Important Judgement

Whether date of birth mentioned in ADHAR CARD is conclusive?

The learned A.G.A. has submitted that the date of birth entered in an Aadhar Card has not been conferred any conclusive status by law and, therefore, it would be appropriate that this petition be disposed off by requiring the investigating agency to determine the age of the victim and record the statement of the victim and, thereafter, take appropriate action as per law.
6. Having perused the record. We do not find any other documentary evidence on the basis of which we could hold the victim to be an adult.  It is not provided by law that the date of birth entered in an Adhaar Card would be conclusive.
 
IN THE HIGH COURT OF ALLAHABAD
Criminal Misc. Writ Petition No. 24015 of 2019
Decided On: 22.11.2019
 Kishan Kumar  Vs. State of U.P. 
Hon’ble Judges/Coram:
Manoj Misra and Virendra Kumar Srivastava, JJ.
1. Heard learned counsel for the petitioners; learned A.G.A. for the respondents 1 to 3; and perused the record.
2. The instant petition seeks quashing of the First Information Report dated 08.11.2019 registered as Case Crime No. 310 of 2019, under Sections 363, 366, 506 I.P.C., P.S. Chauri-Nawabganj, District Farrukhabad.
3. The allegation in the First Information Report, which has been lodged by the father of the victim Komal (the petitioner no. 5) is to the effect that his daughter, who is aged about 16 years, has been enticed away by the accused person.
4. The petitioners have prayed for quashing of the First Information Report by claiming that the victim Komal is adult and that she has voluntarily married Kishan Kumar (petitioner no. 1). However, there is no satisfactory documentary evidence on record to show that the victim is an adult though reliance has been placed on Adhaar Card of the victim, which discloses her date of birth as 01.01.2000.
5. The learned A.G.A. has submitted that the date of birth entered in an Aadhar Card has not been conferred any conclusive status by law and, therefore, it would be appropriate that this petition be disposed off by requiring the investigating agency to determine the age of the victim and record the statement of the victim and, thereafter, take appropriate action as per law.
6. Having perused the record. We do not find any other documentary evidence on the basis of which we could hold the victim to be an adult. As it is not provided by law that the date of birth entered in an Adhaar Card would be conclusive, and we find no document on the basis of which such entry had been made, we deem it appropriate to dispose off this petition by providing as follows:-
The petitioner no. 1 shall produce the petitioner no. 5 (Komal) before the court of Chief Judicial Magistrate, Farrukhabad by or before 15th December, 2019. Upon her production, the Chief Judicial Magistrate, Farrukhabad shall proceed to record the statement of Komal to ascertain whether any force has been used on her or she has been voluntarily in the company of the petitioner no. 1. In case the victim deposes before the Chief Judicial Magistrate that force has been used on her, the Chief Judicial Magistrate shall proceed to pass appropriate orders immediately in respect of the custody/protection of the victim. However, in case the victim deposes that she has been voluntarily in the company of the petitioner no. 1 or any other person and that no force has been used on her, learned Magistrate shall call upon the Investigating Officer of the case and fix a date for appearance of the informant or the parents or natural guardian of the victim for the purpose of determining the age of the victim. On the date so fixed or within such reasonable time as may be required, the learned Magistrate shall proceed to determine the age of the victim as per law, keeping in mind the provisions that are applicable for determination of the age of a victim and may, if necessary, direct for ossification test/medical examination of the victim from a District Government Hospital. If the victim is found to be a minor, the learned Magistrate shall proceed to pass appropriate orders in respect of custody of the victim, as per law. However, in case the victim is found to be an adult, he shall proceed to record the statement of the victim under Section 164 Cr. P.C.
7. On the basis of the statement of the victim and the age of the victim as determined above, the police shall submit report under Section 173(2) Cr. P.C.
8. The aforesaid exercise shall be completed preferably within a period of four weeks from the date of production of the victim before the Chief Judicial Magistrate concerned. Till 15th December, 2019, or the date on which the victim is produced before the Chief Judicial Magistrate, whichever is earlier, no coercive action shall be taken against the petitioners in the above case. Thereafter, if the victim is produced before the Chief Judicial Magistrate, as directed above, the accused shall be dealt with as per the statement of the victim. Though, in the event the victim is found to be minor, the police would be free to take the investigation to its logical conclusion and may effect arrest of the accused.
9. It is further clarified that if the victim is not produced by the date fixed as above, there shall be no protection and the investigating agency shall be free to take all steps that may be necessary to bring the investigation to its logical conclusion.
10. With the aforesaid observations/directions, the petition is disposed off.


Whether it is mandatory to pay stamp duty on lease agreement entered for 11 months?

 Here, in this case, the document viz., the lease agreement comes within the purview of Schedule I of Section 35(a) of the Indian Stamp Act. Though the lease agreement entered for 11 months need not be registered, for the purpose of marking the document even for collateral purpose, it should be duly stamped.Further, the Hon’ble Supreme Court in the decision reported in MANU/SC/0942/2008 : (2008) 2 MLJ 1115 (SC) (Thiruvengada Pillai Vs. Navaneethammal) has held that even if an agreement is not executed on requisite stamp paper, it is admissible in evidence on payment of duty and penalty under Section 35 or 37 of the Indian Stamp Act. Therefore, when an instrument which is not duly stamped is produced before the Court for the purpose of admitting the same in evidence, as per Section 35 of the Stamp Act, such instrument cannot be admitted in evidence and if the person who produces the document is willing to pay the stamp duty penalty, then a duty is cast upon the Court to impound the document and direct the party to pay penalty as per proviso (a) to Section 35 of the Act and follow the procedure contemplated under Section 38(1) of the Act. In case, the person refuses to pay penalty as fixed by the Court and requested the Court to send the document to the Collector for impounding and determination of penalty and also the stamp duty payable on that document, the Court has to send the document in original to the Collector as contemplated under Section 38(2) of the Stamp Act. On receipt of such document, the Collector has to follow the procedure contemplated under Section 40 of the Act.”
IN THE HIGH COURT OF MADRAS
C.R.P. (PD)(MD) No. 1992 of 2017 and CMP (MD) No. 10029 of 2017
Decided On: 21.06.2018
 A. Rajaram  Vs.  P. Chinnakani
Hon’ble Judges/Coram:
J. Nisha Banu, J.

1. This Civil Revision Petition has been filed by the revision petitioner/tenant against the order, dated 21.09.2017, passed in R.C.O.P. No. 1 of 2016 by the Rent Controller/Principal District Munsif, Nagercoil, Kanyakumari District, whereby and whereunder the learned Rent Controller has held that the rental agreement, which wants to be marked on the side of the revision petitioner/tenant, has to be referred to the District Collector under Section 38 of the Indian Stamp Act for proper valuation and payment of stamp duty.
2. The brief facts of the case are as follows:
(a) According to the respondent/landlord, he had purchased the dismissed premises and also the nearby premises, where he has been running a travel business and the revision petitioner/tenant has already been informed about the change of ownership. In order to expand the business, the respondent/landlord required that demised premises. When the respondent/landlord had sent a notice demanding vacant possession of the demised premises, the revision petitioner/tenant has sent a reply notice with the false allegation that under unregistered lease agreement, he has given a sum of Rs. 12 lakhs as advance to the previous owner and he had spent Rs. 6 lakhs for the purpose of improvement of the demised premises.
(b) According to the revision petitioner/tenant, he had entered into an unregistered lease agreement with one A. Rajamony on 03.08.2014 for running a business in the demised premises, as per which the rate of rent was fixed at Rs. 7,500/- p.m. and Rs. 12 lakhs was given as advance. The revision petitioner/tenant had also spent Rs. 6 lakhs for the purpose of improvement in the demised premises. He has been paying rent regularly without any arrears. While so, a notice has been served to him with regard to the change of ownership of the building. He was ready to pay rent through the respondent’s/landlord’s bank account on 06.01.2016, but the respondent/landlord refused to give bank account number. Though in the rental agreement, the receipt of Rs. 12 lakhs was acknowledged by erstwhile owner, with the mala fide intention to evict the petitioner/tenant, the respondent/landlord has filed the eviction petition.
(c) While so, the revision petitioner/tenant has filed a miscellaneous petition seeking to mark the unregistered lease agreement and also the receipts relating to the payment of rent and purchase of materials for the improvement of the demised premises. The Court below, after hearing both sides, has held that for marking the lease document, under Section 35 of the Indian Stamp Act, the revision petitioner/tenant has to pay stamp duty and as the revision petitioner/tenant stated that there is no necessity to pay stamp duty, the Court has to refer the document to the District Collector for proper valuation of stamp duty payable and for payment of the same. For getting opinion of the revision petitioner/tenant, the Court below has adjourned the matter to 03.10.2017. While so, challenging that order, the revision petitioner/tenant has hurriedly come up with this revision petition.
3. The learned counsel for the revision petitioner/tenant strenuously argued that the revision petitioner/tenant sought to mark the unregistered lease agreement only for the collateral purpose of establishing the payment of advance amount and not for proving the main purpose of tenancy. The learned Rent Controller has failed to consider the same.
4. The learned counsel for the revision petitioner/tenant would further submit that if the Rent Controller decided that the said document needs payment of stamp duty, he ought to have impounded the same and referred it to the Stamp Collector, but the Rent Controller directed the revision petitioner/tenant to pay deficit stamp duty on or before 03.10.2017, which is against law.
5. I have paid my anxious consideration to the submissions made by the learned counsel for the revision petitioner/tenant and perused the materials available on record.
6. The only question to be decided in this case is whether the learned Rent Controller was right in holding that the revision petitioner/tenant has to pay deficit Court fee for marking unregistered lease agreement?
7. Before going into the above question, this Court is inclined to refer to Section 35 of the Indian Stamp Act, which reads as follows:
“35. Instruments not duly stamped inadmissible in evidence, etc.- No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped:
Provided that–
(a) any such instrument not being an instrument chargeable with a duty not exceeding twenty paise only or mortgage of crop (Article 41(1) of Schedule I) chargeable under Section 3 with a duty of fifty paise or a bill of exchange or promissory note, shall, subject to all just exceptions, be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;
(b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it;
(c) Where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped;
(d) nothing herein contained shall prevent the admission of any instrument in evidence in proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure 1898;
(e) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of the Government, or where it bears the certificate of the Collector as provided by section 32 or any other provision of this Act.”
8. From the above provision, it is clear that no instrument chargeable with duty shall be admitted in evidence for any purpose. Therefore, there is a total bar for admitting any document in evidence if the document is not duly stamped. Though Section 35 prohibits admission of instrument which is not duly stamped, by reason of the provision, such instrument shall be admitted in evidence on payment of penalty.
9. Admittedly, in this case, the revision petitioner/tenant wants to mark unregistered and unstamped lease agreement for establishing the payment of advance amount to the tune of Rs. 12 lakhs to the erstwhile owner. The respondent/landlord has objected to the marking of the said document for want of registration and stamp duty It is settled law that if an agreement is reduced into writing and it purports to create, declare, assign, limit, or extinguish any right, title or interest of any immovable property, it must be properly stamped and duly registered as per the Indian Stamp Act and Indian Registration Act. If the agreement is stamped but not registered, it can be looked into for collateral purposes. A person cannot claim a right under the said document, which is being looked into only for collateral purpose. An agreement which is not stamped and not registered cannot be looked into for any purpose, in view of the specific bar in Section 35 of the India Stamp Act.
10. Here, in this case, the document viz., the lease agreement comes within the purview of Schedule I of Section 35(a) of the Indian Stamp Act. Though the lease agreement entered for 11 months need not be registered, for the purpose of marking the document even for collateral purpose, it should be duly stamped. Further, the Hon’ble Supreme Court in the decision reported in MANU/SC/0942/2008 : (2008) 2 MLJ 1115 (SC) (Thiruvengada Pillai Vs. Navaneethammal) has held that even if an agreement is not executed on requisite stamp paper, it is admissible in evidence on payment of duty and penalty under Section 35 or 37 of the Indian Stamp Act. Therefore, when an instrument which is not duly stamped is produced before the Court for the purpose of admitting the same in evidence, as per Section 35 of the Stamp Act, such instrument cannot be admitted in evidence and if the person who produces the document is willing to pay the stamp duty penalty, then a duty is cast upon the Court to impound the document and direct the party to pay penalty as per proviso (a) to Section 35 of the Act and follow the procedure contemplated under Section 38(1) of the Act. In case, the person refuses to pay penalty as fixed by the Court and requested the Court to send the document to the Collector for impounding and determination of penalty and also the stamp duty payable on that document, the Court has to send the document in original to the Collector as contemplated under Section 38(2) of the Stamp Act. On receipt of such document, the Collector has to follow the procedure contemplated under Section 40 of the Act.”
11. In this case, it is seen that the Court below has rightly directed the matter to be listed on 03.10.2017 for the purpose of ascertaining the willingness of the revision petitioner/tenant about the payment of the stamp duty penalty. But, the revision petitioner/tenant, without even looking into the order passed by the Court below, has stated before this Court that the Court below has directed him to pay stamp duty on or before 03.10.2017. In view of the above, the order passed by the Court below is perfectly valid and the same need not be interfered with.
12. In the result, this civil revision petition is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.

Protection of Women from Domestic Violence Act, 2005 – Right of Maintenance – Maintenance claim of wife viz-a-viz creation of charge over husband’s property.

ICL 2020 (10) HP 347

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Coram The Hon’ble Ms. Justice Jyotsna Rewal Dua, Judge

CMPMO No.542 of 2018

Decided on: 05.10.2020

Kubja Devi ….Petitioner

Versus

Chhape Ram ……Respondent

For the petitioner: Mr. Anup Rattan, Advocate.

For the respondent: Mr. Maan Singh, Advocate.

Jyotsna Rewal Dua, Judge

Application moved under Order 39, Rules 1 and 2 of the Code of Civil Procedure (CPC) for restraining the defendant from alienating, transferring and for creating charge over the suit land, has been dismissed by the learned trial Court. The order has been upheld by the learned Appellate Court. Being aggrieved, petitioner-plaintiff has moved this petition under Article 227 of the Constitution of India.

2. Facts.

2(i). Suit was instituted by the plaintiff-wife seeking declaration that suit land is ancestral property owned and possessed by the defendant-husband and charge be created over this property for the maintenance claim of the plaintiff. Decree for permanent prohibitory injunction was also prayed for restraining the defendant from transferring, alienating and creating charge over the suit land.

2(ii). Plaintiff claimed to be the legally wedded wife of the defendant, having solemnized a marriage with him in the plaintiff. to year 1994. The couple has a son stated to be living with the Due to marital discord, plaintiff started residing with her father since the year 1998. It has been further submitted that an application for grant of maintenance etc. has been moved by the plaintiff under Section 12 of the Protection of Women from Domestic Violence Act, 2005, which was stated to be pending consideration before the Court of learned Judicial Magistrate 1st Class, Manali.

Apprehending that in order to defeat her maintenance claim, the defendant might sell the suit land in favour of other persons, instant suit for declaration and injunction has been filed. In the plaint, it has been asserted that the suit land is ancestral property owned and possessed by the defendant, who has no right to alienate the same without there being any legal necessity.

Alongwith the plaint, an application under Order 39, Rules 1 and 2, CPC has also been moved for restraining the defendant from alienating, transferring and creating charge over the suit land.

2(iii). The defendant, in his written statement, admitted the plaintiff to be his legally wedded wife and asserted that she had left his society on her own about 17-18 years ago without any reason. The defendant expressed his willingness to accept the plaintiff back in his home. Allegations of cruelty/desertion were denied. Defendant admitted filing of an application by the plaintiff under Section 12 of the Protection of Women from Domestic Violence Act, 2005, but denied award of any maintenance amount to her. Defendant also denied threatening the plaintiff with sale of suit land, rather he stated that he had himself asked his son to cultivate and manage the suit land. Defendant also denied ancestral nature of the suit land. Plaintiff’s application for injunction was also opposed on similar lines.

3. Learned trial Court after noticing that as per plaintiff, the suit land was ancestral, relied upon 1988 (2) SCC 77, titled Sunil Kumar and another Versus Ram Prakash and others, wherein it was held that a coparcener has no right to get an injunction against Karta. Relying upon this judgment, it was held that in the instant case, defendant was Karta, therefore, he has legal right to alienate ancestral property in case of legal necessity. Plaintiff has no right to pray for injunction restraining the defendant from alienating the suit land. It was observed that plaintiff has remedy of challenging alienation of coparcenery property by Karta on the ground that alienation was not for legal necessity. The order passed by learned trial Court dismissing plaintiff’s application, was affirmed in appeal by the learned First Appellate Court.

4. Learned counsel for the petitioner contended that both the learned Courts below misdirected themselves in treating the civil suit as one filed by a coparcener to restrain and injunct Karta from alienating the suit land, whereas the civil suit was a case instituted by the wife for creation of charge over the property of her husband in lieu of maintenance and, therefore, permanent prohibitory injunction for restraining the defendant was also sought for. In support of this contention, reliance was placed upon the following para of (1997) 3 Supreme Court Cases 99, titled V. Tulasamma and others Versus Sesha Reddy (dead) by LRs:-

“62. We would now like to summarise the legal conclusions which we have reached after an exhaustive considerations of the authorities mentioned above on the question of law involved in this appeal as to the interpretation of Section 14(1) and (2) of the Act of 1956. These conclusions may be stated thus:

(1) The Hindu female’s right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognized and enjoined by pure Shastric Hindu law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu. Such a right may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property, the female has the legal right to be maintained therefrom. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. At any rate, even without a charge the claim for maintenance is doubtless a pre-existing right so that any transfer r declaring or recognizing such a right so that any transfer declaring or recognizing such a right does not confer any new title but merely endorses or confirms the pre-existing rights………..”

Whereas learned counsel for the defendant on the strength of (1998) 2 SCC 77, Sunil Kumar and another Versus Ram Prakash and others, argued that plaintiff cannot seek injunction against Karta with respect to ancestral property.

5. V. Tulasamma‘s (supra) was a case where properties were acquired by the appellant under a compromise in satisfaction of her right of maintenance. It was held that it is Sub-section (1) and not Sub-section (2) of Section 14, which would be applicable and, hence, the appellant must be deemed to have become full owner of the properties notwithstanding that the compromise prescribed a limited interest for her in the properties.

Regarding maintenance claim of wife viz-a-viz creation of charge over husband’s property, it will be appropriate to refer here to following paras from a judgment of Madras High Court in Kannan Vs. Maragathammal, Second Appeal No.654 of 2003, decided on 28.06.2003, 2012 (3) LW 632:-

70. Added further, this Court quotes the decision Chandramma v. Maniam Venkatareddi and others AIR 1958 Andhra Pradesh at p.396, wherein it is held as follows:-

The Hindu Law Texts and the important commentaries impose a legal personal obligation on a husband to maintain his wife irrespective of his possession of any property, whether joint or self- acquired. They recognise the subordinate interest of the wife in her husband’s property arising out of her married status. They also prohibit the alienation of properties by the husband which has the effect of depriving her and other dependants of their maintenance.

They further treat her as a member of a Hindu joint family entitled to be maintained out of joint funds. The decisions of the various High Courts tow the same line, recognise her subordinate interest in her husband’s property and enforce his personal obligation by creating a charge on his properties either self-acquired or ancestral. A wife, therefore is entitled to be maintained out of the profits of her husband’s property and, if so, under the express terms of S.39 she can enforce her right against the properties in the hands of the alienee with notice of her claim. AIR 1947 Mad. 376, Dissented from. AIR 1957 Andh.Pra. 710. Approved. Case law discussed. (Para 39)

71.In Banda Manikyam v. Banda Venkayamma and others AIR 1957 Andh. Pra. at p.710 it is held as follows:- The Hindu Married Women’s Right to Separate Residence and Maintenance Act is intended to enlarge and liberalise the rules of Hindu Law governing the rights of a Hindu Woman to maintenance from her husband in the contingencies therein specified. The Act does not curtail or cut down the right of maintenance conferred either by the Hindu Law or by S.39 of the Transfer of Property Act. It does not affect the right of a wife to have payment of her separate maintenance secured by a charge on her husband’s properties in his hands or in the hands of his gratuitous transferee if, under any other law, she has such a right. (para 3) Though the right of the wife to separate maintenance does not form a charge upon her husband’s property, ancestral or self-acquired, yet, when it becomes necessary to enforce or preserve such a right effectively, it can be made a specific charge on a reasonable portion of the property. If the right of maintenance is imperiled or jeopardised by the conduct and dealings of the husband or father with reference to his properties, the Court can create a charge on a suitable portion thereof, securing the payment of maintenance to the wife or children. Such a charge can be created not only over the properties in the hands of the husband or father but also over properties transferred by him either gratuitously or to persons having notice of the right to maintenance.

A transferee (in this case, the mother) who joins in a fraudulent and clandestine arrangement for defeating the right of maintenance binding on the conscience of the transferor and who pays no consideration for the transfer by her son in her favour, takes the properties subject to that right. The property in her hands is legally chargeable with the payment of maintenance to the wife and children of the transferor under S.39 of the Transfer of Property Act. Case Law Re: AIR 1947 Mad. 376 Dissent from (para 14).”

At present, only the application under Order 39, Rules 1 & 2, CPC seeking injunction against the defendant for restraining him from alienating the suit land, has been adjudicated upon. In the instant case, plaintiff is living separately from her husband since the year 1998. She has moved an application for grant of maintenance under the Protection of Women from Domestic Violence Act, 2005. No such order awarding any maintenance under the Act has been placed on record of the case. Act of 2005 also contains adequate safeguards for enforcement of the orders awarding maintenance amount. Plaintiff has herself pleaded that defendant being Karta of the family, has right to alienate the suit land in case of legal necessity. Nature of suit land as per plaintiff is ‘ancestral property’. Her son is not a party to the civil suit instituted by her in 2017 seeking creation of charge over the suit land and for injuncting the defendant (Karta) from alienating the suit land alleged by her to be ancestral property. Charge as yet has not been created over the suit land towards maintenance of the plaintiff. Plaintiff has every right to take recourse to legal remedies in case of alienation of ancestral property by Karta, which is not out of legal necessity.

For the forgoing reasons, no interference is called for in the concurrent orders passed by the learned Courts below in dismissing the application moved by the petitioner-plaintiff seeking to restrain the respondent-defendant from alienating the suit land. The petition, therefore, being devoid of merits, is dismissed. It is, however, clarified that the above observations are only for the adjudication of instant petition and shall have no bearing on the merits of the main case.

Parties through their respective counsel are directed to appear before the learned trial Court on 27.10.2020. Records of the learned Courts below be returned forthwith. Pending miscellaneous application(s), if any, also stands disposed of.

Wife Forcing Her Husband To Separate From His Parents Is ‘Cruelty’ : Gauhati HC

“Every child including a son is mandatorily required to provide for maintenance/welfare of any parent.”

The Gauhati High Court has granted divorce to a man on the ground that his wife compelled him to stay away from his step-mother.

The bench comprising of the Chief Justice Ajai Lamba and Justice Soumitra Saikia noted that, under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, children (which includes the son) shall mandatorily be required to maintain parents (includes step-mother also) and senior citizens.

While considering a Matrimonial Appeal [filed by husband whose divorce petition was dismissed by the District Court], the High Court noted that it has come in evidence that the step-mother has no personal source of income, and that she is a senior citizen. The Court also perused an agreement which was compelled to be executed at the behest of the wife prior to seeking pre-arrest bail by the husband and his family members. The condition was to live separately away from the family members of the husband and that none of the family members including the step-mother of the husband and that none of the family members including the step-mother of the husband will be permitted to visit them. Taking note of these, the court said.

It is seen that the Family Court completely ignored this fact brought out during the evidence that the respondent compelled and prevented the appellant from performing his statutory duties towards his aged mother under the provisions of the 2007 Act. Such evidence is sufficient to be consequences leading to punishment or imprisonment as well as fine.

The Court also noted that the wife had filed cases under Section 498A IPC which resulted in acquittal.

When a person undergoes a trial in which he is acquitted of the allegation of offence under Section 498-A of IPC, levelled by the wife against the

husband, it cannot be accepted that no cruelty has meted on the husband.”

In 2016, the Supreme Court also made similar observations while granting divorce to a husband who was forced to live separately from his parents.

Normally, no husband would tolerate this and no son would like to be separated from his old parents and other family members, who are also dependent upon his income, the Court had said.

                       Complete Judgement

Page No.# 1/12
GAHC010072542019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Mat.App. 20/2019
1:SRI BHASKAR DAS
S/O- LATE HARIPADA DAS,
R/O- NO. 1 GOLAI GAON, P.S. DIGBOI, DIST.- TINSUKIA, ASSAM.
VERSUS
1:SMTI. RENU DAS
W/O- BHASKAR DAS,
D/O- LATE RAKESH CHANDRA DAS, C/O- SMT. LILY DAS, R/O- BORBARI
RAILWAY COLONY (NEAR PANI TANKI), P.O., P.S. AND DIST.- DIBRUGARH,
ASSAM, PIN- 786001.
BEFORE
HON’BLE THE CHIEF JUSTICE MR. AJAI LAMBA
HON’BLE MR. JUSTICE SOUMITRA SAIKIA
Advocate for appellant – Mr. N. Hasan.
Advocates for respondent – Mr. S. R. Gogoi
Date of hearing : 27.02.2020
Date of judgment : 19.06.2020
JUDGMENT & ORDER (CAV)
(Soumitra Saikia, J.)
Heard Mr. N. Hasan, learned counsel for the appellant husband and Mr. S. R. Gogoi, learned
counsel for the respondent wife.
2. This matrimonial appeal has been filed by the appellant husband being aggrieved by the

Page No.# 2/12
judgment dated 15.12.2018 passed in Title Suit (M) No.9/2014 by the Court of District Judge,
Dibrugarh, dismissing the suit for divorce preferred by the appellant husband.
3. The case of the appellant husband as projected before the Family Court is that he is a
contractual labourer in Brahmaputra Cracker and Polymer Limited (BCPL) at Madhuban under Bordubi
Police Station at about 30 kms from Digboi. He lives with his mother, sisters and brother in Digboi. His
marriage with the respondent wife was solemnized on 17.02.2012. After marriage, the appellant and
the respondent started their conjugal life in the matrimonial house of the appellant. After about a
month into their marriage, the respondent wife demanded to reside separately with the appellant
husband away from the husband’s relatives in a separate house. However, the appellant being a
contractual labourer was not able to sustain separate accommodation for him and his wife as he was
required to render service at a place away from his matrimonial house which is in Digboi. Being
unable to accede to the demands made by the respondent wife for separate accommodation, quarrels
became frequent between the respondent wife and the appellant husband leading to unpleasantness
in their matrimonial life. The appellant husband in the face of persistent demands by the respondent
wife for separate accommodation also attempted to take the respondent wife to his place of work at
Madhuban by arranging separate accommodation away from the matrimonial home at Digboi.
However, the respondent wife continued to resort to frequent quarrels with the appellant and started
blaming him for the couple not being able to have a child after marriage. The respondent wife alleged
that the appellant husband was medically unfit as a consequence of which she was unable to bear a
child. As the appellant’s period of contract in connection with his work was about to expire, he
brought back the respondent wife to the matrimonial house. However, the respondent wife continued
to be indifferent and negligent towards the appellant husband as well as the other family members.
Around the month of June, 2013, the respondent wife declared that she was not willing to continue
her matrimonial life with the appellant. As a consequence, the respondent wife insisted on going back
to her parental home. The appellant, his family members and friends tried to placate the respondent
wife and whereupon the respondent wife assured the appellant and his family members that she will
visit her parental house only for a few days but return back to the matrimonial home thereafter.
However, contrary to her assurance, instead of returning back to the matrimonial house, she filed a
case under Section 498(A) IPC before Digboi Police Station being Digboi P.S. Case No.154/2013
against the appellant and his family members. The appellant husband and his family members were
compelled to apply for pre-arrest bail in view of the said criminal case filed by the respondent wife.
The appellant husband further contended that the respondent wife compelled the appellant to execute
a written agreement to the effect that the couple will stay in a separate rental house together away

Page No.# 3/12
from the joint family of the husband and further that the appellant/husband’s family members will not
visit them or maintain any relation with them. Under such circumstances, unable to bear the agony
and the stress inflicted by the respondent wife, the appellant husband filed divorce case being TS(M)
9/2014 before the Court of District Judge, Dibrugarh.
4. The respondent wife contested the case by filing her written statement. In her written
statement she stated that she was subjected to cruelty to meet illegal demands of dowry in the form
of cash and kind by the appellant husband, his step-mother, sister-in-law, brother and sisters from the
very threshold of their marriage. The respondent wife further stated that she further contended that
she was not provided with food and other medical treatment and that it was her brother who used to
take care of the bare necessities of her life. Although she tried to tolerate the cruelty meted out to her
but she was assaulted and thrown out of the appellant’s house on 30.06.2012 by the appellant and
his family members by retaining her belongings and sent to her brother’s house at Dibrugarh. She
admitted that she had filed Digboi P.S. Case No.154/2013, under Section 498(A) IPC against the
petitioner and his family members. The respondent stated that the appellant and his family members,
in order to procure the anticipatory bail, induced her to compromise and settle the dispute and agreed
to accept her back. However, after being enlarged on bail, the appellant and his family members went
back on the agreement and refused to take the respondent back. The respondent wife stated that she
has no income and is dependent on her brother whereas the appellant is serving at OIL, Digboi with a
monthly income of Rs.50,000.00 and also earns additional income and other benefits from landed
assets.
5. The court below, upon the pleadings filed by the parties, framed the following issues:
1. Whether respondent (the wife) subjected the petitioner (the respondent) to cruelty and
deserted him?
2. Whether the petitioner is entitled to a decree of divorce?
6. The court below dealt both the issues together and dismissed the suit and rejected the prayer
of the husband for decree of divorce. On the facts narrated above, the evidence available in the lower
court record is duly perused.
7. It is seen that the appellant husband adduced his evidence as PW1 and in his evidence-in-chief
stated that since after a month of the marriage between the appellant and the respondent, the
behaviour of the respondent wife was acrimonious towards the appellant and the members of his
family. The respondent wife started to blame the appellant/husband that because of him, not being

Page No.# 4/12
medically fit, she was unable to conceive and consequently she asked the appellant husband to
divorce her repeatedly. The appellant husband admitted that there was a medical check-up but no
defect was detected in the appellant but from the medical record it is evident that the respondent had
some defect because of which she was unable to conceive. The appellant stated that there was
constant quarrel initiated by the respondent and she refused to take part in the household chores.
The appellant further stated that in the middle of June, the respondent insisted that she does not
want to live with the appellant and will abstain from wearing ‘sakha and sindoor’. The appellant
further stated that pursuant to family discussions held with the members of the family of the appellant
husband and the respondent wife as well as their friends and mediators of the marriage it was agreed
that the respondent will go back home and will return to the matrimonial house after a fortnight.
However, instead of coming back, she lodged Digboi P.S. Case No.159/2013, under Section 498(A)
IPC.
8. The evidence projected by the appellant was duly confronted to him during the crossexamination.
But his evidence remained unshaken.
9. The appellant also examined his step-mother as PW2 who was about 65 years of age at the
relevant point of time. PW2 duly supported the statements made by PW1/appellant in his evidence.
Her examination in cross also did not yield any contradiction.
10. The respondent wife in her evidence as DW1 stated that she was subjected to extreme cruelty
by the appellant’s step-mother, sister-in-law, brother and his two sisters. According to the respondent,
the family members of the appellant tortured her physically and mentally by demanding various cash
and kinds from her as dowry and also declined to provide her the bare necessities of life. She further
stated that the respondent declined to provide her medical treatment, wearing apparels, adequate
food and medicine etc. which are provided to her by her brother. She further stated that she was
assaulted and sent back to her brother’s house by the appellant and his family members demanding
her to bring money from her house. On 30.06.2013, the brother of the appellant on being aware of
the treatment meted to her, came to the matrimonial house and saved her by taking her and her
belongings including ‘stridhan’ back to her parental house. As a consequence thereof, she had lodged
a case under Section 498(A) IPC against the appellant and his family members which was registered
as Digboi P.S. Case No.159/2013.
11. The respondent in her evidence-in-chief admitted to a settlement entered into with the
appellant in which inter-alia the appellant agreed to stay with her in a separate accommodation.

Page No.# 5/12
However, she stated that pursuant to the petitioner being enlarged on pre-arrest bail he declined to
adhere to the terms of the agreement and thereby committed fraud with her. The respondent
admitted in her evidence that she has also filed a criminal case before Digboi Police Station being
Digboi P.S. Case No.230/2013, under Sections 471/420 IPC against the appellant and his family
members which is pending trial before the Court of Sub-Divisional Judicial Magistrate, Margherita,
District Tinsukia.
12. During her cross, she maintained the evidence adduced by her in her evidence-in-chief. She
stated that she had filed three cases against the appellant. She further stated that she does not want
to stay with the appellant or compromise with the appellant. She also admitted to the existence of the
agreement entered by and between the appellant and the respondent pursuant to filing of the FIR
although she denied that the agreement stipulated that the appellant will live separately with her in a
rented house and that no one from his family members can come and meet them. It is also evident
from her cross-examination that she had categorically stated that either the appellant will come to
Dibrugarh to live with her or fulfil her demands, i.e., monetary demands or only then she will divorce
him.
The cross-examination of the respondent as DW1 is extracted herein below:
“XXX DW1
-That the signatures in the evidence in chief are mine. I don’t know where the evidence
was typed. But the advocate has written it according to my version.
-That I know what is written in the evidence but I don’t remember it by para
wise.
-That it is true that the first and last page of my evidence was typed and the
remaining pages are written by computer and pages 2, 3, 4, 5 are photocopies
and I have again signed there by overlapping my previsous signatures.
-That it is a fact that no seal is there in page 2, 3, 4 and 5 of my evidence.
-That I have signed on my evidence before the Magistrate in the Court.
-That I have filed 3 more cases against Bhaksar Das other than this
case.
(emphasised by us)

Page No.# 6/12
-That my current age is 35 years but i have given my age as 44 years in the
evidence.
-That it is not a fact that I don’t know the contents of pare no.2,3,4 & 5 of my
evidence in chief because it was photocopy of some other document.
-That I don’t want to stay with Bhaskar Das because he will again
cheat on me and will beat me too.
-That I will not compromise with Bhaskar.
(emphasised by us)
-That it is not a fact that I have not purchased anything in his home after
marriage.
-That we have no children.
-That it is not a fact that I asked him (Bhaskar) to live separately after 1 month
of marriage.
-That it is not a fact that he is a daily wage labourer.
-That we stayed at Madhuban, Bordubi after marriage. Bhaskar used to work
there.
-That Bhaskar’s house is at Golai of Digboi.
-That it is not a fact that Bhaskar took me to Madhuban because of my
harassments.
-That it is not a fact that I and Bhaskar went to Sristi Hospital for testing.
-That I have no knowledge about any positive/good Medical Report of Bhaskar.
-That it is not a fact that the Report of Bhaskar is with me.
-That it is not a fact that I was not doing any domestic/household work after
marriage and said that I didn’t come here to work.

Page No.# 7/12
-That I am not wearing/putting sindoor right now because I don’t consider him
as my husband.
-That on 30.06.2013 my brother, sister and ghatak (mediator) and his
wife along with others went to take me from Bhaskar’s home and
Bhaskar did let them go too. And on that day we lodged an FIR at
Digboi Police Station while coming from there and included all the
names of Bhaskar’s family there.
(emphasised by us)
– That it is not a fact that we went to compromise after lodging the F.I.R. It was
Bhaskar who asked for compromise.
– That it is not a fact that we entered into an agreement after the
F.I.R.
(emphasised by us)
– That it is not a fact that it was written in the agreement that Bhaskar will live
separately with me in rented house and no one from his family can come there.
-That a case under Section 498(A) IPC is still pending at Digboi.
– That it is not a fact that since I did not want to live with Bjaskar therefore I
have filed various false cases against him for only harassing him.
-That I have objection regarding divorce in this case as because either
he come to Dibrugarh to live with me or otherwise fulfil my demand
i.e. monetary demand, only then I will divorce him.”
(emphasised by us)
13. Having noticed the evidence as discussed hereinabove, we proceed to examine the impugned
judgment rendered on the issues as discussed above.
14. The Family Court below has accepted the evidence of both the parties that there were indeed
criminal cases filed by the respondent wife under Section 498(A) IPC besides two other cases. In the

Page No.# 8/12
case lodged under Section 498(A) IPC, the SDJM (Margherita) acquitted the appellant husband, his
step-mother and his sisters. However, the criminal cases filed under Sections 471/420 IPC and under
Section 125 Cr.P.C. are presently pending disposal. The Family Court below proceeded to decide the
matter on the basis of preponderance of probability by taking into account the evidence adduced
before it by the contesting parties. It is seen that the Family Court accepted the evidence of the
respondent wife that there was cruelty prevalent in the household. The Family Court also relied upon
the evidence rendered by DW2 who was the cousin of the respondent and who has stated that the
respondent wife was subjected to cruelty by her husband and that she was sent to his house on
several occasions. Upon due consideration of the evidence, the court below came to the finding that
there was no cruelty extended to the appellant husband and his family members or that they were
neglected by the respondent wife and accordingly rejected the petition for divorce by the husband.
15. Upon due perusal of the judgment it is seen that the discussion of the court below does not
refer to certain pertinent evidences, which were brought before the Court by the contesting parties
while adducing evidences. As discussed above, it is not disputed by the respondent wife that there
was indeed an agreement entered into by and between the appellant husband and the respondent
wife whereby the appellant was required to provide separate accommodation to the respondent wife
in a rented house away from the matrimonial house and that the appellant’s family members were not
to be permitted to come and visit them. The respondent wife categorically admitted in her crossexamination
about the presence of the said clause in the said agreement. It is also seen from the
evidence that the respondent had filed another case before Digboi Police Station being Digboi P.S.
Case No.230/2013, under Sections 471/420 IPC pending before the SDJM, Margherita, District
Tinsukia wherein, it was submitted at the bar that charge sheet has been filed against the petitioner
and other accused. PW1/appellant also adduced in his evidence that the respondent had refused to
wear ‘sakha and sindoor’ any more. Such statement was not confronted to the appellant during the
cross-examination, and accordingly, the same remained uncontroverted and is therefore an evidence
material for the purpose of this proceedings. Under the custom of Hindu Marriage, a lady who has
entered into marriage according to Hindu rituals and customs, and which has not been denied by the
respondent in her evidence, her refusal to wear ‘sakha and sindoor’ will project her to be unmarried
and/or signify her refusal to accept the marriage with the appellant. Such categorical stand of the
respondent points to the clear intention of the respondent that she is unwilling to continue her
conjugal life with the appellant. Under such circumstances compelling the appellant husband to
continue to be in matrimony with the respondent wife may be construed to be harassment inflicted by
the respondent upon the appellant and his family members. This evidence although available before

Page No.# 9/12
the Family Court during the evidence adduced, was not taken into account during the discussion in
the impugned judgment. As such the Family Court erred in evaluating the evidence in the proper
perspective. During the course of hearing it was submitted at the bar that the criminal proceedings
pursuant to filing of Digboi P.S. Case No.159/2013, under Section 498(A) IPC against the appellant
has been dismissed as the informant, namely the respondent wife was not pursuing the said
proceeding. As such the allegation of subjecting the respondent wife to cruelty was not sustained.
Such acts of lodging criminal cases on unsubstantiated allegations against the husband and/or the
husband’s family members amounts to cruelty as held by the Supreme Court. In this context, the
Hon’ble Supreme Court in a recent judgment being Rani Narasimha Sastri vs. Rani Suneela Rani, 2019
SCC Online SC 1595 has held that filing of criminal cases like case under Sections 498(A) IPC etc.
against the husband and the family members and which are subsequently dismissed/rejected by the
Family Court, is sufficient to be construed as an act of cruelty by the wife. The Hon’ble Supreme Court
has held as under:
“XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
12. This Court has laid down that averments, accusations and character assassination of
the wife by the appellant husband in the written statement constitutes mental cruelty for
sustaining the claim for divorce under Section 13(1)(i-a) of the Act. This Court in Vijaykumar
Ramchandra Bhate v. Neela Vijaykumar Bhate1 has laid down following in paragraph 7:
“7. The question that requires to be answered first is as to whether the averments,
accusations and character assassination of the wife by the appellant husband in the
written statement constitutes mental cruelty for sustaining the claim for divorce under
Section 13(1)(i-a) of the Act. The position of law in this regard has come to be well
settled and declared that levelling disgusting accusations of unchastity and indecent
familiarity with a person outside wedlock and allegations of extra marital relationship is
a grave assault on the character, honour, reputation, status as well as the health of the
wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of
an educated Indian wife and judged by Indian conditions and standards would amount
to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law,
warranting the claim of the wife being allowed. That such allegations made in the
written statement or suggested in the course of examination and by way of crossexamination
satisfy the requirement of law has also come to be firmly laid down by this
Court. On going through the relevant portions of such allegations, we find that no

Page No.# 10/12
exception could be taken to the findings recorded by the Family Court as well as the
High Court. We find that they are of such quality, magnitude and consequence as to
cause mental pain, agony and suffering amounting to the reformulated concept of
cruelty in matrimonial law causing profound and lasting disruption and driving the wife
to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live
with a husband who was taunting her like that and rendered the maintenance of
matrimonial home impossible.”
13. In the present case the prosecution is launched by the respondent against the
appellant under Section 498-A of IPC making serious allegations in which the appellant had to
undergo trial which ultimately resulted in his acquittal. In the prosecution under Section 498-A
of IPC not only acquittal has been recorded but observations have been made that allegations
of serious nature are levelled against each other. The case set up by the appellant seeking
decree of divorce on the ground of cruelty has been established. With regard to proceeding
initiated by respondent under Section 498-A of IPC, the High Court made following observation
in paragraph 14:
14…..Merely because the respondent has sought for maintenance or has filed a
complaint against the petitioner for the offence punishable under Section 498-A of IPC,
they cannot be said to be valid grounds for holding that such a recourse adopted by
the respondent amounts to cruelty.”
14. The above observation of the High Court cannot be approved. It is true that it is open
for anyone to file complaint or lodge prosecution for redressal for his or her grievances and
lodge a first information report for an offence also and mere lodging of complaint or FIR
cannot ipso facto be treated as cruelty. But when a person undergoes a trial in which he is
acquitted of the allegation of offence under Section 498-A of IPC, levelled by the wife against
the husband, it cannot be accepted that no cruelty has meted on the husband. As per
pleadings before us, after parties having been married on 14.08.2005, they lived together only
18 months and thereafter they are separately living for more than a decade now.
15. In view of forgoing discussion, we conclude that appellant has made a ground for grant
of decree of dissolution of marriage on the ground as mentioned in Section 13(1)(i-a) of the
Hindu Marriage Act, 1955.
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX”

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16. This aspect of cruelty was not gone into by the Family Court even though the same was
apparent from the evidence adduced by the parties before the court below.
17. As discussed above, attempts to reconcile between the appellant and the respondent by this
Court also did not yield any positive response and considering the fact that the appellant and the
respondent have remained separately since 30.06.2013, it is evident that there will be no purpose
served to keep the marriage alive as there was no matrimonial harmony between the parties to be
reached.
18. There is another aspect of the matter which needs to be reflected upon in the face of the
evidences adduced by the parties. Under the “Maintenance and Welfare of Parents and Senior Citizens
Act, 2007” children (which includes the son) shall mandatorily be required to maintain parents and
senior citizens. In terms of the definition under Section 2 (d), a parent includes step-mother also.
Under Section 2 (h), senior citizen means any person being a citizen of India who attained the age of
60 years. Under Section 2 (k) “welfare” means provisions for food, health care, recreation centres and
other amenities necessary for senior citizens. A perusal of the provisions of the Act reveals that under
this Act every child including a son is mandatorily required to provide for maintenance/welfare of any
parent.
19. In the evidence of the appellant as PW1 it is stated that PW2 is her widowed step-mother who
has no personal source of income. It is also evident from the evidence that the widowed step-mother
is a senior citizen. Consequently, the agreement dated 06.07.2013, which, as brought out in the
evidence led by the appellant, was compelled to be executed at the behest of the respondent wife
prior to seeking pre-arrest bail by the petitioner and his family members. The said condition that the
appellant and the respondent are required to live separately away from the family members of the
appellant and that none of the family members including the step-mother of the appellant will be
permitted to visit them, being present in the agreement is also not disputed by the respondent in the
evidence led before the court below. It is also categorically stated by the respondent that because of
non-compliance of the said agreement, another criminal case being Digboi P.S. Case No.230/2013,
under Sections 471/420 IPC has been filed against the appellant and his family members.
20. Under the circumstances, it is seen that the Family Court completely ignored this fact brought
out during the evidence that the respondent compelled and prevented the appellant from performing
his statutory duties towards his aged mother under the provisions of the 2007 Act. Such evidence is
sufficient to be construed as an act of cruelty as the non-compliance/non-adherence to the provisions

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of the 2007 Act has criminal consequences leading to punishment or imprisonment as well as fine.
There was completely no reference and discussion in the impugned judgment rendered by the Family
Court although the same is sufficiently evident from the evidence adduced before the Family Court.
21. Consequently, we are of the considered view that the impugned judgment of the Family Court
be overturned in view of the discussions rendered above and which we accordingly do.
22. The impugned judgment dated 15.12.2018 in TS(M) 9/2014 passed by the District Judge,
Dibrugarh is hereby set aside and the petition being TS(M) No.9/2014 is hereby allowed and the
decree of divorce is accordingly granted. The marriage between the appellant husband and the
respondent wife is accordingly dissolved.
23. The decree be prepared accordingly.
24. On the question of maintenance it is seen that the appellant is presently paying a maintenance
of Rs.3,000/- pursuant to order passed in the maintenance case filed by the respondent under Section
125 Cr.P.C. It will be open to the respondent wife to pray for further alimony in terms of provisions of
the Hindu Marriage Act, if so advised.
25. Appeal is allowed.
26. No order to costs.
27. LCR be returned.
JUDGE CHIEF JUSTICE
Comparing Assistant

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