Petitioner fined Rs.30,000 for frivolous suit

 

* HIGH COURT OF DELHI : NEW DELHI

CRP No. 129/2010 & CM Nos. 12235-12236/2010

% Judgment reserved on: 19th July, 2010

Judgment delivered on: 22nd July, 2010

Sh. Ram Nath (Deceased)

Through his legal heirs.

1. Smt. Rani

W/o Sh. Roore and D/o Late Sh. Ram Nath.

2. Sh. Kalu

S/o Late Sh. Ram Nath.

3. Sh. Dana

S/o Late Sh. Ram Nath.

4. Smt. Soni.

D/o Late Sh. Ram Nath.

5. Smt. Kamli

D/o Late Sh. Ram Nath.

6. Smt. Lali

D/o Late Sh. Ram Nath.

7. Smt. Shanti

D/o Late Sh. Ram Nath.

8. Smt. Kokal (Deceased)

W/o Sh. Jagdish and D/o Late Sh. Ram Nath, Through her legal heirs.

a. Kumari Kamini @ Archana , Aged 14 years. b. Kumari Veena aged 12 years.

CRP No.129/2010 Page 1 of 11 c. Master Pradeep aged 9 years.

All minors represented through their ad-litem guardian and Next friend Sh. Kalu Ram S/o Late Sh. Ram Nath, being their maternal Uncle.

All R/o H. No. 7031, Mata Rameshwari,

Nehru Nagar, Sat Nagar,

Karol Bagh, New Delhi.

.Petitioners

Through: Mr.Madan Lal, Adv.

Versus

Smt. Laxmi Devi (Deceased)

Through her legal heirs.

1. Sh. Sohan Lal.

S/o Smt. Laxmi Devi (Plaintiff No. 2)

2. Sh. Ashok Kumar @ Suraj Mal (Plaintiff No. 3)

3. Smt. Geeta

W/o Sh. Hanumanji, D/o Smt. Laxmi Devi (Plaintiff No. 4)

4. Smt. Santosh Kumari

W/o Sh. Shiv Dayal, S/o Smt. Laxmi Devi (Plaintiff No. 5)

5. Sh. Babu Lal

S/o Smt. Laxmi Devi.

6. Smt. Kamli Devi

D/o Smt. Laxmi Devi.

All R/o 7031, Mata Rameshwari,

Nehru Nagar, New Delhi.

.Respondents

CRP No.129/2010 Page 2 of 11 Through: Nemo.

Coram:

HON'BLE MR. JUSTICE V.B. GUPTA

1. Whether the Reporters of local papers may be allowed to see the judgment? Yes

2. To be referred to Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

V.B.Gupta, J.

Present revision petition has been filed by the petitioners against

impugned order dated 28th May, 2010, vide which objections under Section

47 of Code of Civil Procedure (for short as Code) filed by the petitioners

were dismissed.

2. Brief facts of this case are that Smt. Laxmi Devi (since deceased)

and others, in 1971 filed an application under Order 33 Rule 1 of the Code,

seeking leave to sue as Forma Pauperis, against defendant Ram Nath (since

deceased).

3. Trial court, vide its order dated 17th July 1973, rejected that

application with costs of Rs.50. Smt. Laxmi Devi and others were directed

to deposit the requisite court fee by 17th August, 1973. Since, order dated

17th July, 1973, was not complied with, the trial court rejected the plaint

under Order 7 Rule 11 of the Code.

CRP No.129/2010 Page 3 of 11

4. Smt. Laxmi Devi and others without payment of costs of Rs.50/- to

the defendant in terms of order dated 17th July, 1973 filed a suit against Sh.

Ram Nath for recovery of possession and mesne profits, after payment of ad

valoram court fee. In that suit, Ram Nath was proceeded ex parte on 5th

February, 1979. Consequently, on 16th April, 1981, an ex parte decree was

passed.

5. Thereafter, Ram Nath-defendant filed an application under Order 9

Rule 13 of the Code for setting aside ex parte judgment and decree dated

16th April, 1981, but the same was rejected by the Court of Sh. Nand

Kishore, the then Sub Judge, Delhi, vide order dated 10th April, 1985.

6. Civil Revision petition filed against that order was allowed by

Additional District Judge and ex parte order was set aside.

7. During pendency of the suit, Sh. Ram Nath-defendant died and his

legal heirs were brought on record. Later on, that suit was decreed vide

judgment dated 23rd October, 1999, passed by Sh. L. S. Solanki, Sub Judge,

Delhi. No appeal was filed against the said judgment. In the meanwhile,

Smt. Laxmi Devi-plaintiff no.1 (of the original suit) also died and her legal

heirs were also brought on record.

8. Present petitioners who are legal heirs of Sh. Ram Nath-defendant,

filed objections under Section 47 of the Code, in the execution proceedings.

CRP No.129/2010 Page 4 of 11 Vide impugned order, objections of petitioners were dismissed. This is how

the matter has reached before this court.

9. It is contended by learned counsel for the petitioners that since plaint

of the original plaintiff was rejected under Order 7 Rule 11 of the Code and

plaintiff did not pay the costs of Rs.50 to the defendant in terms of order

dated 17th July, 1973, the decree obtained by respondents cannot be

sustained in the eyes of law and the Court which passed the decree has no

jurisdiction and thus the decree is null and void. In support of his

contentions, learned counsel cited Shiam Sunder Lal and others Vs. Mt.

Savitri Kunwar, Air 1935, Allahabad 723, in which it was observed that;

"The provisions of Order 33 Rule 15 of the CPC are mandatory and as much as the plaintiff had failed to pay the costs imposed by the Government or the opposite party the suit ought to have been dismissed."

10. As apparent from the record, deceased Ram Nath the predecessor in

interest of the petitioners, never contested the suit nor did he file any written

statement taking such plea which has been taken by the present petitioners

in their objections. Moreover, judgment dated 23rd October, 1999 of the

trial court was never challenged by the present petitioners. It is only during

the execution proceedings, petitioners have taken objections with regard to

non-payment of the costs.

CRP No.129/2010 Page 5 of 11

11. It is well settled that objections regarding the jurisdiction of the

Court must be taken by the party at the earliest possible opportunity. The

executing court cannot go behind the decree i.e. it cannot examine the

merits of the case or alter the relief of the case. Moreover, if no objection

has been taken at the earliest, the same cannot be allowed to be taken at a

subsequent stage.

12. In Hira Lal Vs. Kali Nath, AIR 1962, Supreme Court 199, it has

been observed that;

"The validity of a decree can be challenged in execution proceedings only on the ground that the court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seizin of the case because the subject matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the court entirely lacking in jurisdiction in respect of the subject matter of the suit or over the parties to it.

It is well settled that the objection as to local jurisdiction of a court does not stand on the same footing as an objection to the

competence of a court to try a case.

Competence of a court to try a case goes to the very root of the jurisdiction, and where it is lacking, it a case of inherent lack of jurisdiction. On the other hand an objection as to the local jurisdiction of a court can be waived and this principle has been given a statutory recognition by enactments like S.21 of the Code of Civil Procedure."

CRP No.129/2010 Page 6 of 11

13. Mere fact that costs of Rs.50/- was not paid, it cannot be said that the

Court which passed the decree lacks the jurisdiction to do so and the decree

is consequentially a nullity. Trial court considered this aspect in detail in its

impugned order and its relevant finding reads as under;

" I find no merit in this contention of the JD. Even assuming arguendo that cost was not paid by the plaintiff, it cannot be said that the court which passed the decree lacks the jurisdiction to do so and the decree is consequentially a nullity. There exists a difference between a decree passed by a court having no jurisdiction at all and between a decree passed by a court of competent jurisdiction, however, suffering from certain irregularity of procedure. A decree suffering from irregularity of procedure cannot be challenged before a executing court under the provisions of section 47 CPC wherein jurisdiction of executing court is limited. For this view reliance is placed upon (2004) 1 SCC

287. The objection regarding non-payment of cost is not such as would go to the root of a duly passed decree, thereby making it a nullity. It is pertinent to mention here that

although the JD were very much a party to the suit upon which this decree was passed,

however, at no stage, did they take any

objection in their written statement that costs were not paid by the plaintiff and therefore the suit ought to be rejected. Thus once the plaintiff after a protracted trial have secured a decree in their favour, it does not lie for the JD to now say that a decree passed by a court of competent jurisdiction, after analysing the merits of the suit, cannot be executed because costs were not paid. The costs that were to be paid to the defendant at best gave the defendant a right to press for the pre-payment of this cost,

CRP No.129/2010 Page 7 of 11 however, once the defendants have chosen to sleep over their rights it shall be a travisity of justice to now allow the execution of the decree to fail on this ground.

In support of his submission, at the time of arguments, counsel for the plaintiff has relied upon AIR 1935 Allahabad 723. In this judgment, the Honble High Court has held that the pre-payment of cost imposed under Order 33 rule 15 CPC is a pre-requisite to the institution of a suit. However, it cannot be said that this judgment shall be applicable to the present objections which have been filed u/s 47 CPC. This judgment has clearly laid down that the plaintiff ought to have paid the relevant costs, however, the judgment has no where held, nor the judgment can be construed as providing that in a situation where the

defendant never raised this objection at the time of trial, the JD can do so u/s 47 CPC. The proceedings in a trial and those u/s 47 CPC are different in nature and governed by different procedures.

Further, the counsel for the JD has relied upon AIR 1954 SC 340. While laying down an important provision of law that a decree passed by a court without jurisdiction is a nullity and can be challenged whenever and wherever it is ought to be enforced, this judgment has no bearing upon the present objections. This is so as it cannot be said that the court which passed the present decree lacked the jurisdiction to pass this decree and therefore the decree is a nullity. In view of the above said discussion, the objection u/s 47 CPC stands dismissed."

14. The suit was filed in the trial court about forty years ago and the

same was decreed in 1999. Now in execution proceedings, petitioners have

CRP No.129/2010 Page 8 of 11 come up with a new story of non-payment of costs, which defence they

never took for more than thirty years. Further, decision of trial court was

never challenged by the petitioners and now suddenly they have raised the

question of the jurisdiction. It is well settled that a person who sleeps over

his right cannot ask for the same at the later stage.

15. In Halsburys Law of England, (4th edn), Reissue, Vol 10, Para 317,

it is stated;

"Where the court has jurisdiction over the particular subject matter of the claim or the particular parties and the only objection is whether, in the circumstances of the case, the court ought to exercise jurisdiction, the parties may agree to give jurisdiction in their particular case, or a defendant by entering an appearance without protest, or no taking steps in the proceedings, may waive his right to object to the court take cognizance of the proceedings."

16. Thus, it can be concluded that petitioners never raised any objection

during the trial of the court and thus submitted to the jurisdiction of the

court. Case law cited by learned counsel for petitioners is not at all

applicable to the facts of the present case.

17. Present objections filed by petitioners are most bogus and frivolous

one. Same have been filed just to delay the execution of decree which was

passed, as far as back in the year 1999.

CRP No.129/2010 Page 9 of 11

18. It is well settled that frivolous litigation clogs the wheels of justice

making it difficult for courts to provide easy and speedy justice to genuine

litigants. It has also been observed in large number of cases that meritless

litigation should be dealt with heavy hands. Any litigant who indulges in mindless

litigation and unnecessarily waste the precious time of the Courts should not be

spared. He must pay heavy costs for wasting time of the Court.

19. Here in the present case, due to frivolous objections filed by the

petitioners, the respondents have been denied the fruits of decree which was

passed in the year 1999. Admittedly, judgment and decree dated 23rd October,

1999, was never challenged in any Court by the present petitioners. The present

revision petition is thus nothing but is gross abuse of the process of law . A strong

message is required to sent to those litigants who are in the habit of filing bogus

and frivolous objections in the execution proceedings and thus deprive the decree

holders, the fruits of decree passed in their favour. Petitioner herein, have left no

stone unturned to deprive the fruits of decree to the decree holders in the suit filed

by them in the year 1971.

20. Hence, present petition being most bogus and frivolous one and having no

legal force is hereby dismissed with costs of Rs.30,000/- (Rs. Thirty Thousand).

21. Petitioners are directed to deposit the costs with Registrar General of

this Court, within four weeks and place its receipt before the trial /executing

court, forthwith thereafter, failing which the trial /executing court, shall

recover the same in accordance with law.

CRP No.129/2010 Page 10 of 11

22. Copy of this order be sent to the trial court.

CM NOs. 12335-12336 of 2010

23. Dismissed.

22nd July, 2010 V.B.GUPTA, J. ab

CRP No.129/2010 Page 11 of 11

http://lobis.nic.in/dhc/VBG/judgement/22-07-2010/VBG22072010CMM1292010.pdf

http://www.indiankanoon.org/doc/1474539/

sc on addition of new evidence under order 41/rule 27 - Jatinder Singh & Anr.Minor ... vs Mehar Singh & Ors. on 19 September, 2008

Bench: T Chatterjee, A Alam

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5781 OF 2008

[ Arising out of SLP (C) NO. 18759 of 2006] Jatinder Singh & Anr. Minor Through Mother ... Appellants

VERSUS

Mehar Singh and Others

...Respondents

WITH

CONTEMPT PETITION ) NO.57 of 2008 IN SLP)NO.18759 OF 2006

Balbir Singh & Anr. ..Appellants Versus

Jatinder Singh & Anr. ...Respondents ORDER

1. Leave granted.

2. This appeal is directed against the judgment and final order passed by the High Court of Punjab and Haryana at Chandigarh in Regular Second Appeal No. 4174 of 2002, by which the second appeal filed by the appellants was dismissed as the High Court did not find any substantial question of law to be decided in the aforesaid second appeal. 1

2

3. In our view, this appeal can be decided on a very short question. The trial court as well as the appellate court and finally the High Court in the second appeal dismissed the suit filed by the plaintiffs/appellants for declaration challenging the sale deed dated 29th of May, 1989, executed by the respondent Nos. 1 to 3 in favour of respondent Nos. 9 and 10 as well as the compromise (Exhibit No. C1) dated 7th of April, 1986 in a suit title Ujagar Singh vs. Puran Singh, But it is an admitted position that before the High Court, the appellants filed an application under Order 41 Rule 27 of the Code of Civil Procedure for acceptance of additional evidence, namely, documents such as certificate of Military service, voter list of concerned assembly segment for the year 1982, receipt of house tax 1988-89, payment of chaowkdra of khariff 1986, rabi 1990, rabi 1991, khariff 1992, identity card issued by Election Commission of India, Ration Card etc.

4. While deciding the second appeal, however, the High Court had failed to take notice of the application under Order 41 Rule 27 of the Code of Civil Procedure and decide whether additional evidence could be permitted to be admitted into evidence. In our view, when an application for acceptance of 2

3

additional evidence under Order 41 Rule 27 of the Code of Civil Procedure was filed by the appellants, it was the duty of the High Court to deal with the same on merits. That being the admitted position, we have no other alternative but to set aside the judgment of the High Court and remit the appeal back to it for a decision afresh in the second appeal along with the application for acceptance of additional evidence in accordance with law.

5. For the reasons aforesaid, the impugned Judgment is set aside. The appeal is thus allowed to the extent indicated above. There will be no order as to costs.

6. We make it clear that we have not gone into the merits as to whether the application for acceptance of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure should be allowed or not, which shall be decided by the High Court at the time of decision of the second appeal in accordance with law. We also make it clear that we have not gone into the merits of the second appeal which shall also be decided by the High Court along with the application under Order 41 Rule 27 of the Code of Civil Procedure. Considering the facts and circumstances of the case, we request the High Court to 3

4

dispose of the second appeal at an early date preferably within six months from the date of supply of a copy of this order to it.

7. In view of the order passed in C.A.No. of 2008 @ SLP)No.18759 of 2006, Contempt Petition ) No.57 of 2008 is disposed of.

8. In view of our decision in the appeal itself, we do not feel inclined to entertain the Interlocutory Application filed by the petitioner during when the matter was kept for Judgment. Accordingly, the said application for interim direction is disposed of as infructuous.

...........................J.

[TARUN CHATTERJEE]

New Delhi ..................... .......J.

September 19, 2008. [AFTAB ALAM]

4

Sexual relations on false promise of marriage not rape – Bombay HC

 

 

Sandeep Son Of Kaniram vs The State Of Maharashtra on 24 June, 2010

Cites 4 docs

The Indian Penal Code, 1860

Section 376 in The Indian Penal Code, 1860

Section 375 in The Indian Penal Code, 1860

Section 90 in The Indian Penal Code, 1860

Mumbai High Court

Bench: A H Joshi

1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR

Criminal Appeal No.108 of 1998

Sandeep son of Kaniram

Rathod,

aged 30 years,

resident of Barad Tanda

[Police Station Wadgaon],

in District Yavatmal. .... Appellant.

Versus

The State of Maharashtra,

through Police Station

Officer, Wadgaon

Police Station in

Distt. Yavatmal. .... Respondent.

*****

Mr. R.P. Joshi, Adv., for the appellant.

Mr.C.N. Adgokar, Addl. Public Prosecutor for the respondent.

*****

CORAM : A.H. JOSHI, J.

Date : 24h June, 2010.

ORAL JUDGMENT :

1. The appellant was charged for commission of 2

offence punishable under Section 376 of Indian Penal Code.

Charge framed against the appellant reads as follows:-

That you on and before 23-11-96 at

village Kolambi PS Wadgaon committed rape several times on a girl namely Ku. Renuka d/o Namdevrao Chavhan aged about 16 years r/o Kolambi and thereby committed an offence punishable u/s 376 of the I.P. Code and within the cognizance of this special court.

[Quoted from page no. 12 of the Record and Proceedings of Sessions Trial No. 27 of 1997].

2. The appellant has been convicted and sentenced for

said offence. This is an appeal against said conviction and

sentence.

3. Heard learned Adv. Mr. R.P. Joshi for the

appellant and learned APP Mr. C.N. Adgokar for the

respondent.

4. The gist of submission in support of appeal is

that:-

[a] The First Information Report, investigation, charge and evidence are totally divergent.

[b] The case begins with the story of rape, and is developed as consented sexual relationship on mistaken belief for promise to marry.

3

[c] The plea of mistaken belief is not available to the prosecution.

[d] A girl, who keeps sexual relationship with the accused on the promise of marriage, which is lateron broken by the accused, cannot be said to have agreed for the sexual relationship on a mistaken belief.

[e] Finding recorded by the Sessions Judge in Para 49 of his Judgment is contrary to facts on record and law as laid down in case of Uday Vs. State of Karnataka [cited supra].

5. Learned Adv., for the appellant has placed

reliance on the reported Judgment of Hon'ble Supreme Court

in case of [1] Uday Vs. State of Karnataka [(2003) 4 SCC

46], [2] unreported Judgment of this Court rendered in

Criminal Appeal No. 35 of 2010 [Anwar Khan Iqbal Khan Vs. th

State of Mah.]; decided on 27 April, 2010, and [3]

Judgment of Jharkhand High Court in case of Sarimoni Mahato

Vs. Amulya Mahato & another [2002 Cri.L.J. 3271].

6. Learned APP Mr. C.N. Adgokar has vehemently

supported impugned judgment.

7. The question arising in this appeal is as 4

follows:-

Whether the sexual intercourse by the accused with the prosecutrix was without her consent, or with her consent which was given under misconception, and whether the facts as proved do constitute offence under Section 376 of Indian Penal Code?

8. This Court has perused the impugned judgment and

the record.

9. Paragraph No.1 of the oral evidence of the

prosecutrix reads as follows:-

1. Since my birth I reside with my father at Kolambi. Incident took place before 12 months. Since before incident my father and the accused were acquainted with each other. Accused was serving in the forest office behind my house at Kolambi.

Accused used to visit my house. Myself, my parents, brother, wife of brother and a younger sister all were residing jointly. In the presence of my father and

others accused was visiting my house and after drinking water he was going back.

All other family members used to go to the field and I was required to stay alone at the house.

While I was staying alone accused was visiting my house.

He stated before me that he would

perform marriage with me. One day in the afternoon he came.

He asked for water. When I had gone to bring water he came behind me.

He pressed my mouth and committed

sexual intercourse with me. He threatened me for life in case I disclose the fact to my parents.

He told me that if you don't disclose 5

then I would perform marriage with you. He told me that he is a well placed. After this incident he used to come to my house while I was staying alone. He used to commit sexual intercourse with me. For about six months he continued as such.

[Quoted from page no.17 of the Record and Proceedings of Sessions Trial No. 27 of 1997. Sub-paragraphng is done for convenience of reading].

10. It is seen from the statement of Investigating

Officer that version of the prosecutrix that the accused

pressed her mouth and committed rape on her was an

improvement while in the witness box. PW 1 Ku. Renuka

Chavan had not told this information to Investigating

Officer. Version of PW 7 Mohd. Shafi Mohd. Isak Sheikh,

P.S.I., in Para 9 of the Cross-Examination reads as

follows:-

9. I recorded statement of Renuka. She had not stated in her statement

that accused pressed her mouth and threatened for her life in case she discloses it to her parents.

She had not stated that Sandip told

her that if she does not disclose the incident to her parents then only he would marry her.

[Quoted from page no. 65 of the Record and Proceedings of Sessions Trial No. 27 of 1997. Sub-paragraphing is done for convenience of reading].

11. In the background of the aforesaid evidence, it

would be useful to see the manner in which the case was

seen by the learned Sessions Judge.

6

12. The learned Judge observed in para 49 of her

Judgment that Section 90 of Indian Penal Code gets

attracted. The reasons are recorded in this regard in the

said Para 49 which is quoted below for ready reference:-

49. In the instant case proposition of law laid down in the above cited Madras authority is mutatis-mutandis applicable but facts are distinguishable. Here accused has come with a case that he was a married man having a male issue. It is so then promise of marriage given by him to the prosecutrix was false to his own knowledge and certainly he had no intention of marrying her. PW 4 Namdevrao and PW 6 Santaribai parents of the prosecutrix have stated that after their daughter told them that accused is responsible for causing her pregnancy, PW 4 Namdevrao had gone and brought the accused to his house. He asked the accused that he had ravished their daughter and so he should marry her to which accused refused for marriage saying that he does not like the prosecutrix.

It has been stated by the prosecutrix in her evidence that accused assured her of marriage but subsequently refused for the same. In view of these facts and circumstances here Section 90 of the Indian Penal Code can be invoked and it has to be held that consent of the prosecutrix was under misconception of fact and not at her free will. This being the position, act of the

accused falls under IInd clause of Section 375 which is actionable under section 376 of the Indian Penal Code.

[Quoted from page no. 35 and 36 of the appeal paper-book. Sub-paragraphng is done for convenience of reading].

13. Learned Sessions Judge recorded a finding in para

39, as to age of prosecutrix which reads as follows:- 7

39. In the instant case ossification test report Ex.67 which shows age of prosecutrix as 18 years plus minus one year makes it clear that at the time of incident prosecutrix was more than 16 years old. Moreover there can be an error between the periphery of two years on either side as laid down by the superior courts from time to time and therefore age of the prosecutrix in this case at the relevant time was in between 16 to 20 years.

I am therefore inclined to believe that prosecutrix was more than 16 years old as the benefit of advantage has to go in favour of the accused.

[Quoted from page no. 28 of the appeal paper-book. Sub- paragraphing is done for convenience of reading. Underlining is done to highlight important and relevant portion].

14. In regard to sexual acts of accused, learned

Sessions Judge has recorded a finding in para 56 of her

Judgment as follows:-

56. From the evidence of prosecutrix, her report Ex.28 and statement under section 161 Cr. P. Code it clearly emerges that accused committed sexual intercourse with her under a false promise of marriage and she consented to the act under misconception of fact. In this factual situation the question of age of the prosecutrix would be insignificant as prosecutrix was subjected to sexual intercourse by the accused without her consent at free will.

From the material on record I have to come to an unhesitating conclusion that prosecutrix was made a victim of lust of the accused in the manner deposed to by her without hr consent at free will and as I conclude that prosecution succeeds in booking the act of the accused under IInd clause of Section 375 actionable under Section 376 of the Indian Penal Code. I accordingly answer point No.1 in the affirmative.

8

[Quoted from page nos. 41 and 42 of the appeal paper-book. Sub-paragraphing is done for convenience of reading. Underlining is done to highlight important and relevant portion].

15. It is seen from the analysis of the evidence of PW

1 Ku. Renuka Namdev Chavhan that :- rd

[a] On 23 November, 1996, seeing that the prosecutrix is alone at house, accused entered her house, asked for drinking water and expressed desire to marry her.

[b] Seeing that the prosecutrix did not give any response, he left the house.

[c] On the next day, again he entered the house of the prosecutrix when she was alone and committed forcible sexual intercourse with her and told her not to disclose it by promising to marry.

[d] Sexual relationship continued for six months on the assurance of marriage.

[e] The prosecutrix carried pregnancy of six months, and when asked the accused to marry, he refused.

16. It is seen that the very foundation of prosecution

case is of first act of rape followed by long sexual

relationship based on a promise to marry. 9

17. Had the case of prosecution stopped at first act

of sexual assault, the case may have had a different

portray. It would have been a case of rape which was

reported late, i.e., only when the assault had produced

pregnancy.

18. On the story as is couched by the prosecution,

though first act was forcible, the prosecutrix has

permitted sexual access to the accused for long period of

six months.

19. First act of forcible sexual assault seems to have

been disbelieved, and all sexual acts subsequently

committed by the accused are accepted by the Court to be

under consent of prosecutrix which consent was given due to

the mistaken belief that the accused would marry her.

20. Moreover, first act being forcible is a serious

omission, which is proved from the testimony of the

Investigating Officer. The prolonged sexual relationship,

therefore, creates a strong doubt about first act too being

forcible.

21. It is not the case of prosecution that the 10

prosecutrix was made to believe that they are already

married and on such mistaken belief of existence of

matrimonial ties, that a sexual relationship was

established.

According to prosecution story, the sexual

relationship continued for day-today basis for six months,

while accused had continued to promise to marry.

22. From what is discussed herein before, it is

evident that:-

[1] The accused was charged for rape simpliciter.

[2] Story about forcible rape is narrated in evidence, but the prosecutrix has connived at said forcible act due to promise to marry which had followed the act of rape.

[3] The prosecution has then converted the story of sexual relationship under a mistaken belief and hence rape. [3] Learned Sessions Judge fell in the trap of prosecution by totally misdirecting the trial, which resulted into a conviction, ordered without a charge.

23. It is seen that the case of the prosecution as

brought before the Court through the evidence of

prosecutrix is based on sexual relationship on a promise to

marry which promise is broken by the accused. This plea 11

contradicts the plea of mistaken belief. Moreover, age of

prosecutrix is proved to be around 18 years.

24. It is material to see that the charge does not

contain any imputation, such as promise to marry and based

thereon, sexual relationship.

25. It is pertinent to note that any time thereafter

charge was not modified or altered.

26. The learned Sessions Judge was carried away with

the evidence that had come, in total distraction from the

charge and contradicting and destroying the basic story of

the prosecution case.

27. In the result, this Court is convinced that

present case is a replica of State of Karnataka Vs. Uday

[cited supra], and more or less similar to the unreported

judgment of this Court relied by the appellant and the

story of sexual relationship under a mistaken belief and

hence a rape, as developed in the process of trial, does

not stand in the eye of law.

28. In the result, the conviction and sentence under

appeal cannot sustain.

12

Appeal succeeds. Judgment and order of conviction

is set aside.

JUDGE

-0-0-0-0-

|hedau|

Status of parents of Husband NOT to be considered for Wife’s MAINTENANCE- Delhi HC

 

CM(M) No.1045/2008                                                                

* IN THE HIGH COURT  OF  DELHI  AT  NEW  DELHI
+     CM(M) No.1045/2008 & CM No.13003/2008
                Date of Decision : July 02, 2010

  SMT. SUSHILA DEVI         ..... Petitioner
        Through:      Mr.K.Sunil,  Advocate
             with Petitioner in person.

      versus

  SHRI JOGINDER KUMAR           ..... Respondent
        Through:  Mr.Saurabh Tiwari,  
             Advocate with Respondent
             in person.
 
  CORAM:
  HON’BLE MS. JUSTICE ARUNA SURESH

(1)    Whether reporters of local paper may be
           allowed to see the judgment?
(2)     To be referred to the reporter or not?    Yes
(3)     Whether the judgment should be reported   
          in the Digest ?          Yes  

J U D G M E N T
ARUNA SURESH, J. 

1.     Impugned in this petition is the order of the Trial  Court dated 8th  August  2008, whereby while allowing application of the petitioner (respondent in the main petition) filed under Section 24 of  the Hindu Marriage Act  (hereinafter referred  to  as  ‘the Act’),  it awarded her maintenance @ Rs.3,000/-per month, besides litigation  expenses of Rs.5,100/-.Being dissatisfied by the said order, she has filed this petition.

2.    Mr.K. Sunil, counsel appearing on behalf of the petitioner has submitted that the court awarded meagre amount of maintenance without considering income of the respondent (petitioner in the main petition) in the correct perspective as he is a man of means and therefore, she should have been awarded maintenance as claimed by her i.e. at least Rs.8,000/- to Rs.10,000/- per month.  He further submitted that respondent-husband owns agricultural land measuring 12  Bighas    and 17  Biswas  in village Nizampur, Delhi and the total annual income of the parents of the petitioner is about Rs.8,60,000/-.  Besides, he owns two residential houses in the name of his father in old Lal Dora Mundaka, in which
there is a  godown  and a factory and he has income from the said business.

3.    Mr.Saurabh Tiwari, counsel appearing on behalf of the respondent has submitted that the entire properties, as detailed by the petitioner, are owned by parents of the  respondent and there is no property in his name.  He has no right in the properties of his parents and is presently unemployed and  has  no earnings.  He further submitted that petitioner is earning Rs.10,000/-  per month from  tailoring and embroidery work and she is living in her matrimonial home.  Despite differences,  she is being provided with all  comforts and her necessary expenses including her medical needs which  are being taken care of by the respondent.

4.    It is an admitted fact that petitioner is residing in her matrimonial home.  Therefore, she  is being provided with a residential accommodation and she is not to bear any expenses for her residence.  Petitioner has denied that she has any independent income from tailoring and embroidery work.  Court, therefore,
rightly did not believe the submissions of the respondent that petitioner was earning about Rs.10,000/- per month.  Petitioner has not disclosed any source of income of the respondent.  She has only referred to the immovable properties including  the agricultural land, which, admittedly, are in the name of  the parents of the respondent.  Nothing was placed on record to show that respondent owned any property  in his name independent of the immovable assets of his parents.  Being a son, may be that he is living with his parents, the fact remains that he can be made liable to pay maintenance only from his earnings and not from the properties, unless these properties give him some rental income.  In this case, neither respondent owned any property nor has any rental income. 

5.    Disbelieving the respondent that he was unemployed, Court awarded maintenance of Rs.3,000/- per month to the petitioner keeping in view the financial status of both the parties. In  ‘Smt. Jasbir Kaur  Sehgal  Vs. District   Judge,  Dehradun and Ors., MANU/SC/0835/1997,  it was observed that no set formula can be laid for fixing the amount of maintenance.  It has,  in very nature of things, to depend on the facts and circumstances of each case.  While fixing the maintenance, Court has to consider the status of the parties, their respective needs, capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and those he is obliged under the law and statutory but not voluntary payments or deductions.  While awarding maintenance, Court also has to consider that amount fixed for the wife is such that she  can have reasonable comfort in her life considering her status and living style which she maintained while living with her husband.  

6.  In this case, since  Trial Court was not provided with any specific information regarding source of income of the respondent.  It had to adopt a probable formula to award maintenance to the wife. Status of the parents of the husband, in no manner, can be considered by the Court while awarding maintenance to his wife.   It is the duty of the husband to maintain the wife and not of his parents. 

7.    In view of my discussion as above, I find no reason to interfere in the impugned order of the Trial Court dated 8th  August, 2008.  

Hence, petition is accordingly dismissed. 
CM No.13003/2008 (for stay)

8.    With dismissal of the petition itself, this application has become infructuous.  It is accordingly dismissed. 

ARUNA SURESH
           (JUDGE)
JULY  02, 2010
sb

http://lobis.nic.in/dhc/AS/judgement/03-07-2010/AS02072010CMM10452008.pdf