Judgments
https://www.patnahighcourt.gov.in/bja/Notices.aspx?JUDGMENTS
DV
1.
https://indiankanoon.org/doc/157955715/
The most important part "4. A perusal of Domestic Violence Act shows that Domestic Violence Act does not create any additional right in favour of wife regarding maintenance. It only enables the Magistrate to pass a maintenance order as per the rights available under existing laws. While, the Act specifies the duties and functions of protection officer, police officer, service providers, magistrate, medical facility providers and duties of Government, the Act is silent about the duties of husband or the duties of wife. Thus, maintenance can be fixed by the Court under Domestic Violence Act only as per prevalent law regarding providing of maintenance by husband to the wife. Under prevalent laws i.e. Hindu Adoption & Maintenance Act, Hindu Marriage Act, Section 125 Cr.P.C - a husband is supposed to maintain his un-earning spouse out of the income which he earns. No law provides that a husband has to maintain a wife, living separately from him, irrespective of the fact whether he earns or not. Court cannot tell the husband that he should beg, borrow or steal but give maintenance to the wife, more so when the husband and wife are almost equally qualified and almost equally capable of earning and both of them claimed to be gainfully employed before marriage."
Shyama kumar devada - onus on wife to prove dv
Unclean hands:
There are some SC, HC judgements regarding the unclean hands, supressing the material facts that such litigants are not entitled to be heard on the merits of their case, and such litigants should be shown the exit door at the earliest point of time. Mostly these judgements are not related to matrimonial dispute.
Can such judgement be used in matrimonial cases?
If yes, then are there chances that the case will get dismissed?
Judge already mentioned in one order she did no came with clean hand and suppressed the income things.
If I again prove still she is trying to play hide and seek, will their be chances to get the case dismis sed.
Government ask husbands to pay hefty maintenance amount however they give less pensions....even compensation on natural disaster etc.
2. The decision in S. Vanitha vs. Deputy Commissioner, Bengaluru Urban District and Others 2020 SCC OnLine SC 1023 is also a judgment in this context which too talk of balancing of rights - between old parents laying claim to their house while right of wife in shared household.
Admittedly, the right of residence under Section 19 of the DV Act is not an indefeasible right of residence in shared household, especially, when the daughter-in-law is pitted against aged father-in-law and mother-in-law
3. Ravneeth Kaur vs Pritpal Singh Dhingra https://drive.google.com/file/d/1h4qQwyGUJCq9Dng2RqDXRUISfOY9VkYo/view?usp=sharing
4. Landmark SC judgment on shared household & rights - Satish Chander Ahuja vs. Sneha Ahuja AIR 2020 SC 5397
125
1.
SC judgment - CRIMINAL APPEAL NOS.286 OF 2020 (ARISING OUT OF SLP(CRL.)NO.1041 OF 2020) SANJEEV KAPOOR VERSUS CHANDANA KAPOOR & ORS.
125 is social justice. maintenance to be awarded within 60 days. Reviews few other cases as well. Available here
2. A person went for quashing 125 interim order u/s 482 CRPC. HC observed that interim order is interim in nature and any objections raised by the person can be raised before the family court itself.
Mithilesh Maurya v. State of U.P., Application u/s 482 no. – 19612 of 2020, decided on 08-01-2021. Link
3. https://indiankanoon.org/doc/192385045/
If the petitioner / husband is able to secure a befitting employment for the respondent / wife and inspite thereof the respondent / wife does not work, then perhaps it may be open to the petitioner / husband to seek modification of the order of payment of maintenance. Else, we are a country of shortages, with large scale unemployment in all fields and I am unable to find myself interfering with the impugned order on such hypothetical pleas.
4. No maintenance to qualified wife
DHC, Aug 29 2016, RUPALI GUPTA Vs
| |
MAT.APP.(F.C.) 143/2014 |
HON'BLE MS. JUSTICE PRATIBHA RANI
5. the High Court of Madras in Manokaran v. M. Devaki, 2003 SCC Online Mad 135, while construing the provision of Section 24 of the Hindu Marriage Act and relying on its earlier decision in Kumaresan v. Aswathi, 2002 SCC Online Mad 377 held that for grant of maintenance pendent lite, the party should not have sufficient independent income for her/his support. The Court also noted that in the context of award of interim maintenance under Section 24 to a well-qualified spouse having the earning capacity but desirous of remaining idle has been deprecated in the decision in Mamta Jaiswal v. Rajesh Jaiswal, 2000 (3) MPLJ 100.
6.• Section.125 CRPC Maintenance Claim by Wife left matrimonial home and thereafter no effort made by her to join the matrimonial home Husband is interested in continuing the marital life with wife and therefore, filed petition seeking restitution of conjugal rights Wife failed to prove that husband has either willfully refused or neglected to maintain her Wife herself had abandoned the matrimonial home and since then, for more than 10 years she is residing separately Held, wife is not entitled to claim maintenance. (Para 6)
Shubha vs Satish MFA 5732/15 10/03/23 [ ALOK JJ ]
[ KARNATAKA HIGH COURT ]queries:
https://indiankanoon.org/search/?formInput=qualified%20wife%20cannot%20sit%20idle&pagenum=1
498a / 406
1. Mere Recovery Of Stridhan Can't Be Sole Ground For Arresting A Person For Offences U/S 498A, 406 IPC: Delhi High Court
https://www.livelaw.in/news-updates/delhi-high-court-istridhan-recovery-not-ground-to-arrest-dowry-section-498a-406-ipc-187581a) Ordinary quarrel by stretch of imagination do not attract 498A - https://indiankanoon.org/doc/1379620/ (Pandurang Katti Vs State of Karnataka)
b) "Hon'ble Apex Court in its various pronouncements have clearly opined that it is risky to blindly rely upon victims 161 and 164 Cr.P.C. statements without having any supporting, independent documentary proof or any other confidence generating material collected during investigation." [Made during rape case bail application
c)
"There were mere allegations of criminal breach of trust against the petitioner, which entailed a maximum sentence of three years. It did not warrant the arrest of a person in the manner in which it was done. The petitioner’s own complaints to the police were not responded to... It is not the petitioner only who has suffered the humiliation and the indignity of being arrested; the ordeal would have affected the reputation of his family i.e. his children, wife and parents...Arrest and incarceration destroys a person and collaterally affects many other innocent relatives." Judgment Link
Divorce
1. Divorce reversed because desertion not proved. Wife said she wants to stay. Seema Rathee vs Ajay Kumar Rathee on 8 September, 2009 (indiankanoon.org)
2. Isolated incidents not a ground of cruelty. Also, physical cruelty is different from mental cruelty. SC Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511
Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
3. Sivasnkaran v Santhimeenal where the Apex Court said that a marriage is more than a union between two individuals.
4. A number of provisions are available under Hindu Marriage Act. The provisions show that an endeavor has to be made to protect the institution of marriage. It is essential not only for the couple but for entire family which includes the children and parents. The object of Section 13B(2) read with Section 14 is to save the institution of marriage by preventing hasty dissolution.
5. https://drive.google.com/file/d/1Ih3a0Ye2LVhCoWuzljPoncv0aTwA7Nlx/view?usp=sharing
Wife Filed Unsubstantiated Criminal Complaint Against Husband, His Family Causing Immense Mental Cruelty": Delhi HC Dissolves Marriage
6. In Vinita Saxena v. Pankaj Pandit, (2006) 3 SCC 778, the Court said;
"It is settled by a catena of decisions that mental cruelty can cause even more serious injury than the physical harm and create in the mind of the injured appellant such apprehension as is contemplated in the section. It is to be determined on whole facts of the case and the matrimonial relations between the spouses. To amount to cruelty, there must be such willful treatment of the party which caused suffering in body or mind either as an actual fact or by way of apprehension in such a manner as to render the continued living together of spouses harmful or injurious having regard to the circumstances of the case.
https://indiankanoon.org/doc/1804316/
7.
Child Custody
read perry kensagra, yashita sahu, amyra dwivedi, vivek singh and other landmark judgments again and again which should be sufficient for all pruposes.
Amyra dwivedi - https://indiankanoon.org/doc/181379387/
DHC - https://drive.google.com/file/d/1rryX_z9ACc7HY7BWdhgQMsyY2lTpxwPy/view?usp=sharing (Kinri Dhir vs Veer Singh; geeta luthra; rebecca john)
Vivek Romani singh - https://indiankanoon.org/doc/48721287/ (Search query - contact rights father child)
1. The Supreme Court recently observed in an order that a daughter who expects her father to support her education must also play a role as a daughter (Ajay Kumar Rathee v. Seema Rathee). 9 dec 2021. Link
2. Padmaja judgment of SC on sharing child expenses in proportion to income
3. Judgments in favor of father:
1. Jitender Arora v. Sukriti Arora [(2017)3 SCC 726]
2. Vishnu v. Jaya [(2010)6 SCC 733]
3. Nil Ratan Kundu v. Abhijit Kundu [(2008)9 SCC 413]
4. Sheila B. Das v. P.R. Sugasree [(2006)3 SCC 62]
5. Chethana Ramatheertha v. Kumar V. Jahgirdar [ILR 2003 KAR 1205]
6. Sarita Sharma v. Sushil Sharma [(2000)3 SCC 14]
7. Jasmeet Kaur v. Navtej Singh [(2018)4 SCC 295]
8. Nithya Anand Raghavan v. State (NCT of Delhi) [(2017)8 SCC 454]
9. Mohan Kumar Rayana v. Komal Mohan Rayana [(2010)5 SCC 657]
10. Y. Narasimha Rao v. Y. Venkata Lakshmi [(1991)3 SCC 451]
11. Vivek Singh v. Romani Singh [(2017)3 SCC 231]
12. Ruchi Majoo v. Sanjeev Majoo [(2011)6 SCC 479]
"A Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well being of the child. In selecting a guardian, the Court is exercising parens patriae jurisdiction and is expected to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings and the Court should also take the wishes of the minor child into consideration.
(From: https://indiankanoon.org/doc/187861929/) The Division Bench of this Court in the case of Chethana Ramatheertha vs. Kumar V. Jahgirdar reported in ILR 2003 KAR 1205 while considering the provisions of Sections 25 and 26 of the Hindu Marriage Act, held at Paragraph-27 as under:
27. In disputes relating to the custody of the minor children, the consideration can only be the welfare of the child and the rights of the parents has to yield or give way, is a proposition now very well established and recognised by Courts. The historical concept that the father of a minor child is in a better or superior position to take care of the child has as of now given way to the modern thinking that it is not necessarily so; that either parent is equally capable of taking care of the child; that the question of custody should always be decided by taking into consideration the facts and circumstances that prevail in each case; the ability of the parents to provide necessary facilities - environmental, companionship, love and affection, are all factors which Courts have to bear in mind in deciding the question. The question is not viewed any more from the angle of "which parent has a better right", but from the approach as to "the company of which of the two parents is better suited for the integrated development of the personality of the child" and "as to whether the child receives the necessary inputs if it is in the company of a particular parent, for a healthy growth and development of the personality of the child". In fact, as one could perceive, the child always needs the company of both parents for such growth and development. The Child desires and yearns for the company of both parents.
- orders of custody of a minor is always of interlocutory nature and can be revisited by the court which has passed the decree of divorce. Refer to the decisions of Supreme Court reported in AIR 2010 SC 1675 (Vikram Vir Vohra -vs- Shalini Bhalla), AIR 2013 SC 102 (Gaytri Bajaj -vs- Jiten Bhalla) and a decision of Punjab and Haryana High Court reported in 2015(2) PLR 15 (Maynak Bhargava -vs- Jyoti Bhargava).
- Sec 13 of HMGA overrides all other provisions and is the ultimate provision.
1) David Jude vs Hannah Grace Jude And Others, Contemnor Mother
Supreme Court, 30-Jul-2003
Verdict : ₹ 50,000 cost & 3 months jail
2) Rajesh_Surana_vs_Rekha
Madras High Court, 14-Nov-2008
Contemnor Mother, ₹ 2,000 cost & 1 month jail
3) Douglas Breckenridge Vs Jhilmil Breckenridge, Contemnor Mother
Delhi High Court, 21-Feb-2012
Verdict : ₹ 2,00,000 cost
4) Aman Oberoi vs Tina Oberoi, Contemnor Mother
Delhi High Court, 08-Jul-2008
Verdict : ₹ 25,000 cost
( Collection of Sri Arijit Mitra).
MRINAL DEYATI, 06/9/2022.
. .. .. - " It is very unfortunate that the mother, by her actions, has stirred up an extremely complex situation in the track of her child’s education, the parents must remember that the children are not mere chattels: nor are they mere play-things for their parents (See ROSY JACOB vs. JACOB A. CHAKRAMAKKAL reported in AIR 1973 SC 2090 at paragraph 14).".. ...
.. ..... -"The learned Trial Judge, in the order impugned, has recorded that on interaction, the child was found to be echoing allegation of the mother which prima facie, is an indication that the child has been tutored, the mother should realise that for the balanced upbringing of the child, the participation of the father is as much required
as the mother, however, if good sense does not prevail upon the parties, the Court cannot be a mere fence-sitter to watch and allow one party having advantage of the custody, to use the minor as pawn in the nasty matrimonial war with the other party." ...
21. Interim Custody for 2 days or more.
1) Sanoj Elayedath vs. Soorya S Nair, Kerala HC, 10/9/2021, -1st & 3rd Thursday at 5 pm to following Saturday at 5 pm. Restrained from taking the child abroad.
2) A) E Anil Kumar vs. Maya PG @ Maya Anil Kumar, 27/8/2021, - 27/8/2021 to 30/8/2021, 2) B) E Anil Kumar vs. Maya PG @ Maya Anil Kumar, 08/9/2021, Kerala HC, 10/9/2021 to 12/9/2021,
3) Jithin Joshi vs. Haritha @ Veena, 06/11/2020, Kerala HC, - All Saturdays 10 am to 5 pm.... Thereafter weekend custody - Saturday 10 am to Sunday 5pm.... During vacations - 23/12/2020 to 26/12/2020. ... Weekend custody to continue till disposal of case at FC.
4) Ankush Budhiraja vs. Govt. of NCT of Delhi, Delhi HC, 22/01/2021, 10 days Interim Custody from 23/01/2021,
5) Don Paul vs. Tisa Don, 13/8/2021, Kerala HC, - 21/8/2021 to 23/8/2021,
6) Barjinder Singh vs. Pia Singh, Delhi HC, 10/2/2021, 12/2/2021 to 16/2/2021,
7) Alphonsa Joseph @ Alphonsa Rose vs Anand Joseph @ Anand Vellapattil, SC, 23/4/2021, - 24/4/2021 to 25/5/2021.. Restrained from taking the child abroad.
8) Luv Chaudhary vs. Shruti Agarwal, Delhi HC, 28/5/2021, - 29/5/2021 to 09/6/2021,
9) Sachin Puri vs. Neeru Mehta, Delhi HC, 29/9/2021.. Interim Custody of daughter for 10 days.
10) Betsy vs Sudheer, 19/02/2021, Kerala HC,- Every Friday 4pm to Sunday 5pm,
11) Nair Kavitha Radhakrishnan vs. Binu VS, 27/7/2021, 2nd & 4th Friday 4 pm to Sunday 5 pm... ..... -"The joint parental custody is the modern-day approach in child welfare unless the Court finds that custody to one of the spouses would be against the interest of the child.", Kerala HC. JUSTICE A.MUHAMED MUSTAQUE & DR. JUSTICE KAUSER EDAPPAGATH.
12) Antly Antony vs. Shiji John, Kerala HC, 02/7/2021, - 02/7/2021 to 04/7/2021, Police shall allow the parties to travel to comply with this order,
13) Dr. Saikat Chakrabarty vs. Smt. Tanushree Bhattacharjee Chakrabarty, Tripura HC, 20/12/2021, - Thursday to Friday with overnight stay.
14) Smt. Saheli Dey vs. Sri Shibaji Kar Bhowmik, 04/01/2022, - Friday to Sunday with overnight stay.... . .."This Court suggested to share the custody of the children not on the visitation right of the parent but on the visitation right of the children with the parent in the larger interest of the children since the children cannot be deprived of the love and affection of both the parent. It is needless to say that parents cannot be a guest in the life of the children. Allowing a parent to visit the children occasionally and periodically for few minutes in Court, Police station, Malls, Temple, and the house of the parent in whose custody the children are may not be a just decision towards the children. The children must get absolute freedom with each parent, to know them and understand them better instead of being tutored by one parent against another. In view of the same, this Court feels that children should be given visitation rights to and stay with the parent but not the parent visiting the child."..
22)... . -"This Court suggested to share the custody of the children not on visitation right of the parents but the visitation right of the children with the parents in the larger interest of the children since the children cannot be deprived of the love and affection of both the parents"...... ....... - " It is needless to say that parents cannot be a guest in the life of the children. Allowing a parent to visit the children occasionally, periodically for few minutes in Court, Police station, Malls, Temple and house of the parent in whose custody the children are may not be a just decision towards the children. The children must get absolute freedom with each parent, to know them and understand them better instead of being tutored by one parent against other. In view of the same, this Court feels that children should be given visitation rights to visit and stay with the parents but not the parents visiting the children."... Justice T. Amarnath Goud, Tripura HC, Sri Avijit Mukherjee Vs. Smt. Supriti Chakraborty, 20/12/2021.
23) Supreme Court of India
Child custody below 5 years "ordinarily" with the mother means presumption in favor of mother and father need to prove his case.
"father and after him the mother shall be the natural guardian of a Hindu. Having said so, it immediately provides that the custody of a minor who has not completed the age of 5 years shall ordinarily be with the mother. The significance and amplitude of the proviso has been fully clarified by decisions of this Court and very briefly stated, a proviso is in the nature of an exception to what has earlier been generally prescribed. The use of the word "ordinarily" cannot be over-emphasised. It ordains a presumption, albeit a rebuttable one, in favour of the mother. The learned Single Judge appears to have lost sight of the significance of the use of word "ordinarily" inasmuch as he has observed in paragraph 13 of the Impugned Order that the Mother has not established her suitability to be granted interim custody of Thalbir who at that point in time was an infant. The proviso places the onus on the father to prove that it is not in the welfare of the infant child to be placed in the custody of his/her mother. The wisdom of the Parliament or the Legislature should not be trifled away by a curial interpretation which virtually nullifies the spirit of the enactment."
24)Preference/ Wish of the child was NOT considered by the Courts in Child Custody matter....
. 1) Vivek Singh vs. Romani Singh, SC, CIVIL APPEAL NO. 3962 OF 2016, 13/02/2017, 2) Mohan Kumar Rayana vs. Komal Mohan Rayana, Bombay HC, CIVIL APPELLATE JURISDICTION, FAMILY COURT APPEAL NO.29 OF 2007, Para - 46, 48, 3) Aditya Mahajan vs. Sachi Mahajan, Delhi HC, 01/9/2016, MAT.APP.(F.C.) 82/2016 & CM 23339/2016, Para -8, 9, 4) Thirty Hoshie Dolikuka vs. Hoshiam Shavaksha Dolikuka, SC, 1982 SCC (2) 544, 04/8/1982, 5) Deepak Shivanaanad Pandey vs. Dr. Nidhi Pandey, Bombay HC, FAMILY COURT APPEAL NO. 113 OF 2018 IN CIVIL MISC. APPLICATION NO. 01 OF 2016, 20/12/2018, Para - 14,15, 16, 6) Geeta Vohra @ Geeta Chopra vs. Nitin Chopra, Delhi HC, CONT. CAS(C) 1017/2019 & CM Nos.7482/2020 and 12348/ 2020 18/9/2020, Para - 21, 25, 7) Uma Ashish Ghate vs. Ashis Anil Ghate, Bombay HC, CIVIL APPELLATE JURISDICTION, WRIT PETITION NO. 11308 OF 2015, 09/10/2017, Para -13, 14, 15, 8) Sivagowri vs. D. Harikrishnan, Madras HC, 13/7/2018, Para - 11, 14, 15, 9) P.N. Raghav vs. C. Chitra, Madras HC, C.M.A.No.2755 of 2017 & C.M.P. No.16878 of 2017, 15/4/2019, Para - 4, 5, 10) Supreme Court of India, Rohith Thammana Gowda vs The State Of Karnataka on 29 July, 2022, CIVIL APPEAL NOS. 4987 OF 2022 (Arising out of SLP(C)No . 17166/2021), Para -6, 8.
25) Ekta Singh Vs Rajeev giri
M.F.A.NO.2786/2022(GW), Karnataka High Court
26) Overnight
Interim / overnight custody of daughter.. 1) Kerala High Court,
Soumya T.M vs Manoj Kumar T.S on 7 March, 2019, OP (FC).No. 145 of 2019, 07/3/2019, Friday 4pm to Saturday 4pm.. 2) Kerala High Court
Treesa Mary T.M vs Binu E B, OP (FC).No. 335 of 2016 (R), 14/7/2016, Saturday 10am to Sunday 4pm. 3) Delhi High Court, P J vs P J on 16 April, 2019, MAT.APP.(F.C.) 114/2019, 2nd and 4th weekends FC interacted with child. 4) Telangana High Court,
Syed Sajjad Basha vs The State Of Telangana on 9 May, 2019, WRIT PETITION No. 10259 of 2019,..50% of vacation... 5) Bombay High Court,
Mr. Manish B. Katira vs Smt. Aditi M. Katira on 9 April, 2019, CIVIL APPELLATE JURISDICTION, FAMILY COURT APPEAL NO.114 OF 2015, 1st, 3rd, 5th Saturday 6pm to next day 6pm.... overnight access during half of Diwali Christmas / Summer vacations, Ganpati/ Navratri festivals. Birthday of daughter.. 6) Delhi High Court,
A K vs C M on 25 March, 2019, MAT.APP.(F.C.) 329/2018 & C.M.54109/2018, CM Appl. 22075/ 2019 (Modification ).. 2nd & 4th Friday to Sunday 4pm. 7) Delhi High Court - Orders, Bikkrama Daulet Singh vs Vineeta Daulet Singh on 22 February, 2021, CM(M) 141/2021, CM(M) 250/2021 CM(M) 11005/2021, 3 weeks during summer/ 10 days in winter vacations.
27) Role of counsellor
https://indiankanoon.org/doc/159873341/
30.
*8 Important Arguments for Child Parenting*
Below are 8 arguments that PUNCTURE current systemic prejudices against fathers :
1) Parent child relationship is for life, it needs to be nurtured to grow accordingly. The regressive ideology that expects it to taper off at 18 years discriminates & abuses children of separated families.
2) Children need both parents because they are born because of both parents and because having both parents in one's life is a healthy way of living. Just like having both eyes & kidneys. You wouldn't remove an eye or a kidney just because you can survive with the other, would you?
3) An adult, married woman (mostly 30+) who has enjoyed her childhood with her father and even now stays with her father denies the same rights to her young minor children.
4) If the father is unwilling and does not show up to parent the child, then no Court, advocate, wife or even the child can change his mind. Respect fathers who are there for their kids!
5) When schools get unconditional and substantial access to kids in their own premises, on what basis are fathers denied the same or made to do the tight rope walk?!!
6) If income affidavits and IT returns decide child maintenance, what decides child Parenting time?
7) If the parties agree for change of child custody as part of MCD/settlement and the father's Parenting time suddenly increases from 2 hours per month to permanent custody, will the Court refuse such an MCD/settlement?
8) Why does the 'child is not chattel' statement appear only when one parent is asked to share physical custody of child with the other parent regularly? Why doesn't it appear when the same child is kept at creche / grandparents house / relatives house etc.?
31.
https://indiankanoon.org/doc/192869006/
https://indiankanoon.org/doc/195019900/ Sample judgment from family court in child custody case
32. mother died, father got custody
https://indiankanoon.org/doc/38099689/
Conviction in 377
1. Kamal Vs State, 20 Dec 2021
https://drive.google.com/file/d/1zqc3n1r-3BSgobjWRZCuIM1zN5gvpWIg/view?usp=sharing
2.
Quash 498a
1. On compromise of 71 lacs, 2.5 yr after FIR: https://indiankanoon.org/doc/67409973/ . Both couple 29. Working. one daughter.
2. S 210 crpc
Kapil Agarwal and others Versus Sanjay Sharma and others
MISC.
1. Whatsapp Status resulting in FIR https://indiankanoon.org/doc/157131314/
2. Signing of plaints, agents, GPA etc https://indiankanoon.org/doc/180398299/ (Signing is merely directory and not mandatory. Court can ask to sign properly later on as requirement of law)
3. Remedies for wrongful incarceration
https://indiankanoon.org/doc/117931857/
Para 11, "The third issue concerns the possible legal remedies for victims of wrongful incarceration and malicious prosecution in India. The report of Prof. Bajpai refers to the practice in the United States of America (USA) and the United Kingdom (UK). He points out that that there are 32 states in the USA including District of Columbia (DC) which have enacted laws that provide monetary and non-monetary compensation to people wrongfully incarcerated. There are specific schemes in the UK and New Zealand in this regard."
Para 12, "As far as India is concerned, there is no exclusive legislation on the topic. The decisions in Khatri v. State of Bihar (1981) 1 SCC 627; Veena Sethi v. State of Bihar AIR 1983 SC 339; Rudul Sah v. State of Bihar AIR 1983 SC 1086; Bhim Singh v. State of Jammu and Kashmir (1985) 4 SCC 677 and Sant Bir v. State of Bihar AIR 1982 SC 1470, are instances where the Supreme Court has held that compensation can be awarded by constitutional courts for violation of fundamental right under Article 21 of the Constitution of India. These have included instances of compensation being awarded to those wrongly incarcerated as well. But these are episodic and are not easily available to all similarly situated persons."
Bail
2.
Defamation
1. Criminal defamation cause of action arises at the time of filing of complaint and not the acquittal, as per Section 469 CrPC.
As the person gets defamed by the complaint, and not by the acquittal. As his acquittal means he is absolved of the blot on his character, and hence there isn't any cause left.
Reference case is Surinder Mohan Vikal v. Ascharj Lal Chopra. Here the Supreme Court has said that for a case under Section 500 of IPC (Criminal Defamation), the limitation period begins on the date on complaint, and not on the date of acquittal.
The other jurisprudence on this matter states that if the case is to be filed for Civil Defamation, then the limitation period is one year (being a tort) and this can be filed only after acquittal.
2. The both cases can work together, and you can file the case for defamation. Whether the accusations are true or not, is for the court to decide, because that is how the law stands at this point!
Please have a look at this another case.
https://indiankanoon.org/doc/10503637/
This Lady filed for quashing of the FIR filed against her under Section 500 IPC by This Gent, on the grounds of limitation. The Delhi Court accepted her appeal!
Case in Short!
# 3rd Feb 2000 Lady filed FIR for rape against Gent.
# 30th May 2001 DB of Delhi High Court quashed the FIR.
# 22nd Feb 2003, Gent filed FIR for criminal defamation against Lady and her father, under Section 500, IPC, for filing false case and defaming him.
# 8th Sept 2009, Lady was summoned in the case!
# Lady applied to Delhi High Court for quashing this FIR.
# 4th July 2011: The Delhi High Court accepted the appeal on grounds of limitation, and quashed the FIR against her.
This line from the judgement!
Thus, where the date of offence under Section 500 IPC was identified, inasmuch as, defamatory remarks were made in a complaint filed before the police by the accused, the starting part of limitation would be the date of complaint and not the date on which the evidence was given by the party nor the date of knowledge of the appellant about filing of such complaint.
3.
Some gentleman says Serving legal notice to the defendant is mandatory before filing a suit for defamation and damages.
4.
Search tip: Add "Punjab-Haryana High Court" to your query in indiankanoon.org and it will show you judgments only from PnH.
==============
FIR
Sakiri Vasu, Lalita Kumari
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Right to appeal: https://drive.google.com/file/d/1_2AHt4n9E7xEeggyA4p6TvBQNiS4gUiC/view?usp=sharing
DHC practice guidelines: https://delhidistrictcourts.nic.in/notification_practice_dir_HC.htm
HUman Rights/Landmark
1. https://en.wikipedia.org/wiki/ADM_Jabalpur_v._Shivkant_Shukla
Life and personal liberty are inalienable to human existence. These rights are, as recognised in Kesavananda Bharati, primordial rights. They constitute rights under natural law.
The human element in the life of the individual is integrally founded on the sanctity of life. Dignity is associated with liberty and freedom. No civilised state can contemplate an encroachment upon life and personal liberty without the authority of law.
"Neither life nor liberty are bounties conferred by the State nor does the Constitution create these rights.
"The right to life has existed even before the advent of the Constitution. In recognising the right, the Constitution does not become the sole repository of the right. It would be preposterous to suggest that a democratic Constitution without a Bill of Rights would leave individuals governed by the State without either the existence of the right to live or the means of enforcement of the right. The right to life being inalienable to each individual, it existed prior to the Constitution and continued in force under Article of the Constitution.
"Justice Khanna was clearly right in holding that the recognition of the right to life and personal liberty under the Constitution does not denude the existence of that right, apart from it nor can there be a fatuous assumption that in adopting the Constitution the people of India surrendered the most precious aspect of the human persona, namely, life, liberty and freedom to the State on whose mercy these rights would depend. Such a construct is contrary to the basic foundation of the rule of law which imposes restraints upon the powers vested in the modern state when it deals with the liberties of the individual.
2.
MCD:
1. https://indiankanoon.org/doc/116566454/ (sample)
2. https://www.shoneekapoor.com/delhi-hc-guidelines-undertaking-mutual-consent-divorce/
RCR
1. Smt. Saroj Rani vs Sudarshan Kumar Chadha on 8 August, 1984, SC
https://indiankanoon.org/doc/1382895/
Constitutional validity of RCR. Not violative of Art 14 or Art 21.
It is enforcement of contract of marriage and serves social purpose as an aid to the prevention of break-up of marriage. The execution is through attachment of property if any only and at most a divorce can be sought. No element of forcible company of both is possible in this.
2. Smt. Bimla Devi D/O Bakhtawar ... vs Singh Raj S/O Dasondhi Ram on 17 December, 1976, PnH HC
Section 13(1A) provides that either party may seek divorce on the ground that there has been no resumption of cohabitation or no restitution of conjugal rights for a period of two years or more after the passing of a decree for judicial separation or a decree for restitution for conjugal rights. The question is no longer who obtained the decree for restitution of conjugal rights or for judicial separation, or, who was at fault previously? or, who is at fault now? The question is not one of fault at all. The question is not one of apportioning blame. The question is, have the parties been able to come together after the decree was passed whether it was for judicial separation or restitution of conjugal rights. If they have not been able to ccme together, either party may seek divorce, irrespective of whose fault it was that they did not come together. The grounds for divorce in Section 13(1A) unlike the grounds for divorce in Section 13(1) are not based on any present matrimonial wrong or disability.
3.
https://indiankanoon.org/doc/609460/
Lecture on marriage and its importance
4.
Costs, Compensation, Penalty
1. https://indiankanoon.org/doc/1945518/
"
"13. Cost is awarded in a civil or a quasi criminal action to compensate the, winning party for the expenses incurred in that action. For a case of vexatious nature there is a provision in the Code of Civil Procedure for award of cost by way of compensation. The cost so allowed is to be taken into account in any suit for damage in respect of such vexatious claim. But in awarding cost no account is taken of any injury to property right. Person suffering injury to property right cannot be left without any remedy. A person, who is deprived of exercising the acts of ownership over his property by a direct act of another person or through a motion in a law court at his instance, is certainly entitled to such damages as are necessary and proximate result thereof. When such act of that other person was intentional it is of no avail to him to urge that he acted bona fide for which he had reasonable ground. It is not necessary for the person injured to prove any malice or want of reasonable or probable cause. Any person should not be allowed to suffer for an Intentional act of other. All these are based upon sound principles of equity and justice."
2.
https://indiankanoon.org/doc/480907/
D.M. Seth vs Ganeshnarayan R. Podar, ... on 22 April, 1992
Luxury litigation deserves exemplary costs.
3.
Contempt
1. https://indiankanoon.org/doc/31907591/
disobeying family court
2. https://indiankanoon.org/doc/1176857/
On the other hand the learned senior counsel appearing for the appellant has contended that this appeal is maintainable as what was brought to the notice of the Court by way of contempt application was disobedience of the interim injunction order dated 12.12.2002. The learned Counsel has submitted that the order impugned in this appeal in fact is being passed by the learned Single Judge under Order 39 Rule 2 A CPC which confer powers on the Court to punish the erring party for disobedience of the interim injunction order of the Court. He has submitted that since this appeal has arisen out of order passed by the learned Single Judge under Order 39 Rule 2 A CPC, the present appeal is maintainable in view of provisions contained in Order 43 Rule l(r) of the Code of Civil Procedure, 1908. We tend to agree with the above reasoning in relation to maintainability of the present appeal advanced before us on behalf of the appellant. We find that the appellant has filed this appeal not as a contempt appeal but as a FAO (OS) and rightly so as the order restraining the respondent was passed in proceedings under Order 39 Rules 1 & 2 CPC. We find that the impugned order has been passed by the learned Single Judge not pursuant to the jurisdiction of the High Court under Article 215 of the Constitution of India. Though the appellant had filed an application under Section 2(a), 11 & 12 of the Contempt of Court Act but in substance what it did was to bring the disobedience of the injunction order dated 12.12.2002 to the notice of the Court and thereby invoke the jurisdiction of the Court under Order 39 Rule 2A CPC. We are of the view that it is substance of the application that matters and not the nomenclature given in the cause title of the application. Citing of wrong provisions in the title of the application can not be an obstacle for granting a relief made out from the contents of the application.
3.
Mixed
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