the plaintiff attends and dismisses the complaint under s.203 of the Code, the prosecution is deemed to have commenced so as to found an action for malicious prosecution (bar under s.195). 2> proceedings are terminated in favour of plaintiff - Even if plaintiff is convicted by trial court and on appeal is acquitted - cause of action for malicious prosecution arises. Plaintiff (accused in 498a) need not prove his innocence but merely absence of any judicial determination of guilt. 3> reasonable and probable cause - your wife should honestly believe and that belief must have an honest conviction of the existence of circumstances and these circumstances should be reasonable grounds which would lead a fairly cautious man in your probable guilt in order to file a case against you. 4> malicious intention and damage to reputation should have occured - wish to injure you rather than vindicate by law, absence of reasonable and probable cause, proof of absence of honest belief, false charges, acquittal on merits and not merely acquittal. Also, judgement of acquittal in criminal proceedings is evidence but not enough in civil proceedings - you need to discharge the burden of proving want of reasonable and probable cause (wife had no cause but was done out of malice) for the prosecution - for recovery of damages. You might also like: Most Asked Questions - court procedure/terms. Is PWDVA a disaster or catastrophic ? Why women can be included in PWDVA complaint ? According to madurai bench of Madras HC. What are the duties of DPO's ? Right to Bail In India LinkWithin Posted by Amicus Curiae at 11:27 PM Labels: 498A, defamation, Dowry, IPC the B* back. Sunday, July 19, 2009 What to do if wife is threatening with dowry law ? Read about a DGP's daughter filing 498a on her Additional SP husband and gets 15 lakhs compensation from ASP husband. Ponder a while and donot take rash decisions especially if you have kids. Think many times over and donot be afraid. It is not worth living a life of fear cos fear itself is a disease that will eat you alive. If you fear/know that a false 498a complaint is going to be put on you or if they threaten you in anyway it is better to be safe than sorry:1. Immediately file RCR, if your wife is separated from you(Restitution of Conjugal rights is like saying"I want my wife back(who deserted me), but with the following conditions"- but since the wife's intention itself is wrong, she won't be able to agree to those conditions(you can even make the conditions more difficult and impossible, to make sure that she will not come back) , it is similar to divorce petition only in the paryer you will be asking court for your saftety, prevent harrasement , and blackmail/extortion . 2. File a police complaint mentioning Blackmail/extortion threat , threat for false dowry case , or any other thing you have the evidence for. Do not forget to mention that she had left the house after taking all jewellery and cash in your absence, as the case may be. 3. Recording all the conversation if any(telephone recording devices, or miniature recording devices when in person discussions happen). 4. File a criminal case in court under 156(3) under read cr. procudure 200 , with reference to police complaint .(these are sections in the Code of Criminal procedure(Cr.P.C in short), 1973, reproduced alongside: Cr.P.C Sections156. Police officer's power to investigate cognizable case (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned. 200. Examination of complainant A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192: Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them. 5. Take the certified copy from court and keep it with you . Make a couple of copies. Send it to nearest police station. Nearest police station of your in-laws. File for Anticipatory bail in the High Court. If the police insist you come to police station or come to your place for arrest after they have been bribed sufficiently by your wife or in-laws, just submit the court petition. They are the criminals , not you. Also google and read the 498a survival kit in the meantime. ******************* Another mode of fighting this injustice and sham complaints for extortion also see the Dowry circulars link and get a hard copy - preparation and knowledge is the only way to counter threats: Wife has submitted a list of stridhan which is not as per rule 2 of Dowry Prohibition Act and her application may be rejected in view of Circular no. 07/2007 and other she may be asked to furnish valid bills as well as cash flow details in view of para 7 of Circular no. 459-66/P.Sec/ Addl.CP/CAWC dated 29/03/2009. Further updates are as follows :The application of Swamy was accepted by the CAW Cell on the same day with the help of 100 no. police officials and he was given stamped receiving of the his application as he called Police Control Room by dialing 100 no. and they helped him while the other victims of dowry harrassment witnessed and appreciated his courage outside CAW Cell, Nanak Pura, Delhi. Now on the very next working day Swamy received a notice from CAW Cell, that he is requested to appear in CAW Cell for couselling. Earlier they said that you don't need to come here as we will registere FIR agains you to teach you lesson for consulting with lawyers. Swamy has now also filed one RTI in CAW Cell requesting information within 48 hrs asking for details of complaint number, name of accused, FIR no. (if any) with certified copy. Reply is avaited. Swamy has also filed one RTI to Police Control Room to provide certified copy of transcript, audio Recording and forms filled, dd entry of police official reached on spot from P.S. during his call made to Police Control Room , to be provided within 48 hrs. Swamy has also been advised to file an application requesting action against wife for , forgery, extortion, conspiracy as she has claimed for 18 " TV and 220 Ltr. Fridge when Swamy having bills of 14 " TV and 190 Ltr. Fridge, bills were of date 3 days before marriage are are on the name of his wife. You might also like: ednesday, June 2, 2010 FIL or MIL is a Government Employee/s ? get their details in TN Persons affected after October 2006 may use this tool to file RTI on TN government employed wife and her family members. THE TAMIL NADU GOVERNMENT SERVANTS' CONDUCT RULES,1973 (Corrected up to 09th March, 2010) Personnel & Administrative Reforms (A) Department http://www.tn.gov.in/acts-rules/pandar/tngsc1973.pdf 3A. (1) No Government servant shall - (i) give or take abet the giving or taking of dowry; or (ii) demand, directly or indirectly, from the parents or guardian of a bride or bridegroom as the case may be any dowry. Explanation - For the purposes of this rule, dowry has the same meaning as in the Dowry Prohibition Act, 1961 (Central Act 28 of 1961). “(2) Every Government Servant shall after marriage or when he celebrates the marriage of his children, furnish to the Head of Department, a declaration that he has not taken any dowry. Where the Government Servant gets married, the declaration shall be signed by the Government Servant, the wife or husband, as the case may be, of the Government servant and their parents or guardian. Where the son or daughter of the Government Servant gets married, the declaration shall be signed by the parties to the marriage and their parents or guardian which shall include the Government servant also”. (Added vide G.O.Ms.No.150, P&AR(A) Department, dated: 15.09.2006.) “Every Government Servant shall after marriage or when he celebrates the marriage of his children, furnish to the Head of Department, a declaration”, “in the Form in Schedule IV appended to these rules”. (Added vide G.O.Ms.No.133, P&AR(A) Department, dated: 29.09.2009.) SCHEDULE IV Form [See Rule 3 A (2) ] Declaration To Sir, I……………………………….son of/ wife of……………………………….working as ……………………in the Office of the ………………………….at ……………(place) hereby declare that I have not demanded and taken / given any dowry either directly or indirectly during my marriage / marriage of my son/daughter held on…………..at…………….(place). Signature of the Government Servant, Signature of the parents or guardian of the parties to the marriage and the spouse (where the Government Servant gets married) -----------------------------------------------------------------------------------Signature of the parties to the marriage and their parents (where the son or daughter of the Government Servant gets married) the B* back. Wednesday, November 23, 2011 Analysis of the Sec.498A I.P.C This article is an attempt to understand the nature, extent, qualifications, effects of this beautiful and dramatic section called S.498A, IPC. First of all, the aforesaid section is a fiction of law with 2 clauses. Which means that a person who commits cruelty to wife should be punished. Here cruelty is of 2 types (1) cruelty by wilful conduct so that a woman commits suicide and (2) cruelty to coerce her or her relatives to meet some pecuniary(money) demand. Here the Indian legislature has attempted to frame this evil, deeming an act as described above to be an offence and to mitigate/curtail the evil effects of this custom which was widely prevalent in the 1980's. My attempt is to distinguish primarily with regards to false or exaggerated complaints. Why the legislature has not done what it was supposed to do ? Why the Judiciary have not done enough ? When a person is attacked and wounded - it is assumed in legislative parlance as a evil of the first degree; since you 'only' are being affected. But once the news reaches your family and relatives - the pain you have suffered is shared by your family and is therefore 'derivative evil' arising from your 'primitive evil' of first degree. Here many members of your family and relatives come to know of the 'false offence' and are alarmed. When the news is published in a newspaper, a generic alarm is created among the public. The more public the case becomes - the more closely it is observed and covered by newspapers and TV channels. The element of "alarm and danger" is disjunctive from that of an individual to the whole society. Now, let us say an Indian Judge, rules adversely on the subject (husband) for not allowing his wife to watch a TV channel serial of her choice thereby sentencing him to 3 years imprisonment and Rs.2000 fine., considering that he has committed cruelty and does not it for his 4 unmarried girls in his household. This constitutes 'grave danger' to the society at large. Now the women folk will act with impunity and it encourages them to file false cases even more. The majority of the public might think it will not affect them or their lives, and who by their habit of ill conceived reflection might think the Judge was right and may not be alarmed et al. This is all second degree of evil. Now say the husband has been arrested and sent to remand by the mechanical vagrancies of our Indian Magistrates; where he commits suicide or simply after getting bail, returns home. His mental faculties have been affected to such a degree that by his very nature; he returns to work and allows his health to the worse, and loses his job, creditors knocking at his doors, S.125/127 Cr.P.C issues, thereby he suffers a life of indignity from his own family. Remember, he has already lost his wife and children to the draconian law. Sometimes, the subject goes mentally dead for want of job, money, creditors, running around job with fond hopes but failing. This is the 3rd order of the evil. Now the subject decides he has had enough, he decides to eliminate the subject because of the injustice done to him and his loss of reputation. Even in the past human history, the early greeks for example and the arabs had no issue of it, for fear of going unpunished. It would be classified as a successful defecation at the system. It was never a matter of shame. The urban Indian Women, if allowed to file false 498a cases, will think of it as a means of subsistence and livelihood. Many instances of women filing multiple 498a cases have come to the fore, having assets worth crores of Rupees, with the active assistance of the parents. Let us hypothetically assume you were charged with the offence saying you beat up your wife severely and, therefore, she had to be admitted to Government Hospital for grievous injuries; with a view to fund your bicycle. In Indian context, it is very easy to bribe a govt doctor and produce a government certificate. By the time the husband comes out of jail and starts investigating or when trial starts the so called injuries dissipate due to effervescence of time and there is no proof. By the evidence act - circumstantial evidence is admissible. Are we talking of lack of morality or lack of government apathy or both or plain population control among urban youth ? It would seem that in the Indian context - the Indian Male or husband is a rock for 'dung drying'. Recently the Allahabad High Court or State of UP, India; came out with some arrest guidelines after 1986 enactment. That is more than 25 years of this draconian law. All they said or directed the state government was to 'CONSIDER' some kind of amendment. God bless them and all our families. Amen ! Do not want to elaborate on it. You can find the crap they recommended on a search site. The supreme court has termed this 'fiction of law' - as being misused and by implication 'dangerous'. They call it 'legal terrorism'. Huh ! The law commission thinks the law is great 'as is'; and is being enforced and speculates that it will help the rural women folk with no statistics but the dung statistics - meaning 'how many ever male Indian husbands suicide' it do not matter. The law commission of India has kept their decision and recommendations under what you can call as 'we believe' - which is equivalent to saying - 'I can piss on you folk and no one can touch my silly ass 'cos I can con volute - 'whatever you say'. CONCLUSIONS: 1. Unfortunately, our legislators have NOT created provisos/qualifications/restrictions to curtail falsity or perjury since there is a bar under Sec.195 Cr.P.C. This the reason for the biggest continuing backlog of cases in context with Indian Judicial System. Falsity and perjury are common and widely prevalent in the Indian courts. I very much doubt what a judge can do when both parties are 'in pari delicto...'. Yet, s/he needs to dispose the case in favour of one and against the other. You cannot seem to curtail or extinguish an evil by permeating a greater evil. It sounds exasperatingly stupid yet it is so ! 2. By a deemed offence and by virtue of the theory of fiction of law; a new offence permeates. Obviously, a new law creates a curtail on the freedom of an individual and more power to the machinery enforcing it. The more laws - the more restrictions on your freedom. If a system were to work, it would and should mean - lesser crime and finally repeal of that statute. 3. It is a very effective law against reproduction among healthy urban Indian youth. It can be considered as an effective deterrent to curtail our population. 4. I support this law. I want more and more people to be affected by such draconian laws, sent to jail, and their families humiliated on a false complaint. I want enough people to be affected by this law that society regains its conscience of what is unjust and garbage's its indifference to such laws thinking it will not affect them personally. Praying for the day when the system crumbles under the weight of its own disgust and false trials. 5. On a positive note, India can afford to not have kids. It is just grossly overweight. With the rapid rise of divorces and live-ins; people can just have sex and enjoy with multiple partners. the system seems to be promoting this policy unfortunately instead of curtailing the mischief ! Therefore, there is no need to get married unless you want a first hand experience of our jails and the judicial anarchy prevalent in our courts. The concept of matrimonial life is actually straight forward - yet few people practice it. Once you involve a 3rd person or atom or molecule into your life - the family will simply self-destruct ! That is the law of nature- no law need regulate it or enforce it. However pure, humble, innocent. Morality and nature takes its course. **************************************************************** Yet another form of reverse terrorism, backlash might erupt now on Magistrates/Police/System - maybe even Politicians, which is happening today by civil society against corruption: As of now the Indian system allows all women's complaints to be forwarded to JMFC's to send them to remand straightaway without any application of the mind. A new breed of people might be cropping up with respect to such mechanical sentencing of them and their relatives to judicial custody. This is a theory - but some accused might be like the Greeks and Arabs who in historic times might like to seek and avenge their mechanical sentencing which is being followed in India. Revenge and vengeance are ancient and human fallacies and by no uncertain means - not just to person who is sending people to judicial remand but to police who harass and extort these innocent victims. Only when a couple of these bad policemen start getting killed will the investigation begin in India, due to faulty legislative theory and womens organisations being hit in their own families, will qualify to this theory. Right now many women organisations survive happily on grants; their families are dependent on their finding fault with others and trying to bring justice rather than reconciliation. It runs into crores of rupees. Have the womens organisations brought forth a report to see what they have accomplished and reconciled after such draconian laws have passed. When will they accept that a false complaint is a much bigger danger to society. Instead, they will rely on reports of how many they have booked for offences. Is there a reconciliation report ? How many have benefited by these women organisations ? Is their a report on how many women have benefited and what they are feeling or achieved after being rescued ? Nada. Zilch. They will never want you to know such details. SHH ..silence... is the word. I sympathize with them though. Everyone need live. Huh ! Live et let live but not at this cost. It just undermines public confidence and endangers everyone to live in fear of getting married. God bless those souls - who plunge into the age old tradition of marriage. After all marriage was performed only to legitimize children and regulate sexual conduct. FINAL CONCLUSION: In god you should trust like the American$. Wink ! ******************************************************************* Misuse of Section 498A http://pib.nic.in/newsite/erelease.aspx?relid=78322 : Ministry of Law & Justice08-December, 2011 17:32 IST In the cases Preeti Gupta v. State of Jharkhand (decided on August 13, 2010) and Ramgopal v. State of M.P. (Order dated July 30, 2010) relating to Section 498A, the Supreme Court of India has observed that complaints are not always bona fide and are at time filed with oblique motive. The Court has, inter-alia, requested the Law Commission of India to examine different aspects of Section 498A including that of making it compoundable. Giving this information in written reply to a question in the Lok Sabha today Shri Salman Khurshid, Minister of Law & Justice, said that the Law Commission of India has considered the above decisions of the Supreme Court of India. As per the information received by the Commission, more than one lakh cases are pending. The subject relating to Section 498A has been discussed at the meeting of Law Commission of India held on 31st October, 2011 and in the light of deliberations, the Law Commission will prepare the Report which will detail the need to make the offence under Section 498A IPC ‘compoundable’ or not. The Report will also deal with other aspects relating to Section 498A such as making it bailable, process of arrest, conciliation etc. -----------KKP/sl (Release ID :78322) Ministry of Women and Child Development08-December, 2011 16:20 IST Increase in Dowry Cases : http://pib.nic.in/newsite/erelease.aspx?relid=78322 The Minister of Women & Child Development Smt. Krishna Tirath revealed in Rajya Sabha in written reply to a question that the National Crime Record Bureau (NCRB) data on the number of cases registered under the Dowry Prohibition Act, 1961, does not show any definite trend. As per the NCRB data, the conviction rate under the Dowry Prohibition Act, 1961 was 27.3%, 23.1%, 23.9%, 21.5% and 23.3% in the years 2006, 2007, 2008, 2009 & 2010 respectively. The conviction rate in the year 2010 has risen over that of 2009, she said. The Minister further stated that as per Seventh Schedule, ‘Police’ and ‘Public Order’ are State subjects under the Constitution. As such, the primary responsibility of prevention, detection, registration, investigation and prosecution of crimes, including crimes against women, lies with the State Governments/ Union Territory Administrations. However, the Central Government attaches importance to the matter of prevention and control of crime against women and has been advising the State Governments from time to time regarding the steps that need to be taken to afford a greater measure of protection to the women and, in particular, to prevent incidence of crimes against them. These advisories, inter-alia, emphasize gender sensitization of the police personnel, minimizing delays in investigations of crime against women, improving the quality of investigation and setting up ‘Crime against Women Cells’ in districts where these do not exist. States/ UT Administrations have also been advised that dowry related cases must be adjudicated expeditiously to avoid further harassment of the women and also to develop a community monitoring system to check cases of violence, abuse and exploitation. In addition, the Ministry of Women & Child Development undertakes awareness programmes on issues related to dowry through electronic media, print media & outdoor publicity. ***** DK/BS (Release ID :78301) Ministry of Women and Child Development04-August, 2011 17:57 IST Centre moots training judges for Domestic Violence Act,2005 The Central Government feels the need to impart training to First Class Judicial Magistrates and Metropolitan Magistrates to deal with the cases under the Domestic Violence Act ,2005 through National/State Judicial Academies. Replying to a question in Rajya Sabha today the Minister of Women and Child development Smt. Krishna Tirath Stated that the Act is implemented by the State Governments/UT Administrations . The minister observed that the Government does not have definite information about the time taken by the magistrates in disposing off the cases but It is likely that judicial process may not be completed within the stipulated period of sixty days from the date of its first hearing in all the cases. But the increasing number of cases registered under the Act shows that more and more aggrieved persons are accessing reliefs and services under the provisions of the Act. Smt. Tirath revealed that as per National Crime Records Bureau (NCRB) data, total of 5788, 5643 and 7802 cases were registered under the PWDVA, 2005 during 2007, 2008 and 2009 respectively. The Protection of Women from Domestic Violence Act, 2005 (PWDVA, 2005) came into force w.e.f 26.10.2006. The Minister stated that Andhra Pradesh has witnessed highest no. of cases in the year 2009 under this Act in the nation which stands at 2710 . According to the figures tabled in the house total 203804 cases of all types of crimes against women were reported in the year 2009.The crimes included dowry deaths, physical assault and harassment at workplaces. However majority of complaints received by NHRC relate to atrocities on women by the police. She stated that the advisories issued to state governments emphasise on gender sensitization of the police personnel, minimizing delays in investigation, improving the quality of investigations and setting up ‘Crime against Women Cells’ in districts where these do not exist. States have also been advised to increase the overall representation of women in police forces. Ministry of Women and Child Development05-August, 2011 17:58 IST Proposal to amend the Dowry Prohibition Act ,1961 The Government of India is mulling over a proposal to review/amend some provisions of Dowry Prohibition Act, 1961.Replying to a question in Lok Sabha today the Minister of Women and Child Development Smt. Krishna Tirath stated that the Government has a proposal for amendment to the Dowry Prohibition Act,1961 to make it more effective and prevent its misuse .The Minister revealed that No complaints/ representations alleging misuse of Dowry Prohibition Act, 1961 have been received. She however informed that, some complaints/ representations regarding alleged harassment of husband and other family members for inflicting cruelty on account of dowry using Section 498A of IPC, have been received. Smt. Tirath stated that for preventing the misuse of Section 498A of IPC, Government has issued an Advisory to all the State Governments and Union Territory Administrations on 20th October, 2009. They have been advised to comply with the procedures laid down by the Hon’ble Supreme Court and that in cases of matrimonial disputes, the first recourse should be to effect conciliation and mediation between the warring spouses and their families. The recourse to filing charges under Section 498A IPC may be resorted to where such conciliation fails and where there appears a prima facie case under Section 498A and other laws. …………………………………………………………………………………… DK (Release ID :74012) Ministry of Women and Child Development 04-August, 2011 17:55 IST Centre not to interfere in joint matrimonial property issues The Central Govt does not have any proposal to make a central legislation for assessing the joint matrimonial property. Replying to a question in Rajya Sabha the minister of women and child development Smt. Krishna Tirath stated that the joint matrimonial property rights are governed by respective personal laws. Provisions for settlement and disposal of joint matrimonial properties at the time of divorce have already been made in respective personal laws and in some cases; it is governed by customs and usages. The minister further stated that since unpaid domestic work of housewives is not considered for GDP compilation, its value is not assessed. ........... DK (Release ID :73923) nesday, June 2, 2010 Can I give Power of Attorney to my advocate in divorce case ? JUDGEMENT 1: IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Reserve: September 05, 2008 Date of Order: September 19, 2008 CM(M) 1030/2008 19.09.2008 Mr. Vinay Jude Dias ...Petitioner Through: Mr. Sandeep Sethi with Mr. Anshu Mahajan and Mr. Vikas Aggarwal, Advs. Versus Ms. Renajeet Kaur ...Respondent Through: 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. The petitioner is aggrieved by an order of learned ADJ dated 25th August, 2008 whereby in a Divorce Petition by mutual consent filed by the petitioners, the Court directed personal appearance of both the parties for purpose of its satisfaction regarding an inquiry under Section 10(A) of the Divorce Act. 2. Notice of the petition was accepted by the respondent in the Court and respondent supported the petition and wanted the petition to be allowed. Thus, the Court has only to examine whether the personal appearance of the petitioner before the Court below was necessary in order to obtain divorce with mutual consent under Section 10(A) of Divorce Act. 3. In the present case, the special power of attorney in favour of one Mr. Lal Babu Tiwari was executed by the petitioner (husband) to appear before the Court and testify about the contents of the petition. The petitioner has signed the petition before Indian consulate High Commission of India in UK under Section 3(2) of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1947 under which the documents do not require any further evidence. 4. The learned ADJ relying on Janaki Vasudeo Bhojwani Vs. IndusInd Bank Ltd. AIR 2005 SC 439 wherein Supreme Court had held that a general power of attorney holder can appear, plead and act on behalf of the party but he cannot become witness on behalf of party. He can only appear in his own capacity. No one can delegate the power to appear in witness box on behalf of himself?, considered that the attorney cannot depose in the Court to satisfy the inquiry as required under Section 10(A) of Divorce Act. 5. There can be no dispute that the attorney of the petitioner can appear in the Court on behalf of the party and do the act as specified in power of attorney. An attorney is not an incompetent witness. He can appear in the Court and depose in the Court as a witness in respect of facts which are in his knowledge. He cannot depose in respect of the facts which are not in his knowledge and knowledge of which has been derived by him from principal without witnessing the facts himself. However, if an attorney has witnessed all those facts himself which were also witnessed by the principal, an attorney cannot be told that he cannot appear in the witness box and depose in the Court in respect of the facts known to him. Facts which are within the special knowledge of principal and are not in the knowledge of attorney can only be deposed by the principal. Whether the parties were married on a particular day, is not a private act of the parties. Marriage is normally a public act in this country and evidence can be given by anyone who has knowledge of the fact. Whether the parties are living separate or not is also known to other people associated with the parties and is not something secret. Similarly, for how long parties were living separate can be deposed in the Court by any person who is aware of the facts. If an attorney aware of these facts and can answer the questions of the Court, the attorney cannot be told that he is not a competent witness or his statement would not be recorded. Similarly an attorney, on the basis of instructions/directions given to him, can answer the queries, if there was any possibility of parties patching up and living together or the marriage has broken down irretrievably. An attorney has to be allowed to appear in the witness box and make statement. The Court may reject that part of his statement which is based on hearsay or which he has no personal knowledge. But he cannot be prevented from appearing in the witness box and deposing and answering the queries. Same is the import of judgment of Supreme Court in Janaki Vasudeo Bhojwani (supra) wherein Supreme Court had not debarred an attorney from appearing in the witness box but the Supreme Court has stated the facts which are only in the knowledge of the principal, about those facts attorney cannot testify in the Court. 6. This Court in Neelima Chopra vs. Anil Chopra 1986 (11) DRJ 188 held that if both the parties, by way of affidavits or through counsel, state that they are married, and are able to produce proof of the marriage and that they have been living separately and have not been able to live together for the prescribed period, then there can be no reason as to why the Court should not record its satisfaction as envisaged under Section 13-B(2) of Hindu Marriage Act, despite the fact that parties had not appeared in person and pass a decree for divorce. 7. The Division Bench of Calcutta High Court in Annalie Prashad vs.Romesh Prashad AIR 1968 Calcutta 48 had made following observations : ?3. In our opinion, neither of the above two reasons can be sustained in law. The Special Marriage Act by Section 40 attracts the Code of Civil Procedure subject, of course, to the other provisions of the said statute and to such rules as the High Court may make in that behalf. The learned trial Judge does not say that there is anything in the statute or in the rules, which would conflict with the view that affidavit evidence would be permissible, unless we agree with him that the Act, having prescribed that the parties should be heard,would necessarily require their personal appearance or presence before the Court. We do not, however, think that that is the consequence of the words ``hearing the parties'` and, accordingly, the reason given by the learned trial Judge in that behalf cannot be accepted We are also unable to agree that, in a case of divorce by mutual consent, affidavit evidence should be excluded on the ground that in such a case, it is desirable that the parties themselves should be present in Court. In the premises, Order 19 of the Code of Civil Procedure would be attracted by the above special statute as part of the Code and would not be excluded either expressly or by necessary implication.? 8. Where the parties are living far away from the jurisdiction of the Court competent to dissolve the marriage, the parties after filing their affidavits can appoint attorneys to act on their behalf. Attorney is competent to act on behalf of the principal on the basis of power of attorney executed by the principal. The Courts have been allowing attorneys to file the petition, to withdraw the petition, to carry on proceedings in the Court on behalf of their principal in all other cases. The attorney can also act in matrimonial cases as per instructions of their principle. The Court can take necessary precautions to prevent frauds being perpetuated on it but unless the Court smells some kind of fraud being played with it, the Court should normally recognize the act of the attorneys. 9. I therefore allow this petition. The order of the Trial Court insisting on the personal appearance of the parties is set aside. The attorneys are permitted to make statement before the Court below. September 19, 2008 SHIV NARAYAN DHINGRA J. the B* back. Saturday, October 10, 2009 What is Electronic Evidence ? Sending Summons by E-Mail. In India, various courts have held that unilateral recording between husband and wife is not admissible in evidence as it is a breach of privacy. However, even though it is not admissible, it can tilt the verdict in your favour. Most people want to know the truth. Justice is far more important than procedure. But because statute restricts such evidence, the judge will dismiss the evidence but his conscience will not. E-mail threats by her are admissible since exchange is bilateral. So also, are telephone conversations if Police produce them. You cannot record telephone conversations unilaterally. You need to ask police to investigate by providing the date, time, source phone and destination phone number, area call received etc. Then, it becomes a record and positive evidence. So on.. etc etc.. You can use under section 65(B)as a secondary evidence and in this you have no need to prove its original or not. After section 65, section 65A and 65B have been added laying down the provisions about Admissibility of electronic records. Moreover, the concept of electronic evidence fails to identify the kinds of documentary evidence namely the primary and the secondary evidence as every electronic record is an original as well as in duplicate. However, the provisions of section 65A and 65B help to overcome this complex situation. The AMENDMENTS TO THE INDIAN EVIDENCE ACT, 1872 introduced this new section which states:- Admissibility of electronic records. 65B. (1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible. (2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely: — (a) The computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer; (b) During the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities; (c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and (d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities. (3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) ofsub-section (2) was regularly performed by computers, whether— (a) by a combination of computers operating over that period; or (b) by different computers operating in succession over that period; or (c) by different combinations of computers operating in succession over that period; or (d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly. (4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, — (a) identifying the electronic record containing the statement and describing the manner in which it was produced; (b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer; (c) dealing with any of the matters to which the conditions mentioned in sub section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. (5) For the purposes of this section, — (a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment; (b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities; (c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. Explanation.—For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom bycalculation, comparison or any other process. The phenomenon of tendering tape recorded conversation before law courts as evidence, particularly in cases arising under the Prevention of Corruption Act, where such conversation is recorded by sending the complainant with a recording device to the person demanding or offering bribe has almost become a common practice now. In civil cases also parties may rely upon tape records of relevant conversation to support their version. In such cases the court has to face various questions regarding admissibility, nature and evidentiary value of such a tape- recorded conversation. The Indian Evidence Act, prior to its being amended by the Information Technology Act, 2000, mainly dealt with evidence, which was in oral or documentary form. Nothing was there to point out about the admissibility, nature and evidentiary value of a conversation or statement recorded in an electro-magnetic device. Being confronted with the question of this nature and called upon to decide the same, the law courts in India as well as in England devised and developed principles so that such evidence, mat be received in law courts and acted upon. The relationship between law and technology has not always been an easy one. However, the law has always yielded in favour of technology whenever it was found necessary. The concern of the law courts regarding utility and admissibility of tape recorded conversation, from time to time found its manifestation in various pronouncement. In Hopes v. H.M. Advocate, 1960 Scots Law Times 264, the court while dealing with the question of admissibility of tape recorded conversation observed as under: New techniques and new devises are the order of the day. I can’t conceive, for example, of the evidence of a ship’s captain as to what he observed being turned down as inadmissible because he had used a telescope, any more than the evidence of what an ordinary person sees with his eyes becomes incompetent because he was wearing spectacles. Of course, comments and criticism can be made, and no doubt will be made, on the audibility or the intelligibility, or perhaps the interpretation, of the results of the use of a scientific method; but that is another matter and that is a matter and that is a matter of value, not of competency. An authoritative and categorical exposition this point is found in Rex v. Maqsud, 1965(2) All ER,461 wherein the Court of Criminal Appeal observed that the time has come when this court should state its views of the law matter which is likely to be increasingly raised as time passes. For many years now photographs have been admissible in evidence on proof that they are relevant to the issues in involved in the case and that the print as seen represents situations that have been reproduced by means of mechanical and chemical devices. Evidence of things seen through telescopes or binoculars which otherwise could not be picked up by the naked eye have been admitted, and now there are devices for picking up, transmitting and recording conversations. In principle no difference can be made between a tape recording and a photograph. The court was of the view that it would wrong to deny to the law of evidence advantages to be gained by new techniques and devises. In India, the earliest case in which issue of admissibility of tape-recorded conversation came for consideration is Rupchand v. Mahabir Prasad, AIR 1956 Punjab 173. The court in this case though declined to treat tape-recorded conversation as writing within the meaning of section 3 (65) of the General Clauses Act but allowed the same to be used under section 155(3) of the Evidence Act as previous statement to shake the credit of witness. The Court held there is no rule of evidence, which prevents a party, who is endeavoring to shake the credit of a witness by use of former inconsistent statement, from deposing that while he was engaged in conversation with the witness, a tape recorder was in operation, or from producing the said tape recorder in support of the assertion that a certain statement was made in his presence. In S. Pratap Singh v. State of Punjab, AIR 1964 SC 72 a five judges bench of Apex Court considered the issue and clearly propounded that tape recorded that tape recorded talks are admissible in evidence and simple fact that such type of evidence can be easily tampered which certainly could not be a ground to reject such evidence as inadmissible or refuse to consider it, because there are few documents and possibly no piece of evidence, which could not be tempered with. In this case the tape record of the conversation was admitted in evidence to corroborate the evidence of witnesses who had stated that such a conversation has taken place. The Apex Court in Yusufalli Esmail Nagree v. State of Maharashtra, AIR 1968 SC147 considered various aspects of the issue relating to admissibility of tape recoded conversation. This was a case relating to an offence under section 165-A of Indian Penal Code and at the instance of the Investigating Agency, the conversation between accused, who wanted to bribe, and complainant was tape recorded. The prosecution wanted to use this tape recorded conversation as evidence against accused and it was argued that the same is hit by section 162 CrPC as well as article 20(3) of the constitution. In this landmark decision, the court emphatically laid down in unequivocal terms that the process of tape recording offers an accurate method of storing and later reproducing sounds. The imprint on the magnetic tape is direct effect of the relevant sounds. Like a photograph of a relevant incident, a contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under section 7 of the Indian Evidence Act. The Apex Court after examining the entire issue in the light of various pronouncements laid down the following principles: a) The contemporaneous dialogue, which was tape recorded, formed part of resgestae and is relevant and admissible under section 8 of the Indian Evidence Act. b) The contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under section 7 of the Indian Evidence Act. c) Such a statement was not in fact a statement made to police during investigation and, therefore, cannot be held to be inadmissible under section 162 of the Criminal Procedure Code. d) Such a recorded conversation though procured without the knowledge of the accused but the same is not elicited by duress, coercion or compulsion nor extracted in an oppressive manner or by force or against the wishes of the accused. Therefore the protection of the article 20(3) was not available. e) One of the features of magnetic tape recording is the ability to erase and re-use the recording medium. Therefore, the evidence must be received with caution. The court must be satisfied beyond reasonable doubt that the record has not been tampered with. Conditions Of Admissibility: The tape recorded conversation can be erased with ease by subsequent recording and insertion could be superimposed. However, this factor would have a bearing on the weight to be attached to the evidence and not on its admissibility. Ultimately, if in a particular case, there is a well grounded suspicion not even say proof, that the tape recording has been tampered with that would be a good ground for the court to discount wholly its evidentiary value as in Pratap Singh v. State of Punjab, AIR 1964 SC 72. in the case of Ram Singh v. Col. Ram Singh, AIR 1986 SC 3, following conditions were pointed out by the Apex Court for admissibility of tape recorded conversation: a) the voice of the speaker must be duly identified by the maker of the record or by others who recognize his voice. Where the maker has denied the voice it will require very strict proof to determine whether or not it was really the voice of the speaker. b) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence direct or circumstantial. c) Every possibility of tempering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible. d) The statement must be relevant according to the rules of Evidence Act. e) The recorded cassette must be carefully sealed and kept in safe or official custody. f) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbance. Identification Of Voice: As regards the identification of the taped voice, proper identification of such voice is a sine qua non for the use of such tape recording, therefore, the time and place and accuracy of the recording must be proved by a competent witness and the voices must be properly identified. [(See: Yusufalli Esmail Nagree) (Supra)] Transcript: The importance of having a transcript of the tape-recorded conversation cannot be under estimated because the same ensures that the recording was not tampered subsequently. In the case of Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehta, AIR 1975 SC 1788, the Apex Court considered the value and use of such transcripts and expressed the view that transcript could be used to show what the transcriber has found recorded there at the time of transcription and the evidence of the makers of the transcripts is certainly corroborative because it goes to confirm what the tape record contained. The Apex Court also made it clear that such transcripts can be used by a witness to refresh his memory under section 159 of the Evidence Act and their contents can be brought on record by direct oral evidence in the manner prescribed by section 160 of Evidence Act. Nature: Tape-recorded conversation is nothing but information stored on a magnetic media. In the case of Roopchand (Supra), though, Punjab High Court declined to treat tape recorded conversation as a writing within the meaning of section 3 (65) of the General Clauses Act but this view could not be survive for a long and the Apex Court in Ziyauddin Burhanuddin Bukhari (Supra) clearly laid down that the tape recorded speeches were "documents as defined by section 3 of the Evidence Act", which stood on no different footing than photographs. After coming into force of the Information Technology Act, 2000, (w.e.f. 17.10.2000) the traditional concept of evidence stands totally reformed. Section 2(r) of this Act is relevant in this respect which defines information in electronic form as information generated, sent, received or stored in media, magnetic, optical, computer memory, micro film, computer generated micro fiche or similar device. Under section 2 (t) ‘ electronic record ’ means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche. Section 92 of this Act read with Schedule (2) amends the definition of ‘evidence’ as contained in section 3 of the Indian Evidence Act. The amended definition runs as under: “Evidence:‘Evidence’ means and includes- (1) all statements which the court permits or requires to be made before it by witness, in relation to matters of fact under inquiry; such statement is called oral evidence; (2) all documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence. From the aforesaid provisions it becomes amply clear that the law, as it prevails today, takes care of information stored on magnetic or electronic device and treats it as documentary evidence within the meaning of section 3 of the Indian Evidence Act. Utility/ Evidentiary Value: The next question regarding evidence of the tape-recorded information, is about utility and evidentiary value. In this respect following points require consideration: a) b) c) Whether such evidence Whether such evidence Whether such evidence is is primary is direct corroborative or secondary? or hearsay? or substantive? The point whether such evidence is primary and direct was dealt with by the Apex Court in N. Sri Rama Reddy v. V.V. Giri, AIR 1971 SC 1162. the court held that like any document the tape record itself was primary and direct evidence admissible of what has been said and picked up by the receiver. This view was reiterated by the Apex Court in R.K. Malkani v. State of Maharashtra, AIR 1973 SC 157. in this case the court ordained that when a court permits a tape recording to be played over it is acting on real evidence if it treats the intonation of the words to be relevant and genuine. Referring to the proposition of law as laid down in Rama Reddy’s case (Supra), a three judges bench of the Apex Court in the case of Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehta, AIR 1975 SC 1788 propounded that the use of tape recorded conversation was not confined to purpose of corroboration and contradiction only, but when duly proved by satisfactory evidence of what was found recorded and of absence of tampering, it could, it could subject to the provisions of the Evidence Act, be used as substantive evidence. Giving an example, the Court pointed out that when it was disputed or in issue whether a person’s speech on a particular occasion, contained a particular statement there could be no more direct or better evidence of it than its tape recorded, assuming its authenticity to be duly established. From the aforesaid it can well be gathered as a settled legal proposition that evidence of tape recorded conversation being primary and direct one it can well be used to establish what was said by a person at a particular occasion. Corroboration/Contradiction: Under section 157 of the Indian Evidence Act, a witness may be corroborated by his/her previous statement. Section 145 of the Act permits use of a previous statement for contradiction of a witness during cross-examination. Again clause (1) of section 146 provides that during cross examination, question may be put to a witness to test his veracity. Section 153 generally deals with exclusion of evidence to contradict answers to questions testing veracity. However, exception (2) of it permits a witness being contradicted if he has denied any fact which was put to him to impeach his impartiality. Section 155 (3) deals with impeaching the credit of a witness liable to be contradicted. The Apex Court in N. Sri Rama Reddy (Supra) after considering the matter laid down that the evidence of the tape recorded conversation/statement apart from being used for corroboration is admissible for the purposes stated in Section 146 (1), Exception (2) to section 153 and section 155 (3) of the Evidence Act. Also see this judgement IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20/11/2007 CORAM : THE HONOURABLE MR. JUSTICE A. KULASEKARAN C.R.P. (PD) No. 2657 of 2007 and M.P. No.1 of G. Shyamala Ranjini .. also 2007 Petitioner Versus M.S. Tamizhnathan .. Respondent ************************************************************* Audio, Video, & Photos are all electronic records and evidence covered under Evidence Act. No need for digital signature certificate in Family Courts as long as you can prove that the evidence material is genuine along with the original storage chip or microchip or data chip. If chips not available then witnesses in the audio or video can be used. Read the IT Act of 2000 and amended in 2008. Even e-mails can be used as proof of some event. The e-mail address sent or received should be known to the person and he/she should admit use of the email address.You can also use electronic form of evidence to get your Anticipatory Bail w.r.t Matrimonial Offences by quoting the IT Act and showing the recording of apprehension of a false case.After the passage of the Information Technology Act-2000 (ITA2000), Electronic Documents have come to be recognized as equivalent to written documents for the purpose of law. Similarly, Digital Signatures affixed as per the provisions of the ITA-2000 will be considered equivalent to written signatures. The Indian Evidence Act has also been suitably amended by the ITA-2000 to provide for presentation of evidences of Electronic Documents either in the electronic form itself or as certified print outs. It is therefore envisaged that Electronic Documents such as E-Mails and Web Pages will be potential evidences to prove contracts by any party to a business contract.Not sure if this works or is legit but pasting the stuff here for legally admissible mail servings or summons in 498a cases incase your wife is missing in action: ***************** More teeth and byte to IT law Changes to the IT Act will enable it to crack down on cyber offences strongly but the law is ‘soft’ in parts, say experts.. When it comes to spamming, the grouse is that the relevant Section (Section 66 A) would only apply if the identity of the spammer is established. Moumita Bakshi Chatterjee Nearly three years after it was introduced in the Lok Sabha and almost a year after it received a green signal from both Houses of Parliament, the IT (Amendment) Act, 2008 has come into force. The amendment allows the Government to go after new-age cyber criminals and crimes — identity theft, cyber-stalking, cyber harassment, child pornography and spamming — and also gives it more ammunition to tackle cyber terrorism. But legal eagles say the changes have turned out to be a bitter-sweet pill. While the cyber law zeroes in on new forms of crime, it has toned down punishment in the case of certain offences. Critics further caution that the new legislation arms the State with sweeping powers to block Web sites and snoop, but has not built in adequate safeguards to check possible misuse of such powers. Crowning glory First, the good news. Clearly, one of the most important changes that have been brought about pertains to cyber terrorism, with Section 66 F of the amended legislation prescribing life imprisonment for such offences. This assumes significance as the recent terror attacks have demonstrated just how tech-savvy militants can be. Be it the Parliament attack or the more recent Mumbai terror strike, the use of technology — from satellite phones, e-mails, Internet to the more sophisticated GPS equipment — has been rampant. Experts opine that the amendments that have come into force now have penned down the widest possible definition of cyber terrorism even by global standards. “In that sense, India has taken thought leadership in clamping down on cyber terrorism,” says an industry watcher. To quote the section verbatim, “whoever, knowingly or intentionally penetrates or accesses a computer resource without authorisation or exceeding authorised access, and by means of such conduct obtains access to information, data or computer database that is restricted for reasons of security of the State or foreign relations; or any restricted information, data or computer database, with reasons to believe that such information, data or computer database so obtained may be used to cause or likely to cause injury to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence, or to advantage of any foreign nation, group of individuals or otherwise commits the offence of cyber terrorism.” Cyber law experts have dubbed the new Section as the crowning glory of the legislation. “The original IT Act did not have relevant teeth to deal with cyber terrorism. It now provides an additional remedy for booking cyber terrorism, where perpetrators leverage electronic formats and technology to execute terror attacks,” they say. At the same time, the amendments have expanded the scope of the Act beyond the ambit of computer and computer network to specifically include “communication device” — mobile phones, PDAs or any other device used to communicate, send or transmit any text, video, audio or images. In one swift move, this has brought mobile users under the scanner. Earlier too, mobiles were considered to be under the wide definition of “computer” but now, inserting a clause on “communication devices”, has left no doubt about the scope of the Act. Breather for intermediaries Another contentious clause that has been tweaked pertains to the liability of intermediaries. Remember the controversial arrest of Baazee.com CEO in December 2004 in a case involving the sale of a sexually explicit MMS clip, on the auction site? Well, the IT (Amendment) Act now provides a breather of sorts to such intermediaries. Under the original Act, the intermediary was required to prove that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of an offence. “The amendment shifts the onus of proving the guilt on the lawenforcement agencies instead. It has decimated the liability of intermediaries so long as they observe due diligence and fulfil other parameters of Section 79. On the other hand, it has made the definition of intermediaries more comprehensive to includes auction sites, telecom and network service providers, ISPs, web hosting companies, search engines and online payment sites, among others,” says Pavan Duggal, a noted lawyer and an expert on issues pertaining to cyber regulation. Casting the net wide The new legislation casts its net, wide. It now talks in specific terms — sending offensive messages through communication services (spamming), violation of privacy (video voyeurism), Wi-Fi hacking, phishing, identity theft, et al. “While a few of these offences find mention in the Indian Penal Code (IPC), the IT Act, by providing specific provisions pertaining to those offences such as cheating by impersonation, or criminal intimidation through spamming or sending insulting messages, provides better clarity,” points out Karnika Seth, managing partner of Seth Associates Law firm and author of Cyberlaws in the Information Technology Age.So far silent on heinous crimes such as child pornography, the amended law clamps down on such offences. Publishing and transmitting of material depicting children in sexually explicit acts, etc, in electronic form will attract up to five-year imprisonment and a fine of up to Rs 10 lakh on first conviction; and up to seven-year imprisonment and fine of up to Rs 10 lakh on second and subsequent conviction. ‘Soft’ in some portions However, a section of the legal fraternity feels that notwithstanding its expanded ambit, the law has gone “soft” on cyber crimes. Barring cyber terrorism and a few other offences, all offences where punishment is up to three years are now bailable. Moreover, in the case of Section 67 dealing with publishing or transmitting obscene material in electronic form, while the original Act stipulated up to five-year imprisonment and Rs 1 lakh fine for the first conviction, it now talks about up to three-year imprisonment and up to Rs 5 lakh fine. Similarly, the term for the second and subsequent conviction stands reduced. “At a time when the world is increasing the quantum of punishment for cyber crimes, India perhaps has the dubious distinction of reducing the punishment,” quips Duggal. Critics have also spoken out against enhanced powers of the State when it comes to issuing direction for interception or monitoring or decryption of any information through any computer resource; or directions to block public’s access to information generated, transmitted or even hosted in a computer resource. “The provisions pertaining to blocking of Web sites is an area of concern. Instead of State agencies, the legal system should give the necessary directions. There should be a set process of giving notices and hearing before such blocking takes place,” says e-security expert Vijay Mukhi. Some analysts are also of the opinion that while Section 43 (A) talks about compensation for failure to protect data — it assigns responsibilities on body corporate, possessing, dealing or handling any sensitive personal data — India should have taken the cue from nations such as the UK that have a distinct and comprehensive legislation dealing with the subject. Their view: a single provision is not adequate to cover the critical issue. Similarly, when it comes to spamming, the general grouse is that the relevant Section (Section 66 A) would only apply if the identity of the spammer is established — a tall order in itself. “The US has anti-spam law in the form of Can Spam Act, anti-spam legislations are also in place in Australia and New Zealand. But the Indian IT Act has not addressed this effectively,” says Duggal, adding that these offences should have been covered more exhaustively under the amended legislation. Still, the law appears to be far more potent now in dealing with new-age cyber crimes than ever before. But for a country where the conviction for cyber crime has been abysmally low thus far and under-reporting has been the order of the day, just how effective the law turns out remains to be seen.
[email protected] ******************** You might also like: How to mother Trial Court Judges ? Proclaimed Offender and Attachment of Property. Is PWDVA a disaster or catastrophic ? Most Asked Questions - court procedure/terms. Dowry Prohibition Act - All details - Statement of Objects and Reasons, Amendments of various States. How to use E-Mail as Evidence ? sday, November 17, 2009 How to file RTI for NRI's ? Direct Complaint to CIC : http://rti.india.gov.in/rti_direct_complaint_lodging.php To make it easy for Non Resident Indians (NRI) to file Right To Information applications, the Ministry of Overseas Indian Affairs has asked government departments to provide a link on their websites for receiving online applications and appeals. The ministry has written to Department of Personnel and Training, nodal department for RTI affairs and Ministry of External Affairs to make guidelines in this regard and make necessary changes in the Act. Its website has a link facilitating reception of online applications. According to the proposal mooted by the ministry, an NRI will now be able to deposit Rs 10 as RTI fee in the equivalent local currency at the Indian Mission abroad and send their application through email to the concerned public information officer informing about deposit of fee."NRIs are entitled to seek information from Ministries/Departments of Government of India/States under the RTI Act. In the absence of appropriate arrangement of deposit of requisite fee, they are finding it difficult to seek information," G Gurucharan, Joint Secretary at the Ministry of Overseas Indian Affairs wrote to DoPT. It was a difficult task for the NRIs to file RTI applications seeking information as there is no mechanism for online applications. The deposit of fee was also a difficult matter as there is no provision in the Act for submitting it in the currency of any other country. Now, NRIs submit their RTI applications at Indian missions abroad which forward it to officials concerned but fee was accepted only in Indian currency. The fee can be paid either in cash or in valid instruments like postal order, demand draft etc. It was difficult for NRIs to arrange such instrument abroad leaving them no option but to physically go to the Indian mission and submit fee in cash along with application. An RTI applicant Commodore Lokesh Batra made a complaint before the Central Information Commission highlighting the plight of NRIs. Batra had also raised the issue during the annual convention convened by the Commission in October last year which elicited positive reaction from activists and commissioners. After getting complaint from Batra, the Commission had sought views of the Ministry of Overseas Affairs and Ministry of External Affairs. The Ministry of Overseas Affairs in its submission said, "payment of fee for seeking information has to be decided by the Ministry of External Affairs...As regards first and second appeal from abroad, matter has been taken up with the Department of Personnel and Training." ************* People living in US can also file RTI's to Indian PIO by following the below steps 1) RTI application to the concerned PIO of the concerned department directly , for example if it to the MHA then send it to the Home Minister PIO . 2) The RTI application also needs to be accompanies by a check of 27 cents ( Rs 10 ) payable to Embassy of India, Washington, DC. 3) Application must be accompanied documentary proof of Indian Citizenship (like copy of personal particulars pages of passport.) The application must be mailied to the Emabassy PIO Mr. Rahul Chhabra Minister (Press, Information & Culture) Fax: 202 -462 7276 who will then forward the application to the concerned PIO of the agency from whom the information is requested . The PIO's name and address will remain the responsibility of the individual filing the RTI . Example if I want to get the info on the MHA letter from India from the US with an RTI act this is what I will do . Send an RTI addressed to the PIO of the MHA with is full name and address + check favoring the US embassy in Washington + copy of personal page of passport + mail the application to the PIO of the Indian embassy in Washington . The embassy will forward all such RTI to the concerned department. More info on the RTI act is below . http://aidindia.org/main/content/view/437/74/ http://www.indianembassy.org/newsite/RTI.asp ******************************************************** If you have been arrested without the Police following guidelines, Please find out the reason for your arrest by following this procedure. To The Public Information Officer Office of the Director General of Police (Your State), Police Head Quarters, District. State. From xxxx name xxx House XX P.O xxxx xxxxxxxxxx – 600xxx Sub: Application under the RTI Act, 2005 Sir, Please provide the following information with respect to the same: 1) Are police officers obliged to obey orders, instructions and guidelines regarding policing given by Courts? 2) If answer to query number 1 is "YES" then a) Please provide information regarding various department-level actions that are supposed to be taken against those Police officers who violate orders, instructions and guidelines given by Courts? b) Kindly provide a copy of the circular issued by Director General of Police Kerala, as per the instructions given by Supreme Court of India in the judgment JOGINDER KUMAR Vs STATE OF U.P. dated 25/04/1994. (Para 23) c) Whether or not the guidelines in the judgment JOGINDER KUMAR Vs STATE OF U.P. dated 25/04/1994, (Para 20) got enforced in Kattoor crime 2008/245? District - XXX Police Station - XXX Year - xxx FIR No - XXX Date - x/x/2010 Investigation Officer - MF & SOB d) If answer to query 2(c) is “YES”, please provide relevant facts and documents for the justification. e) If answer to query 2(c) is “NO” please provide relevant facts, documents, names and addresses of the officers against which action has been taken. 3) Kindly provide the following information (supporting documents if any) regarding the investigation of aforementioned crime. a) Date and time when investigation officer received the Magistrate order for investigation. b) Time spent on investigation. (total number of days or hours before arrest) c) Number of persons, their names and addresses that investigation team subject to interrogation in order to conclude the offense is real. d) Number of persons, their names and addresses that investigation team subject to interrogation in order to check the integrity of the petition and to conclude there were no oblique motives and no attempt of blackmail and extortion by the petitioner. 4) Kindly provide details (Name, Identification No, etc) of the CI who verified the investigation as per Circular No xx/xx before charge sheeting. I am enclosing the application fee of Rs.10 (Court fee stamp). If you feel that above requested information does not pertain to your department then please follow the provisions of Section 6(3) of the RTI Act, 2005. Also as per the provisions of the RTI Act, 2005 please provide the details (Name, Designation and address) of the first appellate authority with reference to your department along with the reply to the above request, where I may if required file my first appeal. Yours truly, XXX. You might also like: the B* back. Thursday, August 13, 2009 How to dismiss Impotency allegation under Sec 12 (1)(a) I will not go into why you would end up facing this ugly section. By the time the combination of Divorce case and 498a hits you, you will be a seasoned warrior dodging bullets as easily as Neo in Matrix. Actual approach to the medical tests. You need to be very careful about how to get the tests done. The tests are divided into three parts - Now after the trial starts, get her evidence completed. You will stand in the witness box and finish your and other corresponding witnesses croxx-examination. After everything is done, file an application in the court summoning the doctors who did the Semen Analysis, Penile Doppler Scan and the doctor who issued the medical certificate.Court BehaviorDrop the bomb that you are always willing to undergo any medical tests anywhere recommended by the court, and challenge the girl that is she willing to drop the case if the results come against her. Now imagine what will be her reaction to this uncomfortable question. If she says yes, the judge will come to the conclusion that she is a fraud. If she says no, she will have to prove why for which she will have no answer. Let us now get down to the nuts and bolts on how to win over the section. Virginity Tests Never file an application for the girl to undergo a medical test. Your lawyer can ask the question to her if she is willing to undergo a test during the final stages of her cross-examination. Then drop it, do not pursue it. If she magically produces a certificate stating she is a virgin, do not accept it. File an application to refer her to the Medical Board. The truth will soon emerge. Counter Allegation Never accept anywhere that you have faced difficulty in having sex with your ex. The judges will not even attempt to see on whose side the fault is. They will assume that marriage has not been consummated and hence the impotency charge has been proved. Understand this, potency and consummation are different subjects. A person can be potent but may not consummate the marriage owing to extraneous reasons. She may herself deny the conjugal rights and then file a divorce petition in the court claiming the respondent is impotent. Separate the issues. First provided adequate medical proof that you are potent, then show to the court by the behavior that marriage has been consummated. Inform the court that you enjoyed blissful conjugal relationship and she was very enthusiastic in bed, and in fact participated in all the normal sexual activities. Notice/complaint Since she will raise the bogey of impotency, you need to be very careful of how to handle the situation. Never admit in writing/e-mail/panchayat/telephone that you faced problem in conjugal relationship. The judge when confronted with this evidence will assume that marriage has not been consummated. Now if she sends you a notice or gives a police complaint, celebrate. Because she gave the complaint, she is bound by the result of the medical tests. The legal concept for that Doctrine of Aprobate Reprobate. Ask you lawyer about this for explanation. If she makes an allegation that you have got the certificate by bribing/impersonation/faking etc., it will not stand in court as she was the one who made the allegation and got the respondent tested, and cannot disown the results if they go against her allegation. Do mention in your statement of objection that you underwent the medical tests at her instance. However if she makes an allegation that the documents are fake, you can use the doctrine of aprobate reprobate during written submission stage and not earlier. Tests and Doctors 1. Semen analysis 2. Penile Doppler Scan 3. Visual Examination The doctors play a very important role in this. Always approach a UROANDROLOGIST in the Fertility department. No other doctor will suffice. I know that it is impossible for a normal man to get an erection in public places (unless you are a pervert ;) ). How to overcome the problem ? The doctor will ask you if you can get a normal erection, or you will be administered a erection inducing drug for the tests. Refuse the drugs, inform the doctor that you are confident of getting a natural erection but need some time and privacy, which will be given by the doctor. Before you go for the tests, go to any pharmacy shop and purchase sildefanil (viagra/penegra) pills. Take one pill 30 minutes prior to the tests. You will get a natural erection. Take along some adult magazine, masturbate in the hospital premises and provide the semen sample.The doctor will make a note in the file that you have a natural erection. Very important that you get it noted down. For penile doppler test, again refuse the erection inducing drug, take the pill 30 minutes prior to the test and get the scan completed. The key in getting successful test is breathing normally. Do not breathe rapidly, because the blood starts flowing to the heart and brain rather than to the penis. The doctor will think that the blood flow is abnormal and will make a note of it in the chart, which will go against you. Relax, laugh, take along your buddy, crack some dirty jokes, but ensure that you are not stressed out. The report should show that blood flow is normal and hence no damages such as venus leak or damages to the veins. The final test is visual examination. The doctor will examine your penis in two states, flaccid and aroused. He will ask you to cough and examine for damages to the organ. Again refuse the erection inducing drugs, pop a pill 30 minutes before the test and get it examined. The medical certificate should mention that all tests were done on the subject, in a naturally aroused state. Ensure that details such as your correct name, dates of tests, age etc are correct in the certificate. Psychological Problem The next problem you may encounter is psychological problem. The allegation will be like that you suffer from some fear psychosis or perverseness which prevents you from getting an erection. If that is mentioned in the complaint/petition/notice, approach any government clinic and get in touch with the doctor. In my case, me suffering from psychological issues were brought up during the evidence time, which the judge refused to consider. I do not have any experience in how to overcome such tests successfully. Doctors Evidence. Accompany the court officer who will serve the summons to the above mentioned doctors. Find out their daily consultation fees and pay 50 % over that amount to the doctors privately. They hold the key to get the dismissal. Inform them to get all the medical records in original form. Confirm the dates and the procedure to them. Both you and doctor must sing the same tune and speak the same language. Inform them that the questions they face will be with reference to faking the certificates, forging of their signatures, that they have taken bribes, tests were not conducted on you but somebody impersonating you. After the doctor's testimony, comes the written submission part. Inform the court that these doctors are top-notch specialists in their respective fields, the hospitals are highly reputed, they are neutral witnesses and have no benefit in giving testimony in your favor. Oh and good luck, do not worry, be confident, cheerful and positive. It is very important for you to be present before the judge at all stages. He will visually examine you to see if you have any physical characteristics why may confirm the falsehood presented in the petition. **************** please read following judgment --> Where impotency is the cause of a marriage remaining unconsummated it may be that (a) both the husband and the wife are impotent, (b) the husband alone is impotent, or (e) the wife alone is impotent. Impotency may be relative impotency, that is a person may be incapable of sexual intercourse with a particular person only though capable of normal sexual intercourse with another person. The incapability may be either physical or mental. Now let us take the case of a woman who is totally frigid (mental incapability to have sexual intercourse) and she is so not relatively but absolutely. Certainly this would be a case of impotency. Now such a woman (an "inanimate" woman) will not cease to be impotent if a man forcibly penetrates his penis into her vagina. The last two cases relied upon by Mr. Rebello are of this type. An "inanimate" man cannot penetrate for sexual intercourse. A man having sexual intercourse cannot be said to be "inanimate" or impotent. The fact that he has been "persuaded" or "lured" or "seduced" makes no difference, nor does it make any difference that this was only a single act of copulation. In our case the man has copulated with her, that is penetrated her for sexual intercourse. Certainly this is no case of impotency. If you are genuinely impotent and need some information... click here. You might also like: How to fight False Allegations ? Most Asked Questions - court procedure/terms. Is PWDVA a disaster or catastrophic ? When to file for FIR Quash ? What about witness /witnesses ? LinkWithin Posted by Amicus Curiae at 10:42 PM Labels: 498A, 498a FAQ, 498A misuse, Dowry, free, impotency, matrimonial, matrimonials, matrimony, Sec 12 (1)(a), the B* back. Monday, May 18, 2009 Can victim file DV after taking recourse to 498A? Victim cannot seek remedy under two different enactments for same cause: HC Mohamed Imranullah S. As a police complaint had already been filed, cognisance cannot be taken under Domestic Violence Act MADURAI: Judicial Magistrates cannot take cognisance of a complaint under the Protection of Women from Domestic Violence Act, 2005 if the victim had already lodged a complaint with the police under the provisions of the Indian Penal Code, the Madras High Court has ruled. Disposing of a petition filed in the Madurai Bench by a family from Dindigul, Justice V. Periya Karuppiah held that a victim could not seek remedy under two different enactments for the same cause of action as it would amount to double jeopardy which was prohibited under the Constitutional law. The Judge also said that a woman could not demand action, under the Act, against her in-laws for writing a letter to her husband’s office seeking his employment details. He agreed with petitioners’ counsel N. Veera Kathiravan that the complainant would not be in anyway aggrieved by such a letter. An aged woman, her daughter and son-in-law had filed the present petition seeking to quash an order passed by the Dindigul Judicial Magistrate-II who took cognisance of a complaint lodged by the former’s daughter-in-law alleging that the petitioners assaulted her and also wrote letters to her office and that of her husband. “Apply mind” Stating that the mother-in-law alone could be prosecuted for writing a letter to her daughter-inlaw’s office, Mr. Justice Karuppiah said: “When a complaint is filed under the Act, the lower court must apply its mind and ensure if the allegations attract provisions of the special enactment. But in this case, it has been taken on file abruptly.” The Judge quashed the case with respect to the victim’s sister-in-law and brother-in-law on the ground that there was no evidence to prove that they assisted in writing the letter. In so far as the allegation of assault was concerned, a complaint was pending with the police and hence the victim could not invoke the 2005 Act, he said. , July 18, 2009 AP high court judgments. Justice Swaroop Reddy judgment on misuse of 498a, stern warning to women, and grant of Anticipatory Bail to relatives and family who are accused in a domestic dispute. Justice Swaroop Reddy maintains whether the proceedings under the Domestic Violence Act are maintainable against women in view of Section 2 (q) of the Act; honorable judge holds that female members cannot be made respondents in the proceedings under the Act. 2009 JUDGMENTS: Trial judge includes "Attempt to murder section(IPC 307)" alongwith 498a and convicts him. In High Court accused is directed to pay compensation(Section 357 Cr.P.C.). 498a FIR quash dismissed on jurisdiction grounds. Woman alleges - illicit intimacy subjected the complainant to harassment in various ways and left her at her parental house - so accused harassed even in her jurisdiction - hence FIR not liable to be quashed. Section 498-A of IPC and under Section 4 of Dowry Prohibition Act, husband and 2 others convicted -Warangal. Elders interfered and under provisions of the Probation of Offenders Act, 1958 released and wife living with husband. Wife again complains second time and asks trial court to sentence them again by affidavit, high court taking into account reduces sentence to period already undergone. (30days). Dismissed. No evidence. 2008 Judgments Wife claims maintenance against the first respondent while admittedly she has not obtained any divorce from herfirst husband. No maintenance. Dismissed. 2003 Judgments When admissible DP 3 & 4, Statement not valid - neither considered evidence. Statement before court, oath only valid. You might also like: the B* back. Friday, May 8, 2009 Important Judgements: What constitutes cruelty ? What constitutes /attracts IPC 405,6 ? SC judgment. 2009. SC quashes incpmplete, hazy facts of case. Evidence not been collected - issues involved, whther factual or legal are of magnitude and should be seen in true perspective. Where this is not possible or incomplete and insufficient material - Quash it. 29th june 2009, DP 3 explained. no prosecution under the Dowry Prohibition Act can be launched in view of the exemption provided under section 7(3) of the Act as against the parents and relatives of the victim girl. July 10 2009-'Wife can't level charge against hubby at whim' SC: Petty matrimonial spats not covered by section 498A, IPC that the inherent powers under Section 482 of the Code include powers to quash FIR, investigation or any criminal proceedings pending before the High Court or any Courts subordinate to it and are of wide magnitude and ramification. Lesbian GayBT relationship is legal as per this Delhi High court judgement http://lobis. nic.in/dhc/APS/judgement/02-07-2009/APS02072009CW745 52001.pdf http://www.indiankanoon.org/doc/1953156/ no interim maintenance if father takes custody of child. 2004(1) Apex Court Judgments 265 (S.C.) : 2004(2) Criminal Court Cases 460 (S.C.) SUPREME COURT OF INDIA Deb Narayan Halder Vs Smt.Anushree Halder Criminal Procedure Code, 1973, Section 125 - Maintenance - No evidence to prove that wife was subjected to torture and harassment by husband - Wife left matrimonial home on her own - Wife not entitled to maintenance. 2002(1) Criminal Court Cases 687 (Bom.) - 2002(3) Civil Court Cases 172 (Bombay) BOMBAY HIGH COURT Sayyed Jabbar Ali Vs Mst.Saheba Fatima Criminal Procedure Code, 1973, Section 125 - Maintenance - Wife must prove neglect and refusal on part of husband - Ill-treatment cannot be substantiated on basis of general allegations of wife in absence of details thereof. http://timesofindia .indiatimes. com/CJI-Balakrishnan-admits- to-misuse- ofdowry- laws/articleshow /4057825. cms 1. Please search for the "Central Information Commission’s Decision No.1816/IC(A) /2008" This is the one that relates to wife's PF account details. 2. For Dhingra ji's judgment, please search online for "CRL.M.C.7262/ 2006" and Delhi high court It says ". I consider time has come that courts should insist upon disclosing source of such funds and verification of income from tax returns " Who is a "Husband" ? Man claims not to have married woman and 498A not justified. Live in. IN THE SUPREME COURT OF INDIA, CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 867 OF 2009 (Arising out of SLP (Crl.) No. 4496 of 2006) Mere possibility of abuse of a provision(498A) of law does not per se invalidate a legislation: IN THE SUPREME COURT OF INDIA, CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 976 OF 2001Satish Kumar Batra VersusState of Haryana. Freakish and efficacious maintenance conditions for 498A bail and AB made by sessions or high court: IN THE SUPREME COURT OF ,CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 344 OF 2009 (Arising out of S.L.P. (Criminal) No. 637 of 2008)Munish Bhasin & Ors Versus State (Govt. of N.C.T. of Delhi) & Anr. ... Respon Victim cannot seek remedy under two different enactments for same cause: HC Quash after 498a twice and divorce filed 1992 second 498a on 1999 and order on 2009 quashing proceedings MADURAI: Protection of Women from Domestic Violence Act, 2005 can also be used against female members of a family, the Madras High Court Bench here has ruled. RTI recognised- Right to copies established ANTICIPATORY - BAIL if a person on bail violates bail condition and travels abroad without taking court's permission, then his/her bail need not necessarily be mechanically cancelled Bail applications/offences/names of police stations/crime number tampered with, overwriting, under section 195, complaint under Section 340(1)(b) of the Code. Rules for granting Bail http://www.judis.nic.in/chennai/qrydisp.asp?tfnm=12840 What and when is Anticipatory Bail applied SC Judgement: No article return in bail proceedings AB GRANTED—FIR highly imaginative ! 90% AB only from matrimonial matters HC !!!!!!!!! cancellation bail denied Cancellation of bail reversed by SC No cancellation of bail When to grant AB? NBWs should be used cautiously: SC tells courts Living Separately Fit case for AB Facts not a matter while Granting bail or AB Not paying maintenance AB rejected? NO FIR needed to Grant bail SC Rules framed AB proceedings No recovery Proceedings! CHILD CUSTODY & VISITATION Foreign Custody orders no Use in India Mother gets child in spite of mental instability claim How Visitation should be determined Foreign Child- Fight Custody abroad SC Judgement: Don't deny visitation to husband default order Husband not to be denied complete access to his minor child Illegitimacy of the child cannot be granted by Family court Child object of a tussle for custody between parents BPD not a ground to shift custody SC Rules for child custody SC fine of Rs.2000/- for forcibly took away baby Simran Batra Father in custody of Child Alleged alchohalic father gets Custody !!! Father got child custody in SC Father got custody in SC Mother is not a proper person for the child to grow with HC The father is the natural guardian of a minor son 498a/306 HC conviction set aside by SC SC: Father gets the custody of minor daughter Justice Dhingra: Guardian & Ward Act 498A/306 Customary gifts are not dowry (498a quashed against FIL/MIL) 498a has jurisdiction SC Judgement: How to demolish 498a evidence to shreds SC Judgment #2: Need material evidence to prove demand? HC (Delhi): Magistrate wrong in sending Summons in 498a/406 498a is irretrivable break down of marriage HC HC (Delhi): 498a wife, father, brother beat husband in court false statement implicated the entire family Committing suicide and implicating Husband Name of Justice S.N.Bhargava used extort by false 498a FIR One year is Limitation for 498a Limitation period to file 498A 498a fine 3,00,000/- paid futher medical expenses 66000? 498a can be filed by no married wife!!! 498a Jurisdiction Supreme Court SC discharge 306 convict by HC Directions to police MAINTENANCE No maintenance who cannot prove cruelty Alimony can be granted even to an erring spouse Parents-in-law can't be forced to maintain daughter-in- law: SC HC (Bombay) Deserting without just Cause No Maintanance Wife entitled to free legal aid - No legal expenses Unregistered Mutual Consent a good one for denying maintenence Under RTI provide PF info of wife to husband Well qualified wife no maintenance Well qualified wife Chand Dawan Judgement on maintanance HC (Madras): Maintanance Judgement Whether Magistrate can grant interim maintenance UP state ammendment query for crpc 125 is there limit for child maintenance No maintanance for highly earning wife HC (Chhattisgarh): No maintanace for a desrting wife Maintenance sought in an unconsummated marriage HC (Madras): Divorce Grated Alimony seperately!! Inherited income by wife - Cosideration for maintanance SC When maintanance to be paid Unemployed but Qualified wife- No maintanance Chhattisgarh HC: No Maintenance judgement Earning wife not entitled to maintananace Father In Law not liable to Provide Residence THERE IS NO ABSOLUTE RIGHT TO MAINTENANCE If son has no right in papa's House Wife also don't Divorce withdrawn- Maintance to be paid Proceedings under Section 125 Cr.P.C. are civil in nature. Husband to prove his Earning Jurisdiction for MC cases Chennai HC Maximum one month jail for not paying maintanance If you do not pay maintenance No maintenance No maintenance for wife with high income No maintenance DIVORCE Lodging false complaints with a view to harass husband constitutes cruelty. Foreign divorce when valid in India What is the grounds for DIVORCE Two rounds of Litigation Caused desertion and Divorce Granted POA in family court is allowed HC (Madras): Definition of Mental Cruelity HC (Madras): DNA-wife adultrous in 1984- Divorce in 2006 HC (Madras): Ex Parte order cannot be set aside HC Judgement (Madras): Discussion on Foreign Divorce SC: Failed to pay maintenance - Divorce denied marriage Void/ Bur children ?? How to prove desertion? Advised she be treated by a psychiatrist No ground A deserted spouse should begin the Case No HC Evidence takes us nowhere But Divorce granted No hope for the parties living together peacefully Divorced What is irretrivable breakdown SC What is desersion Sc What is Cruelty SC Cruelty cannot be judged from solitary incident. Declare the adoption of SON as null and void Cruelty Issue of husband and wife revolving around wife's chastity Ground for Divorce In the mordern world -HC Void allegations without proving the same amounted to cruelty Filing false complaint arresting family -ground for Divorce Irretrievable Breakdown of Marriage TRANSFER PETITION http://judis. nic.in/supremeco urt/qrydisp. aspx?filename= 30509 SC: No Transfer at advanced stage Good strategy in Transfer case-- Jus rs 5/- expenses! No transfer if no allgation of threat!! Transfer and complete trial within one year SC Threat to life: transferred Transfer FIR to the Relevant Police station Transfer of case- Follow Jurisdiction SC HCs cannot shift civil cases outside state: SC QUASH SC Judgement Don't quash Dowry Case - Respondant not appear HC Judgement (Madras): A Hero who fought 498a properly !! SC Judgement: Good Partial quash (406 can be quashed) 498a Connot Be Quashed on Parties making Settlement PART I http://www.498a.org/forum/viewtopic.php?f=16&t=2697 http://www.498a.org/forum/viewtopic.php?f=16&t=2698 http://www.498a.org/forum/viewtopic.php?f=16&t=2699 http://www.498a.org/forum/viewtopic.php?f=16&t=2700 SC: Partial quash is possible Imaginary journey in the realm of possible harassment Counter case by husband not quashed!!! HC (Madras): Quash when two complaints filed 406 and 498a quash Reasons Compromise going back ground for quash Charge Sheet filed No quash Police Filing negative report- No quash When 498a FIR can be quashed? SC Court Refusing to quash after Five Years Good Grounds Absurd even to think that old lady of 65 yr would beat Quash oppression by frustrated or vindictive litigant- Quash FIR Settlement FIR quashed? In spite of money material given by DD FIR/Charge sheet quashed 506 IPC non cognisable - Declares Delhi High Court When FIR can be quashed SC Not stayed with petitioners, even for a single day- Quashed Fit case for quash Delhi High court PASSPORT SC Judgment: Passport impounding improper: per Article 21 SC: Police and even courts cannot impound passport SC Judgement: Passport impounding improper: per Article 21 No investigating agency can simply retain the passport Police and court cannot impound passport but can seize it for at most 4 weeks No directions for recovery of articles or seizing of passport need be given while dealing with application for anticipatory bail NEED JUDGEMENTS TO SEEK PERMISSION TO TRAVEL ABROAD SC order PP cannot be seized at the time of AB Bombay HC: Impounding Passport in Bailable Offences MICELENOUS speedy trial and get out Right to sppedy trial Full bench of SC Wife can go back on terms ofsettlement SC: Conditions when NBW's can be issued (use it sparingly) HC (Madras): Landmark Judgement- Right to certified copies Should a govt. job be denied on just FIR? SC: Approach Magistrate to get FIR filed DNA test related Co accused can apply to be defense witness Is it mandatory that the accused should be questioned ? Are harrassed at Police Station File complaint HC (Madras): Audio CD, Recording admisssible in evidence HC Sex with student with consent NOT rape SC: Limits of powers of judiciary Registration of marriages made compulsory 498a bribe taking women police punished Onus of proof very heavy on Party Approching Court File Damage Siut If you are wrongfully arrested Tape recorded conversation admisable SC No further Investigation SC Offences relating to dowry prohibition Dismissed Simultaneously conduct the trial of O.P. (Divorce) and M.C Paternity Test No violation Of Rights Foreign judgemnt relevency proceeding for injunction relating to the properties Attorney can act on client's behalf for Mutual Divorce PREJURY HC (Madras): What is perjury? EVEN JUDGES/POLICE ACKNOWLEDGES THAT 498A IS GROSSLY MISUSED HC Judgement (Delhi) - Tendency to rope in everyone in 498a HC- girls are making false claims SC: Acknowledging the 498a misuse (Grant Bail in 498a) Legal terrorism COurts To take care when Misused http://www.hyderabadpolice.gov.in/WomenCorner/498A.htm CONTEMPT Settlement violation - No contempt of Court Even if you commit contempt its just one month jail What is contempt !!!! What is contempt http://judis.nic.in/supremecourt/qrydisp.aspx?filename=29218 DOMESTIC VIOLENCE Interim order passed by judges under the DV act 1) In one case the house belonged to the Wife and her mother in law jointly. The house was on loan and EMI was being paid by the husband. The wife demanded right to residence or rent and also claimed maintanance. The court has order rent of 10000/- for the wife and 5000/- as maintanance for the child. But the best part is that the earning wife has been ordered to pay 50% of the EMI along with baklog to the husband by the wife. So this is a great arrangment wherein the wife gets only 3000/- as net maintanance. 2) In another case the Wife claimed for 60000/- maintance and also right to residence. The judge ordered both the couples to live together in a seperate flat of the husband and ordered the husband to bear all the house hold expenses and ordered 2500/- other expenese for both the wife and the child. From the above two interim orders under the DV act it can be seen that the judges are trying to do justice in their own way. If the act is too onesided then even the judges know how to play with the law and at the same time deliver justice. In both the above cases the hungry wives dint get any great monitory benefit but were given hidden reliefs. Wife has no right to stay in Parents in law's House Second wife entitled to maintanance? DV ACT makes it!! Prove home violence for relief: court http://www.dnaindia.com/report.asp?newsid=1138505 http://www.dnaindia.com/report.asp?newsid=1138505&pageid=2 Your house caould be broke open with a Exparte DV order!!! DV can filed for acts even before the Act came into force HC Domestic violence Act: No retrospective effect(dv put to grab flat) RTI Landmark judgment of the Allahabad HC 1. No need for a citizen to give reasons why he seeks information, his background is no reason for information to be denied to him under RTI 2. PIO cant take a plea that its third party info while denying info u/s 8.(1).(j), without first referring it to the third party. 3. PIO to hear the third party and then to decide where is the larger public interest - in disclosure or non-disclosure 4. The MOST important issue: It has ruled in favor what we have always believed in and practiced in Gujarat. Section 18 to 20 are all interlinked and cant be looked at in isolation. Therefore a complaint against denial / deemed denial of information u/s 18 which empowers a SIC / CIC with powers vested in a civil court under the code of Civil Procedure, cant be held hostage with section 19 of 1st appeal. The CIC has been guilty of holding this stand since the Act coming into effect. This decision views all these 3 sections and their respective sub-sections as having one objective - securing access to information and keeping truant officers in check 5. A SIC / CIC can hearing a complaint can require a public authority to provide information at the same time penalize him to ensure that its done *************** Repeated adjournments as misuse. 1. J. Jayalalithaa vs Assistant Commissioner of Wealth Tax [MADRAS HIGH COURT] date. The case was posted on August 22, 1995, for furnishing the aforesaid information and enquiry. Repeated adjournments were sought on behalf of the petitioner but the details sought for were not ... section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty ...20 Jan 2009 2. Rajesh Ranjan Yadav @ Pappu Yadav vs Central Bureau of Investigation Through Its Director [SUPREME COURT OF INDIA] 1 SCC 702007 (1) SCC 702006 Indlaw SC 911 while dismissing one of the bail applications filed by the appellant ... therewith to submit that the delay, if any, in the completion of the trial was on account of repeated applications filed by the appellant in the trial court asking for one or other information or the ...30 Nov 2007 3. Rama Devi vs Deepak Agarwal [RAJASTHAN HIGH COURT] learned counsel for the petitioner submits that the order passed by the trial court amounts to misuse of the process of law and also against the interest of justice.Learned counsel for the ... should not be a ground for acquittal of the accused or dropping of the proceedings unless on repeated adjournments neither the counsel nor the complainant appeares. In the instant case on the last ...09 Feb 2009 4. Yashwitha Constructions Private Limited, Represented By Its Managing Director M.Promod Mumar Reddy, Chennai vs Simplex Concrete Piles India Limited, Rep. By Its Managing Director, Kolkata [ANDHRA PRADESH HIGH COURT] commenced proceedings in November/December, 2004. However the arbitral proceedings again got delayed and, eventually, it was only in the 10th meeting that the matter proceeded further. Applicant ... before the sole arbitrator but had continued to take adjournments. According to the respondents, repeated adjournments were sought by the applicant except on a couple of occasions. They would contend that ...01 May 2008 5. Sabitanjali Pattanaik vs Priyabrata Pattanaik. [ORISSA HIGH COURT] of the case ex parte. He has pointed out that the wife-appellant cannot be accused of taking repeated adjournments to delay the proceeding in as much as on several occasions the wife was present, but ...11 Dec 2000 6. Montari Industries Limited and Another vs State and Another [DELHI HIGH COURT] were not maintainable. It was also observed that these applications had been moved in order to delay the trial of the cases.3. Considering the history of the cases and the order sheets, a copy of ... by learned Counsel for respondent No. 2, this Court finds that the petitioners have been taking repeated adjournments and trying to delay the disposal of complaints. Vide orders dated 27.3.2004, the ...25 Sep 2004 7. Jasbir Sobti and Others vs Surender Singh [DELHI HIGH COURT] are lapses galore on the part of the plaintiffs in not prosecuting the case diligently thereby delaying the process endlessly. We are afraid, in the name of justice no such licence can be given to ... of the case, namely, fail to file the documents, conduct admission/denial and even fail to appear repeatedly. We have to keep in mind the interest of opposing party as well. If the matter are dragged like ...25 Jul 2008 the B* back. Saturday, July 11, 2009 What after chargesheet (final report) by police ? See, nobody can arrest you before you have been charge stetted. That is in every rules of HC of India. What you need to do is - find out if there has been a 'prima facie' case against you. If there is there is no use filing for 482 - quash. Thereafter, file for discharge in trial court. File for jurisdiction in trial court. Then you bring it to HC for jurisdiction. For patent errors or NRI directly file in HC for jurisdiction - since criminal is different from civil and continuing is different from one time. Divorce or custody or maintenance she can file at her place but not criminal case i.e., IPC 498A. Unless, it is a continuing offence or changed circumstances. That is why once IPC 98A is filed , stop talking, writing, or in any way communicating. It is the end of relationship sadly accordingly to Indian Law. Charge sheet is filed u/s.238 Cr.P.C. So What, File for discharge and jurisdiction based on word to word reproduction of FIR in charge sheet or verbatim production. Some guy has wrote in MyNation: here it goes... Immediately accused have an opportunity to challenge the chargesheet in from of submitting 'Discharge Application' u/s.239 Cr.P.C. This opportunity if lost, has no side effect whatsoever. However 'Revision' lies at Session Court u/s.397 Cr.P.C. Even if 'Revision' is lost, remedy lies as 'Apeal' at High Court for 'quesh' u/s. 482 Cr.P.C. Even if apeal is lost, remedy lies with Supreme Court under Article 32 of Constitution. Even if all these opportunities are lost, there is absolutely no side effect whatsoever of these remedies. But it MUST BE REMEMBERED AND KEPT IN MIND that 'Discharge Application' has very limited area to play. You have to prepare your 'Discharge Application' on the basis of :1] Only all the documents accused received with chargesheet ; and 2] Any document which police have in their possession [may be submitted by accused at the time of bail application at court or made some application to police attaching some documents] but not submitted with chargesheet to make case of accused weak and case of complainant/prosecution strong. Accused simply cannot rely upon any other document or evidence for 'Discharge Application'. Then when other evidence will help ? Answer is in 'trial'. As soon as Chargesheet is filed and accused decide to file 'Discharge Application' then he has to follow the following steps : 1] Make application as advised above. You have to state 'Grounds' for discharge and show that no 'prima facie' case is made out. 2] This application need not be submitted on the date given for 498A case. It can be submitted on any day. Some courts have their own methods for handling it. In some court, a 'MISC' (miscellaneous) case number is given and heard separately with separate set of hearing dates. In some court, it is heard under the same number of chargesheet case (Criminal Case : C.C. No.). But under any method, the main 498A case is stopped till 'Discharge Application' is not disposed off. 3] One copy of 'Discharge Application' is given to PP in court at the time of filing original application for discharge in court. Court writes order on discharge application - 'PP to say'. 4] Now PP has to submit his say and he makes all drama of not submitting. Here accused can submit 'Pursis' to court on each and every date about 'PP' not submitting his/her say. Accused can make application to court that 'PP' has nothing to say and therefore not submitting his/her say and therefore, proceeding may please be continued without his/her say. Accused should not care for outcome of these exercise, but continuous pressure should be built on PP to give his/her say. Please note, without his/her say, matter will not move at all and therefore it is very essential to build a continuous pressure which normally advocates don't do. 5] After PP's say, accused has to make arguments. Accused can submit 'written argument' (with a copy to PP) and also make oral submission, both. 6] Then PP has to make his/her argument. Again he may ask for adjournments for his/her argument and accused has to repeat pressure building tactics. Unless PP makes argument, matter will not proceed further. But 498A will remain in abeyance (on hold). 7] Then proceeding is completed. Magistrate gives order on discharge application - either acquittal OR dismissal of application. 8] Hereafter accused may choose either to go to 'Revision' or forget going ahead. Then charges are framed u/s.240 Cr.P.C. which accused shall contest fighting that how charges are not applicable. But no advocate fight for this. So in this manner accused get 2 opportunities. But due to this, trial is delayed. 9] In my opinion, trial is the BEST way if accused have no good evidence in chargesheet or with police which is hald back by them. If 'Informant' has no proof for any allegation, then mere denial by accused to accusations, gives acquital due to 'benefit of doubt'. M.R. GUPTA MUMBAI HELPLINE You might also like: the B* back. Tuesday, August 4, 2009 What to do if my EX is not attending court ? What will the 498a wife do to harass you more after filing 498a - see has quite a few tricks and will test your patience..yes that is what she will do - if you do not give in to her whims and fancies ....thats what ur 498a girl is doing... understand this....she is the complainant. after the chargesheet is filed she is the darling-witness- of the court. the bread-and-butter of the case for the SHO,IO, PP & the magistrate/judge. being a pampered darling-witness, the court does give-in to her tantrums and once in every 3-4 adjournments (after she failed to appear and depose in the court) the court directs the SHO or IO to personally be present, the SHO or IO would not come..then the magistrate would issue a bailable warrant..and lo....she wont come and the SHO/IO writes a letter(which is presented on the next date of hearing) to magistrate/judge that she's either untraceable, changed her home or out-of-stationcountry/watever. ..and what happens...another 2-3 adjournments. ..then the magistrate issues NBW....woww. ...the police go after her...locate her..and bring her to the court. her mere presence becomes an automatic ground for cancellation/ voidance of NBW. no penalties, no rebuttals, nothing.. why? stupid...she's the darling of the case...can't you understand? ?..she deposes by way of giving CHIEF EXAMINATON either in full (on the same day) or partially(means chief exam adjourned for next date of hearing)... now is the interesting turn...the status of your case will be listed in the causelist as PHT....partially heard trial. Once its a PHT case, the court gleefully waits eternally for her to complete her chief examination and cooperate for cross-examination. the same may go repeated by the PW2, PW3, PW4 (who would be either mom, dad,uncle, sister of her) well...what are u options at this stage....only one....expedition petition in HC and getting an order from HC that the case be concluded in 15, 30, or 45 days !!!! ********************** Tips for getting a Speedy Trial, RCN, Look Out Notice You can file a writ in High court for Speedy trial(writ of mandamus: on which the High Court can instruct the lower court to finish the case trials within 2 months or some such specific time period), citing the instances of delay, caused by complainant( witness), by other reasons(submit certified copies of your court's Roznama for making these facts evident). Also see http://groups. yahoo.com/ group/saveindian family/message/ 88665 and http://ipc498a. wordpress. com/2007/ 04/10/right- to-speedy- trialis- a-fundamental- right-sc. Actually you can ask for quashing of the case itself(instead of Writ of Mandumus) in the written prayer,though you lawyer can ask the judge for Speedy trial verbally, if quash is not viable in your case. If the complainant witness(Wife) persistantly absents herself, give written applications each time she remains absent asking the court to insist the complainant to be present for the next hearing(the court will tell the advocate and get his verbal undertaking, and record the same in roznama), after two applications like this in two different dates, put an application for issuing of bailable warrant since she has not obeyed the court's instructions for which her advocate had given a verbal undertaking/ assurance, in next hearing if the complainant is still absent , put an application for non bailable warrant. The next procedure before you can apply for a quash on the grounds of non-appearance by complainant would be to issue a public notice by way of news paper advertisement( this is not mandatory, but this step will stengthen your quash case) Finally apply for quash if she still doesnt turn up. All the proceedings which happens during the day of court hearing will be recorded in the Roznama, so get all concerned certified copies of roznama and use it in your Quash or Writ of Mandumus in the Highcourt. __________If the Complainant- Witness(Wife/ exwife) is an NRI_________ ___ In parallel to this, after she doesnt turn up after Non bailable warrants too, push the police to issue 'Look Out' Notice for exwife(which will ensure her arrest the moment she passes through the immigration terminals of an Indian Airport), then start process for getting Red Alert notice(RCN) to be issued by interpol, with this RCN you can approach UK court and get her side weak too. For RCN process u have to get in touch with SIF-US guys, especially Bala Golds who recently had wrote about an RCN related issue( this was with respect to saving one self from RCN, so this is the flip side of RCN strategy!) in the group: http://groups. yahoo.com/ group/saveindian family/message/87288. You might also like: the B* back. Monday, April 27, 2009 Why women file 498A ? swastika-mukherjee-admits-her-dowry-harassment-allegations-were-false Kolkata, Sept 23 (IBNS): Tollywood actress Swastika Mukherjee has confessed in a media conference that the dowry harassment allegations she made against her estranged husband were false, apparently bringing a closure to an episode that has been playing out amidst full media glare for ten years. . “I was young, I did not have enough sense back then and I did what my family, friends and peers advised me to do,” is how Swastika on Wednesday chose to explain why she falsely accused her husband singer Promit Sen of “subjecting her to cruelty” and “criminal breach of trust”. Swastika’s shocking but predictable confession comes a day after she apparently submitted an affidavit at a city court admitting that the charges she made against her husband and her in-laws under Indian Penal Code 498A and 406 were “unfounded, false, baseless and speculative”. Swastika and Promit, the youngest son of renowned Rabindrasangeet exponent Sagar Sen, were married in June 1998, when the actress was just 18. “Things started to go wrong around two years later when like a bolt from the blue my brother, our family and even me, who all lived in different places, were charged by her for dowry related crimes,” said Pritam Sen, Promit’s elder brother, who also attended the press conference. “We went through hell for the past ten years. So many arrest warrants, all the expenses and the defamation aside, my brother is never going to get back the last ten years. He’s totally mentally devastated,” he added. Though divorce was reportedly filed by Swastika in 2001, the cases are still under legal red tape. Pritam said recently Swastika had issued a press release which after being published in the media made it seem as if the two parties had reached a compromise and were heading for divorce which was definitely not the case. Hence Wednesday’s press conference was called by the actress “to come clean”. “I am deeply sorry for all that Promit and his family has had to go through. I hope he can move on,” said Swastika. “As far as the custody of our daughter Anwesha is concerned, lets see what plays out. She’s a ten-year-old girl and she too has a say in this,” she said. When asked what drove her to suddenly make such an effort, she replied that it was not out of any pressure but just a “realisation”. Sources, however, say this might be just a coup to get the divorce the 30-year-old actress, who is known for her ‘who cares’ attitude and has not exactly had the smoothest relationships over past few years, has been after for quite some time. Pritam, however, said he and his family were pleased at Swastika’s confession. He said, “I think we should give her the benefit of the doubt. Let’s see what this leads to. But we’ll not accept anything but a genuine apology.” The Sen family is apparently not mulling pressing charges on the actress since they are “not vindictive people”, said Pritam. The confession, apart from sending gossip mills in overdrive, also sheds light on the Indian Penal Code which leaves the door for such a heavy-handed charge wide open for misuse. ************************************** Judge royally screws a woman who misuses domestic violence and restraining orders against husband. Before we discuss it see what ancient hindu culture says: Yudhishthira (addressing Bhishma) said: Women in particular, the Rishis have said, are false in behaviour. Women in particular have been declared in the ordinances to be false. In the very Vedas one may read that women are false. The Mahabharata Anusasana Parva, Section XIX They (women) make a lie appear as truth, and a truth appear as a lie. The Mahabharata Anusasana Parva, Section XXXIX Addressing Shakuntala, Dushmanta said: "Women generally speak untruth" The Mahabharata Adi Parva, Section LXXIV - "Lord Indra himself has said, 'The mind of woman cannot be disciplined; she has very little intelligence. ' " Rig Veda 8.33.17 Lakshmana (addressing Sita) said: It is the nature of women all over the world to be vicious, fickle, and sharp-tongued and to sow seeds of dissension. Valmiki Ramayana Aranya Kanda, 45.29 • Legal Extortion – Get-rich-quick-scheme to extort large amounts of money • Prior Relationship – Wife has a prior relationship, and cannot get out of it. She marries to satisfy her parents, and then misuses the 498a law in order to obtain a divorce. • Adultery – Women who indulge in adultery use 498a as a bargaining tool • Domination – Wife wants the husband to abandon his parents and siblings, and have total control over his finances and social behaviour • Custody - Deny the father and his family access to their child(ren). • Fraudulent Marriages - in which the bride (and her family) hides her education level or mental health; and when is justifiably asked to release the person who has gone into marriage without knowing the full facts; she files a false 498a case. The kind of women who are likely to file false 498A cases have certain typical traits : • Who is suffering from pre-existing mental problems such as Borderline Personality Disorder, Bipolar Disorder, Schizophrenia, etc., • Whose family is nouveau riche and likes ostentatious display of wealth, possessions as well as social and political connections • Who is used to living beyond her means • Whose father is hen-pecked and whose mother dominates all family situations • Who listens to and acts in accordance with her parents’ wishes at all times, exhibiting a lack of individuality and discretion in dealing with her married life • Who pushes for quick involvement during the establishment of a marriage alliance, pressing the man and his family for an instantaneous commitment • Who is excessively possessive and suspicious • Who is self-centred and feels the need to dominate the relationship and every aspect of decision making • Who tries to alienate her husband from his family and friends • Who is hypersensitive and therefore easily insulted • Who indulges in verbal abuse and constant criticism of her husband and in-laws • Who uses blackmail (emotional or otherwise) and threats to get her unreasonable demands fulfilled by her husband and in-laws • Who walks out on her husband following an argument and stays away from her husband indefinitely without any effort towards reconciliation ********************** · One simple thumb rule is: The girl's mother is dominant with a big ego (or short tempered) and her father is a henpecked husband. This combination makes the house unstable because of over emotionalism. Henpecked men being suppressed develop vicious traits. So, while mother-in-law remains dominant and arrogant, the father-in-law behaves viciously. Girls subconsciously seek men who are similar in behavior to their fathers. So, a girl from this kind of a house has a greater chance to have serious marital problems as she needs a henpecked husband. If the guy is non-assertive and principled (gender equality oriented), then this humility is often considered as a weakness in above kind of families. · Family: Is newly-rich: Likes to show-off (their house/cars/paintings/relatives/ connections, etc.); Related to politicians/bureaucrats/lawyers/judges/police officers; Has a history of filing cases against anybody and everybody (search the website of the courts in their State of residence); Beats up its employees; Lives beyond its means; Mother's face cannot be seen beneath the layers of cosmetics; Father acts like a 'Brown Sahib'; Girl/her sister has been in more than one previous relationship, etc. · A push for a quick involvement: Comes on very strong, claiming, "I’ve/We've never felt loved like this by anyone/or so close to anybody." An Abusive woman/her family pressures the man/his family for an exclusive commitment almost immediately. · Jealousy: Excessively possessive; calls constantly or visits unexpectedly: prevents you from going to work because ‘you might meet someone;" smells your jacket for perfume residue, checks your shirt collar for lipstick marks and goes through your pant pockets. · Controlling: Interrogates you intensely (especially if you’re late) about whom you talked to, and where you were; wants her name on all your assets/control all the money. · Unrealistic expectations: Expects you to be the perfect man and meet her and her family's every need. · Isolation: Tries to cut you off from family and friends; accuses people who are your well wishers of "causing trouble." · Blames others for problems and mistakes: The boss/the employee, her exboyfriend/ ex-husband, it’s always someone else’s fault if anything goes wrong. · Makes everyone else responsible for her feelings: The abuser says, "You make me angry instead of, "I am angry’ or, "You’re hurting me by not doing what I tell you." Less obvious is the claim "You make me happy." · Hypersensitivity: Is easily insulted, claiming that her feelings are hurt when she is really mad. She’ll rant about the injustice of things that are just part of life. · Cruelty to animals and to children: Kills, maims (e.g., tears the wings off a butterfly) or punishes animals brutally (e.g., by kicking them till they bleed). Also may expect children to do things that are far beyond their ability (makes an 18 month old stand in a corner or whips a 2-year-old for wetting a diaper) or may tease them until they cry. · "Playful" use of coercion during sex: Enjoys initiating and controlling sex, stimulating herself and teasing; asks about your sexual fantasies. · Verbal abuse: Constantly criticizes you/your family, or says blatantly cruel, hurtful things; degrades, curses, calls you/your family ugly names. This may also involve sleep deprivation, waking you up with relentless verbal abuse. · Rigid sex roles: Expects you to serve and obey her/her family. · Sudden mood swings: Switches from sweetly loving to explosively violent in a trotter of minutes or even more confusing, within seconds. You feel as you are walking on "eggshells" around her. · Past behavior: May not actually admit to hitting men in the past (but may write it in her journal/diary and says they made her do it or the situation brought in on). · Threats: Makes statements like, "My parents will support me even if I murder someone," or "A woman is always right/the system should always believe the woman" or "I will cut you up the way a fisherman slices fish" and then dismisses them with, "Everybody talks that way," or "I didn’t really mean it." If she has come this far, it is time to get help and get out! ****************************** the B* back. Monday, April 27, 2009 Giving dowry is crime even If MIL/FIL is state govt or central govt employee ? Although Section 7 of the Dowry Prohibition Act, 1961 does provide immunity to the complainant against prosecution but remember, that the immunity is available only in that instance of Dowry Prohibition Act, 1961 under which case of "Dowry demand and taking" is running. This means that we cannot arraign the accused in the same case under section 319 of the CrPC. However, nothing stops the husband from filing a new case based on their confessional admission. And in that case the husband (complainant herein) shall be provided the immunity. ********** Wait for this to happen before filing for DP 3 - then you got them - the invocation of section 319 of the Code of Criminal Procedure is premature in asmuch as Dowry Prohibition Act can be launched in view of the exemption provided under section 7(3) of the Act as against the parents and relatives of the victim girl. See this judgment to decide : Donot worry guys - we will get them - those scum need to be behind bars anyways for the acts they have done to us. Now bride and kin in dock for giving dowry. Read article by clicking this link. http://www.portal.ap.gov.in/Acts/Documents/civil%20service%20rules%20196 5.pdf A.P.C.S. (CONDUCT) RULES, 1964 G.O.Ms.No.1009, G.A. (Ser.C) Dept. dt.10-06-65. Dowry. 25. A No Government servant shall-(i) give or take or abet in giving or taking of dowry; or (2) demand, directly or indirectly, from the parents or guardian of a bride or bridegroom as the case may be; any dowry. Explanation:- for the purpose of this rule "dowry" has the same meaning as in the Dowry Prohibition Act, 1961. (A Central Act 28 of 1961). Action would be taken only if the complaint is within one year of the marriage/ last day of giving dowry, as per AP rules of DP Act. Whom to complain to ? Vigilance department. Superintendent of Police, File 156(3) if police do not take cognizance. Concerned state autorities Concerned Head of department. No order U/s Crpc 156(3) can be challenged under any court of Law being an interlocutory order as it will not effect the final right and entitlement of the accussed party who already have provision in Crpc 397. So,FIR ordered vide Crpc 156(3) in not challengable. However, accused can approach to high court for quashing but again the same is not possible in DP-3 cases due to earlier admission of crime on record. ***************** Friday, September 18, 2009 From, Xxxx Hyderabad Xxxx Friday, September 18, 2009 HYDERABAD, Andhra Pradesh, INDIA To, The Station House Officer Banjara Hills Police Station, Banjara Hills HYDERABAD, Andhra Pradesh, INDIA Sub: xxx and his family gave dowry. Pray that you take cognizance of "giving dowry as a criminal offense" and charge sheet him and his gang in accordance with Dowry Prohibition Act. Also please take cognizance that editor of a local newspaper (Vaartha) did not bring it to the notice of the authorities when he published the said claim in their newspaper Respected Officer, (I) I, xxx, xxx in BANGALORE and resident of xxx, HYDERABAD, AP, INDIA, bring to your kind attention the following facts; 1. According to Supreme Court guidelines, a Station House Officer (SHO) is duty-bound to register a case if a cognizable offence such as giving dowry is brought to his/her notice. 2. Before booking the case, please note that by taking dowry "giving" is established, but by giving, taking is not automatically established. In my humble opinion, "for taking dowry giving is a must but for giving, taking is not a necessity". 3. In a related case, a court slammed officers and directed two senior Police Officers to take action against those who claim to have given dowry. The court directed the investigating officer to file a comprehensive report. 4. Guidelines set by the court states that the police, before arresting a person under the Dowry Prohibition Act, must investigate the case and the bank accounts of the girl's parents and extended family to verify if the sum of money they claim to have given in dowry is accounted for by tax payments. 5. I got married to Ms. Xxx (then xxx) on xxx in Satya Sai Kalyan Mandapam, Srinagar Colony, HYDERABAD. 6. During the past year, there have been many claims by her father and the rest of the gang that they gave dowry at this wedding. 7. These claims were made repeatedly by my father-in-law, xxx, his beloved xxx, his sons xxx, xxx, his brother xxx, his nephew xxx (his eldest sister's son living in xxx near Vijayawada, AP), his brother-in-law xxx (his eldest sister's husband), and their peon J. xxx. 8. xxx, and his family are resident of xxx, HYDERABAD, Andhra Pradesh, and the other four accused are absconding. 9. Among the claims made by them are that they gave kilos and kilos of gold and silver as dowry, and gave plot in Jubilee Hills, Hyderabad as dowry – combined easily worth many crores. 10. They made their claims in many legally admissible ways, but the most glaring of these was when they published their claims in the local newspaper (Vaartha). Please take cognizance of the newspaper editor for not reporting the crime to you Page 2, Friday, September 18, 2009. 11. While it is valid that xxx has amassed huge amount of wealth although being a retired government servant, I am a bit surprised that their family accumulated such large wealth beyond their known sources of income. 12. Among his properties, xxx claims he owns a house at xxx, Hyderabad (that is worth crores). He further claims to own a house in xxx, Hyderabad (that is worth crores), another plot in xxx (worth about a crore) and a number of other fixed assets worth multiple crores. 13. Similarly his brother xxx, who is a retired school teacher in a village in AP, his brother-in-law, his nephew all own multiple crores of assets all over Andhra Pradesh. (II) Honoured Officer Garu, I come from a poor family with normal middle class value systems. For twenty years of my life, I have been working hard in the United States and barely provide a decent living for my wife and children. I am surprised that an ex-government servant such as xxx or a retired village school teacher or their associates amass such wealth. (III) As you would note from the above facts, xxx and his gang committed a cognizable offence under the DP Act. I pray that you book cases against them and that the learned officers like you help put an end to the dowry menace rampant in India. Yours (xxx) Cell faithfully Phone: xxx CC: 1. The Honorable Home Minister, Government of Andhra Pradesh 2. Chief Secretary, Government of Andhra Pradesh 3. Home Secretary, Government of Andhra Pradesh 4. Principal Secretary – Personnel Admin % Reforms, Government of Andhra Pradesh 5. Chief, AP Vigilance Commission, Hyderabad 6. AP State Human Rights Commission (APSHRC) 7. State Anti-corruption Bureau Director 8. Zone Anti Corruption Bureau 9. The Director General of Police, AP Police, XXX 10. The Additional Director General of Police (CID) 11. The Inspector General of Police, West Zone 12. The Deputy Commissioner of Police (West Zone), XXX 13. The Assistant Commissioner of Police, Banjara Hills Police Station, XXX 14. The Station House Officer, Banjara Police Station, XXX 15. My Legal team You might also like: Is PWDVA a classification or class legislation ? Man alleging misuse of dowry act performs 'shraadh' for self Srija Divorce and Dowry Complaint Daughters-in-law hazardous for MIL’s health How to tap mobile phone ? LinkWithin Posted by Amicus Curiae at 10:02 PM Labels: 498A, 498a andhra pradesh, 498a FAQ, 498A misuse, crime, desi, Dowry, dowry law, giving dowry, harassed husband, india, indian, IPC 498A, nri, Section 498(A) 13 comments: 1. AnonymousApril 29, 2009 10:17 AM Another person found another innovative method. Forget DP3 and associated counter cases. Was your FIL/ MIL a government employee. He claims that he gave dowry. He can be suspended for doing so. And if retired, his pension can be stopped. Remember: If you have a dollar and I have a dollar, we swap, no one is richer. You have an idea and I have an idea, we swap, we both have two ideas each. These lovely 498-A wives and their families think, so many have surrendered, how much chance these poor fellows have when we have law on our side. But honey, I AIN'T MUCH, BUT I AM ALL I HAVE GOT. I won't let go untill the aim is achieved. And honey, now my aim is vanquishing you and your intelligent family. Don't miss pgportal.gov.in I won't take much of the time. I am quoting the relevant experince below: > Guys, > > One good achievement and would recommend specially to those whose FIL or > MIL or BIL or SIL or Wife are / were Government employees , still working or > retired. > > When I say government employees that mean all Government Employees ( > Central, State, PSU, National Bank etc etc ) > > In my case 498A read with DP 3/4 my In-Laws in FIR claimed huge dowry and > marriage expenses. > > Not thinking much with in week I filled TEP against my FIL , MIL and Wife > and got favorable reply as expected. > > Same TEP is changed and converted to Application for Corruption. > > **** Best Practice : Be nostalgic and think with peg of scotch what all > your FIL/MIL/SIL/BIL/his uncle/ aunti told about their > financial status to impress and match your family status during marriage > talks were on. > Discuss with your mom and dad/ relative those present and try to dig the > info. > Jot down all the financial details / moveable and immovable. Try to collect > the address of immovable property. > > This took 15 days for me to do. > > I prepared separate applications under Anti Corruption Act and non adhering > to Code of conduct by Govt. Servant, > jotting all the financial details for my FIL and MIL, along with FIR copy, > their statement in Charge sheet, reply from RTI Income tax and sent by Speed > post to: > > There were in total 24 applications. > > 1. Chief Minister > 2. Secretary to Chief Minister > 3. Minister to respective departments. > 4. All the mentioned Secretary to Minister of respective Departments > 5. Their respective Department Vigilance Officer/ Director. > 6. State Anti-corruption Bureau - Director > 7. District Anti Corruption Bureau > 8. Zone Anti Corruption Bureau > 9. Their Immediate Supervisor > 10. Their Department district Head. > 11. their Department Regional Head. > 12. their Department State Head > > 15 days later I filled RTI . RTI reply returned no private action, enquiry > need to be initiated by Department only. > > I marked dates for 1 month in Yahoo Calendar and hibernated. > > Post 1 month when calendar gave alert. I went to PG Portal > www.pgportal.gov.in and raised 24 separate grievance for all departments > not taking action copy pasting the same application. > > So it took 4 months for Grand Canon to move and make a first Shoot and > finally Secretary to Chief Minister ordered Departmental Enquiry against MIL > and FIL. > > People from Anti corruption Police Department reached their houses for > Financial details and their statements. > They reached us for our statement and we gave them solid proofs and also > escorted to their properties . They have to fill the report to in Chief > Minister Office in next 1 months. > > If convicted they will be suspended from Govt. Job, loose pension plus > criminal case under Anti Corruption act goes against them specially when > they are about to retire. > > What this cost me , in other words what I lost : > > 1. Internet research finding address of all departments - 5 days > 2. Few Phone calls to RTI activist of the state/region to get the address > what were not available on Internet. - 2 days > 3. Preparing of Application : 2 hours > 3. Will and patience. > 4. Rs. 2000 toward cost of (1 RIM of copier paper + toner + speed post and > RTI fees + phone calls). > 5. My valuable time. > > So, I would recommend all the fellow SIF Member go ahead and and write back > to respective FIL/MIL/BIL/SIL departments and other I mentioned. > Make extensive use of RTI and pgportal.gov.in. > > Remember God help those who help them selves. > > Good Luck. > > warm regards, > Deepak Deepak can be contacted at
[email protected] Reply 2. AnonymousApril 30, 2009 4:27 AM ****************************************************************** ************ Guy use this RTI to get the reply form Govt. Personal Ministry and use it for Departmental Action for screwing them on anti corruption charges. If they were in govt. Service during the date of your marriage. then only it is applicable. Public Information Officer, State Govt / Central Govt. Department of Personal , Training and Appointments. XXXXXXx XXXX Alibag, Chore Bazzare Sub: - Request for information under RTI Act 2005. Sir, Kindly refer to THE CENTRAL CIVIL SERVICES (CONDUCT) RULES, 1964 at website Link:http://persmin.nic.in/EmployeesCorner/Acts_Rules/CCSRules_1964/ccs_conduct _rules_1964_details.htm It is requested that the following information may please be furnished under the provisions of RTI Act 2005:The requested information should be applicable for employees of XXXXX Department and YYYYY Department , Alibag, Chore Bazzare 1.. Kindly provide the copy of Code of conduct / Code of Ethics / Conduct Rules for State Government Employees employed with Education Department, Uttar Pradesh. These conduct rules should be applicable to XXXXX Department and YYYYY Department , Alibag, Chore Bazzare 1.. Also provide the online website link where XXXXX Department and YYYYY Department , Alibag, Chore Bazzare Conduct Rules can be views / downloaded 3.. Is it mandatory to take prior permission by Government servants for leaving station/headquarters? If yes what action can be taken if XXXXX Department and YYYYY Department , Alibag, Chore Bazzare Government Employee leaves the station without permission? 4.. On occasions such as weddings, anniversaries, funerals or religious functions, when the making of gift is in conformity with the prevailing religious and social practice, a Government servant may accept gifts from his near relatives or from his personal friends having no official dealings with him, but shall make a report to the Government, if the value of such gift exceeds certain value. Please mention the gift value, beyond which it is mandatory for XXXXXX State Government Employee to report to its respective department. 5.. No Government servant shall- (i) give or take or abet the giving or taking of dowry; or (ii) demand directly or indirectly, from the parent or guardian of a bride or bridegroom, as the case may be, any dowry. Explanation: - For the purposes of this rule, 'dowry' has the same meaning as in the Dowry Prohibition Act, 1961(28 of 1961). Does this conduct rule applicable to XXXX State Government Employees especially to employees of XXXXX Department and YYYYY Department , Alibag, Chore Bazzare, State Name? 6.. Under what section respective Department can take action against the XXXXXX State Government Employees who indulge in giving or abet in giving dowry? What action can be taken against such employees violating of the provision of Dowry prohibition Act, 1961? 7.. Every Government servant belonging to any service or holding any post included shall submit an annual return in such form as may be prescribed by the Government in this regard giving full particulars regarding the immovable property inherited by him or owned or acquired by him or held by him on lease or mortgage either in his own name or in the name of any member of his family or in the name of any other person. Does this conduct rule applicable to XXXXX State Government Employees especially to employees of XXXXX Department and YYYYY Department , Alibag, Chore Bazzare? If yes what action can be taken if Government Employee doesn't disclose movable or immovable asset to his department? 8.. No Government servant shall, except with the previous knowledge of the prescribed authority, acquire or dispose of any immovable property by lease, mortgage, purchase, sale, gift or otherwise either in his own name or in the name of any member of his family. Does this conduct rule applicable to XXXX Government Employees especially to XXXXX Department and YYYYY Department , Alibag, Chore Bazzare, XXXX ? If yes what action can be taken if Government Employee acquires immovable property without permission from his department and also not disclosing in his annual return to department? 9.. Where a Government servant enters into a transaction in respect of movable property either in his own name or in the name of the member of his family, he shall, within one month from the date of such transaction, report the same to the prescribed authority, if the value of such property exceeds twenty thousand rupees or as prescribed by State Government. Does this conduct rule applicable to XXXX State Government Employees especially to employees of XXXXX Department and YYYYY Department , Alibag, Chore Bazzare , XXX? If yes what action can be taken if Government Employee acquires movable property without permission from his department and also not disclosing this transaction to his department? 10.. All transactions of both, immovable and movable property made out of the funds (including stree-dhan, gifts, inheritance, etc.) of the dependants of the Government servants, irrespective of the person in whose name the transaction is made should be reported in the following manner. (a) Transactions in immovable property: These should be reported along with the Annual property return but in a separate form. (b) Transactions in movable property: These should be reported immediately on completion or immediately after the Government servant comes to know of them. Does this conduct rule applicable to XXXX State Government Employees especially to employees of XXXXX Department and YYYYY Department , Alibag, Chore Bazzare? If yes what action can be taken if Government Employee does not disclose any of such transaction to his department? 11.. A Government servant who transfers any immovable property or movable property exceeding value of Rs. 10,000 or as prescribed by XXX State Government to a member of his family, should report or obtain sanction of the prescribed authority in accordance with Rule. Does this conduct rule applicable to XXX State Government Employees especially to employees of XXXXX Department and YYYYY Department , Alibag, Chore Bazzare? If yes what action can be taken if Government Employee does not disclose any of such transaction to his department? 12.. Whether a charge of corruption should be held in case the officer concerned is unable to account satisfactorily possession by himself or by any other person on his behalf of pecuniary resources or property disproportionate to his know sources of income? What is the punishment awarded to the officer in this case? 13.. "Pagri" charged by Government servants in renting their houses and flats amounts to corruption. Does this conduct rule applicable to XXX State Government Employees especially to employees of XXXXX Department and YYYYY Department , Alibag, Chore Bazzare? If yes what action can be taken if Government Employee is indulged in taking "Pagri" from the tenant? Reply 3. vijayMay 4, 2009 4:42 AM I have planned to appear in person for Complainant Evidence in DP3 r/w Conspiracy, Extortion, febrication of false document and 182/34 IPC filed by me u/s 156/3 which later converted to CrPC 200. Now I next date of CE is 06/05/2009 i.e Wednesday. The case is as below Wife filed list of stridhan not as per rule being a Police personal already aware of Law. Wife admitted in one complaint that her parents has given dowry . IO women cell guilty of accepting list of stridhan not as per rule. IO women cell did not placed on record any previous complaint of harrassment for dowry as well as MLC . as avialable through RTI Wife managed to extort full stridhan with receiving as full and final sattlement. Wife given statement in AB hearing that jewellary is still lying with husband wherase we have reciving that against full and final settlement she received everything and jewellery is already with wife. Wife produced a person as relative as Taoo in CAW Cell who is not relative as no brother of father alive. Income tax RTI revealed Father and mother earning and spent money in marriage 2 lacs. whereare wife claimed in complaint that they have given Maruti Zen and AC that itself cost more then 3.7 Lacs. Wife in her office has shown her parents as dependent in CGHS Card , same when informed the her office , office called for explaination for Departmental enquiry. IOs are also part of conspircay as they overlooked Justice Dhingra judgment and police circular, which says police should not entertain any case if list of stridhan is not as per rule and wife and parents become accpmplices in DP3. KIndly suggest as I have not experience in how to proceed for Complainant Evidence in the court of MM. Reply 4. AnonymousMay 6, 2009 1:27 AM Hon'ble High Court of Delhi via CRL.M.C 7262/2006 23.02.2007 which talks about registering the FIR against educated people who gave the dowry, in spite knowing the fact that giving dowry is crime and Learned SHO of PS should not entertain any complaint, if the Rule 2 of the Dowry Prohibition( Maintenance of List of Presents to the Bride and Bridegroom) Rules, 1985 is not complied with. Reply 5. AnonymousMay 11, 2009 3:37 AM Go to www.ghrs.in and there after registering you will find the list of PIO of Income tax to file you TEP. Actually the ITO is the right person to file for TEP then he again is the proper person to file RTI as ITO himself is the PIO Reply 6. AnonymousMay 11, 2009 3:50 AM U.P. / Uttrakhand and their FIL/MIL/BIL/ SIL are UP State Governmentservant. I would like you to go through this book http://www.alibaba. com/product- free/105265192/ U_P_Government_ Servants_ Conduct_Rules_ 1956_alongwith_ U_P_Government_ Servants_ Discipline_ and_Appeal_ Rules_1999_ Books.html Reply 7. AnonymousMay 11, 2009 4:40 AM THE TAMIL NADU GOVERNMENT SERVANTS' CONDUCT RULES, 1973 (Corrected up to 3rd April, 2009) Personnel & Administrative Reforms (A) Department http://www.tn. gov.in/acts- rules/pandar/ tngsc1973. pdf 3A. (1) No Government servant shall (i) give or take abet the giving or taking of dowry; or (ii) demand, directly or indirectly, from the parents or guardian of a bride or bridegroom as the case may be any dowry. Explanation - For the purposes of this rule, dowry has the same meaning as in the Dowry Prohibition Act, 1961 (Central Act 28 of 1961). "(2) Every Government Servant shall after marriage or when he celebrates the marriage of his children, furnish to the Head of Department, a declaration that he has not taken any dowry. Where the Government Servant gets married, the declaration shall be signed by the Government Servant, the wife or husband, as the case may be, of the Government servant and their parents or guardian. Where the son or daughter of the Government Servant gets married, the declaration shall be signed by the parties to the marriage and their parents or guardian which shall include the Government servant also". Added vide G.O.Ms.No.150, P&AR(A) Department, dated: 15.09.2006. Reply 8. AnonymousJuly 6, 2009 9:05 AM Brother you have raised a very valid section crpc 319 to be used as counter- DP3 & others sections of IPC like 383/ 389/ 193 can be used at the time of trial or while framing charges. You should not forget that keeping in view the sensitivity of the offence, the bride and her family members can be granted probate u/s 360 Cr P C read with Section 4(1) of probation of offendors act... Reply 9. AnonymousAugust 8, 2009 9:58 AM http://timesofindia .indiatimes. com/articleshow/ 4869279.cms JAIPUR: In a case of its kind, a local court took cognizance of a dowry case and issued a bailable warrant on Friday against a woman and her parents for giving dowry to the groom's family. A city-based businessman had filed a complaint alleging that the bride's side gave dowry in violation of Dowry Prohibition Act, 1961. The warrant, requiring the three to be present in the court on October 10, were issued against Komal, her mother Asha Devi and father Balram Sahay, residents of Ludhiana in Punjab, by the ACJM court 11 on Friday. Iqbal Rai Jain, a resident of Vaishali Nagar here, had filed the complaint stating that the Sahays had forced them to accept dowry when Komal married his son Dr Amit Jain. "The marriage was solemnised in December 2004 and as Amit had finished his MBBS degree, he went to Delhi to do MS. Soon after the marriage, Komal's family insisted that the lease papers of our Vaishali Nagar house be registered in her name, which we thought was necessary," said Jain. "Afterwards, they started insisting that they had given dowry worth Rs 18 lakh in total, which was false. We had not demanded any dowry from them," said Jain. Ashwani Bohra, the counsel of the complainant, said that the magistrate, Renuka Singh Hada, held that prima-facie, it seems that the family members of the bride have committed a crime by giving dowry to Komal's in-laws, which is a clear violation of Sections 3 and 4 of the Act. "It is for the first time in India that a court has taken cognizance and issued warrant in such a case," claimed Bohra. Meanwhile, Sahay, who is a retired income tax commissioner, has also lodged an FIR at a police station in Ludhiana under Sections 498-A and 406 of IPC. Reply 10. AnonymousAugust 23, 2009 10:25 PM http://www.indianexpress.com/news/Bride-s-father-in-the-dock-as-city-courtsays-giving-dowry-is-also-an-offence/500442/ Reply 11. AnonymousMarch 5, 2010 7:00 PM Govt. servant if he file fals F.I.R against Class- I officer then what action will be intiated against the emplyoee as per the ccs cca rules pl. reply. Reply 12. AnonymousMarch 5, 2010 7:06 PM A govt .servant lodged fals F.I.R of sexual harassment against class - I officer and its proved as a fals then what action will be initiated against that woman as per the ccs cca rules of India. Reply 13. AnonymousApril 26, 2011 3:09 AM my topic is opinion of youth about dowry Reply the B* back. Thursday, July 23, 2009 How to file IPC 498a ? Make sure you include 3 things - with these 3 things he cannot go for FIR quash :1- He tried to strangulate me and tried to kill me. 2- He is impotent. 3- He beats me everyday and demanding new car/house/fridge or whatever suits you. Good Luck ! p.s> You can inlcude other things like not allowing me to go to bathroom or watch TV or not enough pocket money, or something - just use your imagination. It should make him laugh after 10-15 years - because he needs something to laugh after so many years of torture from you. Before we go to below topic. Many people have this question- How many times can my wife file 498a ? - or can she file PWDVA and 498a. After how many years can she file 498a after separation ? Your wife can file both PWDVA and 498a. There are no limitations - even though it is barred under 3 years yet she can file because SC has given full permission for women to file at whatever time, place and reason. In short, there is no time limit but her case gets weaker as time goes by. She will be prone to exaggerate and will get caught in the web of her own lies. Here is the link to article: http://www.merinews.com/catFull.jsp?articleID=144461 498A of IPC comes handy for litigating wives Section 498A, of Indian Penal Code, is a boom for modern Indian women. It comes very handy for women to fulfill their materialistic desires. A quick guide to the empowered women of India on how to use 498A to unleash 'legal terrorism'. CJ: Arnab Ganguly , 14 Oct, 2008 18:18:08 IST WHAT’S THE use of being empowered, if you are unable to cause harassment, pain and suffering to the husband and his family to the point of suicide. If this is your objective 498A can come to the rescue. This not only makes sure that you cause trauma, harassment and pain to your husband’s family, but also, you get paid in full for it in due course. So gear up women, here is a crash course in 498A.Here is the modus operandi of a false 498A. It is actually easier than ordering a pizza and will cause assured harassment for the husband’s family, the other benefits may include: 1) Display of strength and scaring the husband’s family into submission; 2) Chances of a quick and easy extortion or as it is called, a ’compromise’. This booty will then be shared by the colluding relatives and the wife, according to their level of involvement and quantum of assistance; 3) Imagining a case in which the husband, scared of jail time, will leave his family and be his wife’s slave. 4) Getting the moral support of NCW (National Commission for Women)and WCD (the ministry of women and child development), that see wealth distribution, from husbands to wives, as a way to encourage women buying more stuff and bringing foreign direct investment in women’s products. The 498A consists of three basic phases and you need to have unique skills to master them; 1) Complaint (letter writing skills and vocabulary words, which invoke sympathy, hunger, harassment etc)2) Police arrest (always wished you acted and get aid for it, here is your chance, you need to cry, wail and shout and also get paid in full for it). Who knows you might as well get picked for an Ekta Kapoor serial.3) Compromise (the sweetest of all, counting the money and making sure it gets deposited in full). Modus Operandi 1) Leave your husband on the pretext of visiting your mother, pregnancy or caring for your ailing father. 2) Look for the most opportune moment. For Husbands living in India, Fridays are the best time and if Monday is also holiday, nothing like it. In fact, girls can look for this time or then go to their mother’s place first and then plan out.For Non-Resident Indians, the best time is when they are visiting their family in India. This way, he will not be able to return and will loose his peace , money and career immediately. 3) Once the date and time has been decided, its time to take the plunge. Don’t worry noone can touch you misusing this section. Remember, the all powerful Indian police and judiciary is with you. Log with the NCW and WCD, who will in due course come up with more laws for your benefit.A very important part of this process is drafting the complaint.a) First the easy way. Visit any local lawyer. The cheapest ones will also suffice, as these days all have pre-formatted 498A allegation forms. Just fill in your name, address and list of people to accuse and behold. You have your own personalised 498A complaint. Some girls, who are creative, can also choose to study the pre-formatted complaint and then write one of their own. This will help bringing out the writer in you. Remember, just like there is no extra charge to include the names of your family member for credit cards, there is no extra charge for causing additional harassment to any number of relatives of your husband. Some women have also included husband’s friends as a bonanza. So go on and include all those whom you ever despised in this list. Whomever you include, make sure you always include the women and children of the husbands family as they are his weak spot. Whatever you write, make sure that the below three allegations are in, as without this, the police will be reluctant to register your complaint even with bribes. 1.1) Not given food and water for seven days and kept me locked in a dark room. 1.2 ) Beating me each day right from the wedding night. Even the doctors will tell you that the most violent of criminals will rather have sex with a woman on the first night than beat her, but the India police, NCW and WCD does not believe so and will believe whatever else you say. If you can create false medical certificate there is nothing like it. But this is not all that important as the police will believe whatever you say anyways. 1.3) Already paid Rs 10 lakhs at engagement. Make sure, you include whatever you ever wished for, but did not get to buy in the ’stridhan’ (dowry) list, as the police will make the husband buy and return those articles, even if you have never had given them. See how simple the WCD ministry has made it for you, to fulfill your materialistic desires. So this is time to get the articles of your wildest desire. At least if you write 10 you might get one, so whats the harm in writing as may as possible!) Whew ! Your complaint draft is final and you have a gleaming copy of a spanking new 498A. You should be proud that you will soon be joining the 498A women’s list, who have made a martyr of their husband’s family to get their desires fulfilled. You have crossed a big hurdle in your life. Now the money just wants to come to you. The next steps are pretty simple and routine and should be cake walk for the empowered women like you. 5) Visit the local police station with some relatives. Most of the girls take their father and brother, but the police do not mind if you take your paramour ( ex-lover), especially, if he is supposed to benefit from the expected settlement and you both have already booked your new flat and are looking to pay the first installment. 6 ) Be ready to wail and have moist eyes, as these infuriate the police officers in India against the husband. If you have Mahila thana (police station for women), that’s the best place to go, as these women police officers have been known to create havoc for the husband’s family. Pay a token as advance bribe to police and see the speed at which they start the manhunt for the husband’s family and his aged parents and sisters, faster than the hunt for Osama. You need not even pay the rest of the bribe as it will be collected in full from the husband’s family. Make sure to file the case as far off as possible, even if the alleged incidents in your complaint did not occur there. This will add icing on the cake as the husband’s family will have the additional pain of fighting the case in a different state and city. You by now will not be able to stop praising the WCD and NCW for this law and wanting more laws like this to hit the stands. 7) So the husband is arrested. Congratulations!. Now you have shown them what you are made of, bravo my girl, bravo. But hey, this is milking time and as cows have a specific period for milking, so is it for husbands and this is when they or the women of his family are behind bars. You need to be quick and fast as a fox. Make sure that he is not released and the bail gets denied. Immediately put the amount for ’compromise’, make sure you quote an astronomical amount, as it always bargained down. If he agrees, congratulations again, you are a millionaire after writing a complaint letter. Book authors do not make so much money as you have made by writing a letter. You have just paid the amount for your very flat in full and it is tax free. This is apart from the other tax-free money that you can claim in terms for alimony. I will talk about it in another article ’alimony and maintenance for dummies’. 8) If you are denied any compromise money, there is always a chance the metropolitan magistrate will bargain for you to close the case. Try your luck there as well.I wish you all the best in your 498A gold rush. ******************************************************** If you are lazy to go to police station - send mail to NCW and give them your contact number and just start sobbing - do not talk anything for everything say yes... and they will send someone home right away !! http://ncw.nic.in/NRICell/frmNRIComplaints.aspx Shall be the coordinating agency to receive and process all the complaints related to Indian Women deserted by their Overseas Indian husbands. Shall render all possible assistance to the complaints including conciliation, mediation between the parties and advising the complainant on related issues. Associating, networking with NGO's ,community organizations in India and abroad and State women Commissions for wider area coverage, so as to facilitate easy reach and provide support services. Shall endeavor towards a coordinated response amongst various Government agencies/organizations such as State Governments, The National Human Rights Commission, Indian Embassies and Mission, concerned Ministries etc. Providing assistance to the aggrieved woman in litigation and other issues pertaining to the complainant/case.Shall maintain a data bank record of cases registered. Seek reports from the State Government and other authorities on the complaints filed and action taken thereon. Shall advice and recommend the government on any policy or issue relating to the NRI marriages. Analyse various legal treaties on the issue and advice the Government on the subject, wherever required. Shall constitute a ADVISORY COMMITTEE panel of reputed advocates/NGOs, both in India as well as abroad, which shall periodically review the functioning of the cell, cases filed and policy issues. Shall constitute a panel of experts (All India) to assist the aggrieved wife and rendering legal services and other assistance , including mediation and conciliation Planning of training modules & carrying out training on sensitization on the subject to the various agencies entrusted with the task of providing justice, vig. Judiciary, police, administration, etc. Shall carry out awareness campaigns for the masses on the issue. For this, all the available media services would be utilized by the cell. Shall encourage /support research and study in the related field like issues of grievances associated with dual citizenship, enactment of new legislation or signing of international treaties ,marriage laws of other countries ,etc . Shall look into complaints and take suo-moto notice on any issue brought to the notice of the NRI Cell in accordance with Section 10 (1)(f) of the National Commission for Women Act , 1990 read with sub-section 4 of Section 10 and Section 8 of the Act. The cell shall regulate its own procedures in accordance with the National Commission for Women Act 1990 . Perform any other function as assigned to it by the Commission/Central Government. nday, June 22, 2009 How to file for visitation rights ? ALL MATTERS RELATING TO CHILD VISITATION TO BE DISPOSED IN MONTHS For all those with custody cases... download and File this RTI by putting your own name and address, get response from NCPCR, and file the response as argument in family court for child custody/ visitation cases. http://dl.dropbox.com/u/2371641/RTIs%20Public/NCPCR_RTI_TemplateNov0 9.doc Use this process of argument/ evidence: 1. That NCPCR has not done any study related to effect of single parent custody on children, PAS, child development, child psychology etc. 2. Then proceed to argue that since no such study is available in India, that studies done outside India be considered as expert opinion and evidence. Show studies done in US or other countries about ill-effect of single parent custody, and benefits of joint parenting. Court cannot refuse to look at such studies in that case. 3. If they do not still look at it favourably, then say that this is against UN child rights convention, which clearly says that child should have access to both parents whether divorced etc. NCPCR has the mandate to follow United nations CRC 4. Question NCPCR again if the court does not pass favourable order. NCPCR has budget of 6 cr I think... let's help them utilize it for something useful for children's cause. 2 Every child has a right of access to even an adultrous wife and drunkard father. Before the Hon'ble Principal Judge, Family Court, City. I.A in FCOP self Vs wife's Petitioner Respondent / / of of Respondent Petitioner Affidavit filed by the Petitioner / Respondent I, self S/o Name, Male, aged nn years residing at correspondence address here sincerely state as follows 1. I am the petitioner here in and respondent in FCOP # of year pending before the Honorable court. 2. I submit that the Respondent/Wife is in custody of my minor daughter name aged n years and my minor son name aged n years and is refusing access to their biological father 3. I submit my daughter is attending to school in school . 4. The Respondent/Wife herein is denying the right to access of the Children to their biological Father from the time the Respondent/Petition er deserted her matrimonial home on date. 5. I submit both my children as of right shall have access to both parents. The denial access to biological father amounts to abuse of the children and also cruel. Both my children are entitled to the protection, support and care of the biological father as the natural guardian. 6. I submit that Respondent/Wife has stated before the Honorable Court vide MC # of (year) that she is not able to maintain the Children for the past (n) year. Over & above the Respondent/Wife also has to support her parents as they are financially dependent on Respondent/Wife. 7. I submit I'm a caring father of my daughter (name) aged (n) years and my son (name) aged (n) years and I'm willing to take custody of both the children. 8. I submit I will not deny access to children by the Respondent/wife in the event of custody given to me by the Honorable Court. 9. I submit that it will be in the best interest of the children to be to order the custody of my both children with me till the disposal of FCOP # (op) of (year) 10. I pray that the Hon'ble Court may be pleased to order To grant custody of both children till the disposal of FCOP # (op) of (year) To permit me to visit the school and support the child in their education To visit the children at their school functions such as Parent-Teacher Meeting, School Day, Sports Day etc. To order interim vacation custody during the children's school holidays To grant such other relief as this Hon'ble Court may deem fit and proper in the circumstances of the case and this render justice. Solemnly affirmed at City name on this the day of April 2009 and signed in my presence Applicant ***************** One victims story is as follows-in Person Yesterday I used Laxmikant Pandey vs. Union of India and Farzana Banu Vs. Parvez Alam judgement and got preponed my hearing. In the March 2010 judge given date of July 2010 , I filed application using above judgements that which says entire case to be decided within 2 months from the date of filing as held in Laxmi Kant Pandey vs. UOI, although the judgement was regarding adoption of child but since welfare of child is the main concern hence the same is applicable here , the same view was held in Farzana Banu case. I also argued that the same thing has already been reflected in the in the commentry of Section 11 (Procedure for GWA Cases) as in book Law Relating to Guadeians & Wards by R. Chakraborty and waved the book to show to the Principla Judge. With that I also told that I have been paying regular maintenance and the justice has been done to the wife but not to the child as they are getting deprived of justice as out of 27 hearings only 6 visitations has occurred till date. During the last summer vacations also, when I filed the applicaiton for visitation in summer vacations, this court given date of hearing after summer vacations and the application becomes infructous. I requested the court that at least the visitations be decided , be anything in that. The judge being with gesture of uneasiness and a bit irritated but given the NDOH as 1st June and ordered for PF to be filed and issue the notices. the B* back. Monday, June 22, 2009 What to do when false stridhan list submitted ? Engagement gifts are not dowry. Police has produced fake bills in the Challan submitted to Court. These bills were given by my in-laws. The charges has not been framed yet by the Court. We submitted complaints to Sales Tax Dept. regarding these complaint and they conducted investigations and found these bills to be BOGUS, the bills were regarding jewellery and electronics items tuning to lakhs of rupees. To save them from facing actions, the dealers have given statements that they have not issued these bills and the name of the person mentioned in the bills misued their letter head and bill books. The name on the bills is of my wife. I will also be getting Income Tax investigation report in few days. Please suggest regarding filing of case under Crpc 340 read with IPC 191 to 196 for perjury and giving false n fabricated docs to the court and IPC 383 to 389 for extortion. Should I file this case in my jurisdiction or the jurisdiction where challan has been presented and is it the right time to file the case now or should I wait for some time. The quashing of FIR is pending the HC and I will def. be using these reports over there. ************** Distinction between “Dowry and “Stridhan”. There appears to be a certain amount of confusion over the terms “dowry” and “Stridhan”. “Stridhan” as a concept of Hindu law has arisen from the concept of “Varadakshina” which is associated with an approved Hindu marriage practice of “Kanyadaan”. Kanyadaan being the gifts which the father of the bride gives to the father of the groom. “Varadakshina” was the presents in cash or kind which were to be given to the bridegroom. Both kanyadaan and varadakshina were considered meritorious acts and were voluntary in nature. Presents, given to the daughter on the occasion of the marriage constituted her “Stridhan” i.e. her separate property. The term “Stridhan” literally means the “woman’s property”. According to the Smritika, the Stridhan constituted those properties which she received by way of gifts from her relatives, which included mostly movable property such as ornaments, jewellery, dresses. Sometimes even land or property or even houses were given as gifts. The purpose behind deeming properties as “Stridhan” was to ensure that The woman had full right over its disposal or alienation. On her death, all types of Stridhan, devolved upon her heirs. The husband of the woman had the limited power to use or alienate the “Stridhan” and that too only in cases of distress or emergency and even in such cases, he was obligated to return the same once the emergency period was tided over. Thus the conclusion is that all types of Stridhan are properties given to her by way of gifts and without any “demand, coercion, undue influence or even pressure”.However in the past there have been a catena of cases where the distinction between dowry and Stridhan has been misunderstood .In the case of Kailash Vati v. Ayodhya Prakash2 Chief Justice Sandhawalia, while recognizing the distinction between stridhan and dowry, used both the words interchangeably as if one meant the other .He opined as follows: “The Dowry Prohibition Act 1961 does not bar traditional giving of presents at or about the time of wedding . Thus such presents or dowry given by the parents is therefore not at all within the definition of the statute”. He further went on to state that: “Law as it stands today visualizes a complete and full ownership of her individual property by a Hindu wife and in this context the factum of marriage is of little or not relevance and she can own and possess property in the same manner as a Hindu male …Once it is held that a Hindu wife can own property in her own right , then it is purely a question of fact whether the dowry or traditional presents given to her, were to be individually owned by her or had been gifted to the husband alone…..Once it is found that as a fact that these articles of dowry were so given to her individually and in her own right , then I am unable to see how the mere factum of marriage would alter any such property right and divest her of ownership either totally or partially”. Here the presumption is that whatever property the bride receives as “gifts” stays under her control in the matrimonial home and that she can share it with her husband or the rest of the family by exercising her discretion. This is contrary to what happens in reality where the bride does not have any control over her belongings or her essentials. It was only in the case of Pratibha Rani V. Suraj Kumar3 the Supreme Court tried to arrive at a definition of “Stridhan” by enlisting the following exchanges as constituting stridhan (ii) gifts made before the nuptial fire (iii) gifts made at the bridal procession, i.e. while the bride is being led from her residence of her parents to that of her husband. (iv) Gifts made in token of love, that is, those made by her father-in-law and mother-in-law and those made at the time of the bride making obeisance at the feet of elders. (v) Gifts made by the father of the bride (vi) Gifts made by the mother of the bride (vii) Gifts made by the brother of the bride. The judgment further clarified that 3 AIR 1985 S.C 628 “The Hindu married woman is the absolute owner of her Stridhan property and can deal with it in any manner she likes .Ordinarily the husband has no right or interest in it with the sole exception that in times or extreme distress but he is morally bound to restore it or its value when he is able to do so” Fazl Ali J further observed that “I am amazed to find that so deeply drowned and inherently are some of the High Courts concept of matrimonial home qua Stridhan property of married woman that they refuse to believe that such properties which were meant for exclusive use of the wife , could also be legally entrusted to the Husband and his relations. He specifically stated that the concept that the “Stridhan” of the woman becomes the Joint property of the two houses as soon as she enters her matrimonial house is in direct Contravention of Hindu law.” The differentiation of the two terms is towards ensuring that in case of the future breakdown of marriage the woman can at least retrieve gifts received as Stridhan. Thus even if at the time of marriage or during the marriage “gifts” should be given under the cover of “Stridhan” so that she will at least have a right to claim them back. **************** After 1956: Stridhan :The majority of sages and commentators have no definition for stridhan. Ornaments, jewellery, dresses or any movable gifts given by relations parents & husband side and also gifts given by strangers at time of marriage. Gift and bequests from relation, Gift and bequests from strangers . During coverture gifts are stridhan under husband control. These gifts can be given with the exception of immovable property. Any gifts given during maidenhood or widowhood constitutes her stridhan. Before 1956 property aquired by mechanical arts(Singing & Dancing) or self exertion upon death of husband constituted her stridhan according to Mithila and Bengal schools of Hindu Law. All other schools also it constituted her stridhan immediately. Property purchased with savings or accumulations of stridhan is stridhan. Under compromise it constitutes her limited estate and gives up her stridhan under arrangement or compromise. If she accumulates by adverse possession it constitutes her stridhan. Maintenance & property transferred to her by way of gift is stridhan. By inheritance if she succeeded to any immovable property, it is not her stridhan but constitutes her limited estate. Both from parents side as well as husband side. When partition takes place under Mitakshara rule share obtained from partition is her limited estate or womans estate or widow estate (not stridhan) and she is absolute owner of property. On property acquired from Inheritance or partition she cannot ordinarily alienate the property or corpus and on her death it devolves to next heir. All other property except from partition or inheritance she has full rights to mortgage, exclusion and even put it in fire for all she cares. Stridhan is classified into 2 types: 1. Gifts received from parents and in -laws out of love and affection. 2. All other gifts from strangers(Here husband has power to use this stridhan equally). On her death it passes to her heirs. After 2005 Hindu Succession Act: Now she can claim for immovable property alongwith above also. She now has full powers to alienate property like the Karta of the family. She can do this in 3 situations. For fulfilling husbands funeral rites, legal necessaries, benefit of estate, gifts to brahmins to satisfy husband last rites, dispense of religious and moral duties. In all these cases only small portion can be alienated. Alienation made is not void but voidable if party affected and filed by party affected. Reversioner(Heirs) can file. Reversioner can sue for injunction or declaration(possession); after her death for nullity also. A wife can by statutory substitution makes her get a part of her husbands coparcenary property but doesnot entitle her to other co-parceners interests of joint family property. Dowry and gifts given during or at the time of marriage and thereafter is her stridhan and if she demands and doesnot get it back - she can take refuge in law which provides a relief. Check out Section 14 HSA and sub sections to know consequences. The difference is taking, giving and abetting dowry is not a crime if done voluntarily and situation does not arise and differences amongst are merely words - but once a complaint is instituted that force or against will or pressure then her parents who have given dowry to her is not a crime (they can call it gift or presents w.r.t movable and immovable property). But husband & in-laws asking or demanding dowry(including gifts or presents or in any name) with an intention to coerce her and make an unlawful gain taking advantage of the relationship is a crime. **************************** The Hindu Succession (Amendment) Act, 2005 (39 of 2005) comes into force from 9th September, 2005. The Government of India has issued notification to this effect. The Hindu Succession (Amendment) Act is to remove gender discriminatory provisions in the Hindu Succession Act, 1956 and gives the following rights to daughters under Section 6: -The daughter of a coparcener cell by birth become a coparcener in her own right in the same manner as the son; -The daughter has the same rights in the coparcenary property as she would have had if she had been a son; -The daughter shall be subject to the same liability in the said coparcenary property as that of a son; and any reference to a Hindu Mitakshara coparceners shall be deemed to include a reference to a daughter of a coparcener; -The daughter is allotted the same share as is allotted to a son; -The share of the pre-deceased son or a pre-deceased daughter shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; -The share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter shall be allotted to the child of such pre-deceased child of the predeceased son or a pre-deceased daughter. After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognize any right to proceed against a son, grandson or greatgrandson for the recovery of any debt due from his father, grandfather or greatgrandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt. ******************** Get the list available with the people of South East Districts who all are accused in 498a and ask the same question again to initiate action again the police man. Also file a complaint u/s 18 r/w secton 20 of RTI Act for furnishing false information . You should also file a complaint to the Chief Justice Delhi High Court, Supreme Court and CM as I did that although the list was false but police ignored it and connived with wife. ********************** Another mode of fighting this injustice and sham complaints for extortion: Wife has submitted a list of stridhan which is not as per rule 2 of Dowry Prohibition Act and her application may be rejected in view of Circular no. 07/2007 and other she may be asked to furnish valid bills as well as cash flow details in view of para 7 of Circular no. 459-66/P.Sec/ Addl.CP/CAWC dated 29/03/2009. Further updates are as follows :The application of Swamy was accepted by the CAW Cell on the same day with the help of 100 no. police officials and he was given stamped receiving of the his application as he called Police Control Room by dialing 100 no. and they helped him while the other victims of dowry harrassment witnessed and appreciated his courage outside CAW Cell, Nanak Pura, Delhi. Now on the very next working day Swamy received a notice from CAW Cell, that he is requested to appear in CAW Cell for couselling. Earlier they said that you don't need to come here as we will registere FIR agains you to teach you lesson for consulting with lawyers. Swamy has now also filed one RTI in CAW Cell requesting information within 48 hrs asking for details of complaint number, name of accused, FIR no. (if any) with certified copy. Reply is awaited. Swamy has also filed one RTI to Police Control Room to provide certified copy of transcript, audio Recording and forms filled, dd entry of police official reached on spot from P.S. during his call made to Police Control Room , to be provided within 48 hrs. Swamy has also been advised to file an application requesting action against wife for , forgery, extortion, conspiracy as she has claimed for 18 " TV and 220 Ltr. Fridge when Swamy having bills of 14 " TV and 190 Ltr. Fridge, bills were of date 3 days before marriage are are on the name of his wife. You might also like: What are Hyderabad Police Orders to arrest ? Dare marry an Indian Girl ? Framing of charges ? What to do if wife is threatening with dowry law ? How to file IPC 498a ? 498a for dummies LinkWithin Posted by Amicus Curiae at 11:05 PM Labels: 498A, 498a FAQ, 498A misuse, Dowry, dowry law, free, harassed husband, india, IPC 498A, matrimonial, matrimonials, matrimony, shaadi, streedhan, wedding Tuesday, May 12, 2009 What is procedure for obtaining certified copies of judicial case file / record from court ? 1. A lawyer engaged in same case submits vakalatnama and if he fills up Certified Copy Form and signs and asks for certified copy from same court then his signature is valid to get certified copy. Also, 2. You can file for certified copies of your case to judge asking for copies and if they refuse please attach the CIC order that came up recently stating that it is an easy form of getting certified copies rather than through your lawyer. Use RTI and see how easy it is to get the required documents. http://cic.gov.in/CIC-Orders/SG-27012009-20.pdf for obtaining certified copies of judicial case file / record http://cic.gov.in/CIC-Orders/SG-16032009-22.pdf Place a note at the bottom: Note : It is submitted that the above information sought does not fall within the exemptions U/S 8 of RTI Act, 2005 and to the best of my knowledge it pertains to your esteemed office in your statutory capacity as PIO u/s 5 (1) of RTI Act read with 5(4) and 5(5) of the RTI Act, 2005 and the provision of penalty is applicable @Rs.250/- per day on cpio under section 20(1) of RTI Act by not providing information within 30 days. the B* back. Monday, May 11, 2009 Can she file both Section 24 of HMA and 125 Cr.P.C? Another judgement : where wife already instituted maintenance proceedings and was awarded no maintenance under PWDVA : http://www.indiankanoon.org/doc/894915/ Concealing income and job leads to contempt below: http://www.indiankanoon.org/doc/876426/ * * Rachna Kathuria vs Ramesh Kathuria on 30 August, 2010 see/click link * Author: Shiv Narayan Dhingra http://www.indiankanoon.org/doc/1111546/ * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Reserve: August 25, 2010 Date of Order: 30th August, 2010 + Crl.M.C.No. 130/2010 & Crl.M.A.No. 504/2010 % 30.8.2010 Rachna Kathuria ... Petitioner Through: Mr. P.Narula, Advocate Versus Ramesh Kathuria ... Respondent Through:Mr. S.S.Saluja, Advocate 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 By this petition under Section 482 Cr.P.C. the petitioner has assailed an order dated 22nd October 2009 of learned Additional Sessions Judge passed in appeal whereby the appeal of the petitioner was dismissed. 2. The petitioner filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (in short the Act) and along with it she filed an application under Section 29 of the Act seeking maintenance. The learned Court of MM observed that petitioner was living separate from her husband since 3rd January, 1996. She had filed a Civil Suit under Hindu Adoption and Maintenance Act and an application under Section 125 Cr.P.C. and Crl.M.C.No. 130/2010 Page 1 of 3 she was getting a total maintenance of ` 4000/- per month from the respondent. In case the petitioner felt that maintenance awarded to her was not sufficient, the proper course for her was to approach the concerned Court for modification of the order as already observed by the High Court in a petition filed by her earlier and the application was dismissed. Against this petitioner preferred an appeal. The learned Additional District Judge dismissed the appeal and the petitioner has preferred this petition. 3. It must be understood that the Protection of Women from Domestic Violence Act, 2005 does not create any additional right to claim maintenance on the part of the aggrieved person. It only puts the enforcement of existing right of maintenance available to an aggrieved person on fast track. If a woman living separate from her husband had already filed a suit claiming maintenance and after adjudication maintenance has been determined by a competent court either in Civil Suit or by Court of MM in an application under Section 125 Cr.P.C. she does not have a right to claim additional maintenance under the Act. The Court of MM under the Act has power to grant maintenance and monetary reliefs on an interim basis in a fast track manner only in those cases where woman has not exercised her right of claiming maintenance either under Civil Court or under Section 125 Cr.P.C. If the woman has already moved Court and her right of maintenance has been adjudicated by a competent Civil Court or by a competent Court of MM under Section 125 Cr.P.C., for any enhancement of maintenance Crl.M.C.No. 130/2010 Page 2 of 3 already granted, she will have to move the same Court and she cannot approach MM under the Protection of Women from Domestic Violence Act by way of an application of interim or final nature to grant additional maintenance. This petition is not maintainable and is hereby dismissed. August 30, 2010 SHIV NARAYAN DHINGRA, J. vn Crl.M.C.No. 130/2010 Page 3 of 3 ************************************************************* If you know your wife is working and she is denying that she is earning then you just need to issue Witness Summons against payment of Bhatta. ____________________________________________________ IN THE DISTRICT COURT, SONEPAT REVIEW APPLICATION NO. OF 2009 OF INTERIM APPLICATION NO. ---- OF ---IN M.J. PETITION NO. ----- OF -----. CCCCC … Petitioner V/s BBBB … Respondent APPLICATION BY THE PETITIONER FOR THE ISSUE OF WITNESS SUMMONS TO MR. XYZ DIRECTOR ABC, SONEPAT. MOST RESPECTFULLY SHEWETH AS UNDER :I, CCCC, the above named Petitioner, most respectfully hereby submit my application as under :As I want to examine the following witness towards his evidence to ascertain the fact of the gainful employment of the Respondent with ABC, summons as mentioned herein after may please be issued through the Hon’ble Court to this witness in the interest of the justice and equity because the Respondent has intentionally and knowingly concealed from this Hon’ble Court the material fact of her gainful employment. I am ready to pay process against the same and Bhatta will be paid directly to the witness. Name of witness with details is as under : MR. XYZ Director ABC, Full Address. Telephone : He be directed to attend the Hon’ble Court himself personally or through authorized staff member with following details in writing. Details and certified / authenticated copies of all the following documents in respect of BBBBB who joined your organization : a) Date of joining and Date of resignation / termination, if any, or continued in service at present. b) Copy of application for service, bio-data with all enclosures. c) Copy of appointment letter of service with terms & conditions. d) Copy of resignation / termination letter, if any. e) Copy of last salary slip, salary received by her with salary structure, mode of payment by cash / cheque / direct debit etc. f) Details of Salary Bank Account with copy of all statements for the entire period of employment. g) Copy of complete attendance record for entire service period. h) Details of Job profile, designation and working hours. i) Details of her all employment, may be intermittent, with the bank i.e. Date of joining & Date of resignation/termination with all salary details for the period commencing from 26.12.2008. It is therefore prayed that summons with aforesaid details be sent to the witness. Hence this application. *************************************************** 1) In Ravinder Haribhau Karamkar V/s Shaila Ravinder Karamkar, 1992, Cr. L.J. 1845 (Bombay) – in this reference case, it was held that during the pendency of a filed regular civil court petition under Section 24 of HMA, wife also simultaneously filed a parallel petition under 125 Cr.P.C. of the Code. It was held that the petitioner wife could not be allowed to ride two different horses at the time (two simultaneous proceedings in two different courts) and could not be permitted to continue the maintenance proceedings under section 125 Cr. P.C. when she has already chosen the alternative remedy by filing first a regular civil court suit for maintenance. It is well established that the judgment of the civil court shall prevail over the judgment of the criminal court. The natural justice demands that parallel proceedings cannot be allowed to continue in different courts. http://indiankanoon.org/doc/468335/ Prayer me made as follows: For the purpose of sparing the victim the ordeal of multiple trials and judicial economy - prayer be made to consolidate both trials in order to minimize prejudice with respect to potential antagonistic statements. For 2 trials would be cruel and relief sought under 2 trials would be inhuman and could turn into a logistical nightmare to comply with. Here is an opportunity for the system and the court administrators to make a humane gesture and rule for one trial only. the B* back. Monday, June 15, 2009 Framing of charges ? Framing of charges is one of the most important stages in a trial. This is the time when you can vehemently oppose the offences upon investigation done. This is also the time when charges on certain offences can be dropped by the magistrate concerned. If the MM has used his/her discretion in a non-judicious manner - it is case for modification in High Court. Below is what one victim has commented and practically undergone. ****************************************************************** Now it is the turn of IPC 406 when xx backfired on CJM by his detail order for ingredients of IPC 406 while hearing the revision petition U/s 397 of Crpc filed by xx, Session Judge of XX , Set aside the charges of IPC 406 from the husband by saying that , IPC 406 charges can't be framed by mere allegation of the wife , allegation must contains the ingredients of the offence with particular time and date with proper measurements units. Detail of the Case : Jai Pahuja Vs Rashmi Pahuja & State of U.P Filed the revision U/s Crpc 397 against the order of Ld CJM in which he charged the husband in IPC 406 , We continued our arguments that two ingredients must be satisfied : 1. Entrustment of articles 2. Breach of Trust We argued 5 times constantly , that specific date,time and place of the offence is not given. Also, the streedhan list does not carry the description of articles like make and measurements units , no list as per Maintenance of List act 1985 maintained , no justification of source of income , Only marriage was solemnised in Noida , And, after the entrustment of articles, breach was happened in XX. So, XX has no jurisdiction. After hearing , Session Judge set aside the order of Ld CJM by saying that CJM has failed to exercise caution vested in him and passed the order in total negligent manner. Ld ASJ also provided the details order of 5 pages in which he said - that both the ingredients should be satisfied in IPC 406 , date/place/time /name of person (at the time of entrustment and breach) must be specified before framing the charges of IPC 406 otherwise allegation can be counted as vague . So, I am requesting all of you to not take lightly the stage of charge farming of IPC 498A and 406 , fight till last moment so that charge can not be framed as FIR can register on prima facie but charges must be framed on grave suspicion,If still charges framed by magistrate challenge the same to session as if the charges are set aside whole case will demolished , We initiated the work in the same direction's in XX. You might also like: April 27, 2009 Speedy Trial Right to speedy trial: Read this article here- Summarised below. 1. Court system delay which accounts for the period of entering the cause till its taken up for trial. 2. Delay due to professional courtesy of lawyers towards each other and lawyer’s vis-àvis the court. The main reason for the delay in the cases is the adjournment granted by the court on flimsy grounds. Section 309 of Code of Criminal Procedure (CrPC) and Rule 1,Order XVII of Code of Civil Procedure (CPC) deals with the adjournments and power of the court to postpone the hearing. The Supreme Court (SC) of India took positive steps in the direction of implementing article 14 (3) of international covenant on civil and political rights which determines that criminal charge too be tried without undue delay. Article 16 of principles of equality in administration of justice declares that everyone shall be guaranteed right to speedy trial. SC held in Raghubir Singh v. State of Bihar that speedy trial is one of the dimensions of fundamental right to life and liberty under article 21. Cr.PC in sec 260 involves the concept of “summary trial” whereby in case of circumstances prescribed the court has to summarily dispose the case. Delay Leads To Mental Anguish: In hussainara khatoon v. State of Bihar which formed the basis of the concept of the Speedy Trial, it was held that where undertrial prisoners have been in jail for duration longer than prescribed, if convicted, their detention in jail is totally unjustified and in violation to fundamental rights under article 21. In the case Katar Singh v. State of Punjab it was declared that right to speedy trial is an essential part of fundamental right to life and liberty. Under sec. 482 read with 483, Cr. P.C lays that every possible measure to be taken to dispose off the case within 6months from today. No adjournments to be granted until and unless circumstances are beyond the control of judiciary. Read the Law Commission report here: You might also like: the B* back. Friday, May 8, 2009 Getting Passport out of trial court as conditional bail ? http://www.498a.org/forum/viewforum.php?f=48 You just need to show a "change in circumstance" basically get an appointment letter from a foreign company or get an admission letter from a foreign country educational institution. If all this is too much work then you may petition that your visa status is going to expire if you do not go back to the foreign lands.Actually the fight must be on two prong strategy: 1. show that the impounding procedure was not followed and that the courts can keep the passports indefinitely. That will make them defensive. 2. show that if you do not get immediate relief of going out of country then something drastic like job loss, loss of school semester, loss of immigration benefits will happen. As an accused you must be treated innocent and that between fundamental rights granted to you in the Constitution and the fear of you absconding the SC says that Fundamental Rights must be preferred. The whole idea of granting bail is that it is not proper to infringe upon the basic rights of the citizen accused. You might also like: the B* back. Tuesday, April 28, 2009 Temporary injunction order restraining respondent from entering residence or premises File a petition under Order 39 Rule 1 and 2 r/w. Section 151 of CPC praying that in the circumstances stated in the affidavit filed herein the High Court may be pleased to grant temporary injunction restraining the respondent, her parents, brothers, relatives etc., from entering the residence of the petitioner, pending disposal of your petition on the file of the Court of the Judge, Family Court,xx. "The Opponent be restrained by an order of temporary injunction from causing nuisance, obstruction in his day to day activities, and disturbing by making intriguing phone calls, sending messages from any phone out of her residence or in her possession to the office or personal phone of the Petitioner or to any other place, where the Petitioner might be, in India or out of India. That none of the family members of the Opponent or any manager, friend, servant or care taker of the Opponent shall be allowed to disturb or intrigue the Petitioner in any manner of communication. That the Applicant be permitted to take stern legal action against the Opponent by taking help of police machinery" the B* back. Saturday, July 11, 2009 What after chargesheet (final report) by police ? See, nobody can arrest you before you have been charge stetted. That is in every rules of HC of India. What you need to do is - find out if there has been a 'prima facie' case against you. If there is there is no use filing for 482 - quash. Thereafter, file for discharge in trial court. File for jurisdiction in trial court. Then you bring it to HC for jurisdiction. For patent errors or NRI directly file in HC for jurisdiction - since criminal is different from civil and continuing is different from one time. Divorce or custody or maintenance she can file at her place but not criminal case i.e., IPC 498A. Unless, it is a continuing offence or changed circumstances. That is why once IPC 98A is filed , stop talking, writing, or in any way communicating. It is the end of relationship sadly accordingly to Indian Law. Charge sheet is filed u/s.238 Cr.P.C. So What, File for discharge and jurisdiction based on word to word reproduction of FIR in charge sheet or verbatim production. Some guy has wrote in MyNation: here it goes... Immediately accused have an opportunity to challenge the chargesheet in from of submitting 'Discharge Application' u/s.239 Cr.P.C. This opportunity if lost, has no side effect whatsoever. However 'Revision' lies at Session Court u/s.397 Cr.P.C. Even if 'Revision' is lost, remedy lies as 'Apeal' at High Court for 'quesh' u/s. 482 Cr.P.C. Even if apeal is lost, remedy lies with Supreme Court under Article 32 of Constitution. Even if all these opportunities are lost, there is absolutely no side effect whatsoever of these remedies. But it MUST BE REMEMBERED AND KEPT IN MIND that 'Discharge Application' has very limited area to play. You have to prepare your 'Discharge Application' on the basis of :1] Only all the documents accused received with chargesheet ; and 2] Any document which police have in their possession [may be submitted by accused at the time of bail application at court or made some application to police attaching some documents] but not submitted with chargesheet to make case of accused weak and case of complainant/prosecution strong. Accused simply cannot rely upon any other document or evidence for 'Discharge Application'. Then when other evidence will help ? Answer is in 'trial'. As soon as Chargesheet is filed and accused decide to file 'Discharge Application' then he has to follow the following steps : 1] Make application as advised above. You have to state 'Grounds' for discharge and show that no 'prima facie' case is made out. 2] This application need not be submitted on the date given for 498A case. It can be submitted on any day. Some courts have their own methods for handling it. In some court, a 'MISC' (miscellaneous) case number is given and heard separately with separate set of hearing dates. In some court, it is heard under the same number of chargesheet case (Criminal Case : C.C. No.). But under any method, the main 498A case is stopped till 'Discharge Application' is not disposed off. 3] One copy of 'Discharge Application' is given to PP in court at the time of filing original application for discharge in court. Court writes order on discharge application - 'PP to say'. 4] Now PP has to submit his say and he makes all drama of not submitting. Here accused can submit 'Pursis' to court on each and every date about 'PP' not submitting his/her say. Accused can make application to court that 'PP' has nothing to say and therefore not submitting his/her say and therefore, proceeding may please be continued without his/her say. Accused should not care for outcome of these exercise, but continuous pressure should be built on PP to give his/her say. Please note, without his/her say, matter will not move at all and therefore it is very essential to build a continuous pressure which normally advocates don't do. 5] After PP's say, accused has to make arguments. Accused can submit 'written argument' (with a copy to PP) and also make oral submission, both. 6] Then PP has to make his/her argument. Again he may ask for adjournments for his/her argument and accused has to repeat pressure building tactics. Unless PP makes argument, matter will not proceed further. But 498A will remain in abeyance (on hold). 7] Then proceeding is completed. Magistrate gives order on discharge application - either acquittal OR dismissal of application. 8] Hereafter accused may choose either to go to 'Revision' or forget going ahead. Then charges are framed u/s.240 Cr.P.C. which accused shall contest fighting that how charges are not applicable. But no advocate fight for this. So in this manner accused get 2 opportunities. But due to this, trial is delayed. 9] In my opinion, trial is the BEST way if accused have no good evidence in chargesheet or with police which is hald back by them. If 'Informant' has no proof for any allegation, then mere denial by accused to accusations, gives acquital due to 'benefit of doubt'. M.R. GUPTA MUMBAI HELPLINE ay 12, 2009 How to get proof of income of FIL/MIL/BIL through TEP / GP? If you looking for copies of Form 16, ITR returns or other annexed documents of your FIL/MIL/Wife sorry TEP / GP does not provide it you. TEP is Tax Evasion Petition, it tells how much tax is recovered but does not tell how it is recovered. GP is Grievance Portal use it if you are not being heard / replied by competent authorities if you are working with in defined law frame work. *********************************************************** Many times people after getting hit with 498a immediately file for IT returns to IT department, they are rejected because they are not liable for third party information. So, the best alternative is : The I-T dept. is correct, you cannot get I-T returns through RTI. Instead, you should have filed a Tax Evasion Petition (TEP) with the I-T dept. and filed RTI on the status and Action taken on your TEP. This way you would need to bring their I-T returns, but you can ask specific questions to suit your defense. And based on the RTI replies, later on you can get a court order to get their returns. nday, May 4, 2009 How to get PAN of FIL/MIL in govt sector? RTI used to get details of cheating husband April 9th, 2010 - IANS The pay particulars of a government employee cannot be considered personal information, the Central Information Commission (CIC) has ruled, while upholding the right of a "betrayed" woman to get details of her husband's salary. "The Commission holds that the pay particulars of a government employee cannot be considered as personal information by any means and directs the PIO (Public Information Officer) to provide the same to the appellant," Information Commissioner Annapurna Dixit noted in her order while backing Chhattisgarh resident Shivkumari Kashyap, whose husband got married for the second time. Kashyap, who believes that her husband Baldev Singh, an employee of South East Central (SEC) Railway, had entered the name of his second wife in his service book, used the Right to Information (RTI) act to get justice. She filed an RTI application with the SEC Railway seeking the pay particulars of her husband as well as a copy of his service book, which has all the details of a government servant's official life, including information about his pay, increment and other things. When SEC Railway denied her the information, Kashyap approached the CIC, stating during a hearing through videoconferencing on March 10 that she was the "legitimate wedded wife of Baldev Singh and that her husband has been ill treating her". "He has also married a second time while remaining married to her (appellant)," her application stated. "According to the appellant she believes that her husband has entered the name of his new wife in his service book and in this connection she wanted a copy of the service book, besides pay particulars," the CIC was told. On this, the CIC held that pay particulars of a government employee cannot be considered as personal information by any means. "Also in view of the harassment undergone by the appellant in the hands of her husband and because the service book details of her husband being sought by her are not personal information as the same are already in the public domain, the PIO may also provide an attested copy of the first page of the service book to the appellant giving details of the name of the spouse entered therein," Information Commissioner Dixit directed. The CIC has said the information should be provided by April 10. ******************* File for certified copy of qualifications/educational certificate from 10th on wards and for age proof by way of RTI of your FIL/MIL or any witnesses in your 498A case, this way you will know his date of birth (mostly written in 10th certificate. Use below judgement if PIO denies to provide you certificate. Latest relevant decision of CIC dated 10 feb,2009 No.CIC/SG/A/ 2008/00248/ 1596 regarding providing such information to public. After getting date of birth you can get PAN from income tax web site. https://incometaxindiaefiling.gov.in/portal/knowpan.do Some useful sites to get PAN Card related information. https://incometaxin diaefiling. gov.in/portal/ register. do?screen= registerPage1 https://tin. tin.nsdl. com/tan/servlet/ PanStatusTrack https://incometaxin diaefiling. gov.in/knowpan/ knowpan.jsp https://tin. tin.nsdl. com/tan/StatusTr ack.html http://www.utitsl. co.in/utitsl/ site/pantracker. jsp *********** Salary Information of Public Servants: The information requested by the appellant is the disclosure of the routine information regarding the salary of an employee of a public authority which is even otherwise disclosable under Section 4(1) of the RTI Act and as per the decision of the Commission in K.C. George Vs. CMFRI; Appeal No.CIC/AT/A/ 2009/ 00032; Date of Decision: 13.05.2009. However, what is not disc-losable is any details in the salary slip of the employee regarding how much he was contributing towards Provident Fund or other voluntary contributions made by him from his salary account. While these items can be withheld, it would be wholly incorrect to withhold from disclosure information regarding an employee’s salary at any given point of time, including the allowances payable. Such information cannot be withheld on the ground that it was personal income of an employee. A charge on the budget of the public authority towards payment of salary to an individual employee is not a personal matter. It is an information which is disclosable since it is an account of what an employee or a class of employee receive by way of pay from the employer. There is no reason why such information should be withheld from disclosure. the B* back. Monday, May 4, 2009 How to get SMS/Phone records from Service providers ? If you are in the USA and your wife has taken the phone and both the phones are registered on your name and when she went back to India, she took the phone. Her sister or brother started using this phone recently: Now you need not register an FIR -- all you have to do is -if you write a letter to the carrier here in the USA, they will get in touch with the Indian carrier and catch them with the help of Indian Police. Simple ! ************************* For getting Incoming record from any telephone service provide there is two way, 1) You go through to Police deprtment at least S.P Level, for asking letter for Incoming call detail for proving ur incocence for ur ongoing court case , with attached ur certified copies of case. 2) You should apply to ur service provider (Bsnl etc) under RTI 2005 , with application above same . I have filed for divorce from my wife. We have been married for 10 months. She has filed 2 cases against me and my family, one under sec 498 & 34 of Dowry Prohibition act, (for which the police have filed a B report) the second is a maintenance case. Her brother has sent an SMS to me and my friends wherein he has threatened to kill me. Is there any way I can take some action? — Abhishek Answer from DGP: The act of your brother-in-law amounts to Criminal Intimidation which is punishable under section 506 of the Indian Penal Code. The Punishment for this section is seven-year jail term. You have to prove that the SMS originated only from your brother-in-law, as anyone could have sent an SMS in your brother-inlaw’s name. You might also like: the B* back. Monday, April 27, 2009 How to get info from Private entity? You can get information pertaining to private entity [private schools, colleges, coop societies/banks, private sector banks and insurance companies, public/private trusts, private service providers, public limited companies etc under section 2 [ f ] of RTI Act. Please follow this procedure. 1. Find out the government dept or government regulator with which the private entity is registered or is being controlled or monitored. For example trusts are reporting to Charity Commissioner of the area, mobile service providers to TRAI, private banks to RBI, insurance companies to IRDA, public limited companies to SEBI and Registrar of Companies. Coop Societies/banks report to District Registrar of Cooperative Societies. Schools are controlled by Dist. Education Officer and colleges by university. Majority of private bodies are controlled by one or the other govt. dept/regulator. 2. Locate PIO of this government dept/regulator, by visiting concerned website . 3. File application by referring to RTI Rules for format and fees applicable to central govt. [for central govt. dept/regulator like RBI, IRDA, TRAI, SEBI, ROC etc] or concerned state govt. [if department pertains to a state govt]. 4. Add following as query: Particulars of information required: Please provide me information as per annexed list relating to ____________having Head/Main office at __________________ from your records and also by obtaining from the said entity under section 2 [ f ] of RTI Act 2005, which is reproduced here under for your kind reference: (f)"information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; 5. Attach list of information required by you as annexure to application. 6. You need not contact the private entity whose information is being sought. Now you are concerned with the govt. dept/regulator only and its PIO has to provide you the information sought by you. 7. Govt. departments or regulators can summon information under different laws from private bodies and the same has to be supplied to you. 8. Information barred by sections 8 & 9 of RTI Act cannot be accessed under section 2 [f] also. 8, 2009 Police not investigating ? WHEREAS the Petitioner above named through his Advocate XXX, presented this writ petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue any writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the respondent No.2 in not investigating into the Crime No.xx/2008 of CCS, WCO, DD, Hyderabad is illegal, improper and without jurisdiction and consequently direct the 2nd respondent to investigate into the case and file final report U/s. 173 Cr.P.C. AND WHEREAS the High Court upon perusing the petition and affidavit filed herein and upon hearing the arguments of SRI XXX, Advocate for the Petitioner and of GP for Home for the respondents 1 & 2 directed issue of notice to the Respondents herein to show cause why this writ petition should not be admitted in the circumstances set out in the petition and the affidavit filed in Writ Petition. And the Court also permitted the petitioner to take out notice on the unofficial respondents and file proof of service into court. Complain to their Baap's and use all available resources like telegram, phonogram, e-mail, etc BSNL Phonogram usage: Are you all aware of the facility available with "BSNL" landline telephones called Phonograms? It is a facility provided by BSNL for sending telegrams through phone. The system is: 1. Dial 1585 2. You will get a registration no. [ say 10]. 3. Whe ur turn comes, you will get a call from the telegraph office asking you to give the telegram details. 4. If you are sending same communication to 'N' no. of people, you can read the body of the message once. 5. Give them addresses of receivers. 6. Give them sender's name and address. 7. Collect the alphanumeric code from them [ e.g.K11-K20 for 20 no. of telegrams] for future reference. 8. Telegrams will be delivered at the receivers end . 8. If the telegram is not delivered, they will come back and inform you. This gives you the advantage of both [i] written communication [document record like physical interview call letter] and [ii] ensures faster reach [like email]. I am sure this will give you better Attended-to-called ratio. This is the best way for reaching rural areas where there is not email/computer facility.. and police who are biased against you. ************** Guidelines for investigation relating to 498a complaints: OFFICE OF THE ADDITIONAL COMMISSIONER OF POLICE , CRIME AGAINST WOMEN CELL, NANAK PURA, DELHI No. 459-66/P.Sec/Addl.CP/CAW 29/03/2007 To All District DCsP Accept DCP North District Delhi “Guidelines for the investigation of Dowry related cases” Memo Please find enclosed the guidelines prepared by DCP North District for the investigation of the dowry related cases. The guidelines are very useful therefore may be implemented in all the districts to improve the quality of investigation of such cases. District DCsP may like to guide the investigation officers accordingly. Sd/(TAJENDRA LUTHRA) Additional Commissioner of Police CAW/Cell, Nanakpura, Delhi Copy to :1. Jt. CP Ranges for information. 2. DCP North District for information. 3. DCP/CAW Cell Nanakpura, Delhi 4. Addl. DCP/CAW Cell Nanakpura, Delhi 5. ACsP/CW Cell Nankpura, Delhi Sd/(TAJENDRA LUTHRA) Additional Commissioner of Police CAW/Cell, Nanakpura, Delhi OFFICE OF THE DY. COMMISSIONER OF POLICE NORTH DISTRICT , DELHI CIRCULAR It has been observed that the investigation of the case, related to cruelty/harassment in lieu for the demand of dowry are not being investigated properly . as a result , many allegations are leveled by the complainant/accused party against the IOs of such cases and other officials. Also, the quality of investigation, which is detrimental to the outcome of the trial of the cases, suffers. A set of basic guidelines to be followed during the investigation of these cases are given below. These are not exhaustive. 1. The statements of witnesses u/s 161 Cr.P.C. should be recorded in a Question and Answer module. All possible efforts should be made to corroborate the contents of the statements of the witnesses so recorded. 2. In the complaints related to these cases allegations are leveled against all the family members of the family of the husband by the complainants. The IOs should apply their mind before making the arrest of any family member who was not residing in the matrimonial house of the victim after the marriage. The IOs should collect the vital evidences in this regard diligently, like duration of the stay of the alleged person at the matrimonial house, verification of Travel documents , repot from the employer regarding leave etc of the relatives of accused person to justify their arrest. 3. IOs should ensure application of mind in the collection of the evidences related to the cruelty/harassment aspect. This cruelty/harassment should invariable by linked with the demand of Dowry, in shape of reports made by complainant with concerned Police Station and medical reports with regard physical assault to the complainant amongst others. 4. Local enquiries be invariably made with regard to allegations made against the relatives of the accused persons, so as to corroborate the allegations against them. This should be done in order to avoid miscarriage of justice. The investigation conducted should not reflect that the IO has affected the arrest of all named persons in the complaints/FIR without application of mind. 5. Information Sheets should be filled by the IO at the time of arrest and the same should be verified invariable within 24 hrs. if the residence of the accused falls under the limes of Delhi. Sincere efforts should also be made to verify the remaining information sheets by using modern facilities like Fax etc. and by wise legal application of mind. 6. The gift items given to the husband by in laws should be segregated by the IOs form the list of Istri-dhan and the complainant should be informed accordingly. 7. The receipt of purchase/procure or manufacture of the Istri-dhan articles should be procured by IO immediately where in allegation of misappropriation/ criminal breach of trust exists. In the absence of any documentary proof, the efforts put in by the IO in this regard should be reflected in the body of the case diary and proper verification should be done to establish the source of the Istridhan to establish the genuineness of the allegations leveled by the complainant the complainant should also be asked to disclose the source of money used to purchase costly items. 8. At the time of the recovery of Istri-dhan articles, proper inventory should be made by the IOs in the presence of witnesses and copy of the same should be given to the complainant and also to the accused party. If the place of recovery is in other state, concerned Police Station and Magistrate having the jurisdiction should be informed accordingly, so that necessary action by the police officials of other state is taken with regard to Istri-dhan. 9. Efforts should also be made to encourage the parties to the Istri-dhan released on superdari at the earliest, owning to the shortage of space in almost the Police Stations, Malkhana. Such articles occupy huge areas and are often placed in the open with consequent damage to the property which should be avoided otherwise. 10. Charge-sheets may not forwarded “To Court” by the ACP concern without having CRO Report in respect of the accused persons. Sd/(DHEERAJ KUMAR) ADDL. DY. COMMISSIONER OF POLICE NORTH DISTRICT. DELHI All ACsP/ Sub Division and ACP/CAW Cell, North District to ensure meticulous compliance. NO _________/P.Sec/ADCP/N/ DATED DELHI THE ______________ Copy to :1. SO-Jt. C.P. , Northern Range for information. 2. SO-DCP North District for information. the B* back. Monday, April 27, 2009 Can DV Petitioner be cross examined? IN THE HIGH COURT OF DELHI AT NEW DELHI SHIVANI KABRA Vs. STATE & ORS Advocate (s) : PRAMOD GUPTA, Date of Disposal : Wednesday, January 30, 2008 Category : CRIMINAL REVISIONS AND BAIL APPLICATIONS IN THE HIGH COURT OF DELHI AT NEW DELHI 30.01.2008 Present: Mr.Pramod Gupta, Advocate for the Petitioner. Crl.M.C.323/2008 and Crl. M.A.1186/2008 The petitioner/wife was married to respondent no.2/husband in accordance with Hindu rites on 14.02.1994. It is the allegation of the petitioner that the parents of respondent no.2/husband were demanding dowry from the beginning and the same was given by the parents of the petitioner/wife. There are allegations of cruelty made against the respondent no.2/husband and his family members being respondent nos. 3 to 5. The petitioner filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (’the said Act’ for short) on 24.04.2007 claiming relief under different provisions of the said Act including Sections 18, 19, 20, 21 and 22 of the said Act. The learned MM passed an order on 08.06.2007 as regards the relief claimed by the petitioner under Sections 17 and 19 of the said Act in respect of the residence and shared household and directed the respondent no.2/husband to pay to the petitioner/wife a sum of Rs. 10,000/- per month towards expenses for her accommodation and amenities. The relief claimed in respect of the custody of the children was settled by the learned Addl.Sessions Judge during the course of hearing of the revision petition. The grievance of the petitioner/wife is in respect of the remaining pending issues, the learned MM passed an order dated 09.10.2007 directing the parties to file their affidavits by way of evidence and posted the matter for cross examination of the petitioner /complainant (wife) on 13.11.2007. Hence, the present petition. A perusal of the Order dated 09.10.2007 of the learned MM shows that the respondent no.2/husband sought an opportunity to cross examine the petitioner/complainant(wife) and the learned MM was of the view that under the provisions Section 28 of the said Act, the Court has to follow the procedure laid down in the Code of Criminal Procedure, 1973 (’the said Code’ for short) and further the Court can lay down its own procedure for disposal of the application. Considering the allegation levelled by the petitioner/complainant (wife), the learned MM was of the view that the respondents, respondent nos.2 to 5 herein, should be given an opportunity to cross examine the petitioner/complainant (wife) and they should further be entitled to lead evidence. The contentions advanced by learned counsel for the petitioner/wife against the said Order have been examined by the learned Addl. Sessions Judge in the impugned order dated 07.12.2007. In fact, the same submissions have been made today. It is the plea of the learned counsel for the petitioner that there is no procedure prescribed under the said Act for recording of evidence and to conduct cross examination. The further plea advanced by the learned counsel for the petitioner, which was also raised before the Trial Courts, is that the only reliefs which remain to be adjudicated are in respect of maintenance, stridhan and other household goods for which affidavits have been filed by the parties. This plea was contested by the counsel for the respondent nos.2 to 5, being the husband of the petitioner and her inlaws, before the learned Addl.Sessions Judge on the ground that it was the case of an affidavit filed by one party against the affidavit of the other party and thus to ascertain the veracity of the averments made in the affidavits, the same should go through the test of cross examination. The learned Addl.Sessions Judge held that it is the duty of the court to make an endeavour to get to the truth of the matter and in view of the allegations and counter allegations it was necessary that the parties be given an opportunity to lead their evidence and also to enter the witness box and face the cross examination. “28.Procedure (1) Save as otherwise provided in this Act, all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974). (2) Nothing in sub-section (1) shall prevent the court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23.” A reading of the aforesaid clause shows that the proceedings are to be governed by the Code of Criminal Procedure, 1973, but this would not prevent the Court from laying down its own procedure for disposal of an application under Section 12 of the said Act. Thus, wide amplitude has been given to the Court taking into consideration the nature of the legislation, which is to protect the women. The statement of objects and reasons of the said Act shows that domestic violence is undoubtedly a human right issue and serious deterrent to development and thus to protect the rights under Articles 14, 15 and 21 of the Constitution of India, the law has been enacted. It certainly cannot be the plea of the learned counsel for the petitioner that the Court does not have the right to get to the bottom of the matter if the Trial Court, in its wisdom, in the given facts of the case where there are two affidavits of the opposite parties, finds that the cross examination of the deponents would assist the Court in coming to the right conclusion. Such a course of action can hardly be faulted. Not only has the Trial Court exercised this power, but the revision against the same has also been dismissed and this is the third round initiated by the petitioner. It is not a case of the Trial Court holding a detailed trial, as alleged by the petitioner/wife, but trying to find the veracity of the averments made in the affidavits of the two parties. I am thus of the considered view that there is no ground for this Court to exercise its inherent jurisdiction under Section 482 of the said Code. Dismissed. JANUARY 30, 2008 SANJAY KISHAN KAUL, J. the B* back. Tuesday, April 28, 2009 How to file DV Quash ? Present a petition Under Section 482 of Cr.P.C., praying that the Honourable Court may be pleased to quash all further proceedings in D.V. C. No. xx of 20xx on the file of the II Additional Judicial First Class Magistrate, xx at Hyderabad. Prepare the petition and memorandum of grounds. Hire a lawyer/advocate in High Court to argue. Also, in the interim prepare a stay of all proceedings petition. Donot let the trial court lawyer tell you that 498a or DVC can be quashed in trial court. You can only get it quashed in High Court. if relatives dont live with husband/wife, 498a on them can be quashed as it is harrasment. except for husband. if muslim marriage dissolved in foreign court, wife has no objection, 498a is quashed. if relatives dont live with husband/wife, 498a on them can be quashed as it is harrasment. except for husband. sday, May 27, 2009 Notable truths A man escapes from prison where he has been for 15 years. He breaks into a house to look for money and guns and finds a young couple in bed. He orders the guy out of bed and ties him to a chair, while tying the girl to the bed he gets on top of her, kisses her neck, then gets up and goes into the bathroom. While he's in there, the husband tells his wife: "Listen, this guy's an escaped convict, look at his clothes! He probably spent lots of time in jail and hasn't seen a woman in years.I saw how he kissed your neck. " If he wants sex, don't resist, don't complain, do whatever he tells you. Satisfy him no matter how much he nauseates you. This guy is probably very dangerous. If he gets angry, he'll kill us. Be strong, honey. I love you." To which his wife responds: "He wasn't kissing my neck. He was whispering in my ear. He told me he was gay, thought you were cute, and asked me if we had any vaseline. I told him it was in the bathroom. Be strong honey. I love you too!!" ************* 1.. When I was born, I got a choice - A big dick or a good memory. A : I am not able to remember, what did I choose? 2.. Your birth certificate is an apology letter from the condom factory. 3.. My wife is a s*x object. Every time I ask for s*x, she objects. 4.. Impotence: Nature's way of saying "No hard feelings". 5.. There are only two four letter words that are offensive to men -'don't' and 'stop', unless they are used together == 'don't stop'! 6.. Panties are not the best thing on earth, but next to best thing on earth. 7.. A There are three : Tri Weekly, stages Try to s*x Weekly, in a and person's life: Try Weakly. 8.. Having s*x is like playing bridge. If you don't have a good partner, you'd better have a good hand. 9.. A : Q : What's an The same thing as a French Australian kiss, only down kiss? under 10.. A couple just married were happy with the whole thing. A : He was happy with the Hole and She was happy with the Thing. 11.. Q : What are the three biggest tragedies in a man's life? (The best one) A : Life sucks, job sucks and the wife doesn't! 12.. Teacher: Use "harassment" in a sentence. Johnny: Her mouth said no, but "her ass meant" yes. 13.. Q : What's the difference between a bitch and a whore? A : A wh*re sleeps with everyone at the party and a b*tch sleeps with everyone except you. 14.. Q : Why do men find it difficult to make eye contact? A : Br*asts don't have eyes....... 15.. Despite the old saying, "Don't take yourtroubles to bed", many men still sleep with their wives! ************************************** Ek Pathan U.S.A se apni Ammi ko phone karta hai Pathan:Ammi jaan mhuje AIDs ho gaya hai. Ammi: Tu vapas mat aana Beta. Pathan: Kyon Ammi? Ammi: Agar tu aaya to Teri biwi ko AIDS hoga, Teri Biwi se tere Bhai ko Tere Bhai se Naukrani ko, Naukrani se tere Abba ko, Tere Abba se teri Mausi ko, Teri Mausi se tere Mausa ko, Tere Mausa se Mhuje, Aur Agar Muje ho gaya to saare GAON ko ho jayega! Tuje ALLAH ka vasta saare GAON Ko bachale BETA ***************************** Two men, one American and an Indian were sitting in a bar drinking shot after shot.The Indian man said to the american,"You know my parents are forcing me to get married to this so called homely girl from a village whom I haven't even met once. We call this arranged marriage. I don't want to marry a woman whom I don't love...I told them that openly and now have a hell lot of family problems." The American said, "Talking about love marriages... I'll tell you my story. I married a widow whom I deeply loved and dated for 3 years. "After a couple of years, my father fell in love with my step-daughter and so my father became my son-in-law and I became my father's father-in-law. My daughter is my mother and my wife my grandmother. More problems occurred when I had a son. My son is my father's brother and so he is my uncle. Situations turned worse when my father had a son. Now my father's son i.e. my brother is my grandson. Ultimately, I have become my own grand father and I am my own grandson. And you say you have family problems.. ????????? ******* Indian matrimony sites advertisements: *Hello To Viewers My Name is Sowmya , I am single i dont have male,If any one whant to marrie to me u can visite to my home. I am not a good education but i working all field in bangalore .. if u like me u welcome to my heart... when ever u whant to meet pls visit my resident or send u letter.. ** Thanks* * yours Regards Sowmya ~*~ (Truly yours)* ~~~~~~~~~~~~ ~~~~~~~~~ ~~~~~~~~~* i want very simple boy. from brahmin educated family from Orissa state she is also know about RAMAYAN, GEETA BHAGABATA, and other homework What Homework???* ~~~~~~~~~~~~ ~~~~~~~~~ ~~~~~~~~~* I am a happy-go-lucky kind of person. Enjoys every moments of life. I love to make friendship. Becauese friendship is a first step of love. I am looking for my dreamboy who will love me more than i. Because i love myself a lot. If u think that is u then why to late come on ........hold my hand forever !!! (The dilwale dulhaniya effect)* ~~~~~~~~~~~~ ~~~~~~~~~ ~~~~~~~~~ *i am simple girl. I have lot of problem in my life because of my luck. now* * i am looking one boy he care me and love me lot lot lot (I don't know why but this is one of my favorites) * ~~~~~~~~~~~~ ~~~~~~~~~ ~~~~~~~~~ * i want a boy with no drinks if he wants he can wear jeans in house but while steping out of house he should give recpect to our cast ** (by not wearing his jeans? What the hell...) * ~~~~~~~~~~~~ ~~~~~~~~~ ~~~~~~~~~* HYE I AM A GOOD LOKING GIRL,WHO HAS THE CAPABILITY TO MAKE ANY BODY TO LOUGH.I BELIEVE IN GOD AND ACCORDING TO ME FRIENDS ARE THE REAL MESSENGER OF GOD. THE 3 THINGS I AM LOOKING FROM A BOY THEY ARE ** 1. THEY MUST BELIEVE IN GOD. ** 2. THEY HAVE TO LIKE MY PROFFESION 3. THEY SHOULD NOT GET BORED WITH ME WHEN I WILL TRY TO MAKE THEM LOUGH. (all of us are loughing {laughing})* ~~~~~~~~~~~~ ~~~~~~~~~ ~~~~~~~~~ * whatever he may be but he should feel that he is going to be someone groom and he must think of the future life if he is toolike this he would be called the man of the lamp ** (I am clueless, I feel so lost. Can anyone tell me what this girl wants)** Infact she doesn't know wat she wants ?.. ? A LAMP ? ? * ~~~~~~~~~~~~ ~~~~~~~~~ ~~~~~~~~~* i love my patner i marriage the patner ok i search my patner and I love the patner ok thik hai the patner has a graduate ok (I am again Suffering clueless but I liked from the use of 'ok'. The person is 'Ok-syndrome' )* ~~~~~~~~~~~~ ~~~~~~~~~ ~~~~~~~~~* iam pranati my family histoy my two brother two sister and father & Mother. sister completely married ** (somebody please explain how to get married completely'? ) ( Confused ????? )* ~~~~~~~~~~~~ ~~~~~~~~~ ~~~~~~~~~* my name is farhanbegum and i am unmarried. pleaes you marrige me pleaes pleaes pleaes pleaes pleaes pleaes pleaes (Height of desperation! )* ~~~~~~~~~~~~ ~~~~~~~~~ ~~~~~~~~~* iam kanandevi. i do own businas.one sistar.he was marred.* * (No comments)* * (Plz for gods sake ask somebody's help in framing sentence ) * ~~~~~~~~~~~~ ~~~~~~~~~ ~~~~~~~~~* hello i am a good charactarised woman. i want to run my life happily. i divorced my first husband. his charactor is not good'. i expect the good minded and clean habits boy who may be in the same caste or other caste accepted .... (but credit cards not accepted..?? ?) (Perhaps Debit Cards accepted ?.. Clean Habit's????? ?? Is there anything like that.) * ~~~~~~~~~~~~ ~~~~~~~~~ ~~~~~~~~~* I am Sharmila my colour is black, but my heart is white. i like social service. Zebra..??? (Gosh!!!!!!! ! she knows her heart color) * *********** 1. Be a Fundamentalist -- make sure the Fun always comes before the mental. Realize that life is a situation comedy that will never be canceled. A laugh track has been provided, and the reason why we are put in the material world is to get more material. Have a good laughsitive twice a day, and that will insure regularhilarity. 2. Remember that each of us has been given a special gift -- just for entering. So you are already a winner! 3. The most powerful tool on the planet today is Tell-A-Vision. That is where I tell a vision to you, and you tell a vision to me. That way, if we don't like the programming we're getting, we can change the channel. 4. Life is like photography. You use the negative to develop. And, no matter what adversity you face, be reassured: Of course God loves you --He's just not ready to make a commitment. 5. It is true. As we go through life thinking heavy thoughts, thought particles tend to get caught between the ears, causing a condition called truth decay. So be sure to use mental floss twice a day. And when you're tempted to practice tantrum yoga, remember what we teach in Swami's Absurdiveness Training class: "Don't get even, get odd." 6. If we want world peace, we must let go of our attachments and truly live like nomads. That's where I no mad at you, you no mad at me. That way, there'll surely be nomadness on the planet. And peace begins with each of us. A little peace here, a little peace there, pretty soon all the peaces will fit together to make one big peace everywhere. 7. I know great earth changes have been predicted for the future, so if you're looking to avoid earthquakes, my advice is simple. When you find a fault, just don't dwell on it. 8. There's no need to change the world. All we have to do is toilet train the world, and we'll never have to change it again. 9. If you're looking to find the key to the Universe, I have some bad news and some good news. The bad news is -- there is no key to the Universe. The good news is -it has been left unlocked. 10. Finally, everything I have told you is channeled. That way, if you don't like it, it's not my fault. And remember, enlightenment is not a bureaucracy. So you don't have to go through channels. ****************** Wife: If I dismiss the cook and make the food myself for a month, what will you pay me? Husband: I won't have to pay you, you'll get my entire insurance amount. Two men r talking. 1st: I got married coz I was tired of eating out, cleaning the house, doing the laundry & wearing shabby clothes. 2nd: Amazing, I just got divorced for the very same reasons Police Man: Cop: Man: Beggar: Man: Beggar: arrested a drunkard & asked: Where r u going? I'm going 2 listen lecture on ill effects of drinking. Who'll lecture at midnight? My wife... Saab Lekin Par 12Rs do na coffee to Saab girlfriend coffee 6Rs bhi peeni ki to hai. hai? hai. Man: Beggar: Bhikari hokar Na saab,GF ne bhi Bhikari GF bana banali. diya! Q: Why do women live longer than men? A: Shopping never causes heart attacks, but paying the bill does! ******* A young and pretty lady posted this on a popular forum: Title: What should I do to marry a rich guy? I'm going to be honest of what I'm going to say here. I'm 25 this year. I'm very pretty, have style and good taste. I wish to marry a guy with $500k annual salary or above. You might say that I'm greedy, but an annual salary of $1M is considered only as middle class in New York . My requirement is not high. Is there anyone in this forum who has an income of $500k annual salary? Are you all married? I wanted to ask: what should I do to marry rich persons like you? Among those I've dated, the richest is $250k annual income, and it seems that this is my upper limit. If someone is going to move into high cost residential area on the west of New York City Garden ( ? ) , $250k annual income is not enough. I'm here humbly to ask a few questions: 1) Where do most rich bachelors hang out? (Please list down the names and addresses of bars, restaurant, gym) 2) Which age group should I targe? 3) Why most wives of the riches is only average-looking? I've met a few girls who doesn't have looks and are not interesting, but they are able to marry rich guys. 4) How do you decide who can be your wife, and who can only be your girlfriend? (my target now is to get married) Ms. Pretty $$$$$$$$$$$$$$$$ Dear Ms. Pretty, I have read your post with great interest. Guess there are lots of girls out there who have similar questions like yours. Please allow me to analyse your situation as a professional investor. My annual income is more than $500k, which meets your requirement, so I hope everyone believes that I'm not wasting time here. From the standpoint of a business person, it is a bad decision to marry you.. The answer is very simple, so let me explain. Put the details aside, what you're trying to do is an exchange of 'beauty' and 'money': Person A provides beauty, and Person B pays for it, fair and square. However, there's a deadly problem here, your beauty will fade, but my money will not be gone without any good reason. The fact is, my income might increase from year to year, but you can't be prettier year after year. Hence from the viewpoint of economics, I am an appreciation asset, and you are a depreciation asset. It's not just normal depreciation, but exponential depreciation. If that is your only asset, your value will be much worried 10 years later. By the terms we use in Wall Street, every trading has a position, dating with you is also a 'trading position'. If the trade value dropped we will sell it and it is not a good idea to keep it for long term - same goes with the marriage that you wanted. It might be cruel to say this, but in order to make a wiser decision any assets with great depreciation value will be sold or 'leased'. Anyone with over $500k annual income is not a fool; we would only date you, but will not marry you. I would advice that you forget looking for any clues to marry a rich guy. And by the way, you could make yourself to become a rich person with $500k annual income. This has better chance than finding a rich fool. Hope this reply helps. If you are interested in 'leasing' services, do contact me... signed, CEO J.P. Morgan :) ************************** Scene : Husband and Wife in court getting a divorce. The problem was who should get custody of the child???? Wife jumped up and said: "Your Honor! I brought the child into this world with pain and labor. She should be in my custody." The judge turns to Husband and says "What do you have to say in your defense?" The husband sat for a while contemplating then slowly rose. "Your Honor. If I put a dollar in a vending machine and a Pepsi comes out. Whose Pepsi is it? the machine's or mine?" Yeh sunke... Wife replied : "Judge sahab...bartan mera...dudh bhi mera....aur usme dahi jamane ke liye 2 bunde daalne se dahi bana tu fir wo dahi kiska..? mera ya do bund dalane vale ka" Husband replied : "Typewriter mein kagaz maine dala, keys daba-daba kar mehnat maine ki, fir chithi kiski? typewriter ki ya meri?" Frustrated Judge: "Agar tu chitthi haath se hi likh leta to yahan par custody ki naubat hi na aati." *************************** Why do Hindu women have a dot on their head? For centuries, Hindu women have ragged the dot upon their foreheads. Most of us have naively suspected this was continuous with matrimony or religion, though the Indian Embassy has not long ago suggested the loyal story. When the Hindu lady gets married, she brings the bridal gift in to the union. On her marriage night, the father scratches off the dot to see either he has won the preference store, the gas station, the donut emporium or the motel in the United States. If zero is there, he makes contingency plan whether to take the pursuit in India responding telephones as well as giving technical advice. *********************************** By the time a man realizes that maybe his father was right, he usually has a son who thinks he's wrong. ************** "You decide joke " Men: Then do we just go home? Women: You decide Men: Let's take the bus, I will accompany you Women: The Bus is dirty and crowded. Men: Ok we will take a cab Women: Not worth it... for such a short distance Men: All right, then we can walk. We can enjoy the weather Women: I am hungry, can't walk. Men: Then what do you suggest? Women: You decide **************************************** When a man steals your wife, there is no better revenge than to let him keep her. "There's a way of transferring funds that is even faster than electronic banking. It's called marriage." "I've had bad luck with both my wives. The first one left me, and the second one didn't." A man inserted an 'ad' in the classifieds: "Wife wanted". Next day he received a hundred letters. They all said the same thing: "You can have mine." First Second Guy Guy: (proudly): "You're "My lucky, wife's mine's an still angel! alive." Woman inspires us to great things, and prevents us from achieving them. If you want to sacrifice the admiration of many women for the criticism of one, go ahead, get married. Louis K. Anspacher A Two 1. 2. good wife always to forgives keep you're you're her husband when she's wrong. secrets Whenever Whenever your marriage brimming wrong, admit it, right, shut up. In a remote village of India, once Masterji is teaching the Mahabharat katha to class 6 students. He is at the ‘Krishna janma’ part of it. Masterji : “Kansa heard the akashwani that his sister’s 8th child is going to kill him. He was furious. He ordered to put Vasudev and Devki behind the bars. First son is born, and kansa kills him by poisoning… Second one is born and Kansa throws him off the mountain peak. Third one is born… Ramu: I have a doubt (sounding nervous and confused). Masterji: “Ramu bete, whole India does not have doubt in Mahabharata then how come you have one?” Ramu: Masterji, if Kansa knew that Devaki’s 8th child was going to kill him, “Why the hell did he put Vasudev and Devaki in the same cell?” Masterji fainted. ******************** There's enough on the earth for every man's needs... But, Never enough for a woman's greeds... ******************** A woman writes to the IT Technical support Guy Dear Tech Support, Last year I upgraded from Boyfriend 5.0 to Husband 1.0 and I noticed a distinct slowdown in the overall system performance, particularly in the flower and jewellery applications, which operated flawlessly under Boyfriend 5.0. In addition, Husband 1.0 uninstalled many other valuable programs, such as Romance 9.5 and Personal Attention 6.5, and then installed undesirable programs such as NEWS 5.0, MONEY 3.0 and CRICKET 4.1. Conversation 8.0 no longer runs, and House cleaning 2.6 simply crashes the system. Please note that I have tried running Nagging 5..3 to fix these problems, but to no avail. What can I do? Signed,____________ _________ _________ _________ Reply DEAR Madam, First, keep in mind, Boyfriend 5.0 is an Entertainment Package, while Husband 1.0 is an operating system. Please enter command: ithoughtyoulovedme. html and try to download Tears 6.2 and do not forget to install the Guilt 3.0 update. If that application works as designed, Husband1.0 should then automatically run the applications Jewellery 2.0 and Flowers 3.5.. However, remember, overuse of the above application can cause Husband 1.0 to default to Silence 2.5 or Beer 6.1.Please note that Beer 6.1 is a very bad program that will download theSnoring Loudly Beta. Whatever you do, DO NOT under any circumstances install Mother-In-Law 1.0 (it runs a virus in the background that will eventually seize control of all your system resources.) In addition, please do not attempt to reinstall the Boyfriend 5.0 program. These are unsupported applications and will crash Husband 1.0. In summary, Husband 1.0 is a great program, but it does have limited memory and cannot learn new applications quickly. You might consider buying additional software to improve memory and performance. We recommend: Cooking 3.0 and Hot Looks 7.7. Good Luck ********************************** A woman’s Madam mind........ A man walking along a goa beach was deep in prayer. Suddenly, the sky clouded above his head and, in a booming voice, the Lord said, "Because you have tried to be faithful to me in all ways, I will grant you one wish." The man said, "Build a bridge to Mumbai so I can drive over anytime I want." The Lord said, "Your request is very materialistic. Think of the enormous challenges for that kind of undertaking. The supports required to reach the bottom! The concrete and steel it would take! It will nearly exhaust several natural resources. I can do it, but it is hard for me to justify your desire for worldly things. Take a little more time and think of something that would honor and glorify me." The man thought about it for a long time. Finally he said, "Lord, I wish that I c ould understand my wife. I want to know how she feels inside, what she’s thinking when she gives me the silent treatment, why she cries, what she means when she says nothing wrong, and how I can make a woman truly happy." The Lord replied, "You want 2 lanes or 4 lanes on that bridge?" **************************************** 1. A man will pay $2 for a $1 item he wants. A woman will pay $1 for a $2 item that she doesn't want. 2. A woman worries about the future until she gets a husband. A man never worries about the future until he gets a wife. 3. A successful man is one who makes more money than his wife can spend. A successful woman is one who can find such a man. 4. To be happy with a man you must understand him a lot & love him a little. To be happy with a woman you must love her a lot & not try to understand her at all. 5. Married men live longer than single men - but married men are a lot more willing to die. 6. Any married man should forget his mistakes - there's no use in two people remembering the same thing. 7. Men wake up as good-looking as they went to bed. Women somehow deteriorate during the night. 8. A woman marries a man expecting he will change, but he doesn't. A man marries a woman expecting that she won't change & she does. 9. A woman has the last word in any argument. Anything a man says after that is the beginning of a new argument. 10. There are 2 times when a man doesn't understand a woman - before marriage & after marriage. ******************************************* 1. Nagging women: Too much nagging by a woman actually switches off the man and he stops communicating. 2. Complaining women: Women think complaining about the man for petty/imaginary things will put pressure on the man and he will 'Bow Down' before her. But it works in the negative. It demeans the woman in the eyes of the man. 3. Greedy women: Too much greedy women become an intolerable burden for the man and he looks for a way to escape out of the clutches of the woman. 4. Fussy women: This one makes man crazy (not literally, but actually). These are the types who always create problems by being unreasonable, arrogant, demanding and hypocritic to the man. Once a man discovers such a quality in a woman, he will never be happy with the woman. 5. Lying women: This last category is on rise these days as 98% of dowry harassment complaints that pour in are false. And these lying women also share traits with all the above. Such a woman ruins the entire social fabric, let alone the man. ***************************************** A mouse looked through the crack in the wall to see the farmer and his wife open a package. What food might this contain? The mouse wondered - he was devastated to discover it was a mousetrap. Retreating to the farmyard, the mouse proclaimed the warning : There is a mousetrap in the house! There is a mousetrap in the house! The chicken clucked and scratched, raised her head and said, "Mr. Mouse, I can tell this is a grave concern to you, but it is of no consequence to me. " "I cannot be bothered by it." The mouse turned to the pig and told him, "There is a mousetrap in the house! There is a mousetrap in the house!" The pig sympathized, but said, I am so very sorry, Mr. Mouse, but there is nothing I can do about it but pray. "Be assured you are in my prayers." The mouse turned to the cow and said "There is a mousetrap in the house! There is a mousetrap in the house!" The cow said, "Wow, Mr. Mouse. I'm sorry for you, but it's no skin off my nose." So, the mouse returned to the house, head down and dejected, to face the farmer's mousetrap alone. That very night a sound was heard throughout the house -- like the sound of a mousetrap catching its prey. The farmer's wife rushed to see what was caught. In the darkness, she did not see it was a venomous snake whose tail the trap had caught. The snake bit the farmer's wife. The farmer rushed her to the hospital, and she returned home with a fever. Everyone knows you treat a fever with fresh chicken soup, so the farmer took his hatchet to the farmyard for the soup's main ingredient. But his wife's sickness continued, so friends and neighbors came to sit with her around the clock. To feed them, the farmer butchered the pig. The farmer's wife did not get well; she died. So many people came for her funeral, the farmer had the cow slaughtered to provide enough meat for all of them. The mouse looked upon it all from his crack in the wall with great sadness. So, the next time you hear someone is facing a problem and think it doesn't concern you, remember -- when one of us is threatened, we are all at risk. We are all involved in this journey called life. We must keep an eye out for one another and make an extra effort to encourage one another. ******************************************** *Husband Store* *A store that sells new husbands has opened in New York City , where a woman may go to choose a husband. Among the instructions at the entrance is a description of how the store operates:* *You may visit this store ONLY ONCE! There are six floors and the value of the products increase as the shopper ascends the flights. The shopper may choose any item from a particular floor, or may choose to go up to the next floor, but you cannot go back down except to exit the building!* *So, a woman goes to the Husband Store to find a husband. On the first floor the sign on the door reads:* Floor 1** These men Have Jobs.* She is intrigued, but continues to the second floor, where the sign shows *Floor 2** These men Have Jobs and Love Kids.* 'That's nice,' she thinks, 'but I want more.'So she continues upward. The third floor sign reads:* *Floor 3** - These men Have Jobs, Love Kids, and are Extremely Good Looking. 'Wow,' she thinks, but feels compelled to keep going. *She goes to the fourth floor, and the sign reads:* * * *Floor 4** - These men Have Jobs, Love Kids, are Drop-dead Good Looking and Help With Housework.* *'Oh, *Still, mercy she me!' goes to she the exclaims, fifth 'I floor can and hardly the stand sign it!'* reads:* *Floor 5** - These men Have Jobs, Love Kids, are Drop-dead Gorgeous, Help with Housework, and Have a Strong Romantic Streak.* *She is so tempted to stay, but she goes to the sixth floor, where the sign reads:* *Floor 6** - You are visitor 31,456,012 to this floor. There are no men on this floor. This floor exists solely as proof that women are impossible to please. Thank you for shopping at the Husband Store.* *PLEASE NOTE**:* *To avoid gender bias charges, the store's owner opened a New Wives store just across the street.* *The first floor has wives that love sex.* * * *The second floor has wives that love sex and have money and like beer.* *The third, fourth, fifth and sixth floors have never been visited.* ********************************** There once was a very wealthy and successful man. He had more money than he could ever spend and he was admired and looked up to by his community. Still, he knew that something was missing in his life. He wasn't happy. All his life he had pursued happiness and strived for happiness but had never been able to find it. Then one day he heard about a hidden temple in Nepal that had a special room that contained the secret to happiness. He immediately sold all that he owned and set out to find this hidden temple. After many years of searching and countless hardships he arrived there. He was weary and pennyless, but he knew that none of that mattered now that he had found the temple. He asked a wise, smiling monk if he could enter the special room. The monk agreed and showed him the stairs leading to the room. He climbed them with legs shaking with anticipation and slowly opened the door. He stared into the room with sunlight streaming through the window and saw what he had come so far to find. There hanging on the wall was the secret of happiness. The man gazed at his reflection in the mirror and laughed. It is time that we all realized that we are the secret to our own happiness. the B* back. Monday, April 27, 2009 Why Interpol Stop issuing RCN's? Ministry of Women and Child Development15-February, 2011 20:22 IST WCD Minister Krishna Tirath Opens National Seminar on “Issues Relating to NRI Marriages” http://pib.nic.in/newsite/erelease.aspx?relid=78322 ...... Shri D K Sikri, Secretary, Ministry of WCD said the seminar on NRI marriages is timely as it is very important to address the vulnerability of these NRI marriages. The problems of NRI marriages are more acute in States like Punjab, Kerala, Delhi, Gujarat and Andhra Pradesh. He cited two major problems, First abduction of children from NRI girls and Second, ladies who got married and had not gone abroad after marriage. He suggested that Government can still do something as far as issue of abduction of children is involved. Whereas the second problem of desertion is concerned, we do not have convention as for now. This is a matter of civil law and until and unless if there is criminality involved, we cannot indulge in extradition treaty. About 2.5 million people from Punjab go abroad to get NRI marriages, hence, urgent need to check the credentials of the NRI Grooms and sensitize relations about Do’s and Don’t’s in the NRI Marriages. ...... Learn all about interpol and notices issued to 498a victims. http://www.cbi.gov.in/interpol/notices.php ******************************* On 7th August, 2009, a two Judges Bench in Bhavesh Jayanti Lakhani v. State of Maharashtra and Ors. (Crl. A. No.1452 of 2009) held that “the Municipal Laws of a country reign supreme in matters of Extradition.” “A fundamental Right of a citizen whenever infringed, the High Courts having regard to their extraordinary power under Article 226 of the Constitution of India as also keeping in view that access to justice is a human right would not turn him away only because a Red Corner Notice was issued”, said the Bench. The Bench furthermore held that “if a violation of any order passed by a civil court is made the ground for issuance of a Red Corner Notice, indisputably, the court will enquire as to whether the same has undergone the tests laid down under Sections 13 and 44A of the Code of Civil Procedure”. *********************** April 21: Interpol, which issues Red Corner notices to arrest criminals all over the world, has stopped issuing notices pertaining to Section 498(A) (dowry harassment) cases registered in India. There are about 3,000 requests for red corner notices from Indian government pending with Interpol. The inspector-general of CID, Mr S. Umapathi, said there are as many as 120 cases from Andhra Pradesh pending with Interpol for the past eight months.Sources in the CBI said Punjab tops the list with nearly 300 cases. According to sources, there is no law pertaining to dowry harassment in US and other developed countries and hence the Interpol is in dilemma whether they can issue Red Corner notice based on the Indian law. “The mater has been discussed with US embassy officials recently. However, there was no improvement in the status,” Mr Umapathi said. “There was no delay in other criminal cases,” he added. The external affairs ministry had sent several representations to Interpol explaining the seriousness of the cases booked under Section 498 (A). However it failed to get any positive response from them. Write to Interpol: 1. Commission for the Control of Interpol’s Files 200 Quai Charles de Gaulle 69006 LYON – France 2. INTERPOL-United States National Central Bureau -- Requests for INTERPOL-United States National Central Bureau records should be addressed to: Dorothy S. Beaty FOIA/PA Specialist Office of General Counsel INTERPOL-United States National Central Bureau Department of Justice Washington, DC 20530-0001 (202) 616-9000 Interpol is just an organisation and has no legal judiciary of the people living in US (irrespective of their status-H1/B1/L1/F1/H4/green card/citizen), so folks dont worry and loose your sleep on this minute feud, irrespective of your US status, if your are on H-1 your green card proceedings wont get effected due to 498A Interpol RCN. ********************************** The following ruling pertains to extraditing an Indian citizen from India based just on an Interpol Red Corner Notice without the foreign government having issued a request for extradition. In its present form, it would not apply to a foreign citizen hiding in India (several of whom have been extradited) or an Indian citizen hiding abroad against whom a RCN has been issued. "the Supreme Court has ruled that an Indian citizen locked in a "matrimonial dispute" cannot be extradited to another country, as a "matrimonial dispute does not constitute an extraditable offence." The apex court recognised that the husband violated US laws. "The husband came to India with the child in 2006 and in violation of US custody orders." But the SC held that merely the issuing of a "Red Corner" notice by a court abroad doesn't mean the arrest of the person is required. The foreign government needs to issue a request for extradition, which hasn't been done in this case." http://www.dnaindia .com/india/report_matrimonial-offenders-can-t-beextradited-sc_1280809 New Delhi: Ashwin and Dina Patel (names changed) got married in Mumbai in 2002. Soon after, they moved to the US and there, had a daughter, Seema. In 2005, Dina, on grounds of abuse, obtained an order of judicial separation from Ashwin from a US court. The court granted interim custody of Seema to Dina, and access to the child to Ashwin. After Ashwin returned to India with their daughter, Dina filed a case against Ashwin in the US accusing him of kidnapping Seema. Consequently, the US police issued two arrest warrants against him: a custody violation warrant, and a kidnapping felony warrant. A Red Corner notice was also issued against Ashwin by Interpol, which was recently upheld by the Bombay High Court after a petition was filed by Ashwin seeking stay on the warrants and notice. Now, the Supreme Court has ruled that an Indian citizen locked in a "matrimonial dispute" cannot be extradited to another country, as a "matrimonial dispute does not constitute an extraditable offence." The apex court recognised that the husband violated US laws. "The husband came to India with the child in 2006 and in violation of US custody orders." But the SC held that merely the issuing of a "Red Corner" notice by a court abroad doesn't mean the arrest of the person is required. The foreign government needs to issue a request for extradition, which hasn't been done in this case. An act may be an offence in a particular country, but ifnot a crime in India, a citizen can't be extradited, ruled the bench comprising Justices SB Sinha and Mukundakam Sharma. Upholding the precedence of local laws over foreign enactments, the apex court said, "HC was, therefore, in our opinion, clearly wrong in holding that a Red Corner Notice should not be tinkered with." Red corner notices are issued on terrorists, international mafia gangs, dreaded murderers. But in India RCN's are issued for matrimonial offences like ' He did not let me watch TV' or economic offences on wife for not giving enough money to kitty party. On the other hand blue corner notices are issued on others known to accused inorder to trace the whereabouts of the prime accused. You can read what a mockery Indian Police have made out of RCN's. ************************************************* NCW can not initiate criminal proceedings: HC New Delhi, Aug 1 (PTI) : The Delhi High Court has awarded a compensation of Rs 40,000 to a man who was off-loaded by immigration authorities from an aircraft here on the basis of a look-out circular issued by the NCW, saying statutory bodies are not empowered to initiate criminal proceedings. The High Court said that the compensation award has to be equally shared by the National Commission for Women (NCW) and Foreigners Regional Registration Office (FRRO) for de-boarding Vikram Sharma, against whom no FIR was lodged in connection with a matrimonial dispute. Sharma had approached the court alleging that the FRRO had acted illegally in off-loading and detaining him here in April 2008 at the instance of NCW where his wife had filed a complaint. "This court is of the view that the action of NCW in writing to the DCP, FRRO for the issuance of LOC (look-out circular) against Sharma was without the authority of law. The consequent action of FRRO (which) resulted in the petitioner (Sharma) being detained at IGI airport on April 8, 2008 was also illegal," Justice S Muralidhar said. The court asked the Ministry of Home Affairs (MHA) to issue clarification orders within three months stating that a request for issuance of LOC cannot emanate from statutory bodies like NCW, NHRC as well as National and State Commission for Protection of Child Rights which are vested with the powers of a civil court. "The NHRC, the NCW, the NCPCR (National Commission for Protection of Child Rights) have not been vested with the powers of a criminal court and do not have powers to enforce criminal law," Justice S Murlidhar said. "They should bring the necessary facts to the notice of law enforcement agencies like the police, which will then make a request for issuance of LOC upon an assessment of the situation and strictly in terms of the procedure outlined for the purpose," he said . Sharma had alleged that he was "made to stand in solitary confinement in a toilet" and his passport was stamped with the remarks "Off loaded-deported due to criminal complaint". The court while accepting the plea of Sharma ordered removal of remarks from his passport. When the incident had occurred, the NCW was seized of a complaint against Sharma in which his wife had expressed apprehension that her husband might flee the country to avoid the mediation process pending before it. The NCW had sent a request for issuance of the look-out circular when the petitioner expressed his inability to appear before it. Sharma had submitted that the Crime Against Women (CAW) cell of Delhi Police had also issued an LOC against him on his wife's complaint, but the same was later withdrawn after the case was transferred to Anti Extortion Cell of Delhi Police. 3, 2009 Addresses & Web sites For obtaining legal advice, you can call at the office of the SCLSC on any working day between 10.30 a.m. and 5 p.m.. Or you could send in a query by post, for which you should receive a reply within fifteen days. If the query is sent by email, you could expect a reply sooner. Again, there are no charges for legal advice. If The 109, New Ph. you have any queries, you may Secretary, Supreme Court Legal Services Lawyers’ Chambers, Supreme Court Delhi-110 Nos. 23388313, 23073970, 23381257; e-mail : contact : Committee Compound, 001
[email protected] Here is the link to the site with the FAQ: http://sclsc.nic.in/faq.htm Here is the link to the site index: http://sclsc.nic.in/ ************** Office of the Director of Govt Cases/ litigations & Tribunal 6th Floor,KHB Complex, Kaveri Bhavana, Kempegowda Road Bengalooru -560009 This is for Karnataka. Other states might have their own offices for the same. Filed a complaint of professional misconduct against the public prosecutor in my case to the Governor's office and they have forwarded it to this office. I got a letter from this office that they have accepted my complaint and will be working on it. Awaiting further communication from this office. *********** CONTACTS OF MEDIA FOR POLICE EXCESSES: The Times of India: Bennett,Coleman & Co Ltd, Times of India Building, Dr D N Road, Mumbai- 400001. Tel- 022-6635 3535; Fax: 022-22731144/1888. The Indian Express: The Indian Express Online Media (Pvt) Ltd, 9&10, Bhadur Shah Zafar Marg, Express Building, ITO New Delhi -110002. Tel 011-23702086, 09891968097. DNA: Diligent Media Corporation Ltd, DNA wing, Oasis Complex, Kamla Mills Compound, P B Marg, Lower Parel, Mumbai400013. Tel 022-3988 8888; The Bombay Samachar: Red House, S A Brelvi Road, Fort, Mumbai-400001. Tel022-22853691/ 22851744. The Asian Age: 145 Mathuradas Mill Compound, Near Sai Mandir, N M Joshi Marg, Lower Parel, Mumbai 400013. Tel 022-2495 5825; Fax- 022- 2496 5847 Hindustan Times: HT Media Ltd, Mahalaxmi Engineering estate, Lady Jamshedji First Cross Road, Mahim-West, Mumbai-400016. Tel. 022-66539200; Fax-02266539260. Mid-Day: Mid Day Multimedia Ltd, Peninsulla Centre, Dr S S Rao Road, Opp Mahatma Gandhi Hospital, Parel, Mumbai- 400012. Tel- 022-24197198/99; Fax: 022-24143171. NDTV: New Delhi Television Ltd, Sumer Kendra, P B Marg, Worli, Mumbai400018. Tel- 022-2490 0190, 3043 0000; Fax: 022-24950706. Star TV: Star News Centre, Off Dr E Moses Road, Mahalaxmi, Mumbai- 400011. Tel022-6663 0000/0102; Fax: 022-6663 3030. ZeeNews: Essel Studio, FC-19, Sector 16-A, Noida - 201301, India Phone:01202511064 – 76 CNN IBN: Global Broadcast News, Express Trade Tower, Plot No. 15-16, Sector16A, Noida, Uttar Pradesh, India – 201301 Phone: +91-120-4341818, 3987777 Fax: 0120-4324106 ***************
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[email protected]; PROTECT INDIANFAMILY ; IIWN; Dowry_Law_Misuse ; MensIssuesOnline Grp Law http://www.indlaw.com/ http://www.legalservicesindia.com/ http://www.legalspider.com/ http://www.helpline.com/ http://legalpundits.indiatimes.com/ http://www.sitagita.com/ http://www.womenexcel.com/law/index.htm Other related web-sites http://www.indiatogether.com/ http://www.ngo-marg.org/ http://www.velugu.org/ http://www.cgg.gov.in/ http://indiacode.nic.in/ http://www.nisg.org/ http://www.undp.org.in/ http://www.lawcommissionofindia.nic.in/ http://www.icrpc.org/ Right to Information Act http://cic.gov.in http://www.apic.ap.gov.in http://www.r2inet.org/ http://persmin.gov.in http://www.mit.gov.in http://righttoinformation.gov.in http://rti.nic.in http://delhigovt.nic.in/RTI http://www.sakshitrust.org http://www.parivartan.com http://www.humanrightsinitiative.org http://www.freedominfo.org http://www.righttoinformation.info http://www.prajanet.org http://www.nyayabhoomi.org/rti/rti... http://www.indiarti.blogspot.com http://www.prajanet.org/doc.asp?docid=partners.nrti.resourcepersons If you are filing the RTI to AP Police please take care of the folowing RTI Public O/o Saifabad, must The addressed to Information Director General Of Lakdikapul, Hyderabad, be Offier Police A.P IPO /DD IN Favor of Accounts Office, O/o Commissioner of Police, Hyderabad As Per the G.O.Ms.No.454 Dt:- 13-102005. ys.dadwal@nic. in; dcp-caw-dl@nic. in; dcp-caw-dl@nic. in; addlcp-caw-dl@ nic.in; dcp-vigilance-
[email protected]; dcp-west-dl@ nic.in Please write email to delhi Police. These emails are active. I received reply for one of my emails. I asked them about the non-compliance of Delhi police circular in this regard Superintendent (Cyber Crimes), Andhra Pradesh, # 040-23316750 Take a printout of Vakalatnama. of Crime Investigation Hyderabad, Police, Dept., India The logging of complaints with President of India has become simpler. You can log onto http://helpline.rb.nic.in/ and log your complaints online. It claims to process petitions/ complaints/ grievances within seven days and direct them to relevant departments. It also allows you to upload any file in by scanning it into PDF format as long as it is less than 1MB. A Unique Registeration Number (URN) is also generated and person can track the progress of his petition. Hence, if you are a victim of mistreatment from any arm of any government department and are too lazy to write in snail mail. This might be helpful to you. *********************************** 1. The Public Information Officer / Registrar (Judicial), High Court of Andhra Pradesh, Puranapool, Hyderabad. 2. The Appellate Authority / Registrar General, High Court of Andhra Pradesh, Puranapool, Hyderabad. 1) The Asst. Inspector General of Police (Admn), / Public Information Officer (U/RTI Act, 2005), O/o the DGP, A.P., Saifabad, Lakdikapul, Hyderabad. 2) The Inspector General of Police (Admn), Appellate Authority (U/RTI Act, 2005), O/o the DGP, A.P., Saifabad, Lakdikapul, Hyderabad 1. The Asst. Public Information Officer / Chief Ministerial Officer, JFCM Court, Jaggayyapet, Krishna District. 1. The Public Information Officer / Addl. Supdt. of Police, Machilipatnam, Krishna Dist. 2. The Appellate Authority / Supdt. of Police, Machilipatnam, Krishna Dist. 1) The Addl. Secretary to Govt.,/ Public Information Officer (U/RTI Act, 2005), Home Dept., A.P., Secretariat, Hyderabad. 2) The Prl. Secretary to Govt., Appellate Authority (U/RTI Act, 2005), Home Dept., A.P., Secretariat, Hyderabad. United Nations Development Programme (Gender Community - Solution Exchange) Introduction: http://www.unifem. Consolidated Replies: http://www.unifem.org.in UNIFEM http://www.unifem.org.in/index.html Ministry of Women and Child Development www.wcd.nic.in Ministry of Law and Justice http://lawmin.nic.in/ National Commission for Women www.ncw.nic.in National Institute for Public Cooperation and Child Development www.nipccd.nic.in National Crime Records Bureau ncrb.nic.in National Family Health Survey Report www.nfhsindia.org Delhi Social Welfare Department www.socialwelfare.delhigovt.nic.in . Maharashtra State Women's Commission mahilaayog.maharashtra.gov.in Maharashtra Department of Women and Child Development http://womenchild.maharashtra.gov.in http://pgportal.gov.in/ http://rajyasabha.gov.in/ http://persmin.nic.in/EmployeesCorner/Acts_Rules/actrules.html http://www.keralawomen.gov.in/ http://goidirectory.nic.in/andhra.htm http://www.pressreleasepoint.com/india http://docs.google.com/View?id=djh8gv9_0f8k87kdr Judl.Cell Government of India/Bharat Sarkar Ministry of Home Affairs/Grih Mantralaya Jaisalmer House, 26,Man Singh Road, New Delhi – 110011. Under Secretary (DS-I) Ministry of Overseas Indian Affairs, New Delhi-110021 India Law Ministry Fax numbers are below: Fax : 011-23384241, 011-23387259, 011-23382733 ********************************************************** Write to protest USAID from reaching NCW: > Could you all ( I MEAN ALL ) write to USAID . You could reach them in > various different ways . > > 1) Send an E-mail to ig(DOT)hotline(AT)usaid(DOT)gov . > 2) Use form 1 :- http://www.usaid.gov/ig_hotline.html > 3) Use Webform submission :> http://www.usaid.gov/oig/hotline/hotline_complaint_frm.html > > Please be clear and concise and try to bring out how the money they are > paying is being to misuse the laws . Just writing about missue will not > achieve much since they will say that they are not responsible for it . What > needs to basically come out of the e-mail is that the money by USAID is > being used to destroy families and USAID is responsible for that . How will > things get better if they stop paying money to radical womens organisations > in India . You need to bring out in your e-mail that money is not at all > being allocated to mens issues and men are neglected and money being donated > by USAID is being misappropiated not for womens empowerment but for creating > biased laws . THis is also a way to expose the plight for men and ask for > USAID to grant funds for mens empowerment and demands for a Men's ministry . ****************************************************************** Shri Rahul Gandhi, MP 12, Tughlak Lane New Delhi Tel. (R) : 23795161 Fax : 23012410 ***************************************************************** http://ipc498a.wordpress.com/ http://bok498a.blogspot.com/ http://wellquoted.blogspot.com/ http://mynation.net/registry/ http://498agirls. delishio. net/ http://groups. yahoo.com/ group/saveindian family/database? method=reportRow s&tbl=8 http://hc.ap.nic.in/ http://cic.gov.in http://www.498a.org http://aponline.gov.in http://ap.nic.in http://goidirectory.nic.in/andhra.htm http://www.cidap.gov.in/ http://apstatepolice.org/ http://www.apic.gov.in/ http://www.myneta.info/warangal http://www.antidowry.org http://legalfighter.wordpress. com http://www.wemen.us/ http://legalfighter.instablogs. com/ http://crusader-indianjustice. blogspot. com/ http://liberatemenfromdowry. blogspot. com/ http://aconcernedandawakecitizen. wordpress. com/ http://www.fachak.com/box/save-indian-family-press-releases http://www.fachak.com/box/official-representation-by-sif http://www.fachak.com/box/useful-presentations http://www.saveindianfamily.org/ http://www.societymirror.info/ http://www.crisp-india.org/ http://www.antidowry.org/ http://www.wethemen.us/ http://legalterror.wordpress.com http://www.pollsb.com/webdigr http://www.myntra.com/affiliate/329 63/2, G.F., Masjid Road, Jungpura, New Delhi-110014 Tel. : 91-11-24373904, 24372923 Fax : 91-11-24373993 E-mail :
[email protected] Url : http://www.lawyerscollective.org/ Mumbai Office : Jalaram Kripa, 1st Floor, 61 Janmabhoomi Marg, Fort, Mumbai - 400 001 Tel. : 91-22-22875428 Fax : 91-22-22823570 E-mail :
[email protected] Regd. Office : 4th Floor, Jalaram Jyot, 63 Janmabhoomi Marg, Fort, Mumbai - 400 001 Tel. : 91-22-22830957, 22852543 Fax : 91-22-22823570 For queries relating to Domestic Violence Contact:
[email protected] Assistant Commissioner of Police, Crime Against Women Cell, (CAW Cell Headquarters) , Nanakpura, Near Moti Bagh Gurudwara, New Delhi-110 021 24673366, 24121234 Assistant Commissioner of Police Crime Against Women Cell, South-West District, Police Station Vasant Vihar, New Delhi- 110 067 26140186, 26152810 Ext. 7203, 7299 Assistant Commissioner of Police, Crime Against Women Cell, South District Police Post, Amar Colony, Lajpat Nagar-IV, New Delhi-110 024 26482871, 26852588 Ext. 4411 Assistant Commissioner of Police, Crime Against Women Cell, West District Police Post, Kriti Nagar, New Delhi-110 005 25915314, 25447100, 25926101 Ext. 4240 Assistant Commissioner of Police, Crime Against Women Cell, North District Police Post, Sarai Rohilla, Delhi-110 055 23962201 Ext. 6411,6642 Assistant Commissioner of Police, Crime Against Women Cell, North-West District, Old Building, Prashant Vihar, Delhi 27566476, 27323566 Assistant Commissioner of Police, Crime Against Women Cell, Central District, New Rajender Nagar, New Delhi-110 060 25737951, 28743369 Ext. 7436 Assistant Commissioner of Police, Crime Against Women Cell, North-East District, Police Station Seelampur, Delhi-110 053 22564166 Assistant Commissioner of Police, Crime Against Women Cell, East District, Krishna Nagar, Delhi-110 051 22091950 Assistant Commissioner of Police, Crime Against Women Cell, New Delhi District, Parliament Street, New Delhi-110 001 23361231 Ext. 3410,3447 Delhi e-mail id's:addlcp-caw-dl@ nic.in addlcp-crime-
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[email protected] splcpsap@bol. net.in ys.dadwal@nic. in You might also like: When can you approach the SCLSC? Are there cases for which no legal aid or avice will begiven? Is there any eligibility criteria? What should you do to obtain legal aid or advice? What does the SCLSC do Next? Do you have to incur expenses at any stage? When can you approach the SCLSC? You can approach the SCLSC in two situations: You need to file or defend a case in the Supreme Court. This would include: Appeals/Special Leave Petitions, Civil or Criminal, against an order of the High Court. Petition for violation or enforcement of your fundamental right. This includes: Habeas Corpus petitions- where a close friend or relative is missing or illegally taken away and whose whereabouts you do not know Petitions challenging the legality of government action or inaction Petitions challenging the legality of a legislation or order of government that violates your fundamental right. Petition for transferring a case, civil or criminal, pending in one State to another State within India. You need legal advice regarding your problem. Are there cases for which no legal aid or avice will be given? Yes, legal aid will not be given for the following cases: Proceedings wholly or partly in respect of – defamation; or malicious prosecution; or a person charged with contempt of court; and perjury Proceedings relating to any election Proceedings incidental to any of the above proceedings Proceedings in respect of offences where the fine imposed is not more than Rs. 50 Proceedings in respect of economic offences and offences against social laws, such as the Protection of Civil Rights Act, 1955 and the Immoral Traffic (Prevention) Act, 1956 unless in such cases the aid is sought by the victim. [However, even in the above cases, the Chairman of the SCLSC can, in an appropriate case, direct that legal aid be granted] Proceedings where a person seeking legal aid or advice is concerned with the proceedings only in a representative or official capacity; or if a formal party to the proceedings, not materially concerned in the outcome of the proceedings and his interests are not likely to be prejudiced on account of the absence of proper representation. Is there any eligibility criteria? Yes, there is. These are spelt out under Ss. 12 and 13 of the Act. To be eligible for free legal aid for filing or defending a case in the Supreme Court, you have to satisfy two criteria. First, you should belong to any of the following categories of persons: a member of a Scheduled Caste or Scheduled Tribe a victim of trafficking in human beings or begar as referred to in Article 23 of the Constitution a woman or a child a mentally ill or otherwise disabled person a person under circumstances of undeserved want such as being victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster an industrial workman in custody, including custody in a protective home [Nari Niketan] or a juvenile home or a mental asylum in receipt of annual income less than Rs. 50,000. For this you are required to give an affidavit [This last requirement is called the means test]. However, irrespective of the means test, legal aid may be granted in cases of great public importance; or in a special case, reasons for which are to be recorded in writing, considered otherwise deserving of legal aid or advice. Second, the SCLSC must be satisfied that you have a reasonably good chance of succeeding in your case [prima facie case] For seeking legal advice, the Act does not prescribe any eligibility criteria. What should you do to obtain legal aid or advice? For legal aid, if you satisfy the first eligibility criteria, you need to take the following steps: 1. Make an application for legal aid to the SCLSC. The forms for these can be obtained in person or through post or e-mail from the SCLSC at the address indicated below or from any of the nearest Taluk/District/State/High Court Legal Services Committees. 2. You have to submit the completed application form to the SCLSC along with full documentation. For instance, if you seek to file an appeal against the order of a High Court, you are required to submit a copy [preferably certified] of the order of the High Court, copies of orders, if any, of the courts below the High Court, copies of all the papers filed in your case before the lower court and High Court, comments of the lawyer on the judgment. If these are in a language other than English, please try and send translated copies. Please note that there is no fee or charge for obtaining the application form. For obtaining legal advice, you can call at the office of the SCLSC on any working day between 10.30 a.m. and 5 p.m.. Or you could send in a query by post, for which you should receive a reply within fifteen days. If the query is sent by e-mail, you could expect a reply sooner. Again, there are no charges for legal advice. 5What does the SCLSC do Next? The SCLSC is headed by a Judge of the Supreme Court of India and has distinguished members nominated by the Chief Justice of India. The SCLSC has a panel of competent Advocates-on-Record with certain minimum number of years of experience who handle the work of screening papers and handling the cases in the Supreme Court. In addition, the SCLSC has a full-time Legal Consultant-cum-Executive Lawyer who handles queries - both in person as well as through post. The Legal Consultant also screens papers. Although the applicant cannot get a lawyer of his or her choice, the SCLSC ensures that only competent lawyers are entrusted with these cases. Your papers will be screened in order to determine that the eligibility criteria are satisfied. Normally, within fifteen days of the receipt of your papers, you will be informed of the decision of the SCLSC, in writing, either granting or refusing legal aid. If you are aggrieved by an order of refusal, you could appeal to the Chairman of the SCLSC. After you have been granted legal aid you will be sent an affidavit and vakalatnama by the SCLSC which will have to be signed by you and sent back to the SCLSC by post. The affidavit has to be attested by a notary or commissioner of oaths. You may need to pay not more than five rupees for this. However, if you are in jail, the affidavit and the vakalatnama have to be countersigned by the jail superintendent. In addition he has to give a certificate of detention in the prescribed format, which will also be sent to you by the SCLSC. This has to be returned at the earliest to the SCLSC with the affidavit and vakalatnama. Meanwhile, your case will be assigned to an advocate-on-record [AOR] on the panel of the SCLSC. The AOR will draft the petition and file it in the Supreme Court after the signed vakalatnama and the signed and attested affidavit [and the certificate if you are in jail] are received by the SCLSC. The AOR who is assigned the case will argue it on your behalf in the Supreme Court. In exceptional cases, if you make a request in this behalf and if the SCLSC feels it is justified, a senior advocate can be requested to appear on your behalf. No fees are required to be paid by you for this purpose. You will be informed by the SCLSC of the name of the AOR and you will receive intimation through post on the progress of your case from time to time. You will also be sent copies of all the documents filed on your behalf and by the opposite parties and you will be intimated from time to time if there is any other information you are required to provide. You will be informed of the outcome of your case and given copies of the relevant orders passed by the court. Do you have to incur expenses at any stage? Barring the cost of getting the affidavit attested [and even this is not applicable if you are in jail] and postage for sending papers to the SCLSC, you are not required to pay anything for any of the above services. They are absolutely free. The lawyers on the panel of the SCLSC are paid an honorarium of Rs. 2000 per case by the SCLSC itself. If you have any queries, you may contact : The Secretary Supreme 109, Supreme New Delhi-110 001 Ph. Nos. e-mail :
[email protected] Court Legal Lawyers' Court Services Committee Chambers, Compound, 23388313, 23073970, 23381257