Tuesday, May 3, 2011

claiming Maintenance by wife u/s 125 crpc.

"
where wife was surviving by
begging, would not amount to her ability to maintain herself.
It can also be not said that the wife has been capable of
earning but she was not making an effort to earn. Whether the
deserted wife was unable to maintain herself, has to be
decided on the basis of the material placed on record. Where
the personal income of the wife is insufficient she can claim
maintenance under Section 125 Cr.P.C. The test is whether
the wife is in a position to maintain herself in the way she was
used to in the place of her husband"


CASE NO.:
Appeal (crl.) 1627 of 2007

PETITIONER:
Chaturbhuj

RESPONDENT:
Sita Bai

DATE OF JUDGMENT: 27/11/2007

BENCH:
Dr. ARIJIT PASAYAT & AFTAB ALAM

JUDGMENT:
J U D G M E N T

CRIMINAL APPEAL NO. 1627 OF 2007
(Arising out of SLP (Crl.) No.4379 of 2006)

Dr. ARIJIT PASAYAT, J.


1. Leave granted.



2. Challenge in this appeal is to the order passed by a
learned Single Judge of the Madhya Pradesh High Court,
Indore Bench, dismissing the revision petition filed by the
appellant in terms of Section 482 of the Code of Criminal
Procedure, 1973 (in short 'Cr.P.C.'). The challenge before the
High Court was to the order passed by learned Judicial
Magistrate, First Class, Neemuch, M.P. as affirmed by the
learned Additional Sessions Judge, Neemuch, M.P. The
respondent had filed an application under Section 125 of
Cr.P.C. claiming maintenance from the appellant.
Undisputedly, the appellant and the respondent had entered
into marital knot about four decades back and for more than
two decades they were living separately. In the application it
was claimed that she was unemployed and unable to maintain
herself. Appellant had retired from the post of Assistant
Director of Agriculture and was getting about Rs.8,000/- as
pension and a similar amount as house rent. Besides this, he
was lending money to people on interest. The appellant
claimed Rs.10,000/- as maintenance. The stand of the
appellant was that the applicant was living in the house
constructed by the present appellant who had purchased 7
bighas of land in Ratlam in the name of the applicant. She let
out the house on rent and since 1979 was residing with one of
their sons. The applicant sold the agricultural land on
13.3.2003. The sale proceeds were still with the applicant.
The appellant was getting pension of about Rs.5,700/- p.m.
and was not getting any house rent regularly. He was getting
2-3 thousand rupees per month. The plea that the appellant
had married another lady was denied. It was further
submitted that the applicant at the relevant point of time was
staying in the house of the appellant and electricity and water
dues were being paid by him. The applicant can maintain
herself from the money received from the sale of agricultural
land and rent. Considering the evidence on record, the trial
Court found that the applicant-respondent did not have
sufficient means to maintain herself.


3. Revision petition was filed by the present appellant.
Challenge was to the direction to pay Rs.1500/- p.m. by the
trial Court. The stand was that the applicant was able to
maintain herself from her income was reiterated. The
revisional court analysed the evidence and held that the
appellant's monthly income was more than Rs.10,000/- and
the amount received as rent by the respondent-claimant was
not sufficient to maintain herself. The revision was
accordingly dismissed. The matter was further carried before
the High Court by filing an application in terms of Section 482
Cr.P.C. The High Court noticed that the conclusions have
been arrived at on appreciation of evidence and, therefore,
there is no scope for any interference.


4. Section 125 Cr.P.C. reads as follows:


"125. (1) If any person having sufficient means
neglects or refuses to maintain
(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child,
whether married or not, unable to maintain
itself, or

(c) his legitimate or illegitimate child (not being
a married daughter) who has attained
majority, where such child is, by reason of any
physical or mental abnormality or injury
unable to maintain itself, or

(d) his father or mother, unable to maintain
himself or herself,
a Magistrate of the First Class may, upon proof of
such neglect or refusal, order such person to make
a monthly allowance for the maintenance of his wife
or such child, father or mother, at such monthly
rate not exceeding five hundred rupees in the whole,
as such Magistrate thinks fit, and to pay the same
to such person as the Magistrate may from time to
time direct:
Provided that the Magistrate may order the
father of a minor female child referred to in clause
(b) to make such allowance, until she attains her
majority, if the Magistrate is satisfied that the
husband of such minor female child, if married, is
not possessed of sufficient means.
Explanation .For the purposes of this Chapter,
(a) 'minor' means a person who, under the
provisions of the Indian Majority Act, 1875 (9
of 1875), is deemed not to have attained his
majority;
(b) 'wife' includes a woman who has been
divorced by, or has obtained a divorce from,
her husband and has not remarried."
["(2) Any such allowance for the maintenance or
interim maintenance and expenses of proceeding
shall be payable from the date of the order, or, if so
ordered, from the date of the application for
maintenance or interim maintenance and expenses
of proceeding, as the case may be.";]
(3) If any person so ordered fails without sufficient
cause to comply with the order, any such Magistrate
may, for every breach of the order, issue a warrant
for levying the amount due in the manner provided
for levying fines, and may sentence such person, for
the whole, or any port of each month's allowance 4
[allowance for the maintenance or the interim
maintenance and expenses of proceeding , as the case
may be] remaining unpaid after the execution of the
warrant, to imprisonment for a term which may
extend to one month or until payment if sooner made:
Provided that no warrant shall be issued for the
recovery of any amount due under this section
unless application be made to the Court to levy
such amount within a period of one year from the
date on which it became due:
Provided further that if such person offers to
maintain his wife on condition of her living with
him, and she refuses to live with him, such
Magistrate may consider any grounds of refusal
stated by her, and may make an order under this
section notwithstanding such offer, if he is satisfied
that there is just ground for so doing.
Explanation.-If a husband has contracted marriage
with another woman or keeps a mistress, it shall
be considered to be just ground for his wife's
refusal to live with him.
(4) No wife shall be entitled to receive an 4 [allowance
for the maintenance or the interim maintenance and
expenses of proceeding , as the case may be] from her
husband under this section if she is living in
adultery, or if, without any sufficient reason, she
refuses to live with her, husband, or if they are living
separately by mutual consent.
(5) On proof that any wife in whose favour an order
has been made under this section is living in
adultery, or that without sufficient reason she
refuses to live with her husband, or that they are
living separately by mutual consent, the Magistrate
shall cancel the order."

5. The object of the maintenance proceedings is not to
punish a person for his past neglect, but to prevent vagrancy
by compelling those who can provide support to those who
are unable to support themselves and who have a moral claim
to support. The phrase "unable to maintain herself" in the
instant case would mean that means available to the deserted
wife while she was living with her husband and would not take
within itself the efforts made by the wife after desertion to
survive somehow. Section 125 Cr.P.C. is a measure of social
justice and is specially enacted to protect women and children
and as noted by this Court in Captain Ramesh Chander
Kaushal v. Mrs. Veena Kaushal and Ors. (AIR 1978 SC 1807)
falls within constitutional sweep of Article 15(3) reinforced by
Article 39 of the Constitution of India, 1950 (in short the
'Constitution'). It is meant to achieve a social purpose. The
object is to prevent vagrancy and destitution. It provides a
speedy remedy for the supply of food, clothing and shelter to
the deserted wife. It gives effect to fundamental rights and
natural duties of a man to maintain his wife, children and
parents when they are unable to maintain themselves. The
aforesaid position was highlighted in Savitaben Somabhai
Bhatiya v. State of Gujarat and Ors. (2005 (2) Supreme 503).

6. Under the law the burden is placed in the first place
upon the wife to show that the means of her husband are
sufficient. In the instant case there is no dispute that the
appellant has the requisite means.

7. 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 is has to be established that the wife was unable to
maintain herself. The appellant has placed material to show
that the respondent-wife was earning some income. That is
not sufficient to rule out application of Section 125 Cr.P.C. It
has to be established that with the amount she earned the
respondent-wife was able to maintain herself.


8. In an illustrative case where wife was surviving by
begging, would not amount to her ability to maintain herself.
It can also be not said that the wife has been capable of
earning but she was not making an effort to earn. Whether the
deserted wife was unable to maintain herself, has to be
decided on the basis of the material placed on record. Where
the personal income of the wife is insufficient she can claim
maintenance under Section 125 Cr.P.C. The test is whether
the wife is in a position to maintain herself in the way she was
used to in the place of her husband. In Bhagwan v. Kamla
Devi (AIR 1975 SC 83) it was observed that the wife should be
in a position to maintain standard of living which is neither
luxurious nor penurious but what is consistent with status of
a family. The expression "unable to maintain herself" does not
mean that the wife must be absolutely destitute before she can
apply for maintenance under Section 125 Cr.P.C.


9. In the instant case the trial Court, the Revisional Court
and the High Court have analyzed the evidence and held that
the respondent wife was unable to maintain herself. The
conclusions are essentially factual and they are not perverse.
That being so there is no scope for interference in this appeal
which is dismissed.

Divorce on Cruelty Grounds u/s 13(1)(ia) Hindu Marriage Act

"
The parties got married on 17.4.1992 at Delhi according to Hindu rites and ceremonies and a child named Samir was born out of the said wedlock on 22.5.1996. The respondent alleged that the appellant did not fulfill her marital obligations and was cruel to him from the very beginning of their marriage. Therefore a petition for divorce under section 13(1) (ia) was filed by the respondent which vide judgment and decree dated 5.2.2004 was decreed in favour of the respondent and against the appellant. Feeling aggrieved with the same, the appellant has preferred the present appeal-Dismissed.


IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on : 01.11.2010

Judgment delivered on: 31.01.2011

MAT APP No. 19/2004

Dr. Seema Appellant Through: Mr. R.K. Kapoor and Mr.Varun Kumar

Advs.

Vs.

Dr. Alkesh Chaudhary Respondent Through: Mr. Ajay Goswami with Mr. Diwakar

Singh, Advs.

CORAM:

HON'BLE MR. JUSTICE KAILASH GAMBHIR

1. Whether the Reporters of local papers may

be allowed to see the judgment? Yes

2. To be referred to Reporter or not? Yes

3. Whether the judgment should be reported

in the Digest? Yes KAILASH GAMBHIR, J.

*

1. By this appeal filed under Section 28 of the Hindu Marriage Act, 1955 the appellant seeks to challenge the judgment and decree dated 5.2.2004 passed by the court of MAT APP No. 19/2004 Page 1 of 32 the learned ADJ whereby a decree of divorce was passed in favour of the respondent and against the appellant.

2. Brief facts of the case relevant for deciding the present appeal are that the parties got married on 17.4.1992 at Delhi according to Hindu rites and ceremonies and a child named Samir was born out of the said wedlock on 22.5.1996. The respondent alleged that the appellant did not fulfill her marital obligations and was cruel to him from the very beginning of their marriage. Therefore a petition for divorce under section 13(1) (ia) was filed by the respondent which vide judgment and decree dated 5.2.2004 was decreed in favour of the respondent and against the appellant. Feeling aggrieved with the same, the appellant has preferred the present appeal.

3. Mr. R.K. Kapoor, counsel appearing for the appellant contended that the appellant and the respondent were maintaining very happy and cordial relations and such a relationship is well reflected from the letters sent by the respondent to the appellant during the period from MAT APP No. 19/2004 Page 2 of 32 14.11.1994 to 22.5.1995. Elaborating his arguments, counsel further contended that even if any alleged act of cruelty was committed by the appellant prior to the said date, the same stood condoned by the passionate letters sent by the respondent to the appellant. The other limb of argument taken by the counsel for the appellant was that a child was born out of the said wedlock on 22nd May, 1996, which would show that the child must have been conceived by the appellant somewhere in the month of August, 1995 and at least till the month of August, 1995 the relationship between the parties can be presumed to be cordial and congenial and if any alleged act of cruelty has been committed by the appellant prior to the said date of conception that also stands condoned when the said child was conceived by the appellant wife in August, 1995.

4. Counsel further contended that so far the tape recorded conversation proved on record by the respondent as Ex. PW- 1/60 is concerned, the same by itself cannot be taken as an act of cruelty committed by the appellant based on MAT APP No. 19/2004 Page 3 of 32 which the decree of divorce can be granted. Counsel also submitted that the tape recorded conversation was recorded by the respondent with mala fide intentions so as to create evidence in his favour which is borne out of the fact that the respondent had filed the divorce petition just within a gap of about 15 days from the date of the said tape recorded conversation. Counsel also submitted that admittedly both the parties were living together till 28th October, 1996 and divorce petition was filed by the respondent on 9th January, 1997 and except the said tape recorded conversation no other act of cruelty has been complained of by the respondent in the divorce petition. Counsel further submitted that no doubt a criminal complaint was filed by the appellant in July, 1997 before the Crime Against Women Cell, Nanakpura after filing of the divorce petition but any allegation leveled by the appellant in the said complaint cannot be taken into consideration as the said complaint was not pursued by the appellant and no arrest of the respondent or his family members was made pursuant to the lodging of the said MAT APP No. 19/2004 Page 4 of 32 complaint by the appellant. Counsel thus submitted that even in the absence of any evidence led by the appellant, the respondent failed to establish his case to prove the ground of cruelty envisaged under Section 13(1)(ia) of the Hindu Marriage Act, 1955. Alternatively, the counsel submitted that even if any act of cruelty is taken to have been committed by the appellant then the same already stood condoned by the respondent due to his subsequent conduct. In support of his arguments, counsel for the appellant placed reliance on the judgment of the Apex Court in Dastane Vs. Dastane AIR 1975 SC 1534.

5. Mr.Ajay Goswami, counsel for the respondent, refuting the said submissions of the counsel for the appellant submitted that the behaviour of the appellant throughout has been very cruel towards the respondent and this would be evident from the fact that the respondent had to send a legal notice in August, 1993 i.e. just after 1 1/2 years from the date of the marriage. Counsel further submitted that since the appellant had committed various acts of cruelty after the said MAT APP No. 19/2004 Page 5 of 32 love letters written by the respondent to the appellant, therefore, all the previous acts of cruelty of the appellant would get revived. Counsel also submitted that the respondent has proved on record the said tape recorded conversation and the kind of language used by the appellant towards the respondent as well as his family members would clearly show the attitude of the appellant towards the respondent and his family members. The contention of the counsel for the respondent was that the abusive language used by the appellant in the said conversation caused mental cruelty to the respondent. Counsel further submitted that the appellant did not join the company of the respondent at the matrimonial home at Greater Kailash after his return from Chennai in October, 1995 and this also caused cruelty to the respondent. Counsel thus submitted that no fault can be found with the judgment of the learned trial court and the same should be upheld.

6. I have heard learned counsel for the parties at considerable length and carefully gone through the records. MAT APP No. 19/2004 Page 6 of 32

7. The present case concerns the matrimony of two doctors who could not fulfill their marital obligations towards each other due to irreconcilable differences. The marriage between the parties took place on 17.4.1992 and right from the date of inception of the marriage, problems arose between them which led to the service of a legal notice by the respondent upon the appellant just within a period of one and a half years from the date of the marriage. However, they still managed to sail through somehow but ultimately a divorce petition was preferred by the respondent under Section 13 (1) (ia) of the Hindu Marriage Act in 1997. Serious allegations of mental cruelty were leveled by the respondent against the appellant and all such allegations were also proved by the respondent in his evidence. The respondent was cross examined by the appellant at length and as per the finding of the learned trial court, not even a single suggestion was given by the appellant to discredit the testimony of the respondent in his cross examination with regard to the various incidents of cruelty committed by the appellant. It is MAT APP No. 19/2004 Page 7 of 32

also a matter of record that the appellant failed to lead any evidence either to refute the allegations leveled by the respondent or to place on record her side of the story before the court. In this background of facts, the learned trial court proceeded with the matter taking the allegations leveled by the respondent against the appellant as correct.

8. Mr. R.K. Kapoor, learned counsel appearing for the appellant very fairly submitted that he would also proceed to argue the matter taking the allegations leveled by the respondent as correct but would impress upon this court that all such acts of cruelty, even if they are accepted as correct, were condoned by the respondent by his subsequent conduct. In such a background this court will proceed in the matter taking the entire gamut of allegations of cruelty leveled by the respondent against the appellant as correct and then examine the contention of the counsel for the appellant whether those acts of cruelty were condoned by the respondent by his subsequent conduct. As per the counsel for the appellant, two subsequent acts of the respondent would MAT APP No. 19/2004 Page 8 of 32 clearly show that the previous acts of cruelty committed by the appellant stood condoned by the respondent. With the birth of the child on 22.05.1996, it would be quite apparent that there was resumption of conjugal relations between the parties, the counsel contended. The contention of the counsel for the appellant was that at least till the month of conception, which must be somewhere in the month of August 1995, the pervious acts of cruelty, even if they are taken to have been committed by the appellant, stood condoned by the respondent. The second act of condonation claimed by the counsel for the appellant was that between 14.11.1994 to 22.5.1995, various letters were written by the respondent, which were proved on record as Exs. RW1/R1 to R 31. The contention of the counsel was that these letters were written so passionately by the respondent and had there been any complaint by the respondent against the appellant on account of her cruel conduct then the respondent husband could not have written such letters displaying his love, sentiments and passion for the appellant. Counsel thus urged MAT APP No. 19/2004 Page 9 of 32 that all the previous acts of cruelty, if any, committed by the appellant stood condoned by the respondent by writing said letters to the appellant. Counsel thus submitted that the said two subsequent acts of the respondent would clearly show that not only there was resumption of conjugal relationship between the parties but would clearly show that the respondent had completely condoned the previous acts of cruelty, if any, committed by the appellant towards the respondent.

9. So far the subsequent acts of cruelty alleged to have been committed by the appellant are concerned, the counsel submitted that the tape recorded conversation, on which reliance was placed by the learned trial court, the same by itself cannot be taken as an act constituting cruelty as such conversation was recorded by the respondent with the sole objective to create evidence in his favour before filing divorce petition as the said tape recorded conversation was recorded by the respondent within a short gap of about 15 days before the presentation of the divorce petition by him. MAT APP No. 19/2004 Page 10 of 32 Counsel thus submitted that the said tape recorded conversation was doctored by the respondent in a manner so that the appellant could be shown in poor light in her utterances without correctly highlighting the fact that under what circumstances she was responding in that particular manner. Counsel thus submitted that the learned trial court has wrongly given undue weightage on self serving evidence adduced by the respondent. Counsel also submitted that the learned trial court also wrongly placed reliance on the criminal complaint filed by the appellant with the Crime Against Women Cell despite the fact that the appellant did not pursue the said criminal complaint and such a conduct of the appellant would further show that she never wanted to create any kind of disharmony in the marital relationship.

10. The correctness and veracity of the testimony of any witness can only be tested through his cross examination. Section 138 of the Indian Evidence Act, 1872 therefore, confers a very valuable right on a party to cross-examine a witness who enters the witness box to support the case of one MAT APP No. 19/2004 Page 11 of 32 of the parties. It is an admitted fact between the parties that not only the appellant failed to impeach the creditability or creditworthiness of the testimony of the witnesses produced by the respondent, especially the respondent himself, with regard to the alleged incidents of cruelty committed by the appellant but the appellant even did not care to lead any evidence to counter the case of the respondent. The counsel for the appellant very fairly conceded this position and therefore, urged that he will press his plea of condonation on the part of the respondent due to his subsequent acts and also the plea that the acts of cruelty alleged to have been committed by the appellant after the condonation of pervious acts of cruelty cannot be treated as cruelty as envisaged under Section 13(1) (ia) of the Hindu Marriage Act.

11. First dealing with the concept of condonation, it was defined by the Apex Court in the case of Dastane Vs. Dastane, 1975 SC 1534, where it held that: "Condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. To constitute condonation there must be, therefore, two things forgiveness and restoration." MAT APP No. 19/2004 Page 12 of 32

12. It is also a settled legal position that there cannot be condonation if the offending spouse continues to indulge in the commission of further acts of cruelty either physical or mental. Either a temporary stay or even resumption of conjugal rights though may be strong circumstances to infer condonation on the part of the offending spouse but the same by itself would not be sufficient to draw an inference of condonation unless such a stay and resumption of conjugal relationship is with an intent to restore back the marital relationship with a sense of forgiveness and consequently not to indulge in either repeating the previous acts or to inflict more cruelty. In the present case, the counsel for the appellant stated two instances which he contended were acts from which condonation can be clearly inferred. First, was the birth of the child on 22.5.96 and second was the writing of the passionate letters by the respondent to the appellant from 14.11.94 to 22.5.95.

MAT APP No. 19/2004 Page 13 of 32

13. Dealing with the first instance, the birth of the child "Samir" took place on 22.5.96 which means that the appellant must have conceived in the month of August 1995. It can be thus inferred that till August 1995 the parties had normal sexual relationship and that it was not one stray act of intimacy that must have led to the conception of the child. It would be useful here to refer to the observations of the Apex Court in Dastane vs. Dastane (supra) where in similar facts it was held that:

"57. The evidence of condonation consists here in the fact that the spouses led a normal sexual life despite the respondent's - acts of cruelty. This is not a case where the spouses, after separation, indulged in a stray act of sexual intercourse, in which case the necessary intent to forgive and restore may be said to be lacking. Such stray acts may bear more than one explanation. But if during co-habitation the spouses, uninfluenced by the conduct of the offending spouse, lead a life of intimacy which characterises normal matrimonial relationship, the intent to forgive and restore the offending spouse to the original status may reasonably be inferred. There is then no scope for imagining that the conception of the child could be the result of a single act of sexual intercourse and that such an act could be a stark animal act unaccompanied by the nobler graces of marital life. One might then as well imagine that the sexual act was undertaken just in order to kill boredom or even in a spirit of revenge. Such speculation is impermissible. Sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfilment. Therefore, evidence showing that the spouses led a normal sexual life even after a series of acts of cruelty by one spouse is proof that the other spouse condoned that cruelty. MAT APP No. 19/2004 Page 14 of 32 Intercourse, of course, is not a necessary ingredient of condonation because there may be evidence otherwise to show that the offending spouse has been forgiven and has been received back into the position previously occupied in the home. But intercourse in circumstances as obtain here would raise a strong inference of condonation with its dual requirement, forgiveness and restoration. That inference stands uncontradicted, the appellant not having explained the circumstances in which he came to lead and live a normal sexual life with the respondent, even after a series of acts of cruelty on her part."

14. Thus it is evident from above and also from the facts of the case at hand that the respondent had condoned the acts of cruelty complained of before August 1995. The conception of the child is thus an unflinching proof of condonation of the acts of the offending spouse. Coming to the second act, the 32 love letters written by the respondent husband to the appellant, which are proved on record, are from the period 14.11.1994 to 22.5.1995. A perusal of the said letters shows that the respondent had no complaint from the appellant and thus had condoned all her previous acts of cruelty. Therefore, the cumulative effect of both the above acts show that the respondent had condoned the cruel acts of the appellant prior to August 1995 and therefore if the acts of cruelty , if any as alleged by the respondent, to establish the MAT APP No. 19/2004 Page 15 of 32 ground of cruelty have to be looked into pertaining to the period only after August, 1995.

15. The acts of cruelty after August, 1995 committed by the appellant as alleged by the respondent can be succinctly stated as under:

The respondent was locked by the appellant three times in August,1995

On the respondent extending a reciprocal invitation for dinner to Appaswamy on 3.9.95 in Chennai, the appellant created a scene and locked the house and the guests had to return seeing the house locked

On the day of Diwali, which was on 23.10.95, the respondent was casually asked by Mr. & Mrs. Taneja (in laws of the brother of the respondent) to do an eye check up on which the appellant raised hue and cry causing embarrassment to the respondent

That the appellant after the delivery of the child stayed at her parents place and due to her callous attitude MAT APP No. 19/2004 Page 16 of 32 towards the new born, the child got dengue on 17/19.10.96

That the appellant refused to come back to the matrimonial home and put a condition that only when the house at Greater Kailash Enclave would be transferred in the name of the appellant would she return to the matrimonial house

That the appellant left the matrimonial house on 28.10.96, one day before karva chauth which is an auspicious festival of the Hindus where the wife observes a fast for the husband

That the appellant had refused to have sexual intercourse with the respondent after 8.10.1996 That the appellant filed a criminal compliant in the Crime Against Women Cell, Nankpura against the respondent in July, 1997

That the appellant used filthy and abusive language for the respondent and his family members in the telephonic MAT APP No. 19/2004 Page 17 of 32 tape recorded conversation on 23.12.1996 which is proved on record as Ex PW1/59 and PW1/60

16. The above acts of cruelty were duly proved by the respondent in his evidence and by producing 4 other witnesses. It is an admitted case between the parties that the appellant did not enter the witness box to present her side of the story. The learned trial court has also categorically observed that the respondent was not cross examined on any of the above mentioned acts of cruelty by the appellant. It is a settled legal position that where the evidence of the witness is allowed to go unchallenged with regard to any point, it may safely be accepted as true. Here it would be pertinent to refer to the observations of the Apex Court with regard to the importance of cross examination in the case of Rajinder Pershad vs. Darshana Devi (2001) 7 SCC 69 where it was held that :

"There is an age old rule that if you dispute the correctness of the statement of a witness you must give him opportunity to explain his statement by drawing his attention to that part of it which is objected to as untrue, otherwise you cannot impeach MAT APP No. 19/2004 Page 18 of 32 his credit. In State of U.P. v. Nahar Singh (dead) : 1998CriLJ2006 , a Bench of this Court (to which I was a party) stated the principle that Section 138 of the Evidence Act confers a valuable right to cross-examine a witness tendered in evidence by opposite party. The scope of that provision is enlarged by Section 146 of the Evidence Act by permitting a witness to be questioned, inter alia, to test his veracity. It was observed :

The oft quoted observation of Lord Hershell, L.C. in Browne v. Dunn clearly elucidates the principle underlying those provisions. It reads thus :

"I cannot help saying, that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross- examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which, it is suggested, indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lord, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box, to give an opportunity of making any explanation which is open to him; arid, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play arid fair dealing with witnesses."

17. Thus as the appellant herself has neither contradicted the alleged acts of cruelty of the respondent to have impeached his testimony and has also chose not to enter the witness box to dispute the correctness of the allegations MAT APP No. 19/2004 Page 19 of 32 leveled by the respondent, this court would thus proceed assuming the above stated alleged acts of cruelty as true.

18. Section 13(1)(ia) of the Hindu Marriage Act, 1955 provides for cruelty as a ground for the dissolution of marriage. Cruelty has no where been defined in the act, and rightly so, as it is difficult to put the concept in a strait jacket formula. It may be physical or mental, intentional or unintentional. In the present case, the respondent has alleged that the acts of the appellant caused him mental cruelty. Mental cruelty can be more harmful than physical cruelty as sometimes even a gesture, the angry look, a sugar coated joke, an ironic overlook may be cruel than actual beating. Here it would be useful to refer to the judgment of the Apex Court in the case of Vinita Saxena vs. Pankaj Pandit where it was held that:

"23. As to what constitute the required mental cruelty for purposes of the said provision, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home. If the taunts, complaints and reproaches are of ordinary nature only, the MAT APP No. 19/2004 Page 20 of 32 court perhaps need consider the further question as to whether their continuance or persistence over a period of time render, what normally would, otherwise, not be so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer.

24. The modern view of cruelty of one spouse to another in the eye of law has been summarised as follows in (1977) 42 DRJ 270 Halsbury Laws of England Vol.12, 3rd edition page 270:- The general rule in all kinds of cruelty that the whole matrimonial relations must be considered and that rule is of special value when the cruelty consists not of violent acts, but of injurious reproaches, complaints, accusations of taunts. Before coming to a conclusion, the judge must consider the impact of the personality and conduct of one spouse on the mind of the other, and all incidents and quarrels between the spouses must be weighed from the point of view. In

determining what constitutes cruelty, regard must be had to the circumstances of each particular case, keeping always in view the physical and mental condition of the parties, and their character and social status."

19. Hence, the Apex Court has observed in a catena of judgments, including the above, that cruelty has to be inferred from the facts and circumstances of each case and what may be cruelty in one case may not be cruelty in the other. However the benchmark to judge the conduct of the spouse inflicting cruelty would be that it cannot be expected of parties to live with each other anymore due to the cruel conduct of one of the spouse. It has to be something more MAT APP No. 19/2004 Page 21 of 32 than the ordinary wear and tear of married life and has to touch a pitch of severity. The court has to be satisfied that the relationship between the parties has deteriorated to such an extent that it would be impossible for the parties to live with each other. Here it would be worthwhile to refer to the judgment of the Apex Court in the case of Naveen Kohli vs. Neelu Kohli AIR 2006 SC 1675 where it was held that: "56.To constitute cruelty, the conduct complained of should be "grave and weighty" so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than "ordinary wear and tear of married life". The conduct taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.

57. The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before MAT APP No. 19/2004 Page 22 of 32 it are those of human beings and the psychological changes in a spouse's conduct have to be borne in mind before disposing of the petition for divorce. However, insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent."

20. The Apex Court in the case of Jaya Ghosh vs. Samar Ghosh (2007)4 SCC 511 analysing all the case laws of India and other countries with regard to mental cruelty enlisted a non exhaustive list of the instances which can be considered as instances inflicting mental cruelty. Giving a treatise on mental cruelty the Apex Court held that: "72. On proper analysis and scrutiny of the judgments of this Court and other Courts, we have come to the definite conclusion that there cannot be any comprehensive definition of the concept of 'mental cruelty' within which all kinds of cases of mental cruelty can be covered. No court in our considered view should even attempt to give a comprehensive definition of mental cruelty.

73. Human mind is extremely complex and human behavior is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behavior in one MAT APP No. 19/2004 Page 23 of 32 definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any strait-jacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration."

21. Therefore, it would be manifest from the above that cruelty has to be inferred from the social status, upbringing and educational qualifications of the parties. In the facts of the present case, the parties are highly qualified doctors enjoying good social status. In the background of this fact, the conduct of the appellant has to be examined in the present case. The two main acts of cruelty are the tape recorded conversation of the appellant and the filing of the criminal compliant by the appellant against the respondent. With regard to the tape recorded conversation, the learned trial court in para 58 of the judgment has clearly observed MAT APP No. 19/2004 Page 24 of 32 that the kind of language used by the appellant in her conversation cannot be expected from a very qualified doctor belonging to a reputed family. The learned trial court also observed that the language used by the appellant against the respondent constitutes an act of mental cruelty. It would be appropriate to reproduce relevant paras of the impugned judgment as under:

"58. I have gone through the transcription of this tape recorded conversation. From the transcription it is clear that respondent has used the word "Harmjada" for petitioner as well as his parents. She has also addressed him as "Zanvar". She has also stated that she is not interested in his patient/business. she is bent upon to ruin him. No question has been asked to the petitioner on behalf of the respondent in his cross-examination when he appeared in the witness box in this regard, no suggestion has been given to falsify it, no suggestion has been given with regard to the circumstances in which conversation has been tape recorded. Respondent has not appeared in the witness box to explain/refute the tape recorded conversation.

59. It is argued on behalf of the respondent that this tape recorded conversation cannot be relied upon because petitioner provocated the respondent with the malafide intention and ulterior motive to create evidence in his favour and put words in the month of respondent. He immediately filed the present petition after getting the conversation between the respondent and him tape recorded.

60. Parties are highly qualified. Petitioner and respondent are renowned Doctors of Delhi. Admittedly, respondent belongs to highly educated and respectable family, her two other sisters and brother-in-law are also MAT APP No. 19/2004 Page 25 of 32 Doctor according to the respondent herself. Her father is a Class-I Gazetted Officer. Use of such language cannot be expected from a highly qualified Doctor belonging to a reputed family. The language shows the feeling of the respondent towards the petitioner. According to the social status and educational level of the parties, the language used by respondent against the petitioner is enough to constitute mental cruelty towards the petitioner."

22. I do not find any infirmity or illegality in the abovesaid findings of the learned trial court. I also do not subscribe to the argument of the counsel for the appellant that the said tape recorded conversation was recorded by the respondent to create an evidence in his favour as it was for the appellant to have used decent and temperate language not only for the respondent i.e. her husband but for his parents as well. In any event of the matter, it was for the appellant to have explained under what circumstances such utterances were made by her in the said tape recorded conversation. But since the appellant did not appear in the witness box, therefore, adverse inference has to be drawn against the appellant and in favour of the respondent.

23. The other act of cruelty is the filing of the criminal complaint by the appellant against the respondent in the MAT APP No. 19/2004 Page 26 of 32 Crime Against Women Cell. The argument of the counsel for the appellant was that filing of the complaint cannot be considered as it was not pursued by the appellant which shows that the appellant did not want to create any disharmony in the matrimonial relations. This argument of the counsel for the appellant is totally devoid of any merit and deserves outright rejection. The respondent in his testimony deposed that he was called to the police station time and again and was harassed by the police after filing of the said compliant by the appellant , on which point the appellant did not cross examine the respondent and even did not enter the witness box to rebut the statement. Hence, the argument of the counsel for the appellant does not appeal to commonsensical notions that the filing of the criminal complaint did not cause harassment to the respondent simply because of the fact that it was not pursued by the appellant.

24. These two above acts are certainly grave acts which were capable of causing mental cruelty to the respondent. The other above enumerated acts, such as the MAT APP No. 19/2004 Page 27 of 32 behaviour of the appellant on the auspicious days of the Hindus like Diwali and Karva Chauth would add to causing serious mental pain to the respondent. The refusal of the appellant for sexual intercourse also contributes to inflicting further cruelty on the respondent. Hence, looking into totality of the circumstances, this court is of the clear view that the respondent has proved cruelty on the part of the appellant as envisaged under section 13(1) (ia) of the Hindu Marriage Act.

25. Now dealing with the other argument of the counsel for the respondent that even though the acts of cruelty were condoned by the respondent, but the same would stand revived by the subsequent acts of the appellant, the learned trial court held that even if it is presumed that the respondent had condoned the past acts of cruelty on the part of the appellant ,the same got revived when a false criminal complaint was lodged by the appellant with Crime Against Women Cell and also because of the said abusive language used by the appellant in said tape recorded conversation. Condonation is a bar to the filing of a petition for divorce as MAT APP No. 19/2004 Page 28 of 32 envisaged under section 23(1) (b) of the act and thus if the cruelty is condoned by the respondent, he cannot be allowed to claim a decree of divorce. However, it is a settled principle of law that the previous acts of cruelty will get revived when the offending party keeps committing or repeating the acts of cruelty towards the other spouse even after the condonation. It was held by the House of Lords in Henderson vs. Henderson (1944) 1 All ER 44 that condonation is subject to the implied condition that if the spouse who has been forgiven for the past matrimonial offences is proved to commit a further matrimonial offence in the future, then the past offences are revived and become available as further ground for divorce. In the case of K.J vs. K.J AIR 1952 Nagpur 395, the Full Bench of the Nagpur Bench of the Bombay High Court held that:

"13. We shall now consider the question whether there has been condonation in the case.

..an express promise is not necessary. It is implicit in every case where the husband forgives the wife and receives her once again as his companion in life. But even though the promise may be explicit or may be implicit in the very act of forgiving, it is not to be expected that the offence would be repeated. Indeed, the law is that if the offence is repeated or anything having the semblance of MAT APP No. 19/2004 Page 29 of 32 its future repetition is present, the original guilt of the erring partner is revived."

26. Hence, the law is well settled that the petitioner would not be barred from filing a petition of divorce if the offending spouse does not digress from her piquing conduct. It would be useful here to refer to the celebrated pronouncement of the Apex Court in Dastane vs. Dastane (supra) where the law was explicitly explained as under: "58. But condonation of a matrimonial offence is not to be likened to a full Presidential Pardon under Article 72 of the Constitution which, once granted, wipes out the guilt beyond the possibility of revival. Condonation is always subject to the implied condition that the offending spouse will not commit a fresh matrimonial offence, either of the same variety as the one condoned or of any other variety. "No matrimonial offence is erased by condonation. It is obscured but not obliterated" See Words and Phrases Legally Defined (Butterworlhs) 1969 Fd., Vol I, p. 305, ("Condonation") Since the condition of forgiveness is that no further matrimonial offence shall occur, it is not necessary that the fresh offence should be ejusdem generis with the original offence See Halsbury's Laws of England, 3rd Ed., Vol. 12, p. 3061. Condoned cruelty can therefore be revived, say, by desertion or adultery."

27. Hence, it would be manifest from above that the condition involved in case of revival of offence after condonation is not only that the same matrimonial offence will not be committed but also that the condoned spouse will in MAT APP No. 19/2004 Page 30 of 32 future fulfil in all respects the obligations of marriage. In the present case it is clear that despite forgiveness and tolerance on the part of the respondent, the appellant continued her vicious behaviour. From her callousness and brutal remarks about the respondent and his family members, it is clear that her cruelty continued and the previous acts also stood revived in the face of such a conduct. Even though the respondent by resuming connubial relations and showing overtures of forbearance had explicitly condoned the acts of cruelty prior to August, 1995, but in the face of the subsequent conduct of the appellant, the acts of cruelty would stand revived and the respondent would be entitled to the decree of divorce.

28. Before parting with the judgment, I would like to point out that this court found a ray of hope in this case by looking at the amorous epistles of the respondent and considering that the parties have a child whose future would be marred in the operoseness of the legal battle, and sent it for mediation, but in vain. The asset of a wholesome education broadens the MAT APP No. 19/2004 Page 31 of 32 horizons and instills the virtues of tolerance, empathy and understanding in persons and it was expected of the parties, who are highly educated, to make peace with their past and carve out their future together on a clean slate. Unfortunately, the social status and the qualifications became an anathema for the parties in which the child would bear the brunt of clashing egos. The stark realities of matrimony stare in the face through such cases evincing the vagaries and vicissitudes of, once rock steady and now fragile institution that is marriage. More often than not, in cases like the present one, the acrimony of the spouses dims the hope of eternity of the holy union into nothingness.

29. In the light of the above, I do not find merit in the present appeal and the same is hereby dismissed. JANUARY 31, 2011 KAILASH GAMBHIR,

Friday, March 25, 2011

Judgement on Divorce in India

Hindu Marriage Act, 1955: s.13(1)(i-a) - Petition for divorce by husband alleging cruelty by wife - Dismissal by trial court as also by High Court - Plea that divorce be granted on the ground of irretrievable breakdown of marriage -
REPORTABLE IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1330 OF 2009 (Arising out of SLP(C) No.13166 of 2007)
Vishnu Dutt Sharma ..Appellant
versus
Manju Sharma ..Respondent
ORDER
Leave granted.
This Appeal has been filed against the judgment and order dated 07th
May, 2007 passed by the High Court of Delhi in FAO No.302 of 1996 whereby the
High Court has dismissed the appeal filed by the husband-appellant.
Facts giving rise to this appeal are:
The marriage took place between the appellant and the respondent on
26.02.1993 and a female child was born on 6.12.1993. In the petition filed by the
appellant, it was alleged that soon after the marriage the respondent was behaving
in a cruel manner derogatory to the appellant and the family members; that the
respondent avoided staying in the matrimonial home and never remained there for
more than 25 days together; and that after leaving the matrimonial
-2-home on 19.5.1993 while she was pregnant with the child, the respondent never
returned to live with the appellant. It was also alleged that the father of the
respondent is a retired Sub-Inspector of the Delhi Police and brother is a Constable
and both used to extend threats to the appellant and his family members that they
would be implicated in false cases.

Respondent in her written statement stated that on 14.09.1994, the
appellant and his family members gave her a severe beating which led to her being
medically examined by the doctors at Ram Manohar Lohia Hospital. A copy of the
extract of the MLC register on that date was enclosed to the written statement. It
was also stated that the appellant and his mother had taken the jewellery of the
respondent and given it to the wife of the appellant's brother and on asking,
respondent was again assaulted and sought to be burnt alive by the family members
of the appellant.

The trial Court after examining the evidence came to the conclusion that
no case of cruelty had been made out as alleged by the appellant. The Trial Court
held that considering that the respondent had been turned out of the matrimonial
house and had been given beatings for which she
-3-
was medically examined,it was the respondent who was treated cruelly by the
appellant.
Being aggrieved, the appellant preferred an appeal in the High Court. The High Court, by the impugned order, while dismissing the appeal filed
by the appellant-husband, observed in paras 13 & 17 as under:
"13. ...The respondent has categorically stated in her examination-in-chief that the appellant and her in laws beat her mercilessly on 14.09.1994 as a result of which she was medically examined at the Ram Manohar Lohia Hospital, New Delhi on 15.09.1994. She has also withstood the cross- examination on this aspect. On a reading of the entire evidence, it is not possible to conclude that the appellant has been able to establish that the respondent treated him with cruelty.
17. In the instant case, the respondent wife has both before the trial Court and this Court been able to demonstrate that far from treating the appellant with cruelty, she in fact suffered cruelty at the hands of the appellant. To grant divorce to the appellant despite this only on the ground of irretrievable breakdown would not, in the view of this Court, be doing justice to the respondent."
We are not inclined to interfere with the finding of fact of both the courts
below that it was the appellant who treated the respondent with cruelty, rather than
the other way around.
-4-
Learned counsel appearing for the appellant has streneously argued that
the marriage between the parties be dissolved on the ground of irretrievable
breakdown.
In this connection it may be noted that in Section 13 of the Hindu
Marriage Act, 1955 (for short 'the Act') there are several grounds for granting
divorce e.g. cruelty, adultery, desertion etc. but no such ground of irretrievable
breakdown of the marriage has been mentioned for granting divorce. Section 13 ofthe Act reads as under:
"13.Divorce--(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party--
(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
(i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
(ii)has ceased to be a Hindu by conversion to another religion; or (iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. -5-
xx xx xx
xx xx xx
(iv)has been suffering from a virulent and incurable form of leprosy; or (v)has been suffering from venereal disease in a communicable form; or (vi)has renounced the world by entering any religious order; or (vii)has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive."

On a bare reading of Section 13 of the Act, reproduced above, it is crystal
clear that no such ground of irretrievable breakdown of the marriage is provided by
the legislature for granting a decree of divorce. This Court cannot add such aground to Section 13 of the Act as that would be amending the Act, which is a
function of the legislature.
Learned counsel for the appellant has stated that this Court in some cases
has dissolved a marriage on the ground of irretrievable breakdown. In our opinion,
those cases have not taken into consideration the legal position which we have
mentioned above, and hence they are not precedents.A mere direction of the Court
without considering the legal position is not a precedent. If we grant divorce on the
ground of irretrievable breakdown, then we shall by
-6-
judicial verdict be adding a clause to Section 13 of the Act to the effect that
irretrievable breakdown of the marriage is also a ground for divorce. In our opinion,
this can only be done by the legislature and not by the Court. It is for the
Parliament to enact or amend the law and not for the Courts. Hence, we do not find
force in the submission of the learned counsel for the appellant.
Had both parties been willing we could, of course, have granted a divorce
by mutual consent as contemplated by Section 13B of the Act, but in this case the
respondent is not willing to agree to a divorce.
For the aforesaid reasons, this appeal is dismissed. No order as to costs.

.........................J. [MARKANDEY KATJU]

.........................J. [V.S.SIRPURKAR]NEW DELHI;FEBRUARY 27, 2009.



Divorce on Cruelty Gounds:




MAT APP No. 98/2010 Page 1 of 11
IN THE HIGH COURT OF DELHI AT NEW DELHI
MAT APP No. 98/2010
Judgment delivered on: 19.11.2010
Smt. Nitu Aggarwal ..... Appellant
Through: Mr.Rajiv Shukla, Adv.
Versus
Sh.Gireesh Gupta ..... Respondent
Through: Mr.Gyan Prakash, Adv.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR,
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
KAILASH GAMBHIR, J. Oral:
*
1. By this appeal filed under Section 28 of the
Hindu Marriage Act, 1955 the appellant seeks to challenge
MAT APP No. 98/2010 Page 2 of 11
the judgment and decree dated 27.4.2010, passed by the
learned Additional District Judge, Delhi, whereby a decree
of judicial separation was passed.
2. Brief facts of the case relevant for deciding the
present appeal are that the parties got married on 5.11.03
at Noida according to Hindu rites and ceremonies and a
female child was born out of wedlock on 14.9.04. The
matrimonial relations between the parties were stained
right from the very beginning of their married life and
distressed by the behaviour of the appellant, the respondent
filed a petition under section 10 of the Hindu Marriage Act,
1955 for a decree of judicial separation on the ground of
cruelty which vide judgment dated 27.4.10 was granted.
Feeling aggrieved with the same, the appellant has filed the
present appeal.
3. Mr. Rajiv Shukla, counsel for the appellant
submits that the learned trial court has wrongly assumed
that the appellant had consumed some poisonous substance
with a view to commit suicide. The contention of the
MAT APP No. 98/2010 Page 3 of 11
counsel for the appellant is that the respondent used to
compel and force the appellant to consume certain
medicines under the pretext that the same were good for
her health and for the child in the womb. Counsel further
submits that the respondent also failed to prove on record
that an attempt of suicide by the appellant was made with
a view to coerce the respondent to accede to any of her
demands and in the absence of any such assertion on the
part of the respondent, no logic or rationale behind the
alleged attempt of suicide by the appellant could be
established by the respondent. Explaining the contradiction
on the part of the appellant in the FIR lodged by her under
Section 498A/406/34 IPC, counsel submits that even if the
appellant in the said FIR took a stand that the respondent
had given her something to drink, the same will not make
any difference vis-à-vis her stand in the matrimonial
proceedings where she had stated that the respondent used
to administer some medicines. Counsel thus submits that
there was a minor variation in the stand of the appellant
which would not amount to any kind of self contradiction on
MAT APP No. 98/2010 Page 4 of 11
her part. Counsel thus states that there is clear infirmity and
perversity in the findings of the learned trial court on this
aspect and the same should be set aside.
4. Assailing the impugned judgment on another
ground, counsel submits that the learned trial court has
wrongly observed that the implication of the relatives of the
respondent is in itself an act of cruelty against the
respondent. The contention of the counsel for the appellant
is that the mere fact that the said relatives were not charge
sheeted by the police would not show that the allegations
leveled by the appellant against the relatives of the
respondent were false. The contention of the counsel is
that at the stage of framing of charges, it would be for the
concerned Criminal Court to see whether based on the
allegations leveled by the appellant in her criminal
complaint such relatives are required to be proceeded
against or not.
5. Counsel for the respondent on the other hand
refutes the submissions made by the counsel for the
MAT APP No. 98/2010 Page 5 of 11
appellant and submits that the present appeal deserves to
be dismissed at the admission stage itself as the appellant
has failed to point out any material illegality or perversity in
the order passed by the learned trial court.
6. I have heard learned counsel for the parties.
7. The petition under Section 10 of the Hindu
Marriage Act was preferred by the respondent husband so
as to seek a decree of judicial separation from the appellant
on the ground of cruelty. The marriage between the parties
was solemnized according to Hindu rites and ceremonies on
5.11.2003 and both the parties are well educated
academically. One of the allegations leveled by the
respondent against the appellant is that the appellant had
consumed some poisonous drink on 18.8.2004 and her
condition became very critical in the morning of 18.8.2004
and she was immediately taken to Kailash Hospital, Noida
and it is only on account of the timely action taken by the
respondent and his parents that life of the appellant and
the unborn child could be saved. It is an admitted case of
MAT APP No. 98/2010 Page 6 of 11
the parties that subsequent to the filing of the said petition
by the respondent husband the appellant wife got
registered one criminal complaint under Section
498A/406/34 IPC vide FIR No. 498/2005 not only against
the respondent but his parents and some other relatives as
well. Some of the relatives implicated by the appellant in the
said complaint case were the residents of far off places like
Saharanpur and Baroda. It is also an admitted case of the
parties that the relatives of the respondent were not chargesheeted
by the police as no incriminating material was
found against them during the course of investigation. The
respondent has taken this false implication of his relatives
on the part of the appellant as a ground of cruelty. Learned
trial court has also granted decree of judicial separation in
favour of the respondent and against the appellant taking
the said two grounds clearly establishing the cruel conduct
of the appellant towards the respondent. Before the learned
trial court as well as before this court the appellant has
failed to disclose as to what kind of medicines were being
administered by the respondent to her during the stage of
MAT APP No. 98/2010 Page 7 of 11
pregnancy on the pretext of the same being good for her
health and that of the unborn child. It is incomprehensible
to accept the argument that the appellant who is a well
qualified lady having a degree of Chartered Accountancy
and Company Secretary would take the medicines without
even knowing what kind of medicines she was taking. The
appellant has also clearly taken a contradictory stand in
her criminal complaint, wherein she stated that she was
given something to drink by the respondent and his parents
on the pretext that it is good for her pregnancy. The
appellant has also not denied the fact that she was admitted
to Kailash Hospital in the morning of 18.8.2004 where she
was treated after having consumed some poisonous
substance. It is also not in dispute that the appellant did not
lodge any police complaint against the respondent or his
parents complaining about administration of some
poisonous medicines by her husband or his parents. The
learned trial court has duly taken into consideration all
these circumstances into account and thus has arrived at a
finding that such an attempt by the appellant to commit
MAT APP No. 98/2010 Page 8 of 11
suicide is an act of cruelty on her part upon her husband.
8. The concept of cruelty is of wide amplitude and has not
been defined in the act. The Apex Court through various
judicial pronouncements has explained the concept and
scope of cruelty. It would be useful here to refer to the
judgment of the Apex Court in the case of A. Jayachandra
vs. Aneel Kaur AIR 2005 SC 534 where it was held as
under:
“12. To constitute cruelty, the conduct complained of should be
"grave and weighty" so as to come to the conclusion that the
petitioner spouse cannot be reasonably expected to live with the
other spouse. It must be something more serious than "ordinary
wear and tear of married life". The conduct, taking into
consideration the circumstances and background has to be
examined to reach the conclusion whether the conduct
complained of amounts to cruelty in the matrimonial law.
Conduct has to be considered, as noted above, in the background
of several factors such as social status of parties, their education,
physical and mental conditions, customs and traditions. It is
difficult to lay down a precise definition or to give exhaustive
description of the circumstances, which would constitute cruelty.
It must be of the type as to satisfy the conscience of the Court
that the relationship between the parties had deteriorated to
such an extent due to the conduct of the other spouse that it
would be impossible for them to live together without mental
agony, torture or distress, to entitle the complaining spouse to
secure divorce. Physical violence is not absolutely essential to
constitute cruelty and a consistent course of conduct inflicting
immeasurable mental agony and torture may well constitute
cruelty within the meaning of Section 10 of the Act. Mental
cruelty may consist of verbal abuses and insults by using filthy
and abusive language leading to constant disturbance of mental
peace of the other party.
MAT APP No. 98/2010 Page 9 of 11
13. The Court dealing with the petition for divorce on the ground
of cruelty has to bear in mind that the problems before it are
those of human beings and the psychological changes in a
spouse's conduct have to be borne in mind before disposing of
the petition for divorce. However, insignificant or trifling, such
conduct may cause pain in the mind of another. But before the
conduct can be called cruelty, it must touch a certain pitch of
severity. It is for the Court to weigh the gravity. It has to be seen
whether the conduct was such that no reasonable person would
tolerate it. It has to be considered whether the complainant
should be called upon to endure as a part of normal human life.
Every matrimonial conduct, which may cause annoyance to the
other, may not amount to cruelty. Mere trivial irritations, quarrels
between spouses, which happen in day-to-day married life, may
also not amount to cruelty. Cruelty in matrimonial life may be of
unfounded variety, which can be subtle or brutal. It may be
words, gestures or by mere silence, violent or non-violent.”
Cruelty therefore is to be garnered taking the cumulative
effect of all the factors into play. The parties are well
educated and such an attempt to end her life by the
appellant would certainly cause mental agony to the
respondent. It would aggravate the case when the appellant
tried to commit suicide in the state of pregnancy. A highly
educated lady claiming that she was administered poisonous
substance which she was unaware of does not help her case.
No doubt in the petition the respondent did not give any
specific reason or cause behind such suicidal attempt but
it goes without saying that such an act even in the absence
MAT APP No. 98/2010 Page 10 of 11
of any reason certainly would constitute an act of cruelty on
the respondent husband.
9. Even on the second argument of the counsel for
the appellant, this court does not find any merit in it. The
complaint under Section 498A/406/34 IPC was lodged by the
appellant during the pendency of the said petition filed by
the respondent for judicial separation. In her complaint the
appellant roped in various relatives of the respondent which
include his uncle and aunt residing at Saharanpur and
brother and sister in law residing at Baroda. The learned
trial court is right in taking a view that false implication of
relatives who were residing at far off places from the
matrimonial home of the appellant and against whom there
are no specific allegations of cruelty in itself is an act of
cruelty by the appellant towards her husband. However, as
these relatives were not charge-sheeted by the police the
same would clearly show that the police did not find any
incriminating material against these relatives during the
investigation and this by itself is sufficient enough to show
MAT APP No. 98/2010 Page 11 of 11
that the appellant had roped in and implicated all these
relatives with vengeance to cause unnecessary harassment
to them and such act certainly would cause cruelty to the
husband with whom they are related. Implicating the
relatives with a motive to harass the relatives, residing in
different parts of the country, is nothing but a ruthless act of
harassment. Therefore, the respondent husband has
successfully proved cruelty on the part of the appellant on
both the counts.
10. In the light of the above, this court does not find
any infirmity or illegality in the findings arrived at by the
learned trial court. There is no merit in the present appeal
and the same is hereby dismissed at the stage of admission
itself.
November 19, 2010 KAILASH GAMBHIR, J
mg



Judgement on LOC in 498 a IPC:



WP (Crl.) No. 1315 of 2008 & Crl. R. No. 1 of 2006 Page 1 of 16
* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Reserve: July 15, 2010 Date of Order: August 11, 2010 W.P.(Crl.) No. 1315/2008 % 11.08.2010 SUMER SINGH SALKAN ... Petitioner Through: Ms. Malavika Rajkotia with Mr. Bandan Kumar, Advocates Versus ASSTT. DIRECTOR & ORS. ... Respondents Through: Mr. Vikas Pahwa, Standing Counsel for CBI, Mr. Pawan Sharma, APP for the State, Mr. D.K. Sharma, SHO, P.S. Alipur. and Date of Reserve: July 20, 2010 Date of Order: August 11, 2010 Crl. Ref. 1/2006 % 11.08.2010 COURT ON ITS OWN MOTION RE: ... Petitioner Through: None. Versus STATE VS. GURNEK SINGH ETC. ... Respondents Through: Mr. Sunil Sharma, APP 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. WP (Crl.) No. 1315 of 2008 & Crl. R. No. 1 of 2006 Page 2 of 16
3. Whether judgment should be reported in Digest? Yes. JUDGMENT 1. By the present petition the petitioner has sought recall of Look-out-Circular (LOC) and Red Corner Notice (RCN) issued by Delhi Police and Interpol against the petitioner alleging that LOC and RCN were issued in arbitrary and malafide exercise of power by the respondent.
2. The petitioner claimed that he was a Canadian citizen since January, 2004 and a person of Indian origin. He had married one Ms. Reema Salkan, daughter of Prof. R.S. Mann, on 24th March, 2002 according to Hindu rites and ceremonies at Infantry Hostel, Delhi Cantonment, New Delhi. At the time of his marriage, the petitioner was living and working in Canada and he came to India on three weeks leave for the purpose of marriage. The marriage was settled with Ms Reema through matrimonial advertisement in newspaper. The facts reveal that wife of the petitioner was not able to join the petitioner in Canada, as difference arose between the parties in the very beginning. The petitioner alleged that he was compelled to withdraw the sponsorship made by him for his wife Reema in view of certain developments. A complaint against the petitioner and his parents and married sister was filed at Crime Against Women Cell (CAW Cell) under section 498-A/406 IPC making various WP (Crl.) No. 1315 of 2008 & Crl. R. No. 1 of 2006 Page 3 of 16
allegations. Later on, an FIR was registered on 22nd April, 2003 on the basis of this complaint. The parents and sister of petitioner obtained anticipatory bail from the court. Since petitioner was in Canada, he could not be arrested by the police. Additional Deputy Commissioner of Police (North-West) wrote a letter dated 27th May, 2003 to Foreigners Regional Registration Office (FRRO) for opening LOC against the petitioner. This letter, annexed with the petition, shows that Addl. DCP asked RFFO to open an LOC against the petitioner at all India basis because of FIR under section 498A/406 of IPC, registered at Police Station – Alipur, Delhi. Later, a letter seems to have also been written to Interpol Wing of Central Bureau of Investigation (CBI) on 11th June, 2003 for opening and issuance of a Red Corner Notice and service of summons on the petitioner in Canada. In response to this letter, CBI wrote a letter to Dr. R.K. Bansal, Asstt. Commissioner of Police (ACP), Sub Div. Narela, Delhi dated 15th July, 2003 and informed ACP that summons had been forwarded to Indian High Commission in Canada and also informed that in order to bring the petitioner to Delhi, charge-sheet should be filed and Non-Bailable Warrants (NBWs) of arrest should be obtained against the petitioner so that extradition proceedings could be initiated. It was advised that a short self contained note be prepared and same be sent to Interpol Wing. Further documents show that WP (Crl.) No. 1315 of 2008 & Crl. R. No. 1 of 2006 Page 4 of 16
the police declared the petitioner as a "Wanted" person without any process issued through the Court and opened a file No. 6/SIO/2003 (77). Asstt. Director of T.P. Section/SI Cell issued a letter to all Immigration Check Posts alerting them so that if the petitioner was detected, he should be detained and his detention should be conveyed to Shri R.S. Yadav, Addl. Deputy Commissioner of Police. This letter was sent to all States D.G.Ps, all Seaports and all Airports. A copy of RCN, issued against the petitioner, is on record. The RCN described the petitioner as "fugitive wanted for prosecution". A warning is there that the petitioner may be "dangerous" and "violent". The RCN had the photograph of the petitioner and particulars. In the particulars, the offences mentioned are section 498A, 406 and 34 of IPC and maximum possible penalty has been mentioned as ‘10 years’ imprisonment’. (This must be an invention made by ACP, as far as IPC is concerned, the maximum punishment for offences under section 498-A & 406 of IPC is up to three years imprisonment.)
3. A notice of the petition was served upon the respondent and a status report was filed by SHO, P.S. Alipur, Delhi. In the status report it has been stated that after registration of FIR, investigation was taken up and sister and parents of the petitioner were granted anticipatory bail, so they were formally WP (Crl.) No. 1315 of 2008 & Crl. R. No. 1 of 2006 Page 5 of 16
arrested. Since the petitioner was at Canada, he could not be arrested and LOC was got opened against him and also RCN was got issued against him, but the petitioner did not join investigation. A charge-sheet was filed against the petitioner, his parents and his sister; in which the petitioner’s name was kept in column 2. It is submitted that LOC and RCN were got issued against the petitioner during investigation as there was sufficient evidence to show complicity of the petitioner in commission of crime. The NBWs were issued against the petitioner by the Court of learned Metropolitan Magistrate through Ministry of Home Affairs and the date fixed before the Court was 15th April, 2009. 4. The RCN, was widely published and also placed on internet. It shows that the petitioner was involved in crime of kidnapping including crime against life and health. It is submitted by CBI that family related crimes are classified in the category of ‘kidnapping’ and that is why Interpol’s public website showed the crime of petitioner as ‘kidnapping’. However, on a protest of petitioner, the offence of kidnapping was deleted from ‘RCN’.
5. This court also received a reference from ACMM, Patiala House Court regarding guidelines for issuance of LOC and for closure of LOCs. Response of WP (Crl.) No. 1315 of 2008 & Crl. R. No. 1 of 2006 Page 6 of 16
the State/UOI was sought on this reference. In its response, it is stated by UOI that there was no legal definition of LOC. However, LOC was interpreted as a communication received from an authorized government agency with reference to a person who is wanted by that agency for fulfillment of a legal requirement, to secure arrest of a person evading arrest, to nab a Proclaimed Offenders so as to facilitate court proceedings by securing presence of under trials. It is stated that statutory backing for issuance of LOC can be placed to Passport Act, 1967, sections 10A and 10B. Section 10A gives power to a designated officer to suspend passport or render a travel document invalid for a period of 4 weeks and section 10B provides that every intimation given by the Central Government or the designated officer, to any immigration authority at an airport or any other point of embarkation or immigration, restricting or in any manner prohibiting the departure from India or any holder of the Passport or travel document. The other statutory provision relied upon is Section 41 of Cr. P.C. which requires police to arrest any person without warrants. The LOC’s are issued at the behest of different agencies in accordance with Ministry of Home Affairs’ Circular No. 15022/13/78-F.1 dated 5th September, 1979, either to monitor the arrival/ departure of foreigners and Indians or to restrict arrival/departure of foreigners or Indians. It is stated that WP (Crl.) No. 1315 of 2008 & Crl. R. No. 1 of 2006 Page 7 of 16
LOCs are based on the originator’s request to send communication to various immigrations, check posts on the basis of substantive/ procedural laws in respect of persons wanted in some cases. It is admitted that Ministry of Home Affairs’ office memorandum No. 15022/20/98-F.IV dated 27th December, 2000 requires that a request for opening of LOC must be issued with an approval of officer not below the rank of Deputy Secretary to the Govt. of India/ Joint Secretary in the State Government/ Concerned Supdt. of Police at district level and action on the LOC is to be taken in accordance with the directions of the originator. LOC was a part of investigation technique. 6. A perusal of Interpol documents regarding issuance of RCN would show that the RCN / ‘wanted notice’ are published in respect of offender wanted at international level and it requires that the subject may be arrested in certain country with a view to extradite him to the country where he is wanted and following conditions are to be fulfilled:
- The person against whom the notice is to be published has committed an offence against ordinary criminal law.
- The offence is an "extraditable offence" under the Indian Extradition Act, 1962.
- A warrant of arrest has been issued for his/her arrest.
WP (Crl.) No. 1315 of 2008 & Crl. R. No. 1 of 2006 Page 8 of 16
- Extradition will be requested, at least from certain countries.
7. It is apparent that the offence for which an RCN can be issued must be extraditable offence in the country where the offence is originated and in the country where person is located and a warrant of arrest against the person had been issued. 8. In the present case, petitioner’s address in Canada was well known to the police as well as to the complainant. No effort was made by the police to initiate extradition proceedings against the petitioner from Canada to Delhi despite the fact that even according to police; the petitioner is wanted since 2003. The information given in RCN is that the petitioner emotionally tortured his wife while his family physically tortured his wife. The RCN requirements provide that the request has to be made to the country if the country is linked by Bilateral Extradition Treaty or by any other Convention or Treaty containing provision of Extradition Treaty. 9. In another case where LOC was issued at the behest of National Commission of Women (NCW) titled as Vikram Sharma & Ors Vs. Union of India & Ors., decided on 26th July, 2010, High Court observed as under:
"8. As regards the procedure for opening an LOC, reference is made to the MHA circulated dated 5th WP (Crl.) No. 1315 of 2008 & Crl. R. No. 1 of 2006 Page 9 of 16
September 1979. It is stated that: "Courts also open LOCs on various legal matters. LOCs are based on the originator‟s request who sent the communication to various immigrations check posts on the basis of substantive/procedural laws viz IPC, Cr.P.C., Custom Act, Income Tax Act, NDPS Act, etc. All these communications are related to accused/suspected persons wanted in some cases. Besides, different courts also issue these communications in the form of LOCs including LOCs against those person who evade their presence in the Court of law during the course of judicial trial." 9. It is further clear from the reply that in terms of a subsequent O.M. dated 27th December 2000 there is a specific proforma in which a request must be made for opening of an LOC and this should be issued "with the approval of an officer not below the rank of Deputy Secretary to the Government of India/Joint Secretary in the State Government/Concerned Superintendent of Police at district level." A copy of the Office Memorandum dated 27th December 2000 enclosing proforma for request for opening an LOC has also been enclosed.
16. The question now is only for consequential relief that should be granted. The power to suspend, even temporarily, a passport of a citizen, the power to issue an LOC, the power to „off-load‟ a passenger and prevent him or her from travelling are all extraordinary powers, vested in the criminal law enforcement agencies by the statutory law. These are powers that are required under the law, to be exercised with caution and only by the authorities who are empowered by law to do so and then again only for valid reasons. Recently, in Suresh Nanda v. Union of India 2010 IV AD (Del) 53, this Court, after referring to the judgment of the Supreme Court in WP (Crl.) No. 1315 of 2008 & Crl. R. No. 1 of 2006 Page 10 of 16
Maneka Gandhi v. Union of India (1978) 1 SCC 248, observed: "35. …There has to be application of mind by the authority to the relevant factors that would enable it to come to the conclusion that the impounding of the passport is in the interests of the general public. And then again, in the context of the criminal case which is still under investigation, this cannot be an opinion formed at one point in time. The public interest element will vary depending on the stage of the investigation. It cannot be said that as long as the investigation is not complete, it is not in public interest to release a passport. That would be giving too wide a power to the authority." 17. In Bhim Singh v. State of J&K (1985) 4 SCC 677, a member of the Jammu & Kashmir Legislate Assembly was detained by the Police while on his way to attend a session of the assembly. By the time the petition filed by him challenging his detention was heard, he had already been released. Nevertheless, the Supreme Court examined the case and concluded that his detention was unlawful. It then proceeded to award him compensation after observing:
"Custodians of law and order should not become depredators of civil liberties. Their duty is to protect and not to abduct. However the two police officers, the one who arrested him and the one who obtained the orders of remand, are but minions, in the lower rungs of the ladder. We do not have the slightest doubt that the responsibility lies elsewhere and with the higher echelons of the Government of Jammu and Kashmir but it is not possible to say precisely WP (Crl.) No. 1315 of 2008 & Crl. R. No. 1 of 2006 Page 11 of 16
where and with whom, on the material now before us. We have no doubt that the constitutional rights of Shri Bhim Singh were violated with impunity. Since he is now not in detention, there is no need to make any order to set him at liberty, but suitably and adequately compensated, he must be. That we have the right to award monetary compensation by way of exemplary costs or otherwise is now established by the decisions of this court in Rudul Sah v. State of Bihar (1983) 3 SCR 508 and Sebestian M. Hongray v. Union of India AIR 1984 SC 1026. When a person comes to us with the complaint that he has been arrested and imprisoned with mischievous or malicious intent and that his constitutional and legal rights were invaded, the mischief or malice and the invasion may not be washed away or wished away by his being set free. In appropriate cases we have the jurisdiction to compensate the victim by awarding suitable monetary compensation. We consider this an appropriate case." This High Court concerning the issuance of LOC in Vikram Sharma (Supra) gave following directions :
"19. Mr. Nanda, learned counsel appearing for Respondent No. 1 submitted that in order to ensure that such incidents do not recur, this Court should direct that further instructions/circulars should be WP (Crl.) No. 1315 of 2008 & Crl. R. No. 1 of 2006 Page 12 of 16
issued clarifying the correct legal position. This Court finds that there are a large number of statutory commissions at the level of the Centre and the States which perform judicial functions and are vested with, for the purpose of conducting inquiries upon receiving complaints, the powers of a civil court. These include the National Human Rights Commission („NHRC‟), the NCW, the National Commission for Protection of Children‟s Rights. These statutory bodies, however, have not been vested with the powers of a criminal court and do not have powers to enforce criminal law. It is for the Government of India to take a policy decision on whether it wants to vest such statutory tribunal/commissions with criminal law enforcement powers. Since as of today, they have no such power, it is imperative that the MHA should issue further clarificatory circulars or office memoranda clearly stating that the request for issuance of LOCs cannot „emanate‟ from statutory bodies like the NCW. If at all, such bodies should bring the necessary facts to the notice of law enforcement agencies like the police, which will then make the request for issuance of an LOC upon an assessment of the situation, and strictly in terms of the procedure outlined for the purpose. This clarification will be issued by the MHA, in consultation with the other concerned agencies, including representatives of the statutory bodies referred to, within a period of 12 weeks from today.
10. In the present case, the LOC was issued against the petitioner soon after the registration of FIR. It is alleged by the petitioner that LOC was issued in view of the fact that complainant’s close relative was an IPS officer. This allegation of the petitioner finds support from the fact that the punishment WP (Crl.) No. 1315 of 2008 & Crl. R. No. 1 of 2006 Page 13 of 16
stated by the police to Interpol in respect of the offences committed has been deliberately given as 10 years while the prescribed punishment is maximum 3 years imprisonment. The petitioner’s description of being ‘violent and dangerous’ also has been added malafidly, with ulterior motive, in view of the fact that allegations against petitioner were of only of emotional torture. Offence of kidnapping was given as the reasons for issuance of RCN, which on the representation of petitioner was removed. It is apparent that the LOC & RCN were issued for extraneous reasons by an officer who was not authorized. The petitioner has also highlighted the difference in statements made by witnesses on different occasions. Since the matter pertaining to these offences is subjudiced, it will not be appropriate to comment on this aspect but suffice it to say that the action against the petitioner of issuing RCN was uncalled for in view of the fact that neither offence, for which the petitioner is facing trial in India, is an extraditable offence, nor any request for extradition of the petitioner has been made for the last 7 years despite knowing whereabouts of the petitioner. I, therefore, consider it a fit case for quashing the RCN issued against the petitioner at the behest of Delhi Police. The RCN, is therefore, hereby quashed. WP (Crl.) No. 1315 of 2008 & Crl. R. No. 1 of 2006 Page 14 of 16
11. Look-out-Circular has also been issued against the petitioner as the petitioner is an accused before the Court of M.M. and he has not appeared before the Court of M.M. If the petitioner gives an undertaking before the court for his appearance on a particular date, through his counsel, the Look-out-Circular issued against the petitioner shall be withdrawn within 24 hours of giving undertaking by the petitioner. The questions raised in the reference are as under: "A. What are the categories of cases in which the investigating agency can seek recourse of Look-out-Circular and under what circumstances? B. What procedure is required to be followed by the investigating agency before opening a Look-out-circular? C. What is the remedy available to the person against whom such Look-out-Circular has been opened? D. What is the role of the concerned Court when such a case is brought before it and under what circumstances, the subordinate courts can intervene?
The questions are answered as under: WP (Crl.) No. 1315 of 2008 & Crl. R. No. 1 of 2006 Page 15 of 16
A. Recourse to LOC can be taken by investigating agency in cognizable offences under IPC or other penal laws, where the accused was deliberately evading arrest or not appearing in the trial court despite NBWs and other coercive measures and there was likelihood of the accused leaving the country to evade trial/arrest. B. The Investigating Officer shall make a written request for LOC to the officer as notified by the circular of Ministry of Home Affairs, giving details & reasons for seeking LOC. The competent officer alone shall give directions for opening LOC by passing an order in this respect. C. The person against whom LOC is issued must join investigation by appearing before I.O. or should surrender before the court concerned or should satisfy the court that LOC was wrongly issued against him. He may also approach the officer who ordered issuance of LOC & explain that LOC was wrongly issued against him. LOC can be withdrawn by the authority that issued and can also be rescinded by the trial court where case is pending or having jurisdiction over concerned police station on an application by the person concerned. WP (Crl.) No. 1315 of 2008 & Crl. R. No. 1 of 2006 Page 16 of 16
D. LOC is a coercive measure to make a person surrender to the investigating agency or Court of law. The subordinate courts’ jurisdiction in affirming or cancelling LOC is commensurate with the jurisdiction of cancellation of NBWs or affirming NBWs. 12. The petitions stand disposed of in above terms. SHIV NARAYAN DHINGRA, J. AUGUST 11 , 2010 acm

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