Have to follow Delhi high court order on domestic violence Act, says Bombay high court | PIL seeks to grant all women in house power to use Domestic Violence Act

Have to follow Delhi high court order on domestic violence Act, says Bombay high court

Pushpa (L) and her daughter Kusum filed the PIL

MUMBAI: The Bombay high court on Thursday was informed that the Delhi high court has upheld the inclusion of a mother of a male abuser for relief under the Protection of Women from Domestic Violence Act, and also that the Supreme Court had rejected an appeal filed against this order.

A division bench of Chief Justice Mohit Shah and Justice M S Sonak heard a petition by Kusum Harsora (54) and her 78-year-old mother challenging the exclusion of women, other than wife/live-in partner, of a male abuser. A magistrate had rejected their complaint against a sister-in-law and Kusum's two sisters on the grounds that a mother and sister do not qualify as "aggrieved persons" under the Act. Kusum informed the court that the Delhi HC in Kusumlata Sharma versus State of Delhi (NCR) on September 2, 2011, had held that that a mother-in-law is also entitled to file a domestic violence complaint against her daughter-in-law.

"While the Delhi HC does not say about a sister, but it is understood to include her. We'll have to follow the (Delhi HC) order," said Justice Shah.

But the Centre's advocate, Dhiren Shah, sought time to "confirm" the SC order and if the women and child welfare development ministry knew of it. The next hearing is on June 17.

Source - http://timesofindia.indiatimes.com/city/mumbai/Have-to-follow-Delhi-high-court-order-on-domestic-violence-Act-says-Bombay-high-court/articleshow/36451699.cms

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PIL seeks to grant all women in house power to use Domestic Violence Act

Women in a household other than a daughter-in-law or a live-in partner could be allowed to file a case under the Domestic Violence (DV) Act if the Bombay High Court rules in favour of a Public Interest Litigation currently before it. 

A division bench of Chief Justice Mohit Shah and Justice M S Sonak on Thursday gave the central government five days to verify if the Supreme Court had passed any order on the issue.

The court was hearing a PIL filed by a mother-daughter duo who are challenging the validity of Section 2(q) of the DV Act, which restricts the definition of a respondent to male members of the family. The PIL, filed by Kusum Harsora, 54, and her mother Pushpa, 78, says the section discriminates between women living in the same household.

During the hearing on Thursday, Kusum argued on the basis of details given in the PIL and later submitted a 2013 Delhi High Court judgment in which a mother-in-law was allowed to file a complaint under the DV Act against her daughter-in-law.

The court then asked the Union government's advocate, Dhiren Shah, to verify if there was any Supreme Court judgment on the issue and to inform the court of this after the lunch-break. The advocates informed the court that there was one SC judgment that could help Kusum but they wanted time to verify the facts.

The PIL says that both petitioners had lodged a complaint against Kusum's brother, sister-in-law and two sisters for subjecting them to mental and physical harassment. But in February 2012, a single-judge bench of the HC discharged all three women, holding that no complaint under the DV Act can be filed against the female members.

The mother-daughter petition challenges this very provision, saying that though the legislation is supposed to protect women from domestic violence, it discriminates between two women in a domestic relationship.

According to the PIL, while the provision allows a wife or a woman in a live-in relationship to file a complaint against her husband or male partner and/or any of his relatives, it does not allow other women in a domestic relationship to lodge a complaint and seek relief against other female members of the family. This would include a daughter-in-law, sister or daughter.

"The proviso ignores the fact that even female members of the family can be perpetrators of domestic violence. There is no rational basis of classification between a wife or a woman in a live-in relationship and other females of the family," says the PIL.

On Wednesday, the Union government had filed an affidavit saying that allowing a man's female relatives to seek relief under the said Act could make it prone to misuse. Though the affidavit agreed that women other than wives or partners were also susceptible to domestic violence, it denied that the Act causes undue hardship to other women in the house.

Source - http://www.mumbaimirror.com/mumbai/crime/PIL-seeks-to-grant-all-women-in-house-power-to-use-Domestic-Violence-Act/articleshow/36452656.cms

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Bombay HC: Mere harassment not same as domestic cruelty

Bombay HC: Mere harassment not same as domestic cruelty

Written by Aamir Khan | Mumbai | March 25, 2014 1:23 am

Dismissing a petition by a woman who had levelled allegations of cruelty against her husband and his family members, the Bombay High Court has recently observed that mere harassment did not amount to cruelty as defined by the law on domestic cruelty unless it was done with a definite motive and an unlawful demand.

Justice Revati Mohite Dere was hearing a revision application of the 35-year-old woman who had sought criminal action against her 45-year-old brother-in-law and in-laws residing in Malad.

Earlier, on November 2, 2011, the sessions court had rejected her plea for the same, although a notice was issued to her husband.

The woman’s octogenarian father-in-law had died during the pendency of her application.

While referring to Section 498A (husband or relative of husband of a woman subjecting her to cruelty) of the Indian Penal Code (IPC), Justice Dere observed that in the entire complaint, there was no illegal demand of any kind alleged to have been made by the respondents.

“It is pertinent to note that none of the allegations as set out in the complaint against the respondent number 2 to 4 (the woman’s in-laws) would constitute ‘cruelty’ as defined under Section 498A of the IPC. The harassment contemplated has to be with a definite object, namely

to coerce the woman or any person related to her to meet any unlawful demand. Hence, mere harassment is not cruelty,” Justice Dere said.

While dismissing the woman’s revision application, the high court also observed there was a tendency to implicate all the family members whenever there was a matrimonial dispute, something which had been deprecated by the Supreme Court.

aamir.khan@expressindia.com

Source - http://indianexpress.com/article/cities/mumbai/hc-mere-harassment-not-same-as-domestic-cruelty/

HC asks Centre to file reply on Domestic Violence Act section

HC asks Centre to file reply on Domestic Violence Act section

Press Trust of India  |  Mumbai  January 29, 2014 Last Updated at 18:06 IST

The Court Bombay High Court today gave a last chance till March 5 to Union government for filing its reply on a petition challenging the constitutional validity of a section under the Domestic Violence Act which allows cases to be filed only against males. 

The petition filed by a mother-daughter duo has challenged the validity of Section 2(q) of the Act restricting the definition of 'respondent' to adult male members. 

The petition was filed in February 2013, following which the bench issued a notice to Ministry of Women and Child Welfare seeking its reply. However, the ministry is yet to respond. 

"The ministry has been given three chances since February last year. But you (ministry) are still seeking time. We are giving you one last chance now. File reply by March 5. No further time will be given," Chief Justice Mohit Shah said. 

According to petitioners Kusum Harsora (53) and her mother Pushpa Harsora (78), the section under the said Act makes an unreasonable, unfair and arbitrary distinction in the definition of 'respondent'. 

"Even female family members can be perpetrators of domestic violence. By restricting the definition of respondent to a domestic violence case to adult male members, the entire purpose of the Act is defeated. The section must be declared as unconstitutional and violative of the rights of women," according to the petition. 

The petition was filed after a single judge of the high court in February last year quashed a case filed by Kusum against her sisters and sister-in-law under the Domestic Violence Act. While junking the case, the high court took the view that no case under Domestic Violence Act can be made out against female relatives. 

Kusum had filed complaint in a metropolitan magistrate in October 2010 against her two sisters, Anita and Chandrika, brother Pradeep and his wife Hiral. Kusum had alleged that the four were harassing her and her mother Pushpa.

http://www.business-standard.com/article/pti-stories/hc-asks-centre-to-file-reply-on-domestic-violence-act-section-114012900962_1.html#.UukKzGArZsU.blogger

Woman should be booked for filing fake rape case, says HC

Woman should be booked for filing fake rape case, says HC

Thursday, Aug 1, 2013, 10:43 IST | Agency: DNA

Urvi Mahajani  

Distinguish between genuine and false plaints, cops told.

If a woman lodges a false complaint of rape, then she should be prosecuted, observed the Bombay high court on Wednesday while granting anticipatory bail to an Art of Living teacher accused of rape.

Justice Sadhana Jadhav said, “The police should be careful and distinguish between genuine cases and false complaints.”

The judge remarked that of late several cases were coming to the HC in which ‘victims’ had filed rape complaints and alleged that they had entered into relationships after being promised marriage.

“In a relationship between consenting adults, sometimes, such complaints are filed in the heat of the moment. This sends wrong signals to society,” observed justice Jadhav.

The judge said the police should conduct initial inquiry into the matter and decide whether it is a genuine complaint or not.

The court was hearing an anticipatory bail application filed by Divyesh Vala, 35. He had sought anticipatory bail saying he has been falsely implicated and the case is causing him severe harm and mental agony. The complaint was filed by a central excise inspector, 42, alleging Vala raped her on the pretext of marrying her.

According to additional public prosecutor, Anil Shitole, the victim, who is also a divorcee, had contacted Vala through a social networking website, where they became good friends. Vala later cut all ties with her and married another woman in May. Following this, she registered a complaint with the RAK Marg police station in June this year.

Justice Jadhav, while granting Vala anticipatory bail against a surety of Rs15,000, said that both of them are adults and the victim, in her complaint, never said that she had sexual relations with Vala because he promised to marry her.

The court observed that Vala cannot be sent to custody as it would not serve any fruitful purpose except satisfying the complainant’s vendetta.

Justice Jadhav has directed him to report to the RAK Marg police station on Sundays.

http://www.dnaindia.com/mumbai/report-woman-should-be-booked-for-filing-fake-rape-case-says-hc-1868459

Leaving husband’s home is wife’s cruelty, says High Court

Leaving husband’s home is wife’s cruelty, says High Court

Monday, February 22, 2010 at 12:26:46 AM

The Bombay High Court (HC) in an order last week upholding a divorce granted by the family court said that leaving the house of the husband to stay with parents without informing or taking the husband into confidence is a conduct against matrimonial duties and amounts to cruelty. 

The division bench of Justice D B Bhosale and Justice R Y Ganoo was hearing an appeal filed by a wife against a family court order of 2005 granting divorce to the husband. 

The couple got married in 1996 and started staying in Chembur. In 2001, the husband moved the family court seeking divorce on grounds of cruelty.

The family court granted the divorce and the wife then appealed to HC saying that the husband could not establish cruelty and thus the judge has erred in granting divorce on grounds of cruelty. 

The HC in its order took note of instances of cruelty cited by the husband. The husband said that she would abuse him and his parents in filthy language, insult him publicly on the streets, not allow him to go to work,  left early in the morning  and would return late at night and when requested  to prepare food she would refuse to do so. 

The husband said that she was hot-tempered and was also in the habit of leaving the matrimonial home without informing him. 

She would also threaten to damage electrical appliances and household articles. The husband mentioned that on certain occasions she assaulted him and he had to take medical treatment. It was also his case that owing to her quarrelsome behaviour his reputation in the society was damaged.  

The wife on the other hand denied all his allegations, saying that it was the husband who was treating her cruelly. She told the court that despite his cruel nature, she was living with him. 

She said that the husband picked up quarrels with her and filed the petition for divorce without any basis and thus the HC should reject the divorce granted by the family court.   

The HC however, upheld the divorce and dismissed the appeal filed by the wife. The court took into consideration all the evidence put forward by both the parties to support their case. The court said that the Family Court Judge was right in observing that the wife’s behaviour amounted to cruelty.

The court in its order stated that the husband had filed complaint to the Social Service Wing of Mumbai Police narrating as to how the wife abused him.

“In the normal course, if the behaviour of the appellant (wife) was proper, there was no reason for the respondent (husband) to make any grievance to the Social Service Wing of the Mumbai Police making a request to look into the matrimonial dispute,” said the judges. 

While rejecting the wife’s claim that she had filed complaints to the police the HC said: “She has not produced any document to show complaints with the police or even medical treatment given to her. 

This will clearly go to show that the appellant (wife) came out with the false case about having filed complaints against the respondent (husband). 

The court further gave weightage to the fact that even the occupants of the building had observed that she was picking up fights with her husband without any reason. The husband supported his case with letters and complaints filed on various occasions.  

The court further referred to an intervention made by the Shakha Pramukh of Shiv Sena. The parties were called at the Shakha to resolve the matrimonial dispute. 

“Even the Shakha Pramukh had visited house of the appellant and had told her to reconcile and stay with the respondent. This would clearly go to show that even respectable persons in the locality were convinced that the behaviour of the appellant required change,” said Justice Ganoo and Justice Bhosale. 

“Surely, if the wife leaves the house of the husband and stays with her parents without informing the husband or taking the husband in confidence, such a conduct will have to be treated against the matrimonial duties and therefore the respondent was right in claiming that the appellant had treated the respondent with cruelty,” ruled the HC.

Source - http://www.punemirror.in/index.aspx?page=article&sectid=3&contentid=20100222201002220026466579221b72c&sectxslt=&pageno=2

HC relief to husband from paying maintenance

TNN | May 18, 2013, 07.07 PM IST

MUMBAI: A man who was directed by the family court to pay maintenance to his wife even though it had dismissed his plea for divorce has got relief from Bombay high court which has stayed the order.

A division bench of Justice V M Kanade and Justice F M Reis decided an application in a pending appeal filed by Subhash Ganguly (name changed) challenging the apex court's February 21, 2013 order dismissing his divorce petition and directing him to pay his wife Babita (name changed) Rs 20,000 as monthly maintenance.

Subhash filed for divorce in 2008. Babita filed her counterclaim and urged the court to restrain him, his family and agents from dispossessing her from the matrimonial home at Bandra (west). She also sought Rs 50,000 towards litigation expenses.

Subhash's advocate Smita Gaidhani, relying on a Supreme Court judgment, argued that the petition for divorce having been dismissed, the marital status was not disrupted by the court's order and hence the FC could not have granted maintenance under section 25 of the Hindu Marriage Act.

Babita's advocate Taubon Irani said the trial judge had already granted maintenance of Rs 20,000 and hence the SC judgment cannot be made applicable.

The judges said the wife had not prayed for maintenance but only for Rs 50,000 towards litigation expenses. "As the petition for divorce is dismissed, no further order of maintenance could have been passed either in the petition filed by the husband for divorce or in the counter claim," they said, in their April 18, 2013 order uploaded last week. The judges said the SC judgment applies to the present case and the trial court erred in awarding maintenance. They agreed with Gaidhani that the wife can seek maintenance either under section 18 of Hindu Adoption and Maintenance Act or under section 125 of the Code of Criminal Procedure.

The judges allowed Subhash, during pendency of his appeal, to stay in his 2BHK 700 square feet house. Subhash left his house on July 22, 2007 due to harassment at the hands of his wife and her relatives and thereafter was not allowed to enter the hosue. Irani argued that Subhash had subjected Babita to physical and mental cruelty and if he is permitted to stay further complications would arise.

Noting that Subhash is staying in a hotel, the judges said he is entitled to stay in his own house, which he purchased before marriage. They said he has legal right to stay in his own house and laid conditions that the couple would stay in separate bedrooms, have access to common facilities including the kitchen and bathroom and shall not obstruct or interfere with each. They directed Babita to hand the duplicate keys to Subhash. They rejected her plea to stay the order.

After separation of a year, wife can’t file complaint under domestic violence act, says high court

 After separation of a year, wife can’t file complaint under domestic violence act, says high court

In an important ruling, the Bombay high court has held that a woman can file a complaint under the Protection of Women from Domestic Violence (DV) Act only while still in the domestic relationship.

Justice Roshan Dalvi rejected a petition filed by a woman who had left her husband and two children living in America and returned to Mumbai.

“A wife who has returned from the US and consequently from the domestic relationship and lived in India for one year cannot file an application with regard to that relationship after such time," said Dalvi while upholding a sessions court order.

"Such a woman cannot be considered to be in any domestic relationship," the judge said.

The woman got married in May 1999 and lived with her husband in the US. She returned to India in February 2009.

In January 2010, she filed a complaint under provisions of the DV Act against her husband, but the sessions court rejected her complaint as no domestic relationship existed at the time of filing the complaint.

Upholding the lower court's order, Dalvi clarified that a woman who lived in a domestic relationship earlier, but which ceases only because of the domestic violence, can certainly file an application for such domestic violence that took place during the relationship.

 http://www.hindustantimes.com/India-news/Mumbai/After-separation-of-a-year-wife-can-t-file-complaint-under-domestic-violence-act-says-high-court/Article1-1026664.aspx

FULL TEXT @
http://legalmanthandivorce.blogspot.in/2013/03/after-separation-of-year-wife-cannot.html

Father moves HC after child ‘tutored’ by mother refuses to speak to him

Father moves HC after child ‘tutored’ by mother refuses to speak to him

Mohan K Korappath, Hindustan Times
Mumbai, December 03, 2012

When a child does not speak to the father due to a strained relationship between the parents, despite staying under the same roof, it is an undesirable state of affairs, the Bombay high court observed.
The court was hearing a petition filed by Prakash Shah (name changed), a senior vice-president of a multi-national bank, seeking access to his 11-year-old daughter. Prakash stays in the same house with his wife, Anjali.

Noting that the mother had refused to allow her child even to speak to the father, justice Roshan Dalvi said: “Children of such strained relationships are tutored and even indoctrinated into refusal and self-denial”.

“This is one stark case of a child being made an unfortunate victim of a bitter family dispute,” the court said.

Deeming it fit to unite the two, the child was called to the judge’s chamber. However, she again refused to speak to her father. In fact, the girl “parrot-like repeated the incidents which the mother herself had stated to the court”.

“Despite the court's initial attempt to help the child see reason in the pristine relationship of a father and child, she only showed vengeance and revenge for the incidents, which are stated to have transpired,” Dalvi said.

The child even refused to answer questions of the court and to hear what the father may want to say, the court observed.

“The child is obviously tutored and advised into refusal,” Dalvi held.

“It appears that she has been instructed to refuse to do whatever the court requested on the premise that it was her desire. The entire exercise is misconceived and ill-advised,” the judge added.

Even though Anjali was opposed to it, the court directed the girl attend sessions with a child counsellor at the family court in the city.

“It would be impossible for the court to go any further in making the child see reason in the face of total and complete denial and disobedience of entreaties of the court,” Dalvi said.

A report has been sought before the next hearing on January 8.

http://www.hindustantimes.com/India-news/Mumbai/Father-moves-HC-after-child-tutored-by-mother-refuses-to-speak-to-him/Article1-967550.aspx

‘Words not always used with criminal intent’ Bombay HC in 498a 306 aquittal

‘Words not always used with criminal intent’ Bombay HC in 498a 306 aquittal

NAGPUR: The Nagpur bench of the Bombay high court came to the rescue of a man by ruling that words spoken during a quarrel are not always uttered with a criminal intent. "Words such as 'go and die' uttered in a quarrel or on the spur of moment can't be termed as uttered with requisite mens rea (criminal intent)," ruled justice Ashok Bhangale while upholding a lower court verdict.

Bhangale dismissed the government's criminal appeal filed in 1996 against Wardha resident Vasant Chudiwale who was accused of allegedly abetting wife Maya's suicide for dowry. "There should be concrete evidence to indicate criminal intent," the court observed.

Vasant and Maya married in 1985. After a couple of years, relations between the two turned bitter. Vasant allegedly started ill-treating Maya alleging her of having an extra-marital affair with his brother-in-law Rakeshkumar.

On July 19, 1987, the couple came to the city and stayed at the residence of Maya's uncle Madanchand. During her stay, Maya confided with her uncle about the alleged ill-treatment meted out to her by her husband.

Three days later, Maya committed suicide by pouring kerosene on her body and setting herself ablaze. In her dying declaration, she blamed Vasant. Tehsil police chargesheeted Vasant for offences punishable under sections 498A and 306 of the IPC. The Nagpur sessions judge convicted him on both counts and sentenced him to one year of rigorous imprisonment.

Vasant challenged the order before the extra joint district judge through an appeal and got respite. The state challenged this order in the high court through a criminal appeal. The deceased's uncle also filed a criminal revision application against Vasant. The state contended that in her dying declaration, Maya blamed Vasant for taunting her about her alleged extra marital affair with Rakeshkumar.

"To constitute the offence under abetment to suicide, there must be evidence to prove that the accused instigated the person," the court observed. Before dismissing both the cases, justice Bhangale stated that the deceased's dying declaration does not mean an offence punishable under section 306.

http://timesofindia.indiatimes.com/city/nagpur/Words-not-always-used-with-criminal-intent/articleshow/12128019.cms

Full text of judgment available @
http://www.indiankanoon.org/doc/103794258/

Working mothers can have child’s custody: HC

Wednesday, June 22, 2011, 

Mumbai: The Bombay High Court has held that working women take care of their children very well and the argument that they do not get time to attend to kids cannot be a ground for "disturbing" the custody of the child.

These observations were made by justices Vijaya Kapse-Tahilramani and M L Tahaliyani who dismissed a habeas corpus petition filed by a Nagpur resident seeking custody of his five-year-old daughter from his estranged wife on the ground that she had a full time job and would not get time to pay attention to their child.

"Considering the age of the child, we are of the view that keeping the child in the custody of the mother shall be preferable than in the custody of father," the bench noted.

"It is not the case that the father is jobless and he can take care of the child the whole day. Working women take care of their children very well and it should not be the ground for disturbing the custody of the child," the judges observed.

The judges were hearing a petition filed by the husband saying that his wife had deserted him after a fight and had gone to her mother's house, taking along their minor daughter. He urged the court to produce the child and hand over her custody to him.

It was the case of the police that they had not exercised any force and that the husband had forcibly taken away his daughter's custody from the mother. They further said that when they visited the petitioner's house along with the latter's wife, the daughter rushed to meet her mother.

The police said that they had attempted to bring about a compromise between the couple but could not succeed. The petitioner further argued that the child's grandmother was very old and was not in a position to take care of the child. However, no material was placed before the court to prove his claim.

The husband also said that his wife was employed and, therefore, could not take care of their daughter. Hence the child's custody may be given to him. However, the court held that the custody of the child could not be given to the father just because the mother had a full time job.

http://zeenews.india.com/news/nation/working-mothers-can-have-child-s-custody-hc_714360.html

also @

http://articles.timesofindia.indiatimes.com/2011-06-21/india/29683063_1_custody-child-neelima 

ALSO REFER TO THE BELOW POST ON SAME ISSUE OF CHILD CUSTODY IN CONTEXT TO WORKING MOTHER WITH A DIFFERENT CIRCUMSTANCES, ALSO THE AGE OF THE CHILD IS CRUCIAL 

Working mom has no time for child - custody given to Father

 http://legalmanthandivorce.blogspot.in/2012/02/working-mom-has-no-time-for-child.html

Don't bring kids to court, Bombay high court tells couple

Don't bring kids to court, Bombay high court tells couple

Saturday, May 14, 2011, 4:10 IST
Place: Mumbai | Agency: DNA

The Bombay high court on Friday, admonished a couple fighting for the custody of their two sons during their summer holiday.
Vacation bench of justice Mridula Bhatkar and justice RG Ketkar were hearing a habeas corpus petition filed by Shanti Mirchandani (name changed). “It is in the interest of children never to be seen in courts,” they added.

The principal of Prudence International School, Panvel, gave custody of the boys, aged 6 and 9 years, to their paternal uncle Satish (name changed) on a written request by the father Shyam (name changed).Shanti’s advocate Manjula Rao argued that in the absence of the father, the mother is the natural guardian. She said the whereabouts of the children are unknown.

Satish’s advocate countered that Shyam who works in Dubai will be returning to India on May 21, and wants the custody of his children since Shanti had taken them for the past two summer and winter vacations. “She vanishes with the children and deprives their father of meeting them,” he added.Rao submitted that it was done “due to a mutual agreement between the father and mother”.
“You (uncle) have no case. You are not the father,” said justice Bhatkar.“Don’t treat children as stooges to settle your dispute,” she added.

The judges took note of the fact that the Mirchandanis have neither filed a petition for custody of the children nor divorce proceedings for divorce under the Hindu Marriage Act. “This is the first petition before this court in respect of custody,” they noted in the order.

In a “workable solution”, the judges directed Satish, who resides in Bhayander, to “peacefully” handover the children to Shanti on Friday evening without the involvement of police.

They took note of Shanti’s undertaking to the court not to take the boys outside the limits of the court’s jurisdiction.Since it is a habeas corpus petition to produce the children, the judges posted the matter to May 23, 2011 with an explicit direction, “Don’t produce the children inside the court.”

http://www.dnaindia.com/mumbai/report_don-t-bring-kids-to-court-bombay-high-court-tells-couple_1543022

I-T returns not gospel for deciding maintenance to be paid by husband: Bom HC

I-T returns not gospel for deciding maintenance to be paid by husband: Bom HC 

TNN, Nov 29, 2010,

MUMBAI: Tax returns are not sacrosanct when it comes to calculating the maintenance paid by a man to his estranged wife and kids, the Bombay high court has ruled.

In two recent cases, the HC thwarted the attempt of two businessmen who challenged the maintenance awarded to their wives, pointing at their paltry earnings as shown in income-tax returns. However, Justice Roshan Dalvi said, "The consideration of the income contemplated under the (Hindu Marriage Act) does not mean that only the numerical figures shown in the tax returns of a party can be taken as the gospel. The ascertainment of the income has to be done judiciously, and sensibly, not arbitrarily." or only arithmetically." ,'' the judge added.

The court said, the tax returns might be only one side of the story. "It would be absurd to consider the net income of an assessee who has various sources of income some of which may not be taxable," at all,'' the judge said.

In the first case, Dilip Singh, a businessman in the has glass industry and has offices in Goregaon and Kandivli, challenged a family court's order to pay maintenance to his estranged wife. He claimed that according to his IT papers, his income was Rs 16,000 per month but going through his documents, the court could not agree with it. went through his financial documents to find a mismatch. "In this income, the man would not be expected to have the bank account that is shown to court (with large deposits and withdrawals), the car, the share in the joint-family property, that he has purchased, the exports that he has made and the electricity expenses, that he has paid the property taxes that he has incurred or the employees he pays," he supports in several firms,'' said the judge. The court refused to believe that the market value of his share in the family residence was merely Rs 3 lakh.

The second case related to another businessman, Deepesh Mehta, who objected to a family court's order of paying Rs 40,000 per month to his wife and two sons.

He claimed his monthly income, as per his IT returns, was Rs 20,000. "A person who earns that income, if that be his only income, would not be able to invest in shares of listed companies (to the tune of Rs 55 lakh), insurance, PPF accounts, government bonds, flat, shop," said the court, dismissing his application.

http://timesofindia.indiatimes.com/city/mumbai/I-T-returns-not-gospel-for-deciding-maintenance-to-be-paid-by-husband-HC/articleshow/7012039.cms#ixzz16lHT3PhU

 

FULL TEXT AVAILABLE AT

http://legalmanthandivorce.blogspot.com/2010/11/itr-not-gospel-for-deciding-maintenance.html

SC acknowledges gross abuse of ANTI DOWRY LAWS - Bombay high court rapped for wrongly convicting man

SC acknowledges gross abuse of ANTI DOWRY LAWS - Bombay high court rapped for wrongly convicting man

New Delhi, Nov 12(PTI) Noting that his wife had committed suicide after her illicit relationship stood exposed, the Supreme Court has set aside the conviction imposed on a doctor and his parents by the Bombay High Court, saying it was a clear-cut case of gross abuse of dowry laws.

The apex court minced no words in expressing displeasure at the manner in which the High Court had convicted Dr Sunil Kumar Sambhudayal Gupta by erroneously reversing the acquittal order passed by the Sessions Court.

"The High Court dealt with the case very casually, adopting a very superficial approach to the whole matter and brushed aside the allegation of an illicit relationship for which there had been documentary evidence on record," a Bench of Justices P Sathasivam and B  Chauhan observed in their judgement.

The apex court said the manner in which the doctor and his parents were framed by the in-laws revealed the extent to which the anti-dowry laws were being abused in the country."It is a clearcut case of gross abuse of dowry laws.

The High Court did not make any attempt to appreciate the evidence with accuracy and reversed the findings of the trial court which were based on the evidence on record and for which detailed reasons had been assigned," the apex court said.

The court ruling came on an appeal by the doctor, a Mumbai-resident, and his parents. Married in December 1978, Gupta''s wife committed suicide in September 1985 by hanging herself.

Following the suicide, her brother Rajesh lodged a complaint with the police accusing the husband of illtreating his sister for dowry culminating in the suicide.The trial court acquitted the three as the prosecution failed to prove the charges against them.
Referring to her going into depression following the exposure of her illicit relationship with a neighbour and her strained life at home, the trial court concluded that Gupta''s wife "had been suffering from epilepsy, psychosis and depression and had been getting regular treatment for the same."

"Therefore it was not a case of dowry demand or treating her with cruelty," the trial court had held.But the High Court had convicted them, saying the defence had not been able to prove its version.Concurring with the trial court''s view, the apex court said, "The high court committed an error in shifting the burden of proof to the defence".

"In fact, the prosecution has to prove its case beyond reasonable doubt and the failure of the defence to prove its version cannot be ground for conviction.

"We find it difficult to sustain the conviction of the appellants (the man and his parents) on aforesaid counts (of dowry harassment and abetment to suicide)," said the Bench, while acquitting the man and his parents yesterday," the court said.

http://news.in.msn.com/national/article.aspx?cp-documentid=4570561

Full Text available @

http://legalmanthan498adowrymisuse.blogspot.com/2010/11/sc-acknoeldges-gross-misuse-of-anti.html

Bombay HC sets aside divorce for wife of dead man

Bombay HC sets aside divorce for wife of dead man

TNN, Oct 12, 2010, 12.05am IST
MUMBAI: Can a divorce be granted to a woman whose husband is dead? The Pune family court certainly thought so and passed just such an order recently. But finding the Pune order nothing short of "preposterous, a bench of Justices B H Marlapalle and U D Salvi of the Bombay high court set it aside on Monday.
A Pune-based woman who was married for almost 20 years through a love match and had two minor teenagers was going through a divorce battle when a freak accident took her husband's life.
The fairly affluent couple, Arun and Aruna Joshi ( name changed), were estranged for five to six years. In 2005 the wife in her mid-40s filed a divorce petition citing mental and physical cruelty as ground for divorce under the Hindu Marriage Act and sought maintenance too. But after efforts at mediation failed, the couple turned their petition into one of mutual consent in February this year.
The family court allowed them to convert the contested divorce case into a joint plea for divorce. The mutual consent petition had its next date of hearing in May 2010. But in April, Arun in his early 50s, who was walking on one of Pune's main roads became a fatal victim of an accident involving a truck and car. Aruna went to the family court and made an application for closing the case as her husband was no more.
Aruna's lawyer Neela Gokhale told the HC that in a mutual consent divorce matter, the couple continues to remain married till the decree is passed. As the husband died while the matter was pending, the wife , Gokhale, said is now a widow. The family court judge R V Deshmukh rejected the wife's request and said that as the couple had agreed to a divorce by mutual consent and had even sought to convert a contested case into a joint plea for divorce, "nothing else remained to be done. So, he could issue a divorce decree even if the husband was dead.
At the first day of its hearing, Justice Marlapalle who had read the appeal papers and appeared shocked at the Pune court's decision of granting divorce, set it aside. The woman can now have her widow status which she prefers over being called a divorcee. The property issues would now follow the succession laws if no will was made.
http://timesofindia.indiatimes.com/city/mumbai/HC-sets-aside-divorce-for-wife-of-dead-man/articleshow/6732341.cms#ixzz126TFkUSD

Marriage between 1st cousins illegal.Live-in with cousin? Bombay high court on the fence

Marriage between 1st cousins illegal.Live-in with cousin? Bombay high court on the fence

14 sep 2010

Can first cousins marry each other? Such a union, except for some communities, is void under the Hindu Marriage Act (HMA), 1955. However, while disposing of a habeas corpus petition filed by Inderpal Walia, 37, the Bombay high court on Monday said the decision of a girl to live with her cousin would be at her discretion.

In his petition, Walia said he fell in love with his first cousin Harmandeep Kaur, 19, when he met her in Amritsar in March 2008. He had also lived with Harmandeep as “husband and wife” at her parents’ house before they got married in Mumbai on January 21, 2009. Walia says though her parents initially agreed to their marriage, Harmandeep was forcibly taken away from him in September 2009.

Walia had pleaded before the court to allow Harmandeep to live with him since he fears his wife would be married off to an NRI. “Considering the changes in the modern world, the friendship and the union of the petitioner (Walia) with Harmandeep is a necessity and it is no more a kind of foolishness,” Walia’s petition stated.

A division bench of justices AM Khanwilkar and UD Salvi, however, refused to grant permission for their live-in relationship. “The court cannot be expected to put a seal on an arrangement which is not recognised in law,” justice Khanwilkar said. The judges held that the purpose of the habeas corpus petition was served as Harmandeep had been brought before the court and she was “hale and hearty”. The judges said the girl was an adult and she could take decisions on her own.

They also agreed that this was “not an ordinary case”.
Walia’s advocate, Bhavesh Parmar, told the court that Walia was not aware Harmandeep was his first cousin when they got married before a registrar in the Mira-Bhayander court. He got to know from legal experts that their marriage was null and void under Section 5 of the HMA after Harmandeep was taken away by her family. “I have advised my client to challenge the order in the Supreme Court,” Parmar said.

http://www.dnaindia.com/india/report_live-in-with-cousin-bombay-high-court-on-the-fence_1437597

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14 Sep 2010

MUMBAI: The Bombay high court on Monday rejected one Harmant Singh's plea that his "wife" Hardeep, who is also his first cousin, be allowed to live with him. The Hindu Marriage Act disallows marriage between first cousins.

 
"If the request was to be considered, it would be putting a seal of approval on a relationship which isn't permitted in law," said a division bench of Justice A M Khanwilkar and Justice U D Salvi. The judges allowed Hardeep to go with her parents. "She is an adult and free to take her own decisions," said the judges, adding that Hardeep could decide her plans in consultation with her parents.

Harmant's lawyer made repeated pleas the court ask Hardeep with whom she wished to go. The judges, however, pointed out that "the law doesn't permit you and her to stay together."

Additional public prosecutor Ajay Gadkari told the court that in a habeas corpus proceeding the scope was limited to producing the person concerned before the court and that they had brought Hardeep from Amritsar.

Section 5 of the Hindu Marriage Act bans, among other things, marriage between a brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters. The marriage is void, unless the custom of the community permits it.

Harmant, who claimed to be a marine officer, said he had met Hardeep in Amritsar. They married at an Arya Samaj temple in Mumbai in January 2009. Nine months later, her family called her home on the pretext that her father was sick. Subsequently, he wasn't allowed to meet her. Harmant, admitted that she was his first cousin, and under the law the marriage was void.

(Names of the couple have been changed to protect their identities)

http://timesofindia.indiatimes.com/india/Marriage-between-1st-cousins-illegal-says-HC/articleshow/6550296.cms#ixzz0zV8IVhWs

Court relief for hubby charged with impotency

Court relief for hubby charged with impotency

Swati Deshpande, TNN, Sep 14, 2010, 06.36am IST

MUMBAI: A city businessman facing a police probe after his wife of 12 years accused him of being impotent and venting his "frustrations'' by beating her will not be compelled to undergo a potency test.

Offering the Peddar Road resident this respite, a public prosecutor when asked by the Bombay high court if such test was necessary n Monday said that the police would not insist on the test but would continue investigations in the wife's complaint under section 498-A of the Indian Penal Code ( IPC).

A bench headed by Justice Ajay Khanwilkar recorded the prosecutor's statement. The wife is seeking to annul the marriage before the family court in Bandra where she made a similar demand of having her husband tested for impotency. The HC said that since criminal and civil cases are separate proceedings the family court can deal with the civil plea independently.

The wife, a businessman's daughter, said her marriage was never consummated. Married in 1998, she only recently lodged an FIR against her husband.

Last month when the police wanted to test the husband at the civic-run Nair hospital for impotency, he rushed to the high court to challenge the powers of the police. His lawyer Edith Dey said the scope of police investigation could not include carrying out such medical tests.

Last week, the HC had suggested a mutual consent divorce. On Monday, with the mutual consent terms failing after the couple disagreed over the issue of stree-dhan, the high court asked the public prosecutor whether medical tests for impotency test must be carried out for the police investigation. The judges also asked the prosecutor to read out the wife's statement to the police to show whether wilful cruelty was linked to the alleged impotency of the husband. The prosecutor could not point to a link and said that the police had in the past not conducted such tests.

The wife's lawyer, advocate Flavia Agnes, in the family court was relying on supreme court rulings to say that the family court has the power to compel a husband to undergo an impotency test and in case of refusal, adverse inference can be drawn against him. She is also relying on a ruling which permitted annulment after several years marriage.

http://timesofindia.indiatimes.com/city/mumbai/Court-relief-for-hubby-charged-with-impotency/articleshow/6549773.cms#ixzz0zSp2moYQ

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Associated news

We will not insist potency test in matrimonial dispute: Police

MUMBAI: In a matrimonial dispute, the police today told the Bombay High Court that they will not insist on potency test on the husband.

Accepting the statement on record, a bench of Justice Ajay Khanvilkar and Justice U D Salvi disposed of a petition seeking a direction to the state and police not to insist on potency test.

The couple, Ajay and Jamuna (names changed) married on March 24, 1988, and after 11 years Jamuna filed a police complaint alleging cruelty on the ground that her husband was impotent.

Ajay was arrested on January 5 this year and granted bail by Additional Chief Metropolitan Magistrate a week thereafter subject to certain conditions.

However, in July, the state applied for modification of bail condition to change the day of attendance from Sunday to Tuesday for conducting potency test of the accused.

The Magistrate modified the order to the extent of changing the day of attendance from Sunday to Tuesday but did not change other conditions. In the earlier order, there was no mention of the court allowing potency test of the accused.

Despite this the police took Ajay to a hospital for conducting potency and psychiatry tests. Later, he moved the High Court saying the action of police violated human rights and his right to dignity. He said non-consummation of marriage does not amount to cruelty as per the scope and purview of section 498 A IPC under which his wife had filed a complaint.

http://timesofindia.indiatimes.com/city/mumbai/We-will-not-insist-potency-test-in-matrimonial-dispute-Police-/articleshow/6548769.cms#ixzz0zUqq79s2

 

 

 

 

http://timesofindia.indiatimes.com/city/mumbai/We-will-not-insist-potency-test-in-matrimonial-dispute-Police-/articleshow/6548769.cms#ixzz0zUqTVctq

Poverty no reason to reduce rape sentence: Bombay High Court ; but can FEMALE GENDER be the reason

But Gender can be. had such a criminal offence be committed by a WOMAN she would have got the reprieve

Poverty no reason to reduce rape sentence: Bombay High Court

Mumbai: Poverty can not be a reason to show leniency towards a rape-accused, Bombay High Court has said.
Under section 376 of Indian Penal Code, minimum punishment for rape is seven-year rigorous imprisonment, and a judge can give a lesser sentence for "adequate and special reasons". But socio-economic status of accused is irrelevant for this purpose, Justice A P Bhangale of Nagpur bench of High Court said in a ruling last week.

Satinath Raut, a labourer, was accused of raping a 22-year-old woman at his village Warthi, in Bhandara district. Raut entered her house when there was nobody else at home except for her 3-year-old daughter, and raped the woman at knife-point.
Sessions court in Bhandara awarded him seven years' imprisonment in February 2007.
In the appeal before the High Court, he pleaded that he had a large family --- five children and an ailing mother-- therefore the sentence may be reduced. Sessions court could have been more lenient with him on this ground, his lawyer argued.
But upholding the sentence, Justice Bhangale said in his judgement that "socio-economic status of the accused or his religion, caste, creed are irrelevant factors", as per Supreme Court's earlier rulings. 
http://www.ndtv.com/article/india/poverty-no-reason-to-reduce-rape-sentence-bombay-high-court-51488?cp

Bombay HC saves man from impotency tag

Bombay HC saves man from impotency tag

MUMBAI: Marital discord continues to flounder in a sea of legalese as harried courts try to reconcile differences between partners who don't even share a bed. The newest issue before Bombay HC in this territory is: can the police force a man to undergo medical tests to prove his manhood?

The issue arose before the Bombay high court when a Peddar Road-based woman sought the annulment of her 12-year-old marriage, claiming that it was never consummated. In her plea, she also complained of marital cruelty stemming from "his frustration".

On Monday, playing arbiter, the court suggested the couple, Shyam Talreja and Sunidhi Patel (names changed), divorce through mutual consent. But the proposition created further disagreements between the two: Patel insisted the consent terms mention her husband's "impotency", a demand Talreja opposed.

The judges, in a bid to avoid tainting the man with the stigma "no prudent person might agree to", offered a more "amiable phrase". "You may say 'there was no physical relationship between the parties' rather than 'non-consummation'," they said. The court has now asked the couple to sleep over its suggestion and return next Monday to settle the matter, failing which it is prepared to hear the husband's plea on merit.

The couple -- both in their late 30s -- hail from business families.

According to his lawyer, Edith Dey, Talreja worked for his father-in-law's stockbroking company but was sacked last year when marital trouble began. Late last year, Patel filed a complaint of physical cruelty against her husband and in-laws under Section 498-A of the Indian Penal Code (IPC). She alleged the physical violence was because of "his frustration arising out of impotency". The police arrested Talreja and his parents, but released them on bail.

Last month, Talreja said, when the police sought a change in his reporting schedule, he realised it was to have him tested for impotency at Nair Hospital. Aggrieved, he objected and got a medical report to show "all is well" from a private charitable hospital. But the police refused to accept Talreja's private report, forcing him to move the high court. A bench headed by Justice B H Marlapalle barred the medical tests.

Patel's lawyer Aabad Ponda on Monday said that a divorce which did not mention Talreja's "impotency" might mar her chances of remarriage and undermine the harassment she faced "for the last seven years". On her part, Dey questioned the "12-year delay in raising the impotency issue".

 

http://timesofindia.indiatimes.com/india/HC-saves-man-from-impotency-tag/articleshow/6516082.cms

Apply your mind: You cannot doubt a mother's bona fides -HC to passport officials

Apply your mind: You cannot doubt a mother's bona fides -HC to passport officials

MUMBAI: A woman estranged from her husband won a battle against passport authorities as well as police officials who had objected to her using a duplicate passport for her five-year-old son. On Tuesday, the Bombay high court not only ruled in the woman's favour but also gave the officials an earful.

Observing that a couple in the midst of a matrimonial dispute is likely to file cross-complaints against each other, a division bench of Justice D K Deshmukh and Justice N D Deshpande held that police officials should apply their minds.

The judges pulled up the Cuffe Parade police, deputy commissioner of police (special branch II) as well as the passport authorities. "You cannot doubt a mother's bona fides. Do you think getting a passport is easy? Why would she take so much trouble if she already has the original passport,'' the judges asked.

The court was hearing a petition filed by 37-year-old Priya Karia (name changed to protect identity), a resident of Cuffe Parade in south Mumbai. Priya moved the high court last month challenging a show cause notice issued by passport authorities in July this year seeking revocation of a duplicate passport issued to her son. Priya, in her petition, claimed that she applied for a duplicate passport for her son after her estranged husband informed her that he had misplaced/lost the boy's original passport.

Priya married Shekhar (name changed) in 2000. The couple had a son in 2005. Priya, in her petition, alleged that she was harassed by her husband and in-laws and was compelled to leave her matrimonial home in June 2009.

Priya claims that Shekhar and his parents didn't allow her to take any valuables and important documents, including her son's passport. She asked Shekhar for the boy's passport as she wanted to go abroad with her mother.

Shekhar filed a complaint with the Cuffe Parade police, saying that their son's original passport was intact and that Priya had sought a duplicate passport on fake grounds. Taking a note of the complaint, DCP-SB II sent an ex-parte report to the passport authorities in June. The passport authorities then issued a show cause notice to Priya.

Representing the passport authorities, advocate Mandar Goswami said the petitioner will be allowed to use the duplicate passport and that the original will be confiscated.

http://timesofindia.indiatimes.com/city/mumbai/Apply-your-mind-HC-to-passport-officials/articleshow/6515654.cms

Income of man’s family can decide maintenance – bom HC

The joint family finances of a man can be considered while determining the quantum of maintenance to be paid to his estranged wife, the Bombay high court has ruled. It gave its order in a case involving a 31-year-old Pune businessman.

Hiking eight-fold the maintenance the businessman, Amar Shejare, must pay his estranged wife Seema and their minor daughter to Rs 20,000 a month from Rs 2,500, a division bench of Justices A M Khanwilkar and Amjad Sayed said, “Considering the lifestyle of the Shejare family, it would necessarily follow that the income of (Amar) was substantial.” The judges added, “(Amar) had substantive income and considering the holdings of the joint family, he is capable of paying the monthly maintenance to the wife and the minor daughter.” The court also directed Amar to pay an additional Rs 10,000 to his wife towards legal costs.
Amar had contended that the property was owned by his joint Hindu undivided family. “We are conscious of the fact that Shejare is one of the coparceners (joint heir in the family property) and will have only a share in the said income,” the judges said, but pointed out that the family owned considerable property.
Seema (25) had moved the Pune family court in 2003 seeking maintenance for herself and her daughter under the Hindu Adoption and Maintenance Act and Section 125 of the Criminal Procedure Code. The provision of the CrPC allows a woman to avail of maintenance from her husband on grounds of negligence.
In 2005, the family court had asked Amar to shell out Rs 2,500 as monthly maintenance. Seema then moved the high court seeking enhancement of the amount, claiming that the annual income of her in-laws was around Rs 3 crore. She told the court that Amar’s family owned mango orchards spread over 75 acres in Ratnagiri and ran a business of mangoes and food products in Pune, besides owning residential flats in the city.
Amar denied the claims and said his family owned only a 22-acre mango orchard. He also produced his income-tax returns to show that his salary was not very high. The high court, however, asked why he had not filed I-T returns as part of the Hindu undivided family so that he could have refuted his wife’s claims. The judges further observed that even 22 acres of mango orchard would generate ample income.
“The fact remains that the joint Hindu undivided family of which Amar was coparcener has substantial properties,” the judges said, adding that since his daughter was school-going, there would be considerable expenses on her education and maintenance. While directing Amar to pay Rs 20,000 as maintenance for the mother and child, the court said Seema was free to pursue her application before the family court seeking to raise the monthly maintenance amount to Rs 1 lakh.