Major respite for Brothers and sisters implicated in 498a/304B dowry death cases by the Supreme Court of India
Brothers and sisters don’t stand on same footing as husband and parents in case of dowry death
Supreme Court: Taking into consideration the tendency of naming all the members of the family as accused in case of a dowry death, the bench of T.S. Thakur and A.K. Goel, JJ noted that while deciding such matter the Court has to adopt pragmatic view and when a girl dies an unnatural death, allegation of demand of dowry or harassment which follows cannot be weighed in golden scales. However, at the same time, omnibus allegation against all family members particularly against brothers and sisters and other relatives do not stand on same footing as husband and parents. It was further said that in such case, apart from general allegation of demand of dowry court has to be satisfied that harassment was also caused by all the named members.
Giving benefit of doubt to the relatives named in the present case where a pregnant woman committed suicide as a consequence of harassment at the hands of her in-laws for the demand of dowry, the Court was of the opinion that normally, it is the husband or parents of the husband who may be benefitted by the dowry and may be in a position to harass and not all other relatives, though no hard and fast rule can be laid down in that regard.
Considering the nature of relationship of the appellants i.e. being sisters and brother of the husband of the deceased, the court held that the possibility of the appellants’ having been named by way of exaggeration cannot be ruled out and futher said that it is true that till such an unfortunate event takes place, the family members may not disclose the demand of dowry being a private matter and under the hope that the relationship of the couple may improve.
[Monju Roy v. State of West Bengal, 2015 SCC OnLine SC 358, decided on 17.04.2015]
Supreme Court: Taking into consideration the tendency of naming all the members of the family as accused in case of a dowry death, the bench of T.S. Thakur and A.K. Goel, JJ noted that while deciding such matter the Court has to adopt pragmatic view and when a girl dies an unnatural death, allegation of demand of dowry or harassment which follows cannot be weighed in golden scales. However, at the same time, omnibus allegation against all family members particularly against brothers and sisters and other relatives do not stand on same footing as husband and parents. It was further said that in such case, apart from general allegation of demand of dowry court has to be satisfied that harassment was also caused by all the named members.
Giving benefit of doubt to the relatives named in the present case where a pregnant woman committed suicide as a consequence of harassment at the hands of her in-laws for the demand of dowry, the Court was of the opinion that normally, it is the husband or parents of the husband who may be benefitted by the dowry and may be in a position to harass and not all other relatives, though no hard and fast rule can be laid down in that regard.
Considering the nature of relationship of the appellants i.e. being sisters and brother of the husband of the deceased, the court held that the possibility of the appellants’ having been named by way of exaggeration cannot be ruled out and futher said that it is true that till such an unfortunate event takes place, the family members may not disclose the demand of dowry being a private matter and under the hope that the relationship of the couple may improve.
[Monju Roy v. State of West Bengal, 2015 SCC OnLine SC 358, decided on 17.04.2015]
Supreme Court rules on misuse of 498a/406 and curtails police power of arrest in such cases.
Here’s all that you need to know as a informed citizen to check abuse of police power….
Misuse of Power of Arrest by the Police has been greatly curbed by the Hon’ble Supreme Court in Arnesh Kumar v. State Bihar (Date of Decision 02.07.2014) where the court reiterated its concern over the hasty and arbitrary arrests by the police. The power to arrest has been considerably curtailed and various safeguards set in place over the years. The Supreme Court had historically remarked in Joginder Kumar Versus State & D.K.Basu versus State of West Bengal – remarked that the power of arrest is one thing and justification of it’s exercise is another. Every man is presumed to be innocent until his guilt is proved beyond reasonable doubts in a court of law. Hence pre-trial detention or arrest is frowned upon by law, and its justification is only when the accused might commit an offence again, or try to intimidate the witnesses or tamper with evidences.The Opportunity came to the court in a 498A case wherein the court observed how this provision is misused to harass and arm-twist and power of arrest used indiscriminately.
The Court decisively held :-
"There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested. Crime in India 2012 Statistics published by National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for offence under Section 498-A of the IPC, 9.4% more than the year 2011. Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net. Its share is 6% out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5% of total crimes committed under different sections of penal code, more than any other crimes excepting theft and hurt. The rate of charge-sheeting in cases under Section 498A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal.
Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so also the police. There is a battle between the law makers and the police and it seems that police has not learnt its lesson; the lesson implicit and embodied in the Cr.PC. It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive....."
To spell it out what all this means for a layman :-
In cases which provide for punishment less than seven years – the police cannot arrest the accused unless it is satisfied as to the imperative necessity of such an arrest, so as to prevent the accused from committing another crime or tamper with evidences or influence witnesses. These reasons have to be recorded in writing. If the appearance of the accused can be brought for the purposes of investigation and court otherwise, there is no reason to arrest him. The police officer before arresting should pose a question to himself ‘why arrest’ ? Can’t I just call the accused to participate in the investigation, and if he doesn’t co-operate or does anything that is detrimental to a fair trial – I would proceed to arrest him.
Hence the power of arrest is reasonable curtailed. However if at all the arrest is actually carried out in some case there are other safeguards already in place :-
All in all this judgment and the safeguards would go a long way in ensuring that personal liberty is guarded zealously and it also casts a duty on magistrates to ensure in every case where the accused is produced after fresh arrest to ensure that all these safeguards are observed and nobody is kept in custody unless there is a great societal danger to be averted or prevent further commission of crime.
Here’s the entire judgment :-http://judis.nic.in/supremecourt/imgs1.aspx?filename=41736
Most important extracts :-
“Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following direction:
(1) All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;
(2) All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);
(3) The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;
(4) The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;
(5) The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons
to be recorded in writing;
(6) Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;
(7) Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.
(8) Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.
We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.
All in all a much needed curbing of police power - which was used to harass, extort and blackmail.
**
tags : 498A MISUSE, 498A POWER OF ARREST MISUSE, 498A SUPREME COURT RESTRICTION ON ARREST, ARNESH KUMAR MISUSE OF POWER OF ARREST,ARNESH KUMAR VERSUS STATE OF BIHAR SUPREME COURT, DK BASU VERSUS STATE,JOGINDER KUMAR VERSUS STATE,MISUSE OF POWER OF ARREST BY THE POLICE, POLICE NOT TO ARREST, SECTION 41 CRPC
Misuse of Power of Arrest by the Police has been greatly curbed by the Hon’ble Supreme Court in Arnesh Kumar v. State Bihar (Date of Decision 02.07.2014) where the court reiterated its concern over the hasty and arbitrary arrests by the police. The power to arrest has been considerably curtailed and various safeguards set in place over the years. The Supreme Court had historically remarked in Joginder Kumar Versus State & D.K.Basu versus State of West Bengal – remarked that the power of arrest is one thing and justification of it’s exercise is another. Every man is presumed to be innocent until his guilt is proved beyond reasonable doubts in a court of law. Hence pre-trial detention or arrest is frowned upon by law, and its justification is only when the accused might commit an offence again, or try to intimidate the witnesses or tamper with evidences.The Opportunity came to the court in a 498A case wherein the court observed how this provision is misused to harass and arm-twist and power of arrest used indiscriminately.
The Court decisively held :-
"There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested. Crime in India 2012 Statistics published by National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for offence under Section 498-A of the IPC, 9.4% more than the year 2011. Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net. Its share is 6% out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5% of total crimes committed under different sections of penal code, more than any other crimes excepting theft and hurt. The rate of charge-sheeting in cases under Section 498A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal.
Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so also the police. There is a battle between the law makers and the police and it seems that police has not learnt its lesson; the lesson implicit and embodied in the Cr.PC. It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive....."
To spell it out what all this means for a layman :-
In cases which provide for punishment less than seven years – the police cannot arrest the accused unless it is satisfied as to the imperative necessity of such an arrest, so as to prevent the accused from committing another crime or tamper with evidences or influence witnesses. These reasons have to be recorded in writing. If the appearance of the accused can be brought for the purposes of investigation and court otherwise, there is no reason to arrest him. The police officer before arresting should pose a question to himself ‘why arrest’ ? Can’t I just call the accused to participate in the investigation, and if he doesn’t co-operate or does anything that is detrimental to a fair trial – I would proceed to arrest him.
Hence the power of arrest is reasonable curtailed. However if at all the arrest is actually carried out in some case there are other safeguards already in place :-
- Medical Checkup of the accused to rule out police torture;
- Informing the accused why he is arrested and the charges against him;
- Allowing him to talk to his family/friend or lawyer;
- To be intimated that he can get bail if the offence is bailable; (there are some cases that are bailable)
- Only use so much force as is necessary to prevent him from escaping;
- Handcuffing is not permissible unless Magistrate passes a special order;
- As regards women – no arrest between sunset and sunrise; unless by special order and by lady officers;
- To be produced before the area magistrate within 24 hours of arrest;
All in all this judgment and the safeguards would go a long way in ensuring that personal liberty is guarded zealously and it also casts a duty on magistrates to ensure in every case where the accused is produced after fresh arrest to ensure that all these safeguards are observed and nobody is kept in custody unless there is a great societal danger to be averted or prevent further commission of crime.
Here’s the entire judgment :-http://judis.nic.in/supremecourt/imgs1.aspx?filename=41736
Most important extracts :-
“Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following direction:
(1) All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;
(2) All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);
(3) The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;
(4) The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;
(5) The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons
to be recorded in writing;
(6) Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;
(7) Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.
(8) Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.
We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.
All in all a much needed curbing of police power - which was used to harass, extort and blackmail.
**
tags : 498A MISUSE, 498A POWER OF ARREST MISUSE, 498A SUPREME COURT RESTRICTION ON ARREST, ARNESH KUMAR MISUSE OF POWER OF ARREST,ARNESH KUMAR VERSUS STATE OF BIHAR SUPREME COURT, DK BASU VERSUS STATE,JOGINDER KUMAR VERSUS STATE,MISUSE OF POWER OF ARREST BY THE POLICE, POLICE NOT TO ARREST, SECTION 41 CRPC
Casual, Wholesale reference to in-laws won’t justify dowry case : Supreme Court latest judgment on 498a quashing Geeta Mehrotra vs. State
Courtesy : The Hindu – Oct.23, 2012
Taking note of the increasing dowry-related complaints, the Supreme Court has held that a casual reference to the names of family members of the husband in the FIR filed by the wife without any allegation of their active involvement in the offence will not justify a case against them.
There is a tendency to involve the entire household in a matrimonial dispute, especially if it happens soon after the wedding. This has been borne out of experience, said a Bench of Justices T.S. Thakur and Gyan Sudha Misra
Writing the judgment, Justice Misra said: “If the FIR as it stands does not disclose the specific allegation against the accused, more so against the co-accused, specially in a matter arising out of matrimonial bickering, it would be clear abuse of the legal and judicial process to mechanically send the accused named in the FIR to undergo trial.” Only if the FIR disclosed specific allegations would the court be persuaded “to take cognisance of the offence alleged against the relatives of the main accused who are prima facie not found to have indulged in physical and mental torture of the complainant-wife.”
The Bench said: “It is a well-settled principle laid down in cases too numerous to mention that if the FIR did not disclose the commission of an offence, the court would be justified in quashing the proceedings, [thus] preventing the abuse of the process of law. Simultaneously, the courts are expected to adopt a cautious approach in matters of quashing specially in cases of matrimonial dispute whether the FIR in fact discloses commission of an offence by the relatives of the principal accused or the FIR prima facie discloses a case of over-implication by involving the entire family at the instance of the complainant, who is out to settle scores arising out of the teething problem or skirmish of domestic bickering while settling down in her new matrimonial surrounding.”
In the instant case, Shipra Mehrotra of Allahabad was married to Shyamji Mehrotra of Faridabad in Haryana in 2003. After few months, Shipra filed a complaint under the Dowry Prohibition Act and the Indian Penal Code against her husband, parents-in-law, sister-in-law Geeta Mehrotra and brother-in-law Ramji Mehrotra. Even as these proceedings were pending in an Allahabad trial court, Shipra got an ex parte decree for divorce.
Appellants Geeta and Ramji moved the Allahabad High Court for quashing the case against them contending that the trial court had no jurisdiction to entertain the complaint as the alleged dowry harassment happened in Faridabad. The High Court refused to quash the complaint. .
Allowing the appeal against this order, the Supreme Court said there was only a general allegation that Geeta and Ramji were also involved in physical and mental torture of the complainant without mention of even a single incident against them. Also, how they could be motivated to demand dowry when they were only related as brother and sister of the complainant’s husband? The Bench set aside the criminal proceedings against the two appellants and “consequently the order passed by the High Court shall stand overruled.”
Taking note of the increasing dowry-related complaints, the Supreme Court has held that a casual reference to the names of family members of the husband in the FIR filed by the wife without any allegation of their active involvement in the offence will not justify a case against them.
There is a tendency to involve the entire household in a matrimonial dispute, especially if it happens soon after the wedding. This has been borne out of experience, said a Bench of Justices T.S. Thakur and Gyan Sudha Misra
Writing the judgment, Justice Misra said: “If the FIR as it stands does not disclose the specific allegation against the accused, more so against the co-accused, specially in a matter arising out of matrimonial bickering, it would be clear abuse of the legal and judicial process to mechanically send the accused named in the FIR to undergo trial.” Only if the FIR disclosed specific allegations would the court be persuaded “to take cognisance of the offence alleged against the relatives of the main accused who are prima facie not found to have indulged in physical and mental torture of the complainant-wife.”
The Bench said: “It is a well-settled principle laid down in cases too numerous to mention that if the FIR did not disclose the commission of an offence, the court would be justified in quashing the proceedings, [thus] preventing the abuse of the process of law. Simultaneously, the courts are expected to adopt a cautious approach in matters of quashing specially in cases of matrimonial dispute whether the FIR in fact discloses commission of an offence by the relatives of the principal accused or the FIR prima facie discloses a case of over-implication by involving the entire family at the instance of the complainant, who is out to settle scores arising out of the teething problem or skirmish of domestic bickering while settling down in her new matrimonial surrounding.”
In the instant case, Shipra Mehrotra of Allahabad was married to Shyamji Mehrotra of Faridabad in Haryana in 2003. After few months, Shipra filed a complaint under the Dowry Prohibition Act and the Indian Penal Code against her husband, parents-in-law, sister-in-law Geeta Mehrotra and brother-in-law Ramji Mehrotra. Even as these proceedings were pending in an Allahabad trial court, Shipra got an ex parte decree for divorce.
Appellants Geeta and Ramji moved the Allahabad High Court for quashing the case against them contending that the trial court had no jurisdiction to entertain the complaint as the alleged dowry harassment happened in Faridabad. The High Court refused to quash the complaint. .
Allowing the appeal against this order, the Supreme Court said there was only a general allegation that Geeta and Ramji were also involved in physical and mental torture of the complainant without mention of even a single incident against them. Also, how they could be motivated to demand dowry when they were only related as brother and sister of the complainant’s husband? The Bench set aside the criminal proceedings against the two appellants and “consequently the order passed by the High Court shall stand overruled.”
Divorce in India. All you need to know about contested and mutual divorce.
This article explains all you need to know about getting a divorce in India.
Marriage as opposed to relations of blood, is one which we enter into by our own choice and not by virtue of our birth. Conceptually Marriage is both a Sacrament & a Contract. It is a contract because it is based on offer and acceptance and is akin to an agreement to live together. Sacrament because of it’s religious ties.
As it is connected with the freedom of choice, sometimes we do make choices that do not turn out the way we would want them to be.
Divorce allows a person to break free from an onerous marital relationship. But since marriage is not merely a contract but a very important societal institution. The law has an interest in protecting marriage, and not allowing it to be severed only by choice and on ordinary wear and tear. Since society in countries like ours takes special interest in protecting it – In our country to get a divorce one needs to prove certain grounds for eg : cruelty/adultery/desertion etc. Known as matrimonial offences. (Crimes relating to marriage)
A happy marriage is a harbour in the tempest of life an unhappy marriage a tempest in the harbour of life, more and more people are realising the reality of their relationships, and accepting divorce as the rational choice to a better life necessary premised on better relationships. It is no more a taboo and especially so in urban cities.
Divorce by Mutual Consent is the easiest way to get a divorce, in this both parties work out their terms on which they agree to part ways- file petition in the court, which is finalised in 6 months. However there may be cases where the decision to part may not be a mutual one, and it is only one party who considers the union to be troublesome and worth getting rid off. Such situations lead to Divorce being contested.
Contested Divorce
In this regard we follow the fault based system of divorce. Divorce is granted only on proof of fault or guilty conduct of one party and innocence of the other. The most common ground for divorce is cruelty (Simply such conduct as to make it impossible for parties to live together – this includes mental or/and physical torture). Another common ground is adultery (sexual intercourse outside wedlock) one instance of lapse of virtue can lead to divorce.
Divorces are also common on grounds of desertion (simply wilful abandonment of one spouse by the other without reasonable cause/excuse). Apart from this Conversion of religion/Unsoundness of mind/Renunciation of world are also grounds for divorce.
As per the law as it stands our legal system does not allow divorce to be granted on the ground of irretrievable breakdown of marriage or irreconcilable differences.(Known as no fault grounds). Call it impractical & absurd. To get a divorce one has to prove wrongdoing on the part of other spouse, and impeccable conduct of one’s own in order to win. Which is impossible sometimes. Legislature has taken note of this pragmatic reality and a bill on the same topic is pending in the Parliament, which would allow a person to seek divorce on ground of inherent incompatibility leading to breakdown of relationship.
PROCEDURE OF GETTING A CONTESTED DIVORCE
Petition is filed in the court with all the relevant evidences/documents. Person filing the petition is called ‘the petitioner’ and erring spouse responding is ‘the respondent’. (Remember to annex all documents on you rely with the petition itself – Videos/Audio Recordings/Photos are documents within the meaning of evidence act, and admissible in evidence, your’s spouse emails/chats/facebook/twitter updates are also admissible to prove depravity/infidelity or whatever !
After you file the petition in the court – erring spouse is summoned, if he/she turns up and enters appearance the matter is bi-parte, if the erring spouse prefers not to contest or come to the court, the matter is proceeded ex parte (in absence) and divorce granted if the matter is worthy of the same.
Once evidences are over. The Court would finally listen to arguments of either side on the case, and then proceed to decide the case.
On how the evidences are appreciated, to illustrate in a case based on cruelty the court would normally see whether on the totality of evidences led, is the conduct of respondent such as to make living together a practical impossibility ? Does it pose a great risk to physical or mental well being of the petitioner.
The Court’s formal order in the end is known as the ‘decree’. After this either party may appeal in the High Court and then finally the Supreme Court.
Normally the process in the Family Court would take anywhere between 2-3 years if contested vigorously. My experience has shown that parties normally lose patience somewhere in between and agree to part ways amicably. Because litigation does not really pay for anybody but the lawyers ! and that is the reason I advise my clients to go in for this only when the mutual option is unquestionably foreclosed.
Marriage as opposed to relations of blood, is one which we enter into by our own choice and not by virtue of our birth. Conceptually Marriage is both a Sacrament & a Contract. It is a contract because it is based on offer and acceptance and is akin to an agreement to live together. Sacrament because of it’s religious ties.
As it is connected with the freedom of choice, sometimes we do make choices that do not turn out the way we would want them to be.
Divorce allows a person to break free from an onerous marital relationship. But since marriage is not merely a contract but a very important societal institution. The law has an interest in protecting marriage, and not allowing it to be severed only by choice and on ordinary wear and tear. Since society in countries like ours takes special interest in protecting it – In our country to get a divorce one needs to prove certain grounds for eg : cruelty/adultery/desertion etc. Known as matrimonial offences. (Crimes relating to marriage)
A happy marriage is a harbour in the tempest of life an unhappy marriage a tempest in the harbour of life, more and more people are realising the reality of their relationships, and accepting divorce as the rational choice to a better life necessary premised on better relationships. It is no more a taboo and especially so in urban cities.
Divorce by Mutual Consent is the easiest way to get a divorce, in this both parties work out their terms on which they agree to part ways- file petition in the court, which is finalised in 6 months. However there may be cases where the decision to part may not be a mutual one, and it is only one party who considers the union to be troublesome and worth getting rid off. Such situations lead to Divorce being contested.
Contested Divorce
In this regard we follow the fault based system of divorce. Divorce is granted only on proof of fault or guilty conduct of one party and innocence of the other. The most common ground for divorce is cruelty (Simply such conduct as to make it impossible for parties to live together – this includes mental or/and physical torture). Another common ground is adultery (sexual intercourse outside wedlock) one instance of lapse of virtue can lead to divorce.
Divorces are also common on grounds of desertion (simply wilful abandonment of one spouse by the other without reasonable cause/excuse). Apart from this Conversion of religion/Unsoundness of mind/Renunciation of world are also grounds for divorce.
As per the law as it stands our legal system does not allow divorce to be granted on the ground of irretrievable breakdown of marriage or irreconcilable differences.(Known as no fault grounds). Call it impractical & absurd. To get a divorce one has to prove wrongdoing on the part of other spouse, and impeccable conduct of one’s own in order to win. Which is impossible sometimes. Legislature has taken note of this pragmatic reality and a bill on the same topic is pending in the Parliament, which would allow a person to seek divorce on ground of inherent incompatibility leading to breakdown of relationship.
PROCEDURE OF GETTING A CONTESTED DIVORCE
- Ascertain the ground on which you want to seek divorce.
- Collect evidences.
- Consult a seasoned divorce lawyer and file a petition in the Family Court of your district.
Petition is filed in the court with all the relevant evidences/documents. Person filing the petition is called ‘the petitioner’ and erring spouse responding is ‘the respondent’. (Remember to annex all documents on you rely with the petition itself – Videos/Audio Recordings/Photos are documents within the meaning of evidence act, and admissible in evidence, your’s spouse emails/chats/facebook/twitter updates are also admissible to prove depravity/infidelity or whatever !
After you file the petition in the court – erring spouse is summoned, if he/she turns up and enters appearance the matter is bi-parte, if the erring spouse prefers not to contest or come to the court, the matter is proceeded ex parte (in absence) and divorce granted if the matter is worthy of the same.
- In case of bi-parte – the court normally would before seeking a reply from your spouse of the allegations levelled by you – would refer the parties to a mediation or conciliation, so that issues can be resolved amicably this way or the other. Whether leading to a reconciliation (living together) or an amicable divorce.
- If the above fails, the erring spouse/respondent would file a Written Statement to your petition with the necessary documents (Normal time for filing a WS is 30 days (Max : 90 Days). Following which one can file a replication to further elaborate and explain.
- Once that is done the court would frame issues – issues are questions that are to be decided by court at the time of final hearing. For eg : in a Divorce on the ground of adultery – the issues would be “Whether the respondent had sexual intercourse with X during the subsistence of marriage with the petitioner” ? The answer to this question would decide the fate of divorce case. There may be more than one issue in case of multiple grounds. The entire divorce proceedings are premised at answering this question/issue.
- After issues are framed – the court would ask petitioner to lead evidence, his own or/and his witnesses. This also is decided into three stages. First petitioner would lead his witness and examine him. Thereby putting the foundation of his case. (Called examination in chief) Thereafter the opposite party would cross examine the petitioner’s witness. (Called cross examination) Cross examination includes exposing the falsity of a witness’s deposition by putting leading questions, and contradicting the witness. Witness may either withstand the onslaught of questions – thereby retaining the confidence and reliance of the court, or he may stand discredited.
- The Party calling the witness is further given an opportunity to fill the holes the opposite party’s advocate has busted into it and make the court believe in it’s witness.
Once evidences are over. The Court would finally listen to arguments of either side on the case, and then proceed to decide the case.
On how the evidences are appreciated, to illustrate in a case based on cruelty the court would normally see whether on the totality of evidences led, is the conduct of respondent such as to make living together a practical impossibility ? Does it pose a great risk to physical or mental well being of the petitioner.
The Court’s formal order in the end is known as the ‘decree’. After this either party may appeal in the High Court and then finally the Supreme Court.
Normally the process in the Family Court would take anywhere between 2-3 years if contested vigorously. My experience has shown that parties normally lose patience somewhere in between and agree to part ways amicably. Because litigation does not really pay for anybody but the lawyers ! and that is the reason I advise my clients to go in for this only when the mutual option is unquestionably foreclosed.
Validity of Foreign Divorce Decree in India ? Does the Indian Law recognise your divorce decree passed by a foreign Court ? ...Read on
DIVORCE
A Happy marriage is a harbour in the tempest of life – an unhappy one a tempest in the harbour of life…..A Marriage that is devoid love, care and affection deserves, in my firm view to be done away with, whether or not either party wants to stick with it. It is sad that Indian Law is still pretty rigid in that regard primarily because of the notion of marriage being a sacrament. Obtaining a Divorce in India is an ordeal unless both parties consent to it. To get a contested divorce one needs to prove grounds such as cruelty/adultery/desertion etc, which is extremely difficult and time consuming. Indian Law does not recognise ’Irretrievable breakdown/Irreconcilable differences’ as ground for divorce.
FOREIGN DIVORCE
As a Divorce Lawyer, day in day out I’ve been getting queries on the validity of a Foreign Divorces in India. This is an area fraught with many conflicting opinions and judgments full of legalease, let me articulate the basics of foreign divorces in India.
We take the example of a couple married in India as per the Indian Law (Special Marriage Act or Hindu Marriage Act). Now since the couple married in India, wherever they go – they take their personal law with them. Hence even if they subsequently settle in some other part of the world – their marriage and consequently their divorce would still be governed by Indian Law.
GENERAL PRINCIPLE – FOREIGN DIVORCE HOLDS GOOD IN INDIA
Contrary to a lot of misconceptions, as per the General Principle of Law (Section 13 CPC) A foreign decree is conclusive in India in normal circumstances. This is based on principle of res judicata – meaning that when a dispute has been adjudicated by a court it should not be re-agitated again & again – to prevent wastage of judicial time & expense and more importantly to ensure finality and certainty in human relations. Hence we start with the presumption that a foreign divorce is valid in India.
EXCEPTIONS – WHEN FOREIGN DIVORCE WON’T BE RECOGNISED IN INDIA
The Indian Law would refuse to recognise it – when any of the following conditions are present :-
a) When Granted by Court not authorised by Indian Law to grant the same – When the decree is passed by a court having no jurisdiction (meaning authority to decide) as per the Indian Law; which leads us to the question which courts have jurisdiction as per the Indian Law, normally the court of place where marriage is solemnised (normally India) or where the parties last resided together as husband and wife, and where the opposite party resides (non applicant). Courts of all these places shall have jurisdiction.
b) When one side is not heard or his/her submissions not taken on record : That the decree is not passed on merits – ‘on merits’ in layman terms means the court took both side’s submissions into consideration before deciding the case – if it is not done – then decree does not hold good in India. The problem arises when one spouse serves a divorce summon on the other and the other spouse leaves the country and comes back to India, and a decree is passed ex parte (in absence of that party). In these cases if it is established that party left jurisdiction just to avoid the divorce proceedings and was otherwise there, the decree should be valid in India, for no court should allow such fraud to take place ;
c) On a ground not recognised by Indian Law – When the Divorce is granted on grounds not recognised in India – for those who arrived late – Cruelty/Adultery/Desertion/Impotency are grounds that Indian Law recognises, so if the divorce is granted on these grounds – The decree is valid in India. Please note that in such a case it need not be validated in India by filing a suit or anything. It is the burden of person challenging the decree to discredit it.
Now the basic problem is encountered here – Indian Diaspora is increasingly getting divorces on the ground of ‘irreconcilliable differences/irretrievable breakdown of marriage’ which is also known as no fault divorce. In this species of divorce – cruelty/adultery need not be established. If the court feels without going to faults/allegations etc – that the couple cannot be expected to live together now and their bond seems to be broken irreparably – Court grants divorce. Normally in such cases the court would grant a decree nisi (temporary) that is turned into absolute (permanent divorce) after 6 months or so (depending on state law). Within these six months the opposite party gets a right to oppose or consent to divorce, in either case it is normally granted.
Sadly this divorce is not valid in India because ‘irreconcilliable differences/irretrievable breakdown of marriage’ is not recognised in India as a ground for divorce, though a bill to that effect is pending in Indian Parliament and may be passed in the future. But as of today such decrees are not binding in India.
Hence a word of advise instead of going in for a no fault divorce – a fault divorce (cruelty) etc should be obtained, which is somewhat difficult, but unimpeachable in India.
d) When the proceedings are against principles of Natural Justice ? Now in simple terms principles of natural justice are certain principles which broadly make the judicial proceedings fair and just. For eg : both parties should know allegations levelled and be given a fair opportunity to be put forth their case, judge being impartial is also a facet of natural justice.
Again the question comes – if on filing a divorce the other party leaves jurisdiction and runs back to India (normally wives tend to do that) in such a case, it would again be a question of intention and the decree cannot be said to be against natural justice if party herself evades the court when otherwise a permanent resident was established there. In a matter which I am consulting currently the woman is fighting child custody/property matters in US and is a permanent resident, but we know it for sure when the man files the divorce – in order to prevent that she would run back to India – in such a case I feel the divorce decree granted even in her absence should be valid. Though this is a grey area but when she had adequate opportunity to defend – any attempt to frustrate judicial process by running away should be dealt with stern hands.
There may be another situation where the spouse is in India and the other spouse files for divorce outside India, in such situation even after the spouse in India is served (notice is sent and received) any decree passed in absence won’t be valid in India, unless the court feels that the other party had ample opportunity to go, engage counsel and defend in that country. Normally in decrees passed against women in India, Indian Courts have refused to recognise them.
e) If it is obtained by fraud – if a decree is obtained by misrepresentation of facts or fraud – then the same is not valid in India.
The above are the cases where a foreign divorce won’t be recognised in India, and may lead to a situation where a person may be divorced(and single) in one country yet married in Indian law, and this can spell disaster in case of subsequent marriage as bigamy proceedings may be initiated against such person.
If your divorce is valid in India as per the above test – it is not a requirement of law for you to validate it, however you may still do so in order to start from a clean slate and avoid belated disputes.
If your divorce is not valid in India – it has to be challenged by filing a suit for declaration as to your marital status and invalidity of such a foreign decree, burden of proof being on the person who challenges.
I hope I’ve been able to clear some airs on the question of foreign divorce decrees and their validity in India.
My next article would be on validity of child custody decrees passed in foreign courts.
A Happy marriage is a harbour in the tempest of life – an unhappy one a tempest in the harbour of life…..A Marriage that is devoid love, care and affection deserves, in my firm view to be done away with, whether or not either party wants to stick with it. It is sad that Indian Law is still pretty rigid in that regard primarily because of the notion of marriage being a sacrament. Obtaining a Divorce in India is an ordeal unless both parties consent to it. To get a contested divorce one needs to prove grounds such as cruelty/adultery/desertion etc, which is extremely difficult and time consuming. Indian Law does not recognise ’Irretrievable breakdown/Irreconcilable differences’ as ground for divorce.
FOREIGN DIVORCE
As a Divorce Lawyer, day in day out I’ve been getting queries on the validity of a Foreign Divorces in India. This is an area fraught with many conflicting opinions and judgments full of legalease, let me articulate the basics of foreign divorces in India.
We take the example of a couple married in India as per the Indian Law (Special Marriage Act or Hindu Marriage Act). Now since the couple married in India, wherever they go – they take their personal law with them. Hence even if they subsequently settle in some other part of the world – their marriage and consequently their divorce would still be governed by Indian Law.
GENERAL PRINCIPLE – FOREIGN DIVORCE HOLDS GOOD IN INDIA
Contrary to a lot of misconceptions, as per the General Principle of Law (Section 13 CPC) A foreign decree is conclusive in India in normal circumstances. This is based on principle of res judicata – meaning that when a dispute has been adjudicated by a court it should not be re-agitated again & again – to prevent wastage of judicial time & expense and more importantly to ensure finality and certainty in human relations. Hence we start with the presumption that a foreign divorce is valid in India.
EXCEPTIONS – WHEN FOREIGN DIVORCE WON’T BE RECOGNISED IN INDIA
The Indian Law would refuse to recognise it – when any of the following conditions are present :-
a) When Granted by Court not authorised by Indian Law to grant the same – When the decree is passed by a court having no jurisdiction (meaning authority to decide) as per the Indian Law; which leads us to the question which courts have jurisdiction as per the Indian Law, normally the court of place where marriage is solemnised (normally India) or where the parties last resided together as husband and wife, and where the opposite party resides (non applicant). Courts of all these places shall have jurisdiction.
b) When one side is not heard or his/her submissions not taken on record : That the decree is not passed on merits – ‘on merits’ in layman terms means the court took both side’s submissions into consideration before deciding the case – if it is not done – then decree does not hold good in India. The problem arises when one spouse serves a divorce summon on the other and the other spouse leaves the country and comes back to India, and a decree is passed ex parte (in absence of that party). In these cases if it is established that party left jurisdiction just to avoid the divorce proceedings and was otherwise there, the decree should be valid in India, for no court should allow such fraud to take place ;
c) On a ground not recognised by Indian Law – When the Divorce is granted on grounds not recognised in India – for those who arrived late – Cruelty/Adultery/Desertion/Impotency are grounds that Indian Law recognises, so if the divorce is granted on these grounds – The decree is valid in India. Please note that in such a case it need not be validated in India by filing a suit or anything. It is the burden of person challenging the decree to discredit it.
Now the basic problem is encountered here – Indian Diaspora is increasingly getting divorces on the ground of ‘irreconcilliable differences/irretrievable breakdown of marriage’ which is also known as no fault divorce. In this species of divorce – cruelty/adultery need not be established. If the court feels without going to faults/allegations etc – that the couple cannot be expected to live together now and their bond seems to be broken irreparably – Court grants divorce. Normally in such cases the court would grant a decree nisi (temporary) that is turned into absolute (permanent divorce) after 6 months or so (depending on state law). Within these six months the opposite party gets a right to oppose or consent to divorce, in either case it is normally granted.
Sadly this divorce is not valid in India because ‘irreconcilliable differences/irretrievable breakdown of marriage’ is not recognised in India as a ground for divorce, though a bill to that effect is pending in Indian Parliament and may be passed in the future. But as of today such decrees are not binding in India.
Hence a word of advise instead of going in for a no fault divorce – a fault divorce (cruelty) etc should be obtained, which is somewhat difficult, but unimpeachable in India.
d) When the proceedings are against principles of Natural Justice ? Now in simple terms principles of natural justice are certain principles which broadly make the judicial proceedings fair and just. For eg : both parties should know allegations levelled and be given a fair opportunity to be put forth their case, judge being impartial is also a facet of natural justice.
Again the question comes – if on filing a divorce the other party leaves jurisdiction and runs back to India (normally wives tend to do that) in such a case, it would again be a question of intention and the decree cannot be said to be against natural justice if party herself evades the court when otherwise a permanent resident was established there. In a matter which I am consulting currently the woman is fighting child custody/property matters in US and is a permanent resident, but we know it for sure when the man files the divorce – in order to prevent that she would run back to India – in such a case I feel the divorce decree granted even in her absence should be valid. Though this is a grey area but when she had adequate opportunity to defend – any attempt to frustrate judicial process by running away should be dealt with stern hands.
There may be another situation where the spouse is in India and the other spouse files for divorce outside India, in such situation even after the spouse in India is served (notice is sent and received) any decree passed in absence won’t be valid in India, unless the court feels that the other party had ample opportunity to go, engage counsel and defend in that country. Normally in decrees passed against women in India, Indian Courts have refused to recognise them.
e) If it is obtained by fraud – if a decree is obtained by misrepresentation of facts or fraud – then the same is not valid in India.
The above are the cases where a foreign divorce won’t be recognised in India, and may lead to a situation where a person may be divorced(and single) in one country yet married in Indian law, and this can spell disaster in case of subsequent marriage as bigamy proceedings may be initiated against such person.
If your divorce is valid in India as per the above test – it is not a requirement of law for you to validate it, however you may still do so in order to start from a clean slate and avoid belated disputes.
If your divorce is not valid in India – it has to be challenged by filing a suit for declaration as to your marital status and invalidity of such a foreign decree, burden of proof being on the person who challenges.
I hope I’ve been able to clear some airs on the question of foreign divorce decrees and their validity in India.
My next article would be on validity of child custody decrees passed in foreign courts.
Quashing a False 498a FIR - tips and tricks !
Quashing of FIR is a tough matter ! Courts generally are reluctant to interfere at the stage of investigation and only very strong grounds + persuasive arguments can make a bench sit up and taking a 482 matter seriously. FIR's can be quashed if they an abuse of process of law/prima facie don't disclose any offence or are inherently improbable - If you are thinking about quashing of FIR u/s 498a/406. These are the grounds/list of judgments of quashing that would help bolster your plea :
GROUNDS FOR QUASHING IN A 498a/406/34 IPC MATTER
• BECAUSE Section 482 of the Cr.PC categorically saves the inherent power of High Court to make such orders as may be necessary to give effect to any order this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice. In the instant case it is pertinent in the ends of justice and to prevent an abuse of the process of law that the impugned FIR be quashed.
• BECAUSE the High Court is empowered to quash a criminal proceeding where it is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. The Courts are also empowered to quash in case where the allegations in the FIR even if taken at their face value do not satisfy the ingredients of offence complained therein. Reliance in this regard is placed on the decision of State of Haryana v. Bhajan Lal (1992 AIR 604).
• Reliance in this regard is placed on the landmark decision of the Hon’ble Supreme Court in the case of Geeta Mehrotra & Anr. V. State of UP (Criminal Appeal No.1674 of 2012 (Arising out of SLP(Crl) No. 10547/2010) Decided on 17.10.2012, wherein the court categorically observed that “mere casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute specially if it happens soon after the wedding.”
The Hon’ble Court further went on to hold “20. It would be relevant at this stage to take note of an apt observation of this Court recorded in the matter of G.V. Rao vs. L.H.V. Prasad & Ors. reported in (2000) 3 SCC 693 wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that: “there has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate the disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their “young” days in chasing their cases in different courts.”
Court further held “if the FIR as it stands does not disclose specific allegation against accused more so against the co-accused specially in a matter arising out of matrimonial bickering, it would be clear abuse of the legal and judicial process to mechanically send the named accused in the FIR to undergo the trial unless of course the FIR discloses specific allegations which would persuade the court to take cognisance of the offence alleged against the relatives of the main accused who are prima facie not found to have indulged in physical and mental torture of the complainant-wife. It is the well settled principle laid down in cases too numerous to mention, that if the FIR did not disclose the commission of an offence, the court would be justified in quashing the proceedings preventing the abuse of the process of law”.
*BECAUSE the Courts at X place have no jurisdiction as per the mandate of S.177 CrpC. Reliance in this regard is placed on following decisions :-
• Y.Abraham Ajith V. Inspector of Police [(2004) SCC (Cri.) 2134]. In this case, the Madras High Court refused to interfere under Section 482 CrPC when the issue of territorial jurisdiction of the Magistrate concerned to take cognizance of the offence was raised. This Court did not endorse the approach of the High Court for not recording the finding on the question of jurisdiction. On reading the allegations in the complaint, the Court came to the conclusion that no part of the cause of action arose in Chennai and therefore the Metropolitan Magistrate at Chennai could not have taken cognizance and issued summons. On this ground, the criminal proceedings were quashed and the complaint was directed to be returned to the respondent who was given liberty to file the same in an appropriate court. That was also a case of complaint for an offence under Sections 498-A and 406 IPC filed by the wife against the appellant therein.
• Delhi High Court in Niraj Trivedi v. State of Bihar [ WP’s - Crl. ] 235 & 415/04 Decided on 4.1.08, The Delhi High Court categorically held “Crime cannot be registered on the basis of residence of the complainant, or the effect of the crime…..but only at the place of crime”. Justice S.N Dhingra directed the Patna Police to transfer the FIR No. 0188/02 PS Digh, Patna, Bihar to their counterpart in Delhi. As no part of the alleged offence was committed in Patna and all allegations of atrocity were restricted to Delhi.
• Delhi High Court in Rajesh Dhingra & Ors./State of Rajasthan WP (Crl.) No.976/03 Quashed on.22.10.07 FIR No.98/2003 U/s.498 AIPC of PS. Mahila Thana, Alwar Gate Ajmer(Rajasthan). The Court held that no part of the offence as alleged in FIR registered at Police Station Ajmer had been committed within the jurisdiction of PS Mahila Thana Alwar Gate, Ajmer, Rajasthan. The wife has misused the process of law. FIR Quashed.
• Delhi High Court in Rajinder Kumar Sharma and Another vs. State and Another HON'BLE JUSTICE S.N. DHINGRA DHC - 26/02/2007 CASE NO: Crl.M.C. 1216-17 of 2006, held that the Courts have been allowing quashing of proceedings under Section 498A /406 Indian Penal Code, 1860 because in such cases the FIRs are result of matrimonial discord and more often the effort of the Court is that either the parties should settle for a compromise for living together or they should part their company peacefully, so that, there is peace and amity in the society. In cases resulting from matrimonial discord, the Court is not dealing with criminal but dealing with broken marriages and broken homes where resort is more often made to Sections 498A/406 Indian Penal Code.
• BECAUSE the present FIR has been lodged to wreak personal vendetta and as a counter blast to the divorce/RCR case filed by the husband.
Reliance is placed on the landmark decision on Sushil Kumar Sharma vs. Union of India and others, JT 2005(6) 26 observed as : “The object of the provision is prevention of the dowry menace. But as has been rightly contented by the petitioner that many instances have come to light where the complaints are not bonafide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial.
• BECAUSE recently the Hon’ble Supreme Court in Preeti Gupta & Anr. V. State of Jharkhand - AIR 2010 SC 3363 - their lordships Hon’ble J. DALVEER BHANDARI & K.S. RADHAKRISHNAN, JJ while directing the Law Commission to have a relook at the provisions, went on to hold : “30. It is a matter of common experience that most of these complaints under section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.
32. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.
33.…The allegations of harassment of husband's close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband's relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful.
34. Before parting with this case, we would like to observe that a serious relook of the entire provision is warranted by the legislation. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases.
Tags : 498a quashing, 498a quashing judgments, 498a quashing territorial grounds, 498a quashing no jurisdiction, 498a jurisdiction judgments, 498a quashing grounds, 498a quashing petition, y abraham ajith, Geeta Mehrotra & Anr. V. State of UP, G.V. Rao vs. L.H.V. Prasad & Ors. reported in (2000) 3 SCC 693, Y.Abraham Ajith V. Inspector of Police [(2004) SCC (Cri.) 2134, Niraj Trivedi v. State of Bihar [ WP’s - Crl. ] 235 & 415/04, Rajesh Dhingra & Ors./State of Rajasthan WP (Crl.) No.976/03, Sushil Kumar Sharma vs. Union of India and others, JT 2005(6) 26, in Preeti Gupta & Anr. V. State of Jharkhand - AIR 2010 SC 3363, how to quash false 498a.
GROUNDS FOR QUASHING IN A 498a/406/34 IPC MATTER
• BECAUSE Section 482 of the Cr.PC categorically saves the inherent power of High Court to make such orders as may be necessary to give effect to any order this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice. In the instant case it is pertinent in the ends of justice and to prevent an abuse of the process of law that the impugned FIR be quashed.
• BECAUSE the High Court is empowered to quash a criminal proceeding where it is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. The Courts are also empowered to quash in case where the allegations in the FIR even if taken at their face value do not satisfy the ingredients of offence complained therein. Reliance in this regard is placed on the decision of State of Haryana v. Bhajan Lal (1992 AIR 604).
• Reliance in this regard is placed on the landmark decision of the Hon’ble Supreme Court in the case of Geeta Mehrotra & Anr. V. State of UP (Criminal Appeal No.1674 of 2012 (Arising out of SLP(Crl) No. 10547/2010) Decided on 17.10.2012, wherein the court categorically observed that “mere casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute specially if it happens soon after the wedding.”
The Hon’ble Court further went on to hold “20. It would be relevant at this stage to take note of an apt observation of this Court recorded in the matter of G.V. Rao vs. L.H.V. Prasad & Ors. reported in (2000) 3 SCC 693 wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that: “there has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate the disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their “young” days in chasing their cases in different courts.”
Court further held “if the FIR as it stands does not disclose specific allegation against accused more so against the co-accused specially in a matter arising out of matrimonial bickering, it would be clear abuse of the legal and judicial process to mechanically send the named accused in the FIR to undergo the trial unless of course the FIR discloses specific allegations which would persuade the court to take cognisance of the offence alleged against the relatives of the main accused who are prima facie not found to have indulged in physical and mental torture of the complainant-wife. It is the well settled principle laid down in cases too numerous to mention, that if the FIR did not disclose the commission of an offence, the court would be justified in quashing the proceedings preventing the abuse of the process of law”.
*BECAUSE the Courts at X place have no jurisdiction as per the mandate of S.177 CrpC. Reliance in this regard is placed on following decisions :-
• Y.Abraham Ajith V. Inspector of Police [(2004) SCC (Cri.) 2134]. In this case, the Madras High Court refused to interfere under Section 482 CrPC when the issue of territorial jurisdiction of the Magistrate concerned to take cognizance of the offence was raised. This Court did not endorse the approach of the High Court for not recording the finding on the question of jurisdiction. On reading the allegations in the complaint, the Court came to the conclusion that no part of the cause of action arose in Chennai and therefore the Metropolitan Magistrate at Chennai could not have taken cognizance and issued summons. On this ground, the criminal proceedings were quashed and the complaint was directed to be returned to the respondent who was given liberty to file the same in an appropriate court. That was also a case of complaint for an offence under Sections 498-A and 406 IPC filed by the wife against the appellant therein.
• Delhi High Court in Niraj Trivedi v. State of Bihar [ WP’s - Crl. ] 235 & 415/04 Decided on 4.1.08, The Delhi High Court categorically held “Crime cannot be registered on the basis of residence of the complainant, or the effect of the crime…..but only at the place of crime”. Justice S.N Dhingra directed the Patna Police to transfer the FIR No. 0188/02 PS Digh, Patna, Bihar to their counterpart in Delhi. As no part of the alleged offence was committed in Patna and all allegations of atrocity were restricted to Delhi.
• Delhi High Court in Rajesh Dhingra & Ors./State of Rajasthan WP (Crl.) No.976/03 Quashed on.22.10.07 FIR No.98/2003 U/s.498 AIPC of PS. Mahila Thana, Alwar Gate Ajmer(Rajasthan). The Court held that no part of the offence as alleged in FIR registered at Police Station Ajmer had been committed within the jurisdiction of PS Mahila Thana Alwar Gate, Ajmer, Rajasthan. The wife has misused the process of law. FIR Quashed.
• Delhi High Court in Rajinder Kumar Sharma and Another vs. State and Another HON'BLE JUSTICE S.N. DHINGRA DHC - 26/02/2007 CASE NO: Crl.M.C. 1216-17 of 2006, held that the Courts have been allowing quashing of proceedings under Section 498A /406 Indian Penal Code, 1860 because in such cases the FIRs are result of matrimonial discord and more often the effort of the Court is that either the parties should settle for a compromise for living together or they should part their company peacefully, so that, there is peace and amity in the society. In cases resulting from matrimonial discord, the Court is not dealing with criminal but dealing with broken marriages and broken homes where resort is more often made to Sections 498A/406 Indian Penal Code.
• BECAUSE the present FIR has been lodged to wreak personal vendetta and as a counter blast to the divorce/RCR case filed by the husband.
Reliance is placed on the landmark decision on Sushil Kumar Sharma vs. Union of India and others, JT 2005(6) 26 observed as : “The object of the provision is prevention of the dowry menace. But as has been rightly contented by the petitioner that many instances have come to light where the complaints are not bonafide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial.
• BECAUSE recently the Hon’ble Supreme Court in Preeti Gupta & Anr. V. State of Jharkhand - AIR 2010 SC 3363 - their lordships Hon’ble J. DALVEER BHANDARI & K.S. RADHAKRISHNAN, JJ while directing the Law Commission to have a relook at the provisions, went on to hold : “30. It is a matter of common experience that most of these complaints under section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.
32. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.
33.…The allegations of harassment of husband's close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband's relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful.
34. Before parting with this case, we would like to observe that a serious relook of the entire provision is warranted by the legislation. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases.
Tags : 498a quashing, 498a quashing judgments, 498a quashing territorial grounds, 498a quashing no jurisdiction, 498a jurisdiction judgments, 498a quashing grounds, 498a quashing petition, y abraham ajith, Geeta Mehrotra & Anr. V. State of UP, G.V. Rao vs. L.H.V. Prasad & Ors. reported in (2000) 3 SCC 693, Y.Abraham Ajith V. Inspector of Police [(2004) SCC (Cri.) 2134, Niraj Trivedi v. State of Bihar [ WP’s - Crl. ] 235 & 415/04, Rajesh Dhingra & Ors./State of Rajasthan WP (Crl.) No.976/03, Sushil Kumar Sharma vs. Union of India and others, JT 2005(6) 26, in Preeti Gupta & Anr. V. State of Jharkhand - AIR 2010 SC 3363, how to quash false 498a.
Fighting 24/125 - Maintenance Case filed by wife.
This is an article on how to successfully defend a maintenance case filed by your wife.
These are the judgments, that we have successfully used over the years, alongwith the relevant excerpts, to negative a woman’s claim for maintenance in courts across India. It is always important to do a little homework.
1. Keep a track on your wife’s finances.
2. Her PAN Card No. may be vital to get her income tax returns.
When the maintenance proceedings are on – then in that case you can always emphasise strongly on the fact that these provisions were meant to protect genuinely harassed and incapable women from starvation and destitution, and not a vehicle of oppression allowing women to live as parasites. ‘Incapacity to earn is the most vital consideration’ Hence if a wife is otherwise able bodied and educated and fails to work solely because of sheer lethargy and desire to break down husband financially in that situation she is not entitled to any maintenance.
THESE JUDGMENTS MAY BE IMMENSELY HELPFUL FOR THOSE FACING MAINTENANCE PROCEEDINGS !
1. Madhya Pradesh High Court – Smt. Mamta Jaiswal vs Rajesh Jaiswal on 24 March, 2000 – Equivalent citations: 2000 (4) MPHT 457
“6. In view of this, the question arises as to in what way Section 24 of the Act has to be interpreted. Whether a spouse who has capacity of earning but chooses to remain idle, should be permitted to saddle other spouse with his or her expenditure ? Whether such spouse should be permitted to get pendente life alimony at higher rate from other spouse in such condition ? According to me, Section 24 has been enacted for the purpose of providing a monetary assistance to such spouse who is incapable of supporting himself or herself in spite of sincere efforts made by him or herself. A spouse who is well qualified to get the service immediately with less efforts is not expected to remain idle to squeeze out, to milk out the other spouse by relieving him of his or her own purse by a cut in the nature of pendente life alimony. The law does not expect the increasing number of such idle persons who by remaining in the arena of legal battles, try to squeeze out the adversory by implementing the provisions of law suitable to their purpose. In the present case Mamta Jaiswal is a well qualified woman possessing qualification like M. Sc. M.C. M.Ed. Till 1994 she was serving in Gulamnabi Azad Education College. It impliedly means that she was possessing sufficient experience. How such a lady can remain without service ? It really puts a big question which is to be answered by Mamta Jaiswal with sufficient congent and believable evidence by proving that in spite of sufficient efforts made by her, she was not able to get service and, therefore, she is unable to support herself. A lady who is fighting matrimonial petition filed for divorce, can not be permitted to sit idle and to put her burden on the husband for demanding pendente lite alimony from him during pendency of such matrimonial petition. Section 24 is not meant for creating an army of such idle persons who would be sitting idle waiting for a ‘dole’ to be awarded by her husband who has got a grievance against her and who has gone to the Court for seeking a relief against her. The case may be vice-versa also. If a husband well qualified, sufficient enough to earn, sits idle and puts his burden on the wife and waits for a ‘dole’ to be awarded by remaining entangled in litigation. That is also not permissible. The law does not help indolents as well idles so also does not want an army of self made lazy idles. Everyone has to earn for the purpose of maintenance of himself or herself, atleast, has to make sincere efforts in that direction. If this criteria is not applied, if this attitude is not adopted, there would be a tendency growing amongst such litigants to prolong such litigation and to milk out the adversory who happens to be a spouse, once dear but far away after an emerging of litigation. If such army is permitted to remain in existence, there would be no sincere efforts of amicable settlements because the lazy spouse would be very happy to fight and frustrate the efforts of amicable settlement because he would be reaping the money in the nature of pendente lite alimony, and would prefer to be happy in remaining idle and not bothering himself or herself for any activity to support and maintain himself or herself. That can not he treated to he aim, goal of Section 24. It is indirectly against healthyness of the society. It has enacted for needy persons who in spite of sincere efforts and sufficient efforts arc unable to support and maintain themselves and arc required to fight out the litigation jeopardising their hard earned income by toiling working hours”
2. ) Kumaresan Vs. Aswathi reported in (2002) 2 MLJ 760
wherein it has been held as under :- “8…….A plain reading of the above provision would show that the only condition required for grant of maintenance pendente lite is the party should not have sufficient independent income for her/his support. If it is found that the applicant has sufficient income for his/her support, no amount can be allowed as maintenance pendente lite as per section 24 of the Act. But of course, if it is found that the applicant has no sufficient independent income for his/her support, such application can be considered and suitable maintenance amount can be awarded pendente lite.”
3. Manokaran @ Ramamoorthy Vs. M. Devaki reported in AIR 2003 Mad 212, wherein it has been held as under :-
“5…..The above averment shows that the petitioner herein/husband is working in Senthil Auto Garage, Annai Sathya Nagar, Chennai-102 and drawing a salary of Rs.2000/- per month. Likewise, it is also seen that the respondent herein/wife is working in Raj T.V and drawing
a salary of Rs.4,500/-. Though the said aspect has not been substantiated, I have already referred to the admission of the respondent herein in her counter statement filed in the main O.P.1310/2000 wherein she admitted that she secured a private job and is getting salary and staying with her brother. On the other hand, it is established particularly from Ex. R-1, the petitioner herein is getting only Rs.70/- per day or Rs.2000/- per month by working in Senthil Auto Garage. I have already referred to the language used in Section 24 which makes it clear that for grant of maintenance pendente lite the party should not have sufficient independent income for her support. In the light of the materials available, particularly the admitted case of the respondent/wife, she is employed in a private Satelite T.V. and earning for her livelihood staying with her brother, it cannot be construed that she is not having sufficient independent income. The Family Court lost its sight to consider the above material aspect.”
If these judgments coupled with strong oral arguments, can really help rule out any adverse maintenance orders.
Tips, Tricks, Judgments, Strategy on fighting a false 498a,406 case
*This article endeavours to educate the sufferers of a false 498a/dowry case on how to defend a false case, it also tries to help thousands of families in and around India who are on the brink of facing such false cases on successfully pre-empting or guarding against such false cases.
“For men in India marriage is a lottery but you can’t tear up your ticket even if you lose” and it’s not just you who would have to live with the lost lottery but your entire family may have to suffer at the hands of a system so grossly skewed in favour of women.
Marriages may fall apart for a lot of reasons, temperamental issues, compatibility problems, but does that make you an offender in the eyes of law? Yes it does, your estranged wife in order to have her way in arm-twisting you may implicate you and your family in end number of false cases, 498A being the foremost.
498A penalizes cruelty for dowry, almost always comes along with S.406 Allegations which basically penalize the criminal breach of trust, when your wife’s articles are entrusted to you and you fail to return them back – misappropriate them or convert them to own use – you are criminally liable !. By aid of S.34 of the Indian Penal Code – your family/relatives can be held liable for the same if they share the common intention with you.
Now if you think that you have a wife who can potentially do this for money or the kicks that her ego gets out of the same or pure vengeance then you are my friend in a vulnerable situation, but there is a silver lining to this, there are legal strategies that may help minimize, if not completely rule out, the damage or mischief that may occur to you.
Being a Supreme Court Advocate and a Men’s Rights Activist I speak from experience, the following things may(if done correctly) help in a lot of cases :-
1. Insist on a dowry-less marriage – Preparing of list of articles received at the time of marriage, countersigned by both the families, would help rule out exaggerated claims later !
2. Digging the well before the fire starts; when trouble starts at home you apprise all concerned of the problems that you are facing, not for the purposes of any action but information;
If you see things going awry in near future, then it would be good idea to seperate from parents to a rented house with sufficient public notices;
3. As per the prevailing law atleast here in Delhi, if your wife approaches a Police Station with her complaint, she is to be forwarded CAW CELL instituted to try and reconcile and investigate and act as buffers so that penal actions are not initiated right away. Once the matter goes to CAW Cell – apply for an anticipatory bail , you are sure to get notice bail atleast – this would help in two ways :-
a) Give you greater confidence, level playing field in the CAW Cell talks;
b) Prevent any hasty arrest on failure of conciliation;
All in all nothing to lose in this and in this step 1. Would help a great deal.
4. Seek a copy of complaint via RTI ASAP, since they deny at the first instance you’d have to appeal there from which may take some time. There are CIC Decisions that would help you here.
5. In the event of an FIR being registered apply for AB again, and quashing of FIR (not always depends on the kind of allegations leveled)
6. Filing Restitution of Conjugal Rights (case that you want her back) may help in some cases, but not in all. Sometimes it helps in defending maintenance cases, and showing your bona fides.
7. Keep a check on your wife’s finances. Would come handy defending maintenance cases.
8. Prosecution (S.340 CrpC) for perjury in cases of false & exaggerated claims in maintenance petitions.
9. Tax Evasion Petitions once you get the List of Istridhan may also help put pressure.
10. Dowry Prohibition Act – penalizes giving of dowry so in case there is a clear admission of DOWRY (not Istridhan) then in that case your in laws are also liable to be prosecuted. Think on these lines !
11. With a marital property law on the anvil, don’t buy property in your name, much less jointly with spouse.
The above may go a great deal helping you defend correctly, my advise would be to stand your ground, don’t give in to their extortionate tactics, once you’d get an AB the worst would already be over and after that the judicial system with it’s endemic delays won’t treat your wife differently, sooner or later she would realize that frivolous litigation doesn’t pay !
“For men in India marriage is a lottery but you can’t tear up your ticket even if you lose” and it’s not just you who would have to live with the lost lottery but your entire family may have to suffer at the hands of a system so grossly skewed in favour of women.
Marriages may fall apart for a lot of reasons, temperamental issues, compatibility problems, but does that make you an offender in the eyes of law? Yes it does, your estranged wife in order to have her way in arm-twisting you may implicate you and your family in end number of false cases, 498A being the foremost.
498A penalizes cruelty for dowry, almost always comes along with S.406 Allegations which basically penalize the criminal breach of trust, when your wife’s articles are entrusted to you and you fail to return them back – misappropriate them or convert them to own use – you are criminally liable !. By aid of S.34 of the Indian Penal Code – your family/relatives can be held liable for the same if they share the common intention with you.
Now if you think that you have a wife who can potentially do this for money or the kicks that her ego gets out of the same or pure vengeance then you are my friend in a vulnerable situation, but there is a silver lining to this, there are legal strategies that may help minimize, if not completely rule out, the damage or mischief that may occur to you.
Being a Supreme Court Advocate and a Men’s Rights Activist I speak from experience, the following things may(if done correctly) help in a lot of cases :-
1. Insist on a dowry-less marriage – Preparing of list of articles received at the time of marriage, countersigned by both the families, would help rule out exaggerated claims later !
2. Digging the well before the fire starts; when trouble starts at home you apprise all concerned of the problems that you are facing, not for the purposes of any action but information;
If you see things going awry in near future, then it would be good idea to seperate from parents to a rented house with sufficient public notices;
3. As per the prevailing law atleast here in Delhi, if your wife approaches a Police Station with her complaint, she is to be forwarded CAW CELL instituted to try and reconcile and investigate and act as buffers so that penal actions are not initiated right away. Once the matter goes to CAW Cell – apply for an anticipatory bail , you are sure to get notice bail atleast – this would help in two ways :-
a) Give you greater confidence, level playing field in the CAW Cell talks;
b) Prevent any hasty arrest on failure of conciliation;
All in all nothing to lose in this and in this step 1. Would help a great deal.
4. Seek a copy of complaint via RTI ASAP, since they deny at the first instance you’d have to appeal there from which may take some time. There are CIC Decisions that would help you here.
5. In the event of an FIR being registered apply for AB again, and quashing of FIR (not always depends on the kind of allegations leveled)
6. Filing Restitution of Conjugal Rights (case that you want her back) may help in some cases, but not in all. Sometimes it helps in defending maintenance cases, and showing your bona fides.
7. Keep a check on your wife’s finances. Would come handy defending maintenance cases.
8. Prosecution (S.340 CrpC) for perjury in cases of false & exaggerated claims in maintenance petitions.
9. Tax Evasion Petitions once you get the List of Istridhan may also help put pressure.
10. Dowry Prohibition Act – penalizes giving of dowry so in case there is a clear admission of DOWRY (not Istridhan) then in that case your in laws are also liable to be prosecuted. Think on these lines !
11. With a marital property law on the anvil, don’t buy property in your name, much less jointly with spouse.
The above may go a great deal helping you defend correctly, my advise would be to stand your ground, don’t give in to their extortionate tactics, once you’d get an AB the worst would already be over and after that the judicial system with it’s endemic delays won’t treat your wife differently, sooner or later she would realize that frivolous litigation doesn’t pay !
Contesting a transfer petition in the Supreme Court !
- This article would try and explain all you need to know about filing or defending a transfer petition in the Supreme Court.
Be that as it may, there are a couple of things that you can do, which we would be discussing in this article, to try and prevent such a transfer, or even getting a transfer for yourself.
WHAT DOES THE LAW SAY ?
Section 25 of the Code of Civil Procedure, 1908 allows the Supreme Court to transfer a matter from one state to another if justice so demands. High Court is entrusted with the power in case of transfer within the state.
Section 25 is based on the ‘doctrine of forum convenience’ which means –‘the best forum’ or a forum where a fair trial can be had’. Normally there is a presumption that if a petitioner has filed a case in a court having jurisdiction – it is the best forum. The burden is on the person seeking a transfer to prove to the court that if the proceedings are not transferred she would suffer irreparable injustice, on the merits of the case (going unrepresented in the case) and with respect to personal life (loss of job/health/safety issues), she would also have to prove that the latter is irreparable in monetary terms. Once all this is proved – she also would have to prove that you won’t suffer similar losses if the proceedings are transferred. Hence this is a double burden of proof. If she succeeds in proving this – the balance of convenience is said to lie in her favour.
Sadly courts have not been strictly insisting on the above reasonable tests, and transferring matters as a matter of course at the behest of women.
JUDGMENTS THAT CAN HELP YOU COUNTER THESE ?
Normally it is seen that a wife seeks transfer on the grounds of i) Safety & Economic Implications with traveling long distances; ii) Apprehension as to threat to life in husband’s state/unfounded allegations stating that husband or his relatives are people of influence; iii) Lack of economic means; This can be countered placing reliance on the Hon’ble Supreme Court Judgment in the case of Priti Sharma v. Manjeet Sharma – (2005) – the court, in the case of a wife seeking transfer on the grounds of being unemployed and unable commute, categorically held “merely because petitioner is a lady does not mean she cannot travel” and the transfer petition was dismissed.
2. If the woman is able bodied/educated/working/having economic means the balance of convenience clearly does not lie in her favour, and proceedings ought not to be transferred. Furthermore what needs to be emphasised more and more is that – for example a divorce case is carried on at Bangalore, the wife takes up a job at Delhi and seeks transfer. Now if the husband and wife have lived in matrimony at Bangalore, that is the place best suited and conducive to a fair and good trial, for the simple reason that better evidence is available there. The convenience of witnesses etc. cannot be completely disregarded. This can be achieved in cases where the matter has proceeded up to the last stages, and even in new matters where a large list of witnesses is filed by the Husband.
2. In Anandita Das v. Sirjit Dey (2006) The Hon’ble Supreme Court held “At one stage the Supreme Court was showing leniency to ladies. But Since then it has been found that a large number of transfer petitions are filed by women taking advantage of the leniency shown by the Supreme Court. On an average 10 to 15 transfer petitions are on board of each court on each admission day. It is therefore, clear that the leniency of the Supreme Court is being misused by the women. The Supreme Court is now required to consider each petition on it’s own merit. In this case no ground for transfer has been made out”. In this case a transfer was refused – even though the woman had a young child of 6 years in her custody. The Court held that grandparents are there to look after the child. The Court also held that the wife need not come all the time, and could apply for exemption and her application would be considered on merits.
This is a remarkable judgments that can help many men out there.
3. As a last ditch effort to prevent a transfer the husband can make an offer to bear IInd class AC tickets for the woman to travel and her stay expenses. This is normally considered by the court.
4. If the distance between the place where matter is pending and where it is sought to be transferred is not too much, court may refuse transfer. Illustratively in a case court refused transfer of case from Muzzafarnagar to Delhi (130 kms)
5. In addition to this a men should also liberally seek transfer and not concede to a transfer petition filed by wife, this way no strong judgments are able to come in favour of men. Men should, with the aid of the above case law & interpretation, fight and resist transfers and even start instituting transfer petitions especially if they have a modern/educated wife gainfully employed.
6. Men who have kids custody with them can rely on Jaishree Banarjee v. Abhirup Banarjee (1997) 11 SCC 107 to get proceedings transferred in their favour.
Some women have sought transfer of custody/guardianship petitions. These petitions are normally sought to be transferred to places where woman has taken up residence from place where the minor resides with father, Now there is a peculiar way of handing them as well, which I would discuss in my next article.
MISUSE OF ANTI DOWRY LAWS IN INDIA
"A happy marriage is a harbour in the tempest of life, an unhappy marriage is a tempest in the harbour of life"
Dowry is one of the biggest social evils facing our country, and no civilized society should tolerate this, and every effort should be made to eradicate this evil, people giving and demanding dowry should be punished severely, But other side of the coin, often unlooked upon should not be ignored. And this side of the coin – is the misuse of these provisions by some unscrupulous wives to wreak havoc on husband and family.
In recent years the criminal law of the land have undergone radical changes to provide protection to women, more teeth have been provided to existing laws (DP Act, 498A, 406 IPC etc) and new enactments have been made (DV Act), but unfortunately the remedy is becoming worse than the ailment, which is now a well known fact as the stringent dowry laws have failed to stop the gruesome crimes for dowry/dowry deaths.
These laws which have been proved to be highly unsuccessful (as evident from the low conviction rate) and far from what the law makers desired it to be, are now being misused by some urban women for ulterior motives.
The henious nature of these laws (498-a, 406) does nothing but to help the unlawful implementation. As these laws are non compoundable & non bailable, the chances of reconciliation between the spouses after litigation are next to nil.
The biased nature of this laws is evident from that fact that unlike almost all laws in INDIA the burden to prove innocence lies on the accused……this means as soon as the complaint is made..whichever persons are named in the complaint are accused in the eyes of law, Isn’t this verdict before trial, now lets embark upon what Section 498 A is : SIMPLY PUT Section 498a of the IPC is a criminal law in which the wife and her parental family can charge any or all of the husband’s family of physical or mental cruelty.
This law is unique to India, it not only discriminates based on gender (man Vs. woman), but also discriminates against women based on their relationship with the husband.
Typically, the charged family members in these cases include:
• Mostly women of all ages (unmarried, married sisters of the husband, his mother and sisters-in-law, elderly grandmothers and aunts)
• Other maternal and paternal relatives and even young children in the family.
For every complaint filed by a woman, there are at least twice as many or more women are accused although the married couple may have never lived with any of the people mentioned in the criminal complaint.
Characteristics of 498-a, Indian Penal Code.
IPC-498a is
• Cognizable – The accused can be arrested and jailed without warrant or investigation
• Non-Compoundable – The complaint cannot be withdrawn by the petitioner (chances of living together again are lost)
• Non-Bailable – The accused must appear in the court to request bail
On a single complaint of the wife, the husband and his entire family can be packed off to behind the bars, with an estimated 40,000 such accusations per year and an average of 5 members of the husband’s family implicated in each of these 498-a cases, about 200,000/- people are directly affected by these cases.
Hon’ble Supreme Court and various High Courts have time & again showed concern over this growing menace by observing that “By misuse of the provision (IPC 498a - Dowry and Cruelty Law) a new legal terrorism can be unleashed. The provision is intended to be used a shield and not an assassin’s weapon… says the Hon’ble Supreme Court. Merely because the provision is declared constitutional, it does not give licence to unscrupulous persons to wreak personal vendetta [1]
The judicial recognition of blatant misuse of these laws is not anew, way back in 1987, The Hon’ble Court In BALBIR SINGH VS. THE STATE OF PUNJAB [2] observed :
“Though the amendments introduced in the penal code are with the laudable object of eradicating the evil of Dowry, such provisions cannot be allowed to be misused by the parents and the relatives of a psychopath wife who may have chosen to end her life for reason which may be many other than cruelty. The glaring reality cannot be ignored that the ugly trend of false implications in view to harass and blackmail an innocent spouse and his relatives, i.e. fast emerging. IT IS THE TIME TO STOP THIS UNHEALTY TREND WHICH RESULTS IN UNNECCESARY MISERY AND TORTURE TO NUMEROUS EFFECTED PERSONS.”
Justice J.D.Kapoor (Delhi High Court) said in his order passed on 30th May, 2003 [3]
“ I feel constrained to comment upon the misuse of the provisions
(of law) to such an extent that it is hitting at the foundation of marriage itself and has proved to be not so good for the health of the society at large.”
“There is a growing tendency to come out with inflated and exaggerated allegations, roping in each and every relation of the husband.
In Jasbir Kaur v/s State of Haryana[4] : the Punjab & Haryana high Court rightly observed that an estranged wife will go to any extent to rope in as many relatives of the husband as possible in a desperate effort to salvage whatever remains on an estranged marriage.
In Kanaraj vs. State of Punjab [5] the Hon’ble Apex Court observed:
“for the fault of the husband the in-laws or other relatives cannot in all cases be held to be involved. The acts attributed to such persons have to be proved beyond reasonable doubt and they cannot be held responsible by mere conjectures and implications. The tendency to rope in relatives of the husband as accused has to be curbed”
Karnataka High Court, in the case of State Vs. Srikanth [6] observed “Roping in of the whole of the family including brothers and sisters-in-law has to be depreciated unless there is a specific material against these persons, it is down right on the part of the police to include the whole of the family as accused”
The Hon’ble Supreme Court, In Mohd. Hoshan vs. State of A.P. [7], observed “Whether one spouse has been guilt of cruelty to the other is essentially a question of fact. The impact of complaints, accusation or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the victim concerned, the social background, the environment, education etc. Further, mental cruelty varies from person to person depending on the intensity of the sensitivity, degree of courage and endurance to withstand such cruelty. Each case has to be decided on its own facts whether mental cruelty is made out”
Delhi high Court, in Savitri Devi vs. Ramesh Chand [8], categorically stated “These provisions were though made with good intentions but the implementation has left a very bad taste and the move has been counter productive. There is a growing tendency amongst the women which is further perpetuated by their parents and relatives to rope in each and every relative including minors and even school going kids nearer or distant relatives and in some cases against every person of the family of the husband whether living away or in other town or abroad and married, unmarried sisters, sisters-in-law, unmarried brothers, married uncles and in some cases grand parents or as many as 10 o 15 or even more relatives of the husband.”
Punjab and Haryana High Court, in Bhupinder Kaur and others vs. State of Punjab and others[9], held :
“From the reading of the FIR, it is evident that there is no specific allegation of any act against petitioners Nos.2 and 3, which constitute offence under s.498-A I.P.C. I am satisfied that these two persons have been falsely implicated in the present case, who were minors at the time of marriage and even at the time of lodging the present FIR. Neither of these two persons was alleged to have been entrusted with any dowry article nor they alleged to have ever demanded any dowry article. No specific allegation of demand of dowry, harassment and beating given to the complainant by the two accused has been made. The allegations made are vague and general. Moreover, it cannot be ignored that every member of the family of the husband has been implicated in the case. The initiation of criminal proceedings against them in the present case is clearly an abuse of the process of law”
The Hon’ble Supreme Court, in a relatively recent case, Sushil Kumar Sharma vs. Union of India and others[10]
“The object of the provision is prevention of the dowry menace. But as has been rightly contented by the petitioner that many instances have come to light where the complaints are not bonafide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame work.
But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used a shield and not an assassin’s weapon. If cry of “wolf” is made too often as a prank assistance and protection may not be available when the actual “wolf” appears. There is no question of investigating agency and Courts casually dealing with the allegations. They cannot follow any straitjacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that ultimate objective of every legal system is to arrive at truth, punish the guilty and protect the innocent. There is no scope for any pre-conceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the courts start with the presumptions that the accused persons are guilty and that the complainant is speaking the truth. This is too wide available and generalized statement. Certain statutory presumptions are drawn which again are rebuttable. It is to be noted that the role of the investigating agencies and the courts is that of watch dog and not of a bloodhound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally undisputable that in many cases no direct evidence is available and the courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view.”
Justice Malimath Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs, 2003 observed the following and gave the recommendation to amend the law immediately:
“16.4.4 In less tolerant impulsive woman may lodge an FIR even on a trivial act. The result is that the husband and his family may be immediately arrested and there may be a suspension or loss of job. The offence alleged being non-bailable, innocent persons languish in custody. There may be a claim for maintenance adding fuel to fire, if the husband cannot pay. She may change her mind and get into the mood to forget and forgive. The husband may realize the mistakes committed and come forward to turn a new leaf for a loving and cordial relationship. The woman may like to seek reconciliation. But this may not be possible due to the legal obstacles. Even if she wishes to make amends by withdrawing the complaint, she can not do so as the offence is non compoundable. The doors for returning to family life stand closed. She is thus left at the mercy of her natal family.
It Is pertinent to note here that, the real sufferers of the evil of dowry, the rural indian women are not even sensitized about their rights, and fail to make use of these laws.
But Some Indian Urban educated women have turned the tables and are using these laws as weapon to unleash personal vendetta on their husbands and innocent relatives.
Despite the various guidelines/recommendations of the Supreme Court of India and Justice Malimath Committee that the working of these laws should be reviewed and reformed with change in time, so that innocents are protected, and false complaints made with malafide intention are not registered, the suggested amendment to the law has been largely ignored. Unconstrained, this social evil is threatening the foundation of the Indian Family system. Feminists are now demanding even more teeth to the existing women laws, and more & more laws are being enacted for women. But the real sufferers are not sentisized enough to make use of these laws, and these laws are getting misused in the hands of some clever Indian wives.
The latest addition in a women’s legal artillery is The Protection of Women from Domestic Violence Act – This law is absolutely pro-women and anti-men, this law assumes every man as a virtual torturer” and considers only women as victims. This law is highly vague, and speaks of verbal/economical & emotional abuse, which are impossible to quantify & ascertain. Many husbands and their family members, falsely implicated in these cases have committed suicide after being jailed, unable to bear the social trauma.
Nearly 44.7% of the suicide victims were married males while only 25% were married females. This clearly shows the ratio of victims of domestic violence and gender abuse.[11]
It is high time for law makers/law enforcing agencies/judges to pay heed and review these laws in public interest to check the growing misuse of these laws to ensure impartial justice and to protect the pious and sacred institution of marriage.
________________________________________________________________________________________________________________
[1] http://www.hindu.com/2005/07/22/stories/2005072202631500.htm
[2] 1987 (1) CRIMES - 76.
[3] ( 20 May 2003 )
[4] (1990)2 Rec Cri R 243
[5] 2000 CriLJ 2993
[6] 2002 CriLJ 3605
[7] 2002 CriLJ 4124
[8] 2003 CriLJ 2759
[9] 2003 CriLJ 3394
[10]JT 2005(6) 266
[11] Source: http://ncrb.nic.in/ADSI-03.pdf
Dowry is one of the biggest social evils facing our country, and no civilized society should tolerate this, and every effort should be made to eradicate this evil, people giving and demanding dowry should be punished severely, But other side of the coin, often unlooked upon should not be ignored. And this side of the coin – is the misuse of these provisions by some unscrupulous wives to wreak havoc on husband and family.
In recent years the criminal law of the land have undergone radical changes to provide protection to women, more teeth have been provided to existing laws (DP Act, 498A, 406 IPC etc) and new enactments have been made (DV Act), but unfortunately the remedy is becoming worse than the ailment, which is now a well known fact as the stringent dowry laws have failed to stop the gruesome crimes for dowry/dowry deaths.
These laws which have been proved to be highly unsuccessful (as evident from the low conviction rate) and far from what the law makers desired it to be, are now being misused by some urban women for ulterior motives.
The henious nature of these laws (498-a, 406) does nothing but to help the unlawful implementation. As these laws are non compoundable & non bailable, the chances of reconciliation between the spouses after litigation are next to nil.
The biased nature of this laws is evident from that fact that unlike almost all laws in INDIA the burden to prove innocence lies on the accused……this means as soon as the complaint is made..whichever persons are named in the complaint are accused in the eyes of law, Isn’t this verdict before trial, now lets embark upon what Section 498 A is : SIMPLY PUT Section 498a of the IPC is a criminal law in which the wife and her parental family can charge any or all of the husband’s family of physical or mental cruelty.
This law is unique to India, it not only discriminates based on gender (man Vs. woman), but also discriminates against women based on their relationship with the husband.
Typically, the charged family members in these cases include:
• Mostly women of all ages (unmarried, married sisters of the husband, his mother and sisters-in-law, elderly grandmothers and aunts)
• Other maternal and paternal relatives and even young children in the family.
For every complaint filed by a woman, there are at least twice as many or more women are accused although the married couple may have never lived with any of the people mentioned in the criminal complaint.
Characteristics of 498-a, Indian Penal Code.
IPC-498a is
• Cognizable – The accused can be arrested and jailed without warrant or investigation
• Non-Compoundable – The complaint cannot be withdrawn by the petitioner (chances of living together again are lost)
• Non-Bailable – The accused must appear in the court to request bail
On a single complaint of the wife, the husband and his entire family can be packed off to behind the bars, with an estimated 40,000 such accusations per year and an average of 5 members of the husband’s family implicated in each of these 498-a cases, about 200,000/- people are directly affected by these cases.
Hon’ble Supreme Court and various High Courts have time & again showed concern over this growing menace by observing that “By misuse of the provision (IPC 498a - Dowry and Cruelty Law) a new legal terrorism can be unleashed. The provision is intended to be used a shield and not an assassin’s weapon… says the Hon’ble Supreme Court. Merely because the provision is declared constitutional, it does not give licence to unscrupulous persons to wreak personal vendetta [1]
The judicial recognition of blatant misuse of these laws is not anew, way back in 1987, The Hon’ble Court In BALBIR SINGH VS. THE STATE OF PUNJAB [2] observed :
“Though the amendments introduced in the penal code are with the laudable object of eradicating the evil of Dowry, such provisions cannot be allowed to be misused by the parents and the relatives of a psychopath wife who may have chosen to end her life for reason which may be many other than cruelty. The glaring reality cannot be ignored that the ugly trend of false implications in view to harass and blackmail an innocent spouse and his relatives, i.e. fast emerging. IT IS THE TIME TO STOP THIS UNHEALTY TREND WHICH RESULTS IN UNNECCESARY MISERY AND TORTURE TO NUMEROUS EFFECTED PERSONS.”
Justice J.D.Kapoor (Delhi High Court) said in his order passed on 30th May, 2003 [3]
“ I feel constrained to comment upon the misuse of the provisions
(of law) to such an extent that it is hitting at the foundation of marriage itself and has proved to be not so good for the health of the society at large.”
“There is a growing tendency to come out with inflated and exaggerated allegations, roping in each and every relation of the husband.
In Jasbir Kaur v/s State of Haryana[4] : the Punjab & Haryana high Court rightly observed that an estranged wife will go to any extent to rope in as many relatives of the husband as possible in a desperate effort to salvage whatever remains on an estranged marriage.
In Kanaraj vs. State of Punjab [5] the Hon’ble Apex Court observed:
“for the fault of the husband the in-laws or other relatives cannot in all cases be held to be involved. The acts attributed to such persons have to be proved beyond reasonable doubt and they cannot be held responsible by mere conjectures and implications. The tendency to rope in relatives of the husband as accused has to be curbed”
Karnataka High Court, in the case of State Vs. Srikanth [6] observed “Roping in of the whole of the family including brothers and sisters-in-law has to be depreciated unless there is a specific material against these persons, it is down right on the part of the police to include the whole of the family as accused”
The Hon’ble Supreme Court, In Mohd. Hoshan vs. State of A.P. [7], observed “Whether one spouse has been guilt of cruelty to the other is essentially a question of fact. The impact of complaints, accusation or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the victim concerned, the social background, the environment, education etc. Further, mental cruelty varies from person to person depending on the intensity of the sensitivity, degree of courage and endurance to withstand such cruelty. Each case has to be decided on its own facts whether mental cruelty is made out”
Delhi high Court, in Savitri Devi vs. Ramesh Chand [8], categorically stated “These provisions were though made with good intentions but the implementation has left a very bad taste and the move has been counter productive. There is a growing tendency amongst the women which is further perpetuated by their parents and relatives to rope in each and every relative including minors and even school going kids nearer or distant relatives and in some cases against every person of the family of the husband whether living away or in other town or abroad and married, unmarried sisters, sisters-in-law, unmarried brothers, married uncles and in some cases grand parents or as many as 10 o 15 or even more relatives of the husband.”
Punjab and Haryana High Court, in Bhupinder Kaur and others vs. State of Punjab and others[9], held :
“From the reading of the FIR, it is evident that there is no specific allegation of any act against petitioners Nos.2 and 3, which constitute offence under s.498-A I.P.C. I am satisfied that these two persons have been falsely implicated in the present case, who were minors at the time of marriage and even at the time of lodging the present FIR. Neither of these two persons was alleged to have been entrusted with any dowry article nor they alleged to have ever demanded any dowry article. No specific allegation of demand of dowry, harassment and beating given to the complainant by the two accused has been made. The allegations made are vague and general. Moreover, it cannot be ignored that every member of the family of the husband has been implicated in the case. The initiation of criminal proceedings against them in the present case is clearly an abuse of the process of law”
The Hon’ble Supreme Court, in a relatively recent case, Sushil Kumar Sharma vs. Union of India and others[10]
“The object of the provision is prevention of the dowry menace. But as has been rightly contented by the petitioner that many instances have come to light where the complaints are not bonafide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame work.
But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used a shield and not an assassin’s weapon. If cry of “wolf” is made too often as a prank assistance and protection may not be available when the actual “wolf” appears. There is no question of investigating agency and Courts casually dealing with the allegations. They cannot follow any straitjacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that ultimate objective of every legal system is to arrive at truth, punish the guilty and protect the innocent. There is no scope for any pre-conceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the courts start with the presumptions that the accused persons are guilty and that the complainant is speaking the truth. This is too wide available and generalized statement. Certain statutory presumptions are drawn which again are rebuttable. It is to be noted that the role of the investigating agencies and the courts is that of watch dog and not of a bloodhound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally undisputable that in many cases no direct evidence is available and the courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view.”
Justice Malimath Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs, 2003 observed the following and gave the recommendation to amend the law immediately:
“16.4.4 In less tolerant impulsive woman may lodge an FIR even on a trivial act. The result is that the husband and his family may be immediately arrested and there may be a suspension or loss of job. The offence alleged being non-bailable, innocent persons languish in custody. There may be a claim for maintenance adding fuel to fire, if the husband cannot pay. She may change her mind and get into the mood to forget and forgive. The husband may realize the mistakes committed and come forward to turn a new leaf for a loving and cordial relationship. The woman may like to seek reconciliation. But this may not be possible due to the legal obstacles. Even if she wishes to make amends by withdrawing the complaint, she can not do so as the offence is non compoundable. The doors for returning to family life stand closed. She is thus left at the mercy of her natal family.
It Is pertinent to note here that, the real sufferers of the evil of dowry, the rural indian women are not even sensitized about their rights, and fail to make use of these laws.
But Some Indian Urban educated women have turned the tables and are using these laws as weapon to unleash personal vendetta on their husbands and innocent relatives.
Despite the various guidelines/recommendations of the Supreme Court of India and Justice Malimath Committee that the working of these laws should be reviewed and reformed with change in time, so that innocents are protected, and false complaints made with malafide intention are not registered, the suggested amendment to the law has been largely ignored. Unconstrained, this social evil is threatening the foundation of the Indian Family system. Feminists are now demanding even more teeth to the existing women laws, and more & more laws are being enacted for women. But the real sufferers are not sentisized enough to make use of these laws, and these laws are getting misused in the hands of some clever Indian wives.
The latest addition in a women’s legal artillery is The Protection of Women from Domestic Violence Act – This law is absolutely pro-women and anti-men, this law assumes every man as a virtual torturer” and considers only women as victims. This law is highly vague, and speaks of verbal/economical & emotional abuse, which are impossible to quantify & ascertain. Many husbands and their family members, falsely implicated in these cases have committed suicide after being jailed, unable to bear the social trauma.
Nearly 44.7% of the suicide victims were married males while only 25% were married females. This clearly shows the ratio of victims of domestic violence and gender abuse.[11]
It is high time for law makers/law enforcing agencies/judges to pay heed and review these laws in public interest to check the growing misuse of these laws to ensure impartial justice and to protect the pious and sacred institution of marriage.
________________________________________________________________________________________________________________
[1] http://www.hindu.com/2005/07/22/stories/2005072202631500.htm
[2] 1987 (1) CRIMES - 76.
[3] ( 20 May 2003 )
[4] (1990)2 Rec Cri R 243
[5] 2000 CriLJ 2993
[6] 2002 CriLJ 3605
[7] 2002 CriLJ 4124
[8] 2003 CriLJ 2759
[9] 2003 CriLJ 3394
[10]JT 2005(6) 266
[11] Source: http://ncrb.nic.in/ADSI-03.pdf
DOMESTIC VIOLENCE ACT & ITS RETROSPECTIVE EFFECT !
CRITICAL ANALYSIS OF LAW OF ADULTERY AS IT STANDS IN INDIA
Law of adultery as it stands in India punishes only man, and assumes that in all cases ‘man is the seducer’ and the women, who is an equal participant is viewed as a victim. There have been numerous debates about the discriminatory stance of the provision, The insistence of the National commission for women and the report of the Madhav Menon committee & the 42nd Report of the Law Commission of India, have breathed a new lease of life in the dying controversy. The law relating to adultery as existing in the Indian penal code under section 497 has been criticized ever since it’s commencement. Its validity both on the constitutional grounds as well as philosophical grounds has been challenged time and again. But the law still stands as it is.
Law Of Adultery As It Stands In India.
In India the law of adultery is punishable under section 497 of the IPC, but originally the framers of the code did not make adultery an offence punishable under the Code, it was the Second law commission which after giving mature consideration to the subject, came to the conclusion that it was not advisable to exclude this offence from the Code. Adultery figures in the penal law of many nations and some of the most celebrated EnglishLawyers have considered its omission from the English Law as a defect.
Section 497 [2]provides : “Whoever has sexual intercourse with a person who is and whom he known or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years or with fine, or with both. In such a case the wife shall not be punishable as an abettor.
The law commissioners have limited the cognizance of this offence to adultery committed with a married woman, and the male offender alone has been made liable to punishment.
The Problem
Prima facie unequal treatment is meted out by the law to men & women, there’s an inherent flaw, It makes the offence punishable for men but not the wife, to punish the man severely and to let the women who was an equal part to go scot free is unreasonable on the face of it, it is discriminatory that for the same act the man becomes the manifestation of evil but the woman still is considered to retain her virtues and is treated as a victim.
It is unexplainable that for the same wrongful act the man is presumed by the law to have a mens rea while no such presumption is attributed in reference to the woman.
The consent or the willingness of the woman is no impediment to the application of this section, and, as generally happens, she is quite aware of the purpose for which she is quitting her husband and is an assenting party to it.
Considering the present day situation and the vast transformation which the society has undergone, Blindly assuming that ‘man is the seducer and not the women’ would be a dangerous proposition, the boot is on the other leg these days, in a variety of cases. The law makes an irrational classification between man and woman, in restricting the class of offenders to men, where women or wife is an equal partner, it violates constitutional provisions enshrined in Articles 14,15 & 21.
The Justification taken by the Framers of the Code, and the retentionists lobby for this aberration is that owing to the atypical social conditions, it would not be just & proper to punish women equally, as they were a subjugated and exploited lot, and I am constrained to say that it was to a certain extent applicable in that era, now bygone.
The IPC, when in took form in 1860, was silent on the punishment for adultery with Lord Macaulay observing, "There are some peculiarities in the state of society in this country which may well lead a humane man to pause before he determines to punish the infidelity of wives."
The Rationale & the circumstances he referred to included child marriage and polygamy. Macaulay, hence, advised that it would be enough to treat it as a civil injury.
The framers of the code believed that if the women did the deplorable act it was pressured by their social and private conditions in life. Hence they were actually not at fault and taking into account their already depleted station in life they should not have been held liable at least in the eyes of the law.
Supreme Court On Law Of Adultery:
In 1951, one Yusuf Abdul Aziz challenged the constitutional validity of the provision. However, Bombay high court chief justice M C Chagla had upheld the provision saying the Constitution permitted such special legislation for women, it was held in this case that this section does not contravene any of the fundamental rights laid down in the Constitution of India, and therefore it is not bad or void under Articles 13. [3]
The Supreme Court observed that adultery is a wrong against the sanctity of the matrimonial home. Thus charges are pressed against the outsider who breaks the said sanctity. The woman, in cases of adultery, is considered the victim of a seducer. It appears that the court believes that the man has an unstoppable seductive charm and the woman is helpless against it. The evil that is punished by the law, in the mind of the court, is that of seduction of a woman by another man. According to the court the woman is considered to be the victim. Thus the court held that the law was non discriminatory and not violating the right to equality , thus the court upheld the constitutional validity of the section 497. The court also opined that by not allowing the spouses to prosecute each other the law offers a chance to the spouse to make-up, it was further held that “Section 497 is not violative of Articles 14, 15 & 21 of the Constitution. [4]
It is humbly submitted that the court erred in its judgment.
We must keep in mind that these reasons and defenses were given decades ago. The most important reason for debate to get re-ignited is the drastic change in the social status of women. Gone are the days when Women were a suppressed or subjugated lot, The practices of sati, child marriage, polygamy, etc, have been done away with.
Today there are laws against these evils and also laws providing effective relief against heinous acts such as domestic violence, dowry and others. Almost all professional colleges has a quota for women. Thus women today are in no way inferior to men or suppressed, and are at par with the opposite sex. The effective implementation of these laws and other women friendly provisions in the constitution insures that women, today, have an edge in the society. All this has resulted in them gaining the power of choice. They can no longer be classified as victims in cases of adultery.
What Needs To Be Done ?
It is pertinent to note here that The 42nd Law Commission Report [5] has suggested to substitute section 497 of the IPC, the substituting provision is “S. 497. Adultery – Whoever has sexual intercourse with a person who is, and whom he or she knows, or has reason to believe, to be the wife or husband, as the case may be, of another person, without the consent or connivance of that other person, such sexual intercourse by the man not amounting to the offence of rape commits adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both”
The Malimath Committee on Criminal Justice Reforms has re-iterated more or less the same argument, that men and women being equally partners in the deplorable act, should be made to stand at the same footing, and equal treatment should be meted out to them both.
Conclusion
In light of the above critical analysis, it is very much apparent & beyond doubt, that the prevailing law is not in consonance with the changed times, the law is neither socially apt nor does it stand to the principles of equality, from absolute conservatism to absolute liberty, the social fabric of our country has undergone a drastic change. It is high time that Recommendations made by the Justice Malimath Committee and the 42nd Report of the Law Commission be taken into consideration religiously, and necessary amendments be made to Sec. 497 IPC, so as to do away with the irregularities, and in the interest of doctrine of equality.
--------------------------------------------------------------------------------
[2] Section 497, Indian Penal Code, (45 of 1860)
[3] Yusuf Abdul Aziz AIR 1951 Bom 470 .
[4] Sowmithri Vishnu v. Union of India, AIR 1985 SC 1618.
[5] The Law Commission of India, 42nd Report, Para 20.17; p. 326
Law Of Adultery As It Stands In India.
In India the law of adultery is punishable under section 497 of the IPC, but originally the framers of the code did not make adultery an offence punishable under the Code, it was the Second law commission which after giving mature consideration to the subject, came to the conclusion that it was not advisable to exclude this offence from the Code. Adultery figures in the penal law of many nations and some of the most celebrated EnglishLawyers have considered its omission from the English Law as a defect.
Section 497 [2]provides : “Whoever has sexual intercourse with a person who is and whom he known or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years or with fine, or with both. In such a case the wife shall not be punishable as an abettor.
The law commissioners have limited the cognizance of this offence to adultery committed with a married woman, and the male offender alone has been made liable to punishment.
The Problem
Prima facie unequal treatment is meted out by the law to men & women, there’s an inherent flaw, It makes the offence punishable for men but not the wife, to punish the man severely and to let the women who was an equal part to go scot free is unreasonable on the face of it, it is discriminatory that for the same act the man becomes the manifestation of evil but the woman still is considered to retain her virtues and is treated as a victim.
It is unexplainable that for the same wrongful act the man is presumed by the law to have a mens rea while no such presumption is attributed in reference to the woman.
The consent or the willingness of the woman is no impediment to the application of this section, and, as generally happens, she is quite aware of the purpose for which she is quitting her husband and is an assenting party to it.
Considering the present day situation and the vast transformation which the society has undergone, Blindly assuming that ‘man is the seducer and not the women’ would be a dangerous proposition, the boot is on the other leg these days, in a variety of cases. The law makes an irrational classification between man and woman, in restricting the class of offenders to men, where women or wife is an equal partner, it violates constitutional provisions enshrined in Articles 14,15 & 21.
The Justification taken by the Framers of the Code, and the retentionists lobby for this aberration is that owing to the atypical social conditions, it would not be just & proper to punish women equally, as they were a subjugated and exploited lot, and I am constrained to say that it was to a certain extent applicable in that era, now bygone.
The IPC, when in took form in 1860, was silent on the punishment for adultery with Lord Macaulay observing, "There are some peculiarities in the state of society in this country which may well lead a humane man to pause before he determines to punish the infidelity of wives."
The Rationale & the circumstances he referred to included child marriage and polygamy. Macaulay, hence, advised that it would be enough to treat it as a civil injury.
The framers of the code believed that if the women did the deplorable act it was pressured by their social and private conditions in life. Hence they were actually not at fault and taking into account their already depleted station in life they should not have been held liable at least in the eyes of the law.
Supreme Court On Law Of Adultery:
In 1951, one Yusuf Abdul Aziz challenged the constitutional validity of the provision. However, Bombay high court chief justice M C Chagla had upheld the provision saying the Constitution permitted such special legislation for women, it was held in this case that this section does not contravene any of the fundamental rights laid down in the Constitution of India, and therefore it is not bad or void under Articles 13. [3]
The Supreme Court observed that adultery is a wrong against the sanctity of the matrimonial home. Thus charges are pressed against the outsider who breaks the said sanctity. The woman, in cases of adultery, is considered the victim of a seducer. It appears that the court believes that the man has an unstoppable seductive charm and the woman is helpless against it. The evil that is punished by the law, in the mind of the court, is that of seduction of a woman by another man. According to the court the woman is considered to be the victim. Thus the court held that the law was non discriminatory and not violating the right to equality , thus the court upheld the constitutional validity of the section 497. The court also opined that by not allowing the spouses to prosecute each other the law offers a chance to the spouse to make-up, it was further held that “Section 497 is not violative of Articles 14, 15 & 21 of the Constitution. [4]
It is humbly submitted that the court erred in its judgment.
We must keep in mind that these reasons and defenses were given decades ago. The most important reason for debate to get re-ignited is the drastic change in the social status of women. Gone are the days when Women were a suppressed or subjugated lot, The practices of sati, child marriage, polygamy, etc, have been done away with.
Today there are laws against these evils and also laws providing effective relief against heinous acts such as domestic violence, dowry and others. Almost all professional colleges has a quota for women. Thus women today are in no way inferior to men or suppressed, and are at par with the opposite sex. The effective implementation of these laws and other women friendly provisions in the constitution insures that women, today, have an edge in the society. All this has resulted in them gaining the power of choice. They can no longer be classified as victims in cases of adultery.
What Needs To Be Done ?
It is pertinent to note here that The 42nd Law Commission Report [5] has suggested to substitute section 497 of the IPC, the substituting provision is “S. 497. Adultery – Whoever has sexual intercourse with a person who is, and whom he or she knows, or has reason to believe, to be the wife or husband, as the case may be, of another person, without the consent or connivance of that other person, such sexual intercourse by the man not amounting to the offence of rape commits adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both”
The Malimath Committee on Criminal Justice Reforms has re-iterated more or less the same argument, that men and women being equally partners in the deplorable act, should be made to stand at the same footing, and equal treatment should be meted out to them both.
Conclusion
In light of the above critical analysis, it is very much apparent & beyond doubt, that the prevailing law is not in consonance with the changed times, the law is neither socially apt nor does it stand to the principles of equality, from absolute conservatism to absolute liberty, the social fabric of our country has undergone a drastic change. It is high time that Recommendations made by the Justice Malimath Committee and the 42nd Report of the Law Commission be taken into consideration religiously, and necessary amendments be made to Sec. 497 IPC, so as to do away with the irregularities, and in the interest of doctrine of equality.
--------------------------------------------------------------------------------
[2] Section 497, Indian Penal Code, (45 of 1860)
[3] Yusuf Abdul Aziz AIR 1951 Bom 470 .
[4] Sowmithri Vishnu v. Union of India, AIR 1985 SC 1618.
[5] The Law Commission of India, 42nd Report, Para 20.17; p. 326
LITIGATION & DELAYS IN INDIA
The word ‘Litigation’ in common parlance is used to refer to a controversy before a law court or simply put a ‘lawsuit’, but with the total pendency at last count exceeding 30 million cases, in a country characterized by grave economic conditions like ours it has become a luxury which few can afford.
The Right to Litigate or the Right to get Access to Justice, has been amply provided in our Constitution & other national as well as international instruments, but David Porter of US Navy puts “Litigation as the basic legal right that guarantees every corporation its decade in court” obviously he said that in context of the Courts of America, but the situation is no better here, rather worse, decade is replaced by 15 years (which according to one study is the average life span of a case in India[1]), clearly I don’t mean to endorse or even acquiesce with such pessimistic views but the level of implementation or the justice delivery system required to give life to these provisions, are grossly inadequate, & are fraught with various imperfections & evils such as Corruption, Delays etc, …with delay being the major dent in the credibility of the system, as a famous saying goes “Justice Delayed is Justice Denied”…and due to these delays even after the most elaborately devised system of rights & obligations of people, being present, justice still remains a distant dream for the layman…but the silver lining is that Judiciary remains the most honest & trusted of the three governmental organs, & measures up remarkably well on the yardsticks of independence, fairness & acts as the custodian of the rights of the common man, it was meant to be & still commands respect, but the confidence it used to inspire among the people is corroding, the main reason behind the wounded credibility are the delays in justice delivery system.
The real culprit is the huge pendency of cases before subordinate courts right upto the Supreme Court. Justice S.B.Sinha recently in a day long awareness programme for Judicial officers ‘termed this is a gigantic problem, and his lordship, who is also the chairman of Mediation & Concilliation Project Committee went on to say “these undue delays are making people shy from justice delivery system”, Justice Sinha further remarked that “We should uphold the maintenance of law and Constitutional values and do not forget that access to justice to everyone should be given utmost preference”[2]
The main reasons behind this huge pendency, or to be exact the influx of a large number of cases, are recent socio-economic advances and the resultant sensitization regarding legal rights, has led to a flood of people, increasingly approaching the courts of law, for the realization of their rights, but the existing Indian Judicial System, I am afraid to say has not kept up with the huge population & educational boom, & is fraught with problems such as ‘low judge to population ratio’, and as a large portion of these cases are against the government, disputes which could have been resolved at the outset with the authorities itself, due to improper governmental administration, these disputes also end up coming before the courts, as to this matter Dr.Manmohan Singh in a discussion, referred to the survey conducted in Karnataka according to which in 65% of civil cases the Government was a litigant and in 95% the appeals filed by it failed, the great villainous role played by the governmental administration becomes apparent by this, Couple this with the rampant corruption, Shortage of Funds, Staff, Infrastructural shortcomings, and you have the perfect recipe of a disaster or more succinctly put a ‘litigant’s nightmare’
Coming to the solution, The Intellectuals at Law Commission coming out with a fantastic & realistically sound solutions every now & then & the implementing authorities & the people in power not paying the slightest heed to it, has become needless to say almost customary now, the same happened in the present context too, the Law Commission in its 120th report[3], submitted way back in 31-7-1987 recommended optimum figure of 107 judges per million by 2000, the ratio achieved by USA in the year 1981. It also recommended ratio of 50 judges per million of population, within a period of 5 years which was endorsed by the Standing Committee of Parliament headed by Shri Pranab Mukherjee, in its 85th report submitted in February 2002. The Supreme Court also directed increase in judges’ strength to 50 per million in a phased manner. But despite all this, the strength of judges has not been increased, that is why also the judiciary is facing difficulties in tackling the problem of mounting arrears, the sorry state of affairs is apparent from the fact that India still has fewer judges than 15 per million, if compared to Canada [about 75 per million] & the USA [104 per million] it sounds drastically inappropriate to deal with the situation, furthermore The Law Commission in its 125th Report (1988) [4]recommended introducing shift system in the Supreme Court. In 1999, the then Law Minister, thought of shift system in all courts, but could not implement it. Shift system is in vogue in industrial establishments and some educational institutions because of necessity. With minimum cost, the shift system can yield maximum output, providing immense relief to lakhs of helpless litigants, endlessly waiting for justice, but in its entirety this system was never realised.
Another reason for the same is that judiciary accounts for just a mere meagre portion in the allocation of expenditure, for eg. In the tenth plan the judiciary was allocated a mere 0.078 per cent of the total expenditure, a small crumb more than the 0.071 per cent assigned in the Ninth Plan.
It is also pertinent to note here that the Prime Ministers have been traditionally averse to discussing Judiciary’s ailments or the plight of litigation in India, and it was no different this time as well, where the torturous state of litigation figured nowhere in the Prime Ministerial Speech on Independence Day, though he made amends & accepted the problem very next day at a conference. [5]
The Silver Lining is that if viewed from a different perspective, the Huge volume of new cases, coming up, is a definite sign of people reposing their faith in the administration of justice. It is a matter of contentment that the public at large continues to hold our judicial system by and large in high esteem despite their shortcomings and handicaps, and in order to sustain the continued faith of people in the justice delivery system – the huge pendency of cases need to be brought down to a manageable limit, so that cases are dealt & disposed in a more speedy & more efficient manner & to ensure that justice is hurried but not at all buried.
The brighter part of the problem is that the Anti-dotes to the problem, are not one but many, and if implemented with heart & soul, will reap great benefits.
ADR’s Alternative Dispute Resolution Mechanisms, The philosophy of ADR systems is amply stated in the words of Abraham Lincoln “Discourage litigation, persuade your neighbors to compromise whenever you can. Point out to them how the normal winner is often a loser in fees, expenses, cost and time, as a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.”
Litigation through the courts and tribunals established by the State is one way of resolving the dispute which is an adversarial method of dispute resolution which leads to win-lose situation whereas in Alternative Disputes Resolution what is tried to be achieved is win-win situation for both the parties to the case. There is nobody who is loser and both parties feel satisfied at the end of the day. The ADR mechanisms include arbitration, negotiation, mediation and conciliation. Section 89 of the Code of Civil Procedure has been amended w.e.f. 1-7-2002 with a view to bring alternative systems into the mainstream. The challenge that we are facing today is bringing about awareness among the people about the utility of ADR and simultaneously developing personnel who will be able to use ADR methods effectively with integrity. This will not only provide speedy and inexpensive justice and reduce litigation, but will also bring peace and harmony in the society. Corporate entities & establishments are already reaping the benefits of ADR’s, but it is high time these ADR’s are introduced in day-2-day litigation as well
Fast Track Courts
Fast Track courts have proved their mettle, & their importance cannot be emphasized enough, on the recommendation of the 11th Finance Commission, 1734 Fast Track Courts of Sessions Judges were sanctioned for disposal of old pending cases and the said scheme was to end on 31-3-2005. Out of 18,92,583 cases, 10,99,828 have been disposed of by these courts. Keeping in view the performance of Fast Track Courts and contribution made by them towards clearing the backlog, the scheme has been extended till 31-3-2010.
In view of the contribution made by the Fast Track Courts of Sessions Judges towards clearing of backlog, and number of huge pendency of cases triable by Magisterial Courts being 1,66,77,657 as on 31-12-2006, there is an urgent need to formulate a similar scheme for setting up of Fast Track Courts of Magistrates in each State and Union Territory.
Mobile courts
Mobile courts that help taking justice to the door-step of the rural would significantly help in fighting the backlog, Mobile courts are also being set up which would not only educate the rural folk about their rights and responsibilities and provide swift justice and create a feeling of law and judiciary being very close to them, but will also help de-clog the expanding docket of our overburdened courts.
Lok Adalats
In order to achieve the objective enshrined in Article 39 A of the Constitution of India, the Legal Services Authorities Act, 1987 was enacted to provide free and competent legal service to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. To achieve that objective, Lok Adalats are being held at various places in the country and a large number of cases are being disposed of with lesser costs. Mobile Lok Adalats are presently in place in different parts of the State of Bihar and on the lines of steps taken by the High Court of Patna of holding mobile Lok Adalats, the other High Courts need also work on the same lines so that speedy and affordable justice could be made available to the litigants at their doorsteps.
Setting up of Gram Nyayalayas
Ministry of Law & Justice is going to draw a Gram Nyayalayas Bill with an objective to secure justice, both civil and criminal, at the grass-root level to the citizens, which would be the lowest court of subordinate judiciary and shall provide easy access to justice to litigant through friendly procedures, use of local language and mobile courts wherever necessary.
Last but not the least Plea bargaining - With the insertion of new Chapter XXI-A in the Code of Criminal Procedure by Act 2 of 2006, the concept of “Plea Bargaining” became a reality and part of our criminal jurisprudence. The practice of plea bargaining is prevalent in western countries, particularly the United States, the United Kingdom and Australia. In the United States, plea bargaining has gained very high popularity, whereas it is applied only in a restricted sense in the other two countries. Plea bargaining benefits both the State and the offender; while the State saves time, money and effort in prosecuting the suspects, the latter gets a lenient punishment by pleading guilty. One of the merits of this system is that it helps the court to manage its load of work and hence it would result in reduction of backlog of cases.
Plea bargaining apart, if the list of compoundable offences is widened and more offences are included therein and made compoundable, it too will help in making a dent in the mounting arrears and saving time of the courts.
Apart from these measures, increased use of technology, for e.g recording evidence through video conferencing, would reduce the hassles associated with a trial.
Concluding, If followed properly the above measures would go a long way, to ensure the that ‘’litigation’ for a smooth affair for a litigant, as this is very pertinent to ensure & sustain people’s faith in judiciary, & in the last to nullify the very common bar room anecdote ‘that in the average Indian litigation winner is the loser and the loser is dead’.
--------------------------------------------------------------------------------
[1] The Times of India, New Delhi – Monday August 17, 2009.
[2] http://www.dnaindia.com/india/report_pendency-of-cases-are-gigantic-problems-sc-judge_1264662
[3] http://lawcommissionofindia.nic.in/old_reports/rpt120.pdf
[4] http://lawcommissionofindia.nic.in/reports/report229.pdf
[5] Times of India, New Delhi, August 17th, 2009
The Right to Litigate or the Right to get Access to Justice, has been amply provided in our Constitution & other national as well as international instruments, but David Porter of US Navy puts “Litigation as the basic legal right that guarantees every corporation its decade in court” obviously he said that in context of the Courts of America, but the situation is no better here, rather worse, decade is replaced by 15 years (which according to one study is the average life span of a case in India[1]), clearly I don’t mean to endorse or even acquiesce with such pessimistic views but the level of implementation or the justice delivery system required to give life to these provisions, are grossly inadequate, & are fraught with various imperfections & evils such as Corruption, Delays etc, …with delay being the major dent in the credibility of the system, as a famous saying goes “Justice Delayed is Justice Denied”…and due to these delays even after the most elaborately devised system of rights & obligations of people, being present, justice still remains a distant dream for the layman…but the silver lining is that Judiciary remains the most honest & trusted of the three governmental organs, & measures up remarkably well on the yardsticks of independence, fairness & acts as the custodian of the rights of the common man, it was meant to be & still commands respect, but the confidence it used to inspire among the people is corroding, the main reason behind the wounded credibility are the delays in justice delivery system.
The real culprit is the huge pendency of cases before subordinate courts right upto the Supreme Court. Justice S.B.Sinha recently in a day long awareness programme for Judicial officers ‘termed this is a gigantic problem, and his lordship, who is also the chairman of Mediation & Concilliation Project Committee went on to say “these undue delays are making people shy from justice delivery system”, Justice Sinha further remarked that “We should uphold the maintenance of law and Constitutional values and do not forget that access to justice to everyone should be given utmost preference”[2]
The main reasons behind this huge pendency, or to be exact the influx of a large number of cases, are recent socio-economic advances and the resultant sensitization regarding legal rights, has led to a flood of people, increasingly approaching the courts of law, for the realization of their rights, but the existing Indian Judicial System, I am afraid to say has not kept up with the huge population & educational boom, & is fraught with problems such as ‘low judge to population ratio’, and as a large portion of these cases are against the government, disputes which could have been resolved at the outset with the authorities itself, due to improper governmental administration, these disputes also end up coming before the courts, as to this matter Dr.Manmohan Singh in a discussion, referred to the survey conducted in Karnataka according to which in 65% of civil cases the Government was a litigant and in 95% the appeals filed by it failed, the great villainous role played by the governmental administration becomes apparent by this, Couple this with the rampant corruption, Shortage of Funds, Staff, Infrastructural shortcomings, and you have the perfect recipe of a disaster or more succinctly put a ‘litigant’s nightmare’
Coming to the solution, The Intellectuals at Law Commission coming out with a fantastic & realistically sound solutions every now & then & the implementing authorities & the people in power not paying the slightest heed to it, has become needless to say almost customary now, the same happened in the present context too, the Law Commission in its 120th report[3], submitted way back in 31-7-1987 recommended optimum figure of 107 judges per million by 2000, the ratio achieved by USA in the year 1981. It also recommended ratio of 50 judges per million of population, within a period of 5 years which was endorsed by the Standing Committee of Parliament headed by Shri Pranab Mukherjee, in its 85th report submitted in February 2002. The Supreme Court also directed increase in judges’ strength to 50 per million in a phased manner. But despite all this, the strength of judges has not been increased, that is why also the judiciary is facing difficulties in tackling the problem of mounting arrears, the sorry state of affairs is apparent from the fact that India still has fewer judges than 15 per million, if compared to Canada [about 75 per million] & the USA [104 per million] it sounds drastically inappropriate to deal with the situation, furthermore The Law Commission in its 125th Report (1988) [4]recommended introducing shift system in the Supreme Court. In 1999, the then Law Minister, thought of shift system in all courts, but could not implement it. Shift system is in vogue in industrial establishments and some educational institutions because of necessity. With minimum cost, the shift system can yield maximum output, providing immense relief to lakhs of helpless litigants, endlessly waiting for justice, but in its entirety this system was never realised.
Another reason for the same is that judiciary accounts for just a mere meagre portion in the allocation of expenditure, for eg. In the tenth plan the judiciary was allocated a mere 0.078 per cent of the total expenditure, a small crumb more than the 0.071 per cent assigned in the Ninth Plan.
It is also pertinent to note here that the Prime Ministers have been traditionally averse to discussing Judiciary’s ailments or the plight of litigation in India, and it was no different this time as well, where the torturous state of litigation figured nowhere in the Prime Ministerial Speech on Independence Day, though he made amends & accepted the problem very next day at a conference. [5]
The Silver Lining is that if viewed from a different perspective, the Huge volume of new cases, coming up, is a definite sign of people reposing their faith in the administration of justice. It is a matter of contentment that the public at large continues to hold our judicial system by and large in high esteem despite their shortcomings and handicaps, and in order to sustain the continued faith of people in the justice delivery system – the huge pendency of cases need to be brought down to a manageable limit, so that cases are dealt & disposed in a more speedy & more efficient manner & to ensure that justice is hurried but not at all buried.
The brighter part of the problem is that the Anti-dotes to the problem, are not one but many, and if implemented with heart & soul, will reap great benefits.
ADR’s Alternative Dispute Resolution Mechanisms, The philosophy of ADR systems is amply stated in the words of Abraham Lincoln “Discourage litigation, persuade your neighbors to compromise whenever you can. Point out to them how the normal winner is often a loser in fees, expenses, cost and time, as a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.”
Litigation through the courts and tribunals established by the State is one way of resolving the dispute which is an adversarial method of dispute resolution which leads to win-lose situation whereas in Alternative Disputes Resolution what is tried to be achieved is win-win situation for both the parties to the case. There is nobody who is loser and both parties feel satisfied at the end of the day. The ADR mechanisms include arbitration, negotiation, mediation and conciliation. Section 89 of the Code of Civil Procedure has been amended w.e.f. 1-7-2002 with a view to bring alternative systems into the mainstream. The challenge that we are facing today is bringing about awareness among the people about the utility of ADR and simultaneously developing personnel who will be able to use ADR methods effectively with integrity. This will not only provide speedy and inexpensive justice and reduce litigation, but will also bring peace and harmony in the society. Corporate entities & establishments are already reaping the benefits of ADR’s, but it is high time these ADR’s are introduced in day-2-day litigation as well
Fast Track Courts
Fast Track courts have proved their mettle, & their importance cannot be emphasized enough, on the recommendation of the 11th Finance Commission, 1734 Fast Track Courts of Sessions Judges were sanctioned for disposal of old pending cases and the said scheme was to end on 31-3-2005. Out of 18,92,583 cases, 10,99,828 have been disposed of by these courts. Keeping in view the performance of Fast Track Courts and contribution made by them towards clearing the backlog, the scheme has been extended till 31-3-2010.
In view of the contribution made by the Fast Track Courts of Sessions Judges towards clearing of backlog, and number of huge pendency of cases triable by Magisterial Courts being 1,66,77,657 as on 31-12-2006, there is an urgent need to formulate a similar scheme for setting up of Fast Track Courts of Magistrates in each State and Union Territory.
Mobile courts
Mobile courts that help taking justice to the door-step of the rural would significantly help in fighting the backlog, Mobile courts are also being set up which would not only educate the rural folk about their rights and responsibilities and provide swift justice and create a feeling of law and judiciary being very close to them, but will also help de-clog the expanding docket of our overburdened courts.
Lok Adalats
In order to achieve the objective enshrined in Article 39 A of the Constitution of India, the Legal Services Authorities Act, 1987 was enacted to provide free and competent legal service to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. To achieve that objective, Lok Adalats are being held at various places in the country and a large number of cases are being disposed of with lesser costs. Mobile Lok Adalats are presently in place in different parts of the State of Bihar and on the lines of steps taken by the High Court of Patna of holding mobile Lok Adalats, the other High Courts need also work on the same lines so that speedy and affordable justice could be made available to the litigants at their doorsteps.
Setting up of Gram Nyayalayas
Ministry of Law & Justice is going to draw a Gram Nyayalayas Bill with an objective to secure justice, both civil and criminal, at the grass-root level to the citizens, which would be the lowest court of subordinate judiciary and shall provide easy access to justice to litigant through friendly procedures, use of local language and mobile courts wherever necessary.
Last but not the least Plea bargaining - With the insertion of new Chapter XXI-A in the Code of Criminal Procedure by Act 2 of 2006, the concept of “Plea Bargaining” became a reality and part of our criminal jurisprudence. The practice of plea bargaining is prevalent in western countries, particularly the United States, the United Kingdom and Australia. In the United States, plea bargaining has gained very high popularity, whereas it is applied only in a restricted sense in the other two countries. Plea bargaining benefits both the State and the offender; while the State saves time, money and effort in prosecuting the suspects, the latter gets a lenient punishment by pleading guilty. One of the merits of this system is that it helps the court to manage its load of work and hence it would result in reduction of backlog of cases.
Plea bargaining apart, if the list of compoundable offences is widened and more offences are included therein and made compoundable, it too will help in making a dent in the mounting arrears and saving time of the courts.
Apart from these measures, increased use of technology, for e.g recording evidence through video conferencing, would reduce the hassles associated with a trial.
Concluding, If followed properly the above measures would go a long way, to ensure the that ‘’litigation’ for a smooth affair for a litigant, as this is very pertinent to ensure & sustain people’s faith in judiciary, & in the last to nullify the very common bar room anecdote ‘that in the average Indian litigation winner is the loser and the loser is dead’.
--------------------------------------------------------------------------------
[1] The Times of India, New Delhi – Monday August 17, 2009.
[2] http://www.dnaindia.com/india/report_pendency-of-cases-are-gigantic-problems-sc-judge_1264662
[3] http://lawcommissionofindia.nic.in/old_reports/rpt120.pdf
[4] http://lawcommissionofindia.nic.in/reports/report229.pdf
[5] Times of India, New Delhi, August 17th, 2009