Irretrievable breakdown of marriage as new clause for divorce – Bill amending the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954.

source ;- http://164.100.24.219/BillsTexts/RSBillTexts/asintroduced/marrge%20law%20as%20intro.pdf

AS INTRODUCED IN THE RAJYA SABHA

Bill No. XLI of 2010

THE MARRIAGE LAWS (AMENDMENT) BILL, 2010

A

BILL

further to amend the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954.

BE 

it enacted by Parliament in the Sixty-first Year of the Republic of India as follows:—

CHAPTER I

PRELIMINARY

Short title and commencement.

1. (1) This Act may be called the Marriage Laws (Amendment) Act, 2010.
   (2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette.appoint.

CHAPTER II

AMENDMENTS TO THE HINDU MARRIAGE ACT, 1955

Amendment of section 13B.

2. In the Hindu Marriage Act, 1955 (hereafter in this Chapter referred to as the Hindu Marriage Act), in section 13B, in sub-section (2), for the words, brackets and figure “On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime”, the words, brackets and figure "Upon receipt of a petition under sub-section (1)" shall be substituted.

Insertion of new sections 13C, 13D and 13E.

3. After section 13B of the Hindu Marriage Act, the following sections shall be inserted, namely:—

Divorce on ground of irretrievable breakdown of marriage.

13C (1) A petition for the dissolution of marriage by a decree of divorce may be presented to the district court by either party to a marriage [whether solemnized before or after the commencement of the Marriage Laws  (Amendment) Act, 2010], on the ground that the marriage has broken down irretrievably.
(2) The court hearing a petition referred to in sub-section (1) shall not hold the marriage to have broken down irretrievably unless it is satisfied that the parties to the marriage have lived apart for a continuous period of not less than three years immediately preceding the presentation of the petition.
(3) If the court is satisfied, on the evidence, as to the fact mentioned in sub- section (2), then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall, subject to the provisions of this Act, grant a decree of divorce.
(4) In considering, for the purpose of sub-section (2), whether the period for which the parties to a marriage have lived apart has been continuous, no account shall be taken of any one period (not exceeding three months’ in all) during which the parties resumed living with each other, but no other period during which the parties lived with
each other shall count as part of the period for which the parties to the marriage lived apart.
(5) For the purposes of sub-sections (2) and (4), a husband and wife shall be treated as living apart unless they are living with each other in the same household, and reference in this section to the parties to a marriage living with each other shall be construed as reference to their living with each other in the same household.

Wife’s right to oppose petition on ground of hardship.
13D. (1) Where the wife is the respondent to a petition for the dissolution of marriage by a decree of divorce under section 13C, she may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial hardship to her and that it would in all the circumstances be wrong to dissolve the marriage.
(2) Where the grant of a decree is opposed by virtue of this section, then,—
(a) if the court finds that the petitioner is entitled to rely on the ground set out in section 13C; and
(b) if, apart from this section, the court would grant a decree on the petition, the court shall consider all the circumstances, including the conduct of the parties to the marriage and the interests of those parties and of any children or other persons concerned, and if, the court is of the opinion that the dissolution of the marriage shall
result in grave financial hardship to the respondent and that it would, in all the circum- stances, be wrong to dissolve the marriage, it shall dismiss the petition, or in an appropriate case stay the proceedings until arrangements have been made to its satis- faction to eliminate the hardship.

Restriction on decree for divorce affecting children
13E. The court shall not pass a decree of divorce under section 13C unless the court is satisfied that adequate provision for the maintenance of children born out of the marriage has been made consistently with the financial capacity of the parties to the marriage.
Explanation.— In this section, the expression “children” means—
(a) minor children;
(b) unmarried or widowed daughters who have not the financial resources to support themselves; and
(c) children who, because of special condition of their physical or mental health, need looking after and do not have the financial resources to support themselves.’.

Amendment of section 21A.

4. In section 21A of the Hindu Marriage Act, in sub-section (1), after the word and figures “section 13”, at both the places where they occur, the words, figures and letter “or section 13C” shall be inserted.

Amendment of section 23.

5. In section 23 of the Hindu Marriage Act, in sub-section (1), in clause (a), after the word and figure “section 5”, the words, figures and letter “or in cases where the petition is presented under section 13C” shall be inserted.

CHAPTER III

AMENDMENTS TO THE SPECIAL MARRIAGE ACT, 1954 – Act 43 of 1954.

Amendment of section 28.

6. In the Special Marriage Act, 1954 (hereafter in this Chapter referred to as the Special Marriage Act), in section 28, in sub-section (2), for the words, brackets and figure “On the motion of  both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime” the words, brackets and figure "Upon receipt of a petition under sub-section (1)" shall be substituted.

Insertion of new sections 28A, 28B and 28C.

7. After section 28 of the Special Marriage Act, the following sections shall be inserted, namely:—

Divorce on ground of irretrievable breakdown of marriage.

‘28A. (1) A petition for the dissolution of marriage by a decree of divorce may be presented to the district court by either party to a marriage [whether solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 2010] on the ground that the marriage has broken down irretrievably.

(2) The court hearing a petition referred to in sub-section (1) shall not hold the marriage to have broken down irretrievably unless it is satisfied that the parties to the marriage have lived apart for a continuous period of not less than three years immedi-ately preceding the presentation of the petition.
(3) If the court is satisfied, on the evidence, as to the fact mentioned in sub-section (2), then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall, subject to the provisions of this Act, grant a decree of divorce.
(4) In considering, for the purpose of sub-section (2), whether the period for which the parties to a marriage have lived apart has been continuous, no account shall be taken of any one period (not exceeding three months in all) during which the parties resumed living with each other, but no other period during which the parties lived with each other shall count as part of the period for which the parties to the marriage lived apart.
(5) For the purposes of sub-sections (2) and (4), a husband and wife shall be treated as living apart unless they are living with each other in the same household, and reference in this section to the parties to a marriage living with each other shall be construed as reference to their living with each other in the same household.

Wife’s right to oppose petition on ground of hardship.

28B. (1) Where the wife  is the respondent to a petition for the dissolution of marriage by a decree of divorce under section 28A, she may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial hardship to her and that it would, in all the circumstances, be wrong to dissolve the
marriage.
(2) Where the grant of a decree is opposed by virtue of this section, then,—
(a) if the court finds that the petitioner is entitled to rely on the ground set out in section 28A; and
(b) if apart from this section the court would grant a decree on the petition, the court shall consider all the circumstances, including the conduct of the parties to the marriage and the interests of those parties and of any children or other persons concerned, and if, the court is of the opinion that the dissolution of the marriage shall
result in grave financial hardship to the respondent and that it would in all the circum- stances be wrong to dissolve the marriage, it shall dismiss the petition, or in an appro-priate case stay the proceedings until arrangements have been made to its satisfaction to eliminate the hardship.

Restriction on decree for divorce affecting children.

28C. The court shall not pass a decree of divorce under section 28A unless the court is satisfied that adequate provision for the maintenance of children born out of the marriage has been made consistently with the financial capacity of the parties to the marriage.
Explanation.— In this section, the expression “children” means—
(a) minor children;
(b) unmarried or widowed daughters who have not the financial resources to support themselves; and
(c) children who, because of special condition of their physical or mental health, need looking after and do not have the financial resources to support themselves.’.

Amendment of section 40A.

8. In section 40A of the Special Marriage Act, in sub-section (1), after the word and figures “section 27”, at both the places where they occur, the words, figures and letter “or section 28A” shall be inserted.

STATEMENT OF OBJECTS AND REASONS

The Hindu Marriage Act, 1955 was enacted on the 18th May,  1955 to amend and codify the law relating to marriage among Hindus. Similarly, the Special Marriage Act, 1954 was enacted on the 9th October, 1954 to provide a special form of marriage in certain cases, for the registration of such and certain other marriages and for divorce. The provisions of the said Acts have proved to be inadequate to deal with the issue where there has been irretrievable breakdown of marriage and therefore a need has been felt for certain amendments therein.

2. In view of the demand from various quarters for making irretrievable breakdown of marriage as a ground for divorce under the Hindu Marriage Act, 1955, the Central Government referred the matter to the Law Commission of India for its consideration. The Law Commission in its 71st  Report titled "The Hindu Marriage Act, 1955 — Irretrievable Breakdown of Marriage as a Ground of Divorce" submitted in April, 1978 had examined the
issue in detail and recommended amendments to the Hindu Marriage Act, 1955 to make irretrievable breakdown of marriage as a new ground for granting a decreee of divorce among the Hindus. Accordingly, a Bill, namely, the Marriage Laws (Amendment) Bill, 1981, further to amend the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954, was introduced in Lok Sabha on the 27th February, 1981. However, before the Bill could be considered and passed by Lok Sabha, the Seventh Lok Sabha was dissolved on 31st December, 1984, and
hence the Bill lapsed.

3. Subsequently, the Hon'ble Supreme Court in Ms. Jorden Diengdeh vs. S.S. Chopra (AIR 1985 SC 935) had pointed out the necessity to introduce irretrievable breakdown of marriage and mutual cosent as grounds for grant of divorce in all cases. Similarly in Naveen Kohli vs. Neelu Kohli (AIR 2006 SC 1675), the Hon'ble Supreme Court recomended to the Union of India to seriously consider bringing an amendment in the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for divorce.

4. Further, the 18th  Law Commission of India suo motu took up the mater and in its 217th Report titled 'Irretrievable Breakdown of Marriage —Another Ground for Divorce' presented to the Government in March, 2009 recommended that 'Irretrievable breakdown of marriage' should be incorporated as another ground for grant of a decree of divorce under the afore- said Acts.

5. Having regard to the recommendations of the Law Commission of India and the observations of the Hon'ble Supreme Court as aforesaid and the demand from various quarters, it is proposed to amend the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 so as to provide for irretrievable breakdown of marriage as a ground of divroce thereunder subject to certain safeguards to the wife and affected children.
 

6. At present, a petition for grant of a decreee of divorce on the ground of mutual consent could be presented by both the parties to the marriage together before the court under sub-section (1) of section 13B of the Hindu Marriage Act, 1955 and similarly under sub-section (1) of section 28 of the Special Marriage Act, 1954. Under sub-section (2) of section 13B and that of section 28 respectively, the parties have to move a motion jointly not
earlier than six months after the date of presentation of the petition referred in sub-section (1) and not later than eighteen months after the said date for the said purpose. It has been observed that in several cases one of the parties do not turn up for filing the motion jointly with the other party under sub-section (2) of section 13B of the Hindu Marriage Act, 1955 or under sub-section (2) of section 28 of the Special Marriage Act, 1954, as the case may be, leading the party desirous of obtaining a decree of divorce hapless and remediless. In order
to mitigate such hardships and to allow divorce in cases of complete failure of such marriages, it is proposed to amend sub-section (2) of section 13B of the Hindu Marriage Act, 1955 and sub-section (2) of section 28 of the Special Marriage Act, 1954, respectively, by doing away with the aforesaid condition of moving motion subsequently.

7. In case the wife happens to be the respondent in respect of a petition for grant of a decree of divorce on the ground of irretrievable breakdown of marriage under the proposed new section 13C of the Hindu Marriage Act, 1955 or under the proposed new section 28A of the Special Marriage Act, 1954, as the case may be, the wife is entitled to oppose the grant of a decree of divorce on the ground that a dissolution of the marriage will result in grave financial hardship to her. Similarly, provision has been made to restrict grant of a decree of divorce on the ground of irretrievable breakdown of marriage if the court is satisfied that adequate provision for the maintence of children born out of the marriage has not been made consistently with the financial capacity of the parties to the marriage.

8. The Bill seeks to achieve the above objects.

NEW DELHI;M. VEERAPPA MOILY.

The 13th July, 2010.ANNEXURE
EXTRACTS  FROM  THE  HINDU  MARRIAGE  ACT,  1955
( 25 OF 1955)
*****
13B. (1)   *****
(2)     On the motion of both the parties made not earlier than six months after the date
of the presentation of the petition referred to in sub-section (1) and not later than eighteen
months after the said date, if the petition is not withdrawn in the meantime, the court shall, on
being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a
marriage has been solemnized and that the averments in the petition are true, pass a decree
of divorce declaring the marriage to be dissolved with effect from the date of the decree.
*****
21A. (1) Where—
(a) a petition under this Act has been  presented to a district court having
jurisdiction by a party to a marriage praying for a decree for judicial separation under
section 10 or for a decree of divorce under section 13, and
(b) another petition under this Act has been presented thereafter by the other
party to the marriage praying for a decree for judicial separation under section 10 or for
a decree of divorce under section 13 on any ground, whether in the same district court
or in a different district court, in the same State or in a different State,
the petitions shall be dealt with as specified in sub-section (2).
*****
23. (1) In any proceeding under this Act, whether defended or not, if the court is
satisfied that—
(a)  any of the grounds for granting relief exists and the petitioner   except  in
cases where the relief is sought by him on the ground specified in sub-clause (a),
sub-clause (b) or sub-clause (c) of clause (ii) of section 5 is  not in any way taking
advantage of his or her own wrong or disability for the purpose of such relief, and
*****
then, and in such a case, but not otherwise, the court shall decree such relief accordingly.
*****
EXTRACTS  FROM THE SPECIAL MARRIAGE ACT, 1954
( 43 OF 1954)
*****
28. (1)   *****
(2) On the motion of both the parties made not earlier than six months after the date of
the presentation of the petition referred to in sub-section (1) and not later than eighteen
months after the said date, if the petition is not withdrawn in the meantime, the district court
shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks
fit, that a marriage has been solemnized under this Act, and that the averments in the petition
Divorce by
mutual
consent.
Power to
transfer
petitions in
certain cases.
Decree in
proceedings.
Divorce by
mutual
consent.
78
are true, pass a decree declaring the marriage to be dissolved with effect from the date of the
decree.
*****
40A. (1) Where—
(a)  a petition under this Act has been presented to the district court having
jurisdiction by a party to the marriage praying for a decree for judicial separation under
section 23 or for a decree of divorce under section 27, and
(b)  another petition under this Act has been presented thereafter by the other
party to the marriage praying for decree for judicial separation under section 23, or for
decree of divorce under section 27 on any ground whether in the same district court or
in a different district court, in the same State or in a different State,
the petition shall be dealt with as specified in sub-section (2).
*****
Power to
transfer
petitions in
certain cases.RAJYA   SABHA
A
BILL
further to amend the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954.
————
(Shri M. Veerappa Moily, M.P.)
GMGIPMRND—3365RS(S4)—30-07-2010.

DIL cant book Parents in laws if she and husband( parents’son) are living separate or abroad- no domestic relationship. No DVA after divorce. foreign divorce valid.

 

No domestic relationship between parents in laws and wife of son if the couple not living in the shared domestic household or staying abroad. No PWDVA after divorce. Foreign divorce ( ex parte or contested which is unchalleged in foreign jurisdictional court) valid in India  

Crl. Rev. P. No.252/2010, 253/2010 & 338/2010      

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve:  6th July, 2010
Date of Order: 29th July, 2010
+  Crl. Rev. P. No. 253/2010   29.07.2010  

  Harbans Lal Malik            ... Petitioner
        Through: Mr. Dharam Raj, Advocate
Versus
  Payal Malik            ... Respondents
        Through: Mr. R.Jain, Mr. Deepak Aggarwal &
        Mr. D.Jain, Advocates
+  Crl. Rev. P. No. 252/2010
%                   29.07.2010  

  Varun   Malik              ... Petitioner
        Through: Mr. Dharam Raj, Advocate
Versus
  Payal Malik            ... Respondents
        Through: Mr. R.Jain, Mr. Deepak Aggarwal &
        Mr. D.Jain, Advocates
+  Crl. Rev. P. No. 338/2010
%                   29.07.2010  

  Nagesh Malik            ... Petitioner
        Through: Mr. Dharam Raj, Advocate
Versus
  Payal Malik            ... Respondents
        Through: Mr. R.Jain, Mr. Deepak Aggarwal &
        Mr. D.Jain, Advocates

JUSTICE SHIV NARAYAN DHINGRA

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

JUDGMENT

These petitions arise out of order passed by the learned Additional Sessions Judge on 7th  May, 2010 while disposing of two appeals against the order dated 27th  July, 2009 passed by the learned MM.

2.    The undisputed facts are that Ms. Payal Malik used to live with her  parents before marriage at Hissar.  Her marriage took place with Mr. Nagesh Malik  whose parents used to live at Panipat.  Marriage of the parties was solemnized at Panipat on 30th  August, 2001.  Nagesh Malik was already working in USA and after marriage both of them went to USA on 20th  September, 2001 where they settled their matrimonial home and lived together.  On 24th  October, 2002 a female child was born  to the couple at USA, who was named as Vanishka.  The parties continued living together in USA till 2008.  It seems deep differences arose between the parties and  they could not pull on together.  There are allegations and counter allegations made by wife and husband which are not relevant for the purpose of deciding this petition.  However, husband alleged that on 6th August, 2008 due to these differences, parties executed a post-nuptial agreement and decided to obtain divorce from each other,sticking to the agreement.  Wife refutes having signed the agreement voluntarily and alleges that she was turned out from USA by her husband on 22nd  August, 2008.  Whereas the husband‟s contention is that she of her own left USA without joining the husband for obtaining divorce through a Court in USA.  The husband filed a divorce petition before Superior Court of New Jersey Chancery Division Family Court USA on 27th  August, 2008.  The notice of divorce suit was duly served on her.  The Court of New Jersey allowed the divorce petition and a decree of divorce was granted on 4th December, 2008. 

3.    On 13th  January, 2009 wife filed a complaint before CAW Cell Hissar  against husband and  in-laws.  Ms. Sushila,  Inspector of CAW Cell Hissar, vide her report dated 20th  January, 2009, observed that the allegations in the complaint were not true and it was useless to keep the complaint pending further.  Thereafter, wife filed a complaint in the Court of MM at Delhi making her husband  (Nagesh Malik), father-in-law  (Harbans Lal Malik), mother-in-law  (Neelam Malik)  and brother-in-law (Varun Malik) as parties under Section 12 of Protection of Women from Domestic Violence Act, 2005 [in short – Domestic Violence Act] with a prayer that Court should pass a protection order under Section 18,  residence  order under Section 19,  monetary relief order under Section 20,  compensation order under Section 22 and interim orders under Section 23 of the Act.  She made allegations of mal-treatment at the hands of respondents from day one of the marriage till she left USA and came to India.  She  stated, after coming  back  from USA she went to her in-laws‟ house at Panipat but found  the house locked as her parents-in-law had gone to USA.   She also stated that her husband had sent a complaint to SP Panipat leveling certain scandalous allegations against her.  She graduated from Delhi University in 1998 and had done interior designing course  from South Delhi Polytechnic.  She alleged that her in-laws had three houses and an industrial unit  in Panipat.  They had properties in Delhi as well and respondent no.1 (her husband) had share in properties of her in-laws.  She submitted that her complaint at CAW Cell Hissar could not be pursued byher as her in-laws had tried to mislead Haryana police and also because of a tragedy in her family.  She left her parents‟ house and came  to Delhi  to pursue her career prospects.  She was presently residing at Malviya Nagar, Delhi.  Till the time she was  not  given back her matrimonial home  (at Panipat),  she would  live in Delhi,  so the Court of MM at Delhi  had  jurisdiction.  She prayed that  custody of child Vanshika should be given to her.  She should be given shares in properties at Panipat and Delhi as well as a house in New Jersey, USA.  She should be given Rs.20,000/- per month for her maintenance and education as she  intended  to pursue  further study and Court should direct for return of her dowry articles.  Along with main application under the Domestic Violence Act, applications for interim reliefs were made.  She in the application under Section 23 of the Act prayed for a residence or in lieu thereof a sum of  Rs.20,000/-  per month and Rs.50,000/-  as onetime payment to meet education expenses, a car or Rs.8,000/- per month in lieu of the car and Rs.20,000/- per month for her day-to-day expenses and Rs.50,000/-  as  onetime payment to repay her debts.   

4.    The learned MM, by her order dated 27th  July, 2009 directed that an amount of Rs.50,000/- per month be paid to wife as interim maintenance jointly or severally by respondents no. 1,2 & 4.  She dropped respondent no.3 from the array of respondents on the ground that petition against  a female respondent  was not maintainable.

5.    It was pleaded before the learned MM by the petitioner that there was a decree of divorce granted by a Competent  Court of New Jersey, Chancery Division after following due procedure as laid down in USA.  After grant of divorce there was no domestic relationship of Ms. Payal Malik with any of the respondents.  (It is noted in the order of MM that the decree of divorce passed by the Court of US was placed on record.)  Reliance was also placed by the petitioner on post nuptial agreement as entered into between husband and  wife.  The learned trial Court did not think it proper to deal with the issue whether an application under Section 12 of Domestic Violence Act could be entertained at all in respect of a divorced wife and whether the decree of divorce granted by the foreign Court where  the parties had lived together for more than seven years, had some value or not. 

6.    The trial Court after discussing the objects and aims of The Protection of Women Against Domestic Violence Act, 2005 and after reproducing a quote from novelist Joseph  Conrad “being a woman is a terribly difficult task, since it consists principally in dealing with men” [as if men, though given birth by women, are  ferocious  animals and not human beings,  but cannibals] passed an order for grant of maintenance.    

7.    In appeal before  the learned Sessions Judge,  an argument was pressed that the judgment given by New Jersey Court was conclusive evidence of status of the parties and in view of Section 14 of Code of Civil Procedure and Section 4 of  The  Indian Evidence Act,  unless the judgment was set aside the trial Court  should not have entertained the petition under Section 12  of The Protection of Women Against Domestic Violence Act.  It was pleaded that  only an  application under Section 125 Cr.P.C.  (which is applicable to divorced wife)  could have been entertained by a Court,  if moved.  It was argued by wife that decree of divorce was obtained by fraud and was hit by Section 13 CPC and therefore could not stand in the way of entertaining an application under Section 12 of Domestic Violence Act.  

8.    The learned Sessions Judge while deciding appeal observed that the provisions of Domestic Violence Act are to be interpreted taking help of Section 125 Cr.P.C. and the explanation given under Section 125 Cr.P.C. of  “Wife”  is to be read in Domestic Violence Act also.  He further observed that the Court has to take pragmatic approach and unless the dissolution of marriage was proved by evidence, the Court has not to act on the decree.  He therefore dismissed the appeal filed by husband and other respondents observing that there was no illegality in the order of learned trial Court in granting maintenance.  He allowed an appeal filed by wife  in respect of  execution of the order of  of MM  and directed that Ministry of External Affairs be sent a request to execute the order dated 27th July, 2009 as per law.  

9.    The first issue arising  in this case is whether  an  application under Section 12  of Domestic Violence Act  made by the respondent could have been entertained against all the respondents  (petitioners herein)  as arrayed  in her application  and whether the Court without discussing the  domestic and  legal relationship of different respondents with the petitioner, could have passed an order against the petitioners making them jointly and severally liable to pay maintenance of Rs.50,000/-.  

10.    Under Section 12,  an  „aggrieved person‟  can file an application to Magistrate against the respondents.  The respondent has been defined under Section 2 (q).  The definition reads as under: 
“respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:
  Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.

11.   It is apparent that in order to make a person as respondent in a petition under Section 12,  there must exist a domestic relationship between the respondent and the aggrieved person.  If there is no domestic relationship between the aggrieved person and the respondent,  the Court of MM cannot pass an order against such a person under the Act.  Domestic relationship is defined under Section 2 (f) of the Act and is as under:

“domestic relationship” means a relationship between two persons who live or have, at any point of  time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;

12.    It is apparent that domestic relationship arises between the two persons, who have lived together in a shared household and when they are related by consanguinity,  marriage or through a relationship in the nature of marriage, adoption or  are  family members living together as a joint family.  The definition speaks of living  together at any point of time however it does not speak of having relation at any point of time.  Thus,  if the domestic relationship continued and if the parties have lived together at any point of time in a shared household, the person can be a respondent but if the relationship does not continue and the relationship had been in the past and is not in the present, a person cannot be made respondent on the ground of a past relationship.  The domestic relationship between the aggrieved person and the respondent must be  present  and alive at the time when complaint under Domestic Violence Act is filed and if this  relationship is not alive on the date when complaint is filed,  the domestic relationship cannot be said to be there. The first respondent made by the wife in her complaint before the learned MM in this case was husband with whom  the  wife had lived under the same roof in a shared household till 22nd August, 2008 in USA.  She had not lived for last 7 ½ years with respondent  no.1 in India.  Respondent No.4  is Varun Malik who is brother of the husband.  Under no circumstances it can be said that brother of husband, who was a major and independent, living separately from this husband and wife, had any kind of domestic relationship or moral or legal responsibility/obligations towards his brother‟s wife.  He had not lived in domestic relationship with Payal Malik at any point of time.  Merely because a person is brother of the husband he cannot be arrayed as a respondent,  nor  does  an MM  gets  authority over each and every relative of the husband,  without going into the fact whether a domestic relationship or shared household was there between the aggrieved person and the respondent.  

13.    The  other respondent made in this case is Harbans Lal,  father of Nagesh Malik.  Nagesh Malik was living in USA he came to India to solemnize  his marriage with an appropriate person.  After marriage was solemnized he left  India and went to USA. He lived all along with his wife in USA, birth of the child had taken place in USA.  In all  such cases where boy lives abroad and  is settled abroad but comes to India for marriage, it is known to the girl as well as to the parents of the girl that they are choosing a groom who is not living with his parents but settled abroad.  His links with the parents are only as with any other relative.  He is not dependent on parents may be parents, if poor, take financial help from him.  

14.    The girl and the parents of the girl knew it very well that they had selected a person for marriage with whom the girl was going to live abroad and the matrimonial home and the shared household was going to be outside India.  This act of marrying a person settled abroad is a voluntary act of the girl.  If she  had not intended  to  enjoy the fat salary which boys working abroad get and the material facilities available abroad, she could have refused to marry him and settled for a boy having moderate salary within India.   After having chosen a person living abroad,  putting the responsibility, after failure of marriage, on the shoulders on his parents and making them criminals in the eyes of law because matrimonial ties between the two could not last for long, does not sound either legally correct or morally correct.  How can the parents of a boy who is working abroad, living abroad, an adult, free to take his own decisions,  be arrayed as criminals or respondents if the marriage between  him  and  his wife failed  due to any reason whatsoever  after few years of marriage.   If the  sin committed by such parents  of boy  is that they facilitated  the marriage,  then  this sin is equally committed by parents of the girl.  If such marriage fails  then parents of both bride and groom would have to share equal responsibility.  The responsibility of parents of the groom cannot be more.  Shelter of Indian culture and joint family cannot be taken  to book only relatives of boy.  A woman‟s shared household in India in such cases  is also her parents‟ house where she lived before marriage and not her in-laws‟ house where she did not live after marriage.  

15.    When the shared household of husband and wife had not been in India for the last 08 years at any point of time,  it is strange that the learned MM did not even think it proper to discuss as to how the father or the brother of the boy could be made respondents in proceedings of domestic violence, after husband and wife had not been able to pull on together.  In the present case, Mr. Harbans Lal Malik petitioner could not be said to have shared household with the respondent since the respondent had not lived in his house as a family member,  in a joint family of which Harbans Lal Malik was the head.  

16.    It is important to consider as to what “family” is and what “joint family” is. 

As per Black‟s Law Dictionary  (VI Edition)  “family” means  a collective body of persons who live  in one house under one head or management.  Dictionary states that the meaning of word “family” necessarily depends on field of law in which word is used, but this is the most common meaning.  

“Family” also means a group of blood relatives and all  the  relations who descend from a common ancestor or who spring  from a common root.  However, for the purpose of domestic violence act where the object is to protect a woman from domestic violence, “family” has to be defined as a collective body of persons who live in one house under one head or management.

In Chamber‟s Dictionary (1994-95) again the “family” is defined as all those who live in one house  i.e. parents,  children servants; parents and their children. 

In Shorter Oxford English Dictionary (1993 ed.)  “family”  is defined as a group of persons living in one household including parents and their children, boarders, servants and such a group is a organizational unit of society.  

17.    A Hindu Joint Family or Hindu  Undivided Family  (HUF) or a Joint Family is an extended family arrangement prevalent among Hindus of the Indian subcontinent, consisting of many generations living under the same roof.  All the male members are blood relatives and all the women are either mothers, wives, unmarried daughters or widowed relatives, all bound by the common sapinda relationship.  The joint family status being the result of birth, possession of joint cord that knits the members of the family together is not property but the relationship. The family is headed by a patriarch, usually the oldest male, who makes decisions on economic and social matters on behalf of the entire family.  The patriarch‟s wife generally exerts control over the kitchen, child rearing and minor religious practices.  All money goes to the common pool and all property is held jointly.  The essential
features of a joint family are:

  Head of the family takes all decisions
  All members live under one roof
  Share the same kitchen
  Three generations  living together (though often two or more brothers live
together or father and son live together or all the descendants of male live
together)
  Income and expenditure in a common pool - property held together. 
  A common place of worship
  All decisions are made by the male head of the family  –  patrilineal, patriarchal.     

18.    Thus, in order to constitute a family and domestic relationship it is necessary that the persons who constitute domestic relationship must be living together in the same house under one head.  If they are living separate then they are not a family but they are relatives related by blood or  consanguinity  to each other. Where parents live separate from their son like any other relative,  the family of son cannot include his parents. The parents can be included in the family of son only when they are dependent upon the son and/or are living along with the son in the same house.  But when they are not  dependent  upon the son and they are living separate, the parents shall constitute a separate family and son, his wife and children shall constitute a separate family.  There can be no domestic relationship of the wife of son with the parents when the parents are not living along with the son and there can be no domestic relationship of a wife with the parents of her husband when son along with the wife is living abroad, maintaining a family there and children are born abroad.  I, therefore consider that Harbans Lal Malik could not have been made as a respondent in a petition under Domestic  Violence  Act as he had no domestic relationship with aggrieved person even if this marriage between her and her husband was subsisting.

19.    I, also consider that the definition of “wife” as available under Section 125 Cr.P.C could not be imported into Domestic Violence Act.  The Legislature was well aware of Section 125 Cr.P.C. and if Legislature intended, it would have defined “wife” as  in Section 125 Cr.P.C  in Domestic Violence Act as well. The purpose and object of Domestic Violence and provision under Section  125 Cr.P.C. is different.  While Domestic Violence Act has been enacted by the Parliament to prevent acts of domestic violence on women living in a shared household.  Section 125 of Cr.P.C. is to prevent vagrancy where wife is left high and dry without maintenance.  Law gives  a right to claim maintenance under Civil Law as well as Section 125 Cr.P.C. even to a divorced wife, but an act of domestic violence cannot be committed on a divorced wife, who is not living with her husband  or family  and  is  free to live wherever she wants.  She has a  right to claim maintenance and enforce other rights as per law.  She has a right to claim custody of children as per law but denial of  these rights do not amount to domestic violence.  Domestic Violence is not perceived in this manner.  The  definition  of  “Domestic Violence”  as given in Section 3  of The Protection of Women from Domestic Violence Act, 2005 and is under:

3. Definition of domestic violence .-
For the purposes of this Act, any act, omission or commission or
conduct of the respondent shall constitute domestic violence  in
case it -
(a) harms or injures or endangers the health, safety, life, limb or
well-being, whether mental or physical, of the aggrieved person or
tends to do so and includes causing physical abuse,  sexual
abuse, verbal and emotional abuse and economic abuse; or
(b)  harasses, harms, injures or endangers the aggrieved person
with a view to coerce her or any other person related to her to
meet any unlawful demand for any dowry or other property or
valuable security; or
(c)  has the effect of threatening the aggrieved person or any
person related to her by any conduct mentioned in clause (a) or
clause (b); or(d) otherwise injures or causes harm, whether
physical or mental, to the aggrieved person.
Explanation I.-For the purposes of this section,-
(i) "physical abuse" means any act or conduct which is of such a
nature as to cause bodily pain, harm, or danger to life, limb, or
health or impair the health or development of the aggrieved
person and includes assault, criminal intimidation and criminal
force;
(ii) "sexual abuse" includes any conduct of a sexual nature that
abuses, humiliates, degrades or otherwise violates the dignity of
woman;
(iii) "verbal and emotional abuse" includes- 
(a)  insults, ridicule, humiliation, name calling and insults  or
ridicule specially with regard to not having a child or a male child;
and
(b) repeated  threats to cause physical pain  to any person in
whom the aggrieved person is interested.
(iv) "economic abuse" includes-
(a) deprivation of all or any economic or financial resources
to which the aggrieved person is entitled under any law or custom
whether payable under an order of a court or otherwise or which
the aggrieved person requires out of necessity including, but not
limited to, household necessities for the aggrieved person and her
children, if any, stridhan, property, jointly or separately owned by
the aggrieved person, payment of rental related to the shared
household and maintenance;
(b)  disposal of household effects,  any  alienation of assets
whether movable or immovable, valuables, shares, securities,
bonds and the like or other property in which the aggrieved person
has an interest or is entitled to use by virtue of the domestic
relationship or which may be reasonably required by the
aggrieved person or her children or her stridhan or any other
property jointly or separately held by the aggrieved person; and
(c) prohibition or restriction to continued access to resources
or facilities which the aggrieved person is entitled to use or enjoy
by virtue of the domestic relationship including access to the
shared household.

20.    This definition pre supposes that the woman is living with the person who committed violence  and domestic relationship is not dead buried or severed.  This does not speak of past violence which a woman suffered before grant of divorce.

21.    The next question which arises is whether the learned Court of MM could have ignored the decree granted by the Court of New Jersey, USA.  Section 14 of CPC reads as under:
14.  Presumption as to foreign judgments.  –  The Court shall
presume upon the production of any document purporting to be a
certified copy of a foreign judgment that such judgment was
pronounced by a Court of competent jurisdiction, unless the
contrary  appears on the record; but such presumption may be
displaced by proving want of jurisdiction. 

22.    It is evident from the reading of this provision that the  Court has to presume, if a certified copy of foreign judgment is produced that such judgment was pronounced by a Court of competent jurisdiction unless the contrary appears  on record or is proved.    Obtaining of divorce by husband from New Jersey Court is not denied in this case.  Prima facie New Jersey, USA Court had jurisdiction is evident from the fact that husband and wife lived together in New Jersey for 7 ½ years.  The laws of New Jersey provided that the jurisdiction in a matrimonial matter can be assumed by the Court if the parties have ordinarily lived there for one year.  In the present case admittedly the parties lived there for 7 ½ years thus prima facie there was no issue whether the Court of New Jersey had jurisdiction or not.  

23.    Section 13 of CPC provides as under:
13. When foreign judgment not conclusive.
A foreign judgment shall be  conclusive as to any matter thereby
directly adjudicated upon between the same parties or between
parties under whom they or any of them claim litigating under the
same title except-
(a)  where it has not been pronounced by a Court of competent
jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be founded
on an incorrect view of international law or a refusal to recognise
the law of
1
[India] in cases in which such law is applicable;
(d) where the proceedings in which the judgment was obtained
are opposed to natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any law in
force in
1
[India].

24.    It is evident that a foreign judgment has to be on the face of it considered to be final.  The explanations as mentioned in Section 13 are to be proved by a person who alleges that the foreign judgment was not to be relied on and should not be considered.  A foreign judgment can be set  aside by a competent Court, only when the person aggrieved from foreign judgment asks for a declaration  that the judgment should not be acted upon. So long as the foreign judgment is not set aside and the issue regarding foreign judgment is not adjudicated by a competent Court,  the judgment cannot be ignored and  a Court cannot brush aside a foreign judgment as a non- consequential.  Section 13 & 14 of CPC provide how a foreign judgment is to be dealt with.  A Court in India has  to presume that the judgment delivered by a foreign Court where the parties had lived for 7 ½ years and given birth to a girl,  is a judgment given by a competent court and if anyone wants that this judgment be disregarded, he has to prove the same before the Court.  So long as he does not prove it,  the judgment is considered as a valid judgment and  has to be given effect to.  

25.    It was argued by the respondent Counsel that the respondent did not participate in proceedings before the Court of New Jersey, USA.  Participating or not participating before the Court is not a ground for setting aside  its  judgment.  The grounds for setting aside a foreign judgment are given in Section 13 CPC and this is not one of the grounds.  

26.    The question of jurisdiction was considered by the Court  of New Jersey, USA that awarded decree of divorce and it is not shown by the Counsel for respondent how Court of New Jersey had no jurisdiction when the two parties lived there for 7 ½ years and gave birth to a US citizen within the jurisdiction of that Court.  Learned  Counsel for the respondent relied upon Y.  Narasimha Rao v. Venkata Lakshmi (1991) 3 SCC 451  to press the point that a decree of divorce granted by a foreign Court should not be relied upon since the parties were married in India and they were governed by Hindu Marriage Act.  A bare perusal of the judgment of New Jersey Court would show that the divorce was granted on the ground of cruelty which is one of the grounds available under Hindu Marriage Act.   

27.    In Y. Narasimha Rao‟s case  (supra), decree of divorce was obtained by husband  from the Circuit Court of St. Louis Country Missouri, USA by creating a jurisdiction of that Court as the condition for invoking jurisdiction of that Court was 90 days residence.   Supreme Court  observed that the  residence does not mean a “temporary residence”  for the purpose of obtaining divorce but it must be  “habitual residence “which is intended to be a permanent residence for future as well, since it was not the case, the decree was found to be null and void.   It is not the position in this case.  The parties had made New Jersey as their home for 7 ½ years thus the Court of New Jersey could not be said to have assumed jurisdiction only on the basis of temporary residence of husband.  I also consider that issue  of assuming jurisdiction on the basis of temporary residence may have no force today when statutory provisions in India allow assumption of jurisdiction on the basis of  a temporary residence [Section 27(1)(a) of  Protection of Women from Domestic Violence Act, 2005].

28.    I am surprised that the Courts  below did not give weight to the judgment of New Jersey where parties lived for 7 ½ years but assumed jurisdiction under Domestic Violence Act because of the pure temporary residence (as pleaded by her) of wife in Delhi who is otherwise resident of Hissar.  The Court of ASJ wanted that the order of the Court of MM should be honoured by the US while the Court here would not honour a decree of Court of USA where the husband and wife lived for 7 ½ years.

29.    I consider that  the  decree of divorce granted by  the  Court of New Jersey, USA where husband and wife lived together for 7 ½ years and gave birth to a child could not be ignored and it could not be said that domestic relationship of the wife continued with her husband in New Jersey or her in-laws living at Panipat.   

30.   The learned MM and learned ASJ committed jurisdictional error by assuming jurisdiction under Domestic Violence Act,  in view of admitted fact  that the wife had all along, before filing the petition under Domestic Violence Act,  lived with her husband in USA.  Her shared household had been in USA, her husband was still living in USA the child was  born in USA.  The courts below also committed grave error by making brother  or father  of the husband and father of the husband jointly responsible for payment of Rs.50,000/-  to the wife. There was no justification for directing brother of the husband to pay this amount. Once a  son grows and he starts earning, marries, makes his separate home, and sires children  the burden of his wife cannot be put on the shoulders of his father or brother on an estrangement between husband and wife.  This burden has to be borne by the husband alone and not by the parents or bothers or sister of the husband, unless and until the husband had been contributing  to  the  joint  family as a member of HUF and  has a right of deriving benefits from the joint family.   If the husband had not been contributing or deriving benefits  from the joint family, had not been member of the  joint  family and the parents had been treated like any other relative,  how can the parents be burdened with the responsibility of his wife.    

31.    In view of my above discussion, order dated 27th July, 2009 passed by learned MM and order dated 7th May, 2010  passed by learned ASJ, directing payment of Rs.50,000/-  jointly and severally, ignoring the decree of divorce and without devolving upon the domestic relationship are illegal and not tenable.  The orders are set aside. 

No order as to costs.

July 29,  2010         SHIV NARAYAN DHINGRA, J.
vn

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