My wife filed a false case against me after filing of a divorce petition from my side. She is a government employee and always desires to live separately. She mounted heavy pressure upon me to leave my parents and settled with her in Noida. She left the matrimonial home on 30 April 2012.
I’m working as a clerk in a government Intermediate school, although my job is transferable and I can easily get a transfer from Lucknow to Noida but due to her dominating attitude I decided to live with my parents in Lucknow.
I filed a divorce petition on 5 July 2013 on the ground of cruelty thereupon she filed a false criminal case against me and my other family members under section 498 A/504/506/323 IPC and 5/6 DP Act. She again mounts pressure on me to withdraw my divorce petition but I want a divorce at all. Kindly advice what I should do?
Asked from: Bihar
Her subsequent act i.e. filing of a criminal case in retaliation of divorce petition may constitute matrimonial cruelty if the court acquits all the accused on the ground of false case. It may be possible that criminal case takes more time to decide but during the trial of a criminal case, you have to amend your divorce petition and take the additional plea of divorce i.e. matrimonial cruelty and stall the proceeding till the decision of the criminal case.
In K. Srinivas Rao vs D. A. Deepa AIR 2013 SC; it is held by the supreme court that filing of the false case by the wife against her husband is matrimonial cruelty and it shall constitute a ground of divorce.
This decision is reiterated by the same court in K. Srinivas vs K. Sunita [2015] 2 SCC; Matrimonial cruelty is a ground of divorce under Section 13(1)(i-a) Hindu marriage act 1955. It is easy to file a false case but proving it beyond all reasonable doubt it so difficult. It is a general awareness in the public that once plea of cruelty is taken by wife it strikes down all the relives of the husband in matrimonial cases.
In Lalita Kumari vs State of Uttar Pradesh AIR 2014 SC, Priyanka Srivastava Vs State of Uttar Pradesh AIR 2015 SC; it is held by the supreme court that preliminary inquiry must be made by the court before taking cognizance of the case towards matrimonial disputes.
The court is bound to initiate a preliminary inquiry in a complaint under section 498 – A of IPC and section 5/6 D. P. Act. At this stage, you cannot challenge the cognizance of the complaint on the above-mentioned case law. You have to contest your case.
Related: Settle dispute with wife by mutually agreed divorce
मेरे बहन का पति झूठे साक्ष्य एकत्र कर रहा है जिससे की वो अपने आप को हत्या के मुक़दमे में बचा सके। उसने दिनाँक १८ मार्च २०१४ को अपने पत्नी की हत्या कर दी। उसका अपने मित्र की पत्नी से अबैध सम्बन्ध था। वो उसपर काफी पैसा लूटता था। उसको अपने घर में भी रखता था। उसका दोस्त भी सेना में सिपाही था और वो दुसरे जगह तैनात था।वो मेरी बहन तो अपने घर पर छोड़ देता था और कभी भी साथ रखने को तैयार नहीं था। मेरे बहन के स्वसुर को ये बात पता चला तो वो मेरे बहन को अनपे साथ लेकर बेटे के पास गए। उसे काफी डाँटा – समझाया, काफी दबाव बनाने पर वो मेरे बहार को साथ रखने को तैयार हो गया।
किन उसके ४ महीने बाद १८ तारीख की रात को मार डाला। मेरे पिता ने FIR लिखाया। मुक़दमे की पैरवी में वो कुछ झूठे सबूत ले आया है , की उस रात वो मिलिट्री अस्पताल में भर्ती था, उसका इलाज चल रहा था आदि। वो सेना में है तो हो सकता है की वो और भी सबूत ले आये और बच जाये। ऐसे में क्या मुझे न्याय मिलेगा ?
Accused तो प्रयास करता है की वो किसी तरह बच जाये। लेकिन अंत में न्याय तो मिलता ही है। आपके केस में कुछ तथ्य है जो आपको पूरा न्याय दिलाएंगे। आपकी बहन की मृत्यु औसे पति के घर में हुआ है। और उनके पति ही हत्या का अभियुक्त है। ऐसे में अभियुक्त को धारा १०६ साक्ष्य विधि के तहत साबित करना पड़ेगा की कैसे उसकी पत्नी की मृत्यु हुई। उसने आत्महत्या किया या हादसे से मरी। postmortem रिपोर्ट से पता चल जाता है की मृत्यु का कारन क्या है।
Postmortem में दिए गए डॉक्टर के राय का न्यायालय द्वारा उपधारणा किया जायेगा। यदि डॉक्टर की राय है की हत्या किया गया था तो उसको नासाबित करने का भर अभियुक्त पर आ जायेगा। यदि वो साबित नहीं नहीं कर पाता है तो उपधारणा किया जायेगा की उसने हत्या किया है क्योकि वो उस समय घर पर उपस्थित था।
- अस्पताल में भर्ती वाले तथ्य को साबित करने का कारण साक्ष्य विधि की धारा ११ के द्वारा ये साबित करना है की वो घटना वाले स्थान पर नहीं था। जिसको साबित करना इतना आसान नहीं है। वो दिखाना चाहता है की घटना के दिन वो अस्पताल में भर्ती था तो केवल कहने मात्र से बात नहीं बनेगा। उसे साबित करना पड़ेगा कीकिस डॉक्टर से इलाज हुआ था
- उसे कौन सी बीमारी थी और क्या उस बीमारी में भर्ती करना आवश्यक था
- किस डॉक्टर ने भर्ती होने को लिखा थाकौन सी दवा दी गयी थी
- उस समय अस्पताल में और कौन से मरीज भर्ती थे, उनका भी बयान होगा।
यदि वो भर्ती नहीं था तो साबित करना आसान नहीं होगा। उसे ढेर सारे झूठे सबूत लाना पड़ेगा जो वो नहीं ला पाएगा । अंत में आपको न्याय जरूर मिलेगा।
My marriage was solemnised in the year 2010 at Patna, Bihar. My father in law and his family known to us for a long time. He filed a false case of dowry death against all the member of our family. In the year 2014 December my wife met an accident and it was hospitalised for treatment. She received many minor injuries but she got well but after 23 days from the date of discharged from hospital he felt high fever and backache due to this ailment I again hospitalised her in a reputed hospital.
Due to high fever and internal bleeding, she died in hospital during treatment. I have all the records like doctor’s prescription, discharge slip, postmortem report etc. My father in law and his family members were also present in the funeral. They raised no issue regarding her death but they were very co-operative in all the funeral and other rites. But after 2 months of her death, they filed a false case of dowry death and cruelty under section 304 B, 498 A at Patna, XXXX Police station. The investigation is completed and the trial is yet to begin in a few months. I am innocent and have sufficient evidence to prove it, my advocate told that FIR may be quashed by the High court if any application is a file under section 482. Please help.
Your advocate is right, you should apply to the High court because there are many grounds to quash this false proceeding.
- Patna court has no jurisdiction to try this case because no cause of action arises in its jurisdiction.
- Cognizance of the case and investigation is illegal due to lack of jurisdiction.
- Section 177, 178, 178 CRPC provides jurisdiction for trial of criminal cases.
- In Y. Abraham Ajith vs Inspector of Police AIR 2004 SC held by the supreme court that court has no jurisdiction to try a case where no part of the offence is committed in its local jurisdiction.
- The offence has been committed in Bangalore, the funeral is performed in Bangalore and there was no demand of dowry before her death.
- However her death caused within 7 years of her marriage but she was not subjected to cruelty in connection with demand of dowry, soon before death.
You have sufficient grounds to quash this proceeding including FIR so go through the opinion of your advocate.
I am the owner of the land of about 30 acres. My name is mentioned in all the revenue record since the past 50 years. Nashik municipality is trying to acquire my land for construction of shopping mall but does not want to initiate acquisition procedure.
It claims my land to its property on the ground of adverse possession. It claims that the municipality has been in possession on the land from the last 10 years based on a road which was constructed along with my land by the municipality in the year 2004. I have filed a complaint in the office of the collector but he is also reluctant to do anything. Please suggest me any legal procedure to save my land.
According to article 300 A of Indian constitution right to property is a constitutional right and property cannot be taken by the government without following the due process of law. When all the revenue records show that you are the owner of the land then how can a municipality corporation claim your land based on adverse possession?
You must file a writ before the High Court under article 226 of Indian constitution. In Vinayak Vishnu Dhopavkar vs State of Maharashtra AIR 2013 Bombay High Court; it is held by the Bombay High Court that
it would not be proper on the part of the government body or any state authority to take possession of somebody’s land without following due process of law. Even a citizen has permitted his land being used by a government authority, the government authority should not take undue advantage thereof. Government authority must acquire his land after paying compensation under the Land Acquisition Act.
You may file a writ petition based on aforesaid case law because no compensation is given by the government and no procedure under the Land Acquisition Act is followed.
Respected sir, my husband was taken lots of unreasonable adjournments to delay the judgment in my maintenance petition. I have filed a petition in the year 2000 and got judgment in September 2015.
The court in the judge gave the order of maintenance from the date of order instead of from the date of filing of the petition. No interim maintenance had been received and no other relief was sought by me. I want to appeal this judgment for giving maintenance from the date filing of my petition. Can you advise me the correct proposition of law?
Section 125 of the code of criminal procedure [crpc] provides a swift remedy to get maintenance from the husband. In many cases husband refuses to give maintenance and take unnecessary adjournment on the filing of the application. Unfortunately, your case continued for 15 years before the court to decide. It is a rule that maintenance would be awarded from the date of order [K. Shivaram vs Mangalamba (1990) Cri LJ].
But the court has the power to grant maintenance from the date of filing of the application by recording special reasons [section 354(6) CRPC] Shail Kumari Devi vs Krishna Bhagwan Pathak [2008] 9 SCC. You should have pleaded for granting of maintenance from the date of filing of the application. Without pleading this fact court is not bound to grant maintenance from the date of filing of the application.
However in exceptional cases when the court found that husband deliberately causing delay court can pass such order. In Shail Kumari Devi vs Krishna Bhagwan Pathak [2008] 9 SCC Supreme court has held that in conducive of justice in the case court may order to grant maintenance from the date of application if husband obstructing petition by taking unreasonable adjournments in the case. This is reiterated in the case of Krishna Jain 1992 Cri. LJ.
You should file an appeal in the high court based on aforesaid judgment for granting maintenance from the date of filing of the application.
My husband refuses to pay maintenance due to his unemployment. He left his job 2 months after the filing of a case under section 125 crpc. He was a commission agent in the excise tax department and earning well. I need maintenance for the sustenance of myself and my son.
The wife has a right to get maintenance from husband in section 125 crpc. Your husband has intentionally left his job to absolve himself from the responsibility to maintain the wife and children. But he'll not succussed because Section 125 is a benevolent legislation protecting a destitute wife from starvation [Kirtikant D. Vadodaria v. State of Gujarat and another (1996) 4 SCC]. Therefore, wife is entitled for alimony even if husband is not earning.
Nowadays, a tactic is developing among husbands to left the job and take a plea that I'm not able to pay alimony. They think that it will frustrate the case of the wife consequently she will be ready for settlement or compromising the issues.
Even unemployed husband is bound to pay maintenance
According to Section 125 crpc, if the husband has sufficient means, he has to maintain his wife. The court has liberally interpreted the word “sufficient means.” The Supreme Court held in several judgments that if the husband has the potential to earn he is liable to pay maintenance [Rajnesh v. Neha (2021) 2 SCC 324].
In Captain Ramesh Chander Kaushal v. Veena Kaushal [1978] 4 SCC; the Supreme Court has held that section 125 of the code gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to sustain themselves.
Your husband has intentionally left his job after receiving the information that you have filed a case for maintenance. His conduct itself proves that he is neglecting and refusing to maintain his wife and child. Proof of such a neglect or refusal is sufficient for the court to pass an order of maintenance under Section 125 crpc because your husband has the ability to earn [Vaibhav Singh v. Divyashika Singh, 2022 All HC].
The Hon'ble Supreme Court has held that "Husband cannot abdicate from his responsibility to provide maintenance to his wife and it is his duty to provide the maintenance." Section 125 crpc does not require that the husband must actually work at the time of determination of maintenance.
If the husband has intentionally left his job after the filing of maintenance application then the court may presume that husband has sufficient means as required under section 125. The court makes such a presumption to defeat the tactic of your husband and secure the object of section 125. Your husband cannot plead that he has no job in hand, therefore, cannot pay alimony to his wife and child.
An able-bodied person should maintain his wife
Law expects that a healthy or abled bodied man should do work to maintain himself and his dependants like wife, children and aged parents. If the husband is healthy he must maintain his wife who is unable to maintain herself. This is the social, moral and legal duty of the husband.
Your husband was working as a commission agent before filing the case then he cannot say that he has lost his ability to work. He still has the potential to earn and maintain himself and his family. Therefore, he cannot take unemployment as an excuse for giving alimony.
The husband being an able-bodied person is duty-bound to maintain his wife who is unable to maintain herself.
Reema Salkan v. Sumer Singh Salkan, (2019) 12 SCC 303
Regard being had to the solemn pledge at the time of marriage and also in consonance with the statutory law that governs the field, the husband must see that the wife does not become a destitute, a beggar. A situation is not to be maladroitly created whereunder she is compelled to resign to her fate and think of life “dust unto dust”. It is impermissible.
Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353
It is the sacrosanct duty to render financial support even if the husband is required to earn money with physical labour if he is able-bodied. There is no escape route unless there is an order from the court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds.”
Maintenance
Alimony includes the supply of food, lodging and other necessary things for leading a dignified life. The husband is under obligation to maintain the same living status of his wife which she would have in her matrimonial home. This is the standard procedure for the ascertainment of the amount of maintenance.
Therefore, your husband has no escape route. It is the sacrosanct duty of the husband to see that his wife would not become destitute. This is indeed the social goal of Section 125 crpc.
What should you do
You should file an application under Section 125 crpc and demand maintenance for your son and yourself. In that application you have to prove that:
- You are living in destitution.
- Your husband refuses to maintain.
- He has sufficient means to maintain you.
- You have expelled from the matrimonial home.
- Husband is not willing to perform his legal obligation.
- There is sufficient reason for living separately from the husband.
My son died on 12 April 2015. Me, my wife and one daughter are dependent. My son was self-employed but unmarried. He was 29 years old at the time of death. I have filed a petition under section 166 M V Act for compensation and claim about 98 lakh. He declared 30 k per month income in his ITR and pay income tax also. Can I get 98 lakh as compensation?
You may claim any amount as for compensation but must bear in mind that the court will decide the actual compensation under the M V Act on the guidelines fixed by the supreme court in its catena of judgments. Self-employed and even unemployed person is entitled to get compensation under the M V Act ( Motor Vehicle Act).
A standard deduction shall be applied in case of death because dependents are entitled to get compensation to the extent which deceased might spent upon them which remained after his personal needs.
In Reshma Kumari vs Madan Mohan [2013] 9 SCC; it is held the supreme court that bachelor person would tend to spend more on his personal needs and living lifestyle so 50% shall be justified deduction in case of death of bachelor person. In Santosh Devi vs National insurance Co. ltd [2012] 6 SCC held by the supreme court that multiplier should be applied after deciding compensation on monthly basis, age of deceased is the sole parameter in deciding multiplier. It can not be possible to fix multiplier on every case, so one common formula should be devised for it.
In Reshma Kumari case, the supreme court has fixed formula for the multiplier. A multiplier of 17 has been fixed by the court if the age of the deceased was between 26 to 30 years. In your case 17 multiplier shall be applied.
Prospect is also a ground for calculating calculation. In Rajesh vs Rajveer Singh [2013] 9 SCC; held by the court that if the deceased is below 40 years of age there must be the addition of 50% to the actual income of the deceased.
According to above discussion you may get monthly income = monthly income of deceased + addition of 50% as future prospect (30000 + 15000) = 45000; and subtraction of standard deduction of 50% ( 50% of 45000) = 22500 per month. Monthly income 22500 shall be multiplied by 12 to get annual income i.e. 270000.
Annual income shall be multiplied by multiplier 17 to get net compensation i.e. Rs. 4590000. You may get Rs. 4590000 as compensation.
Mr X presented a complaint against me for the commencement of offence punishable under section 467/468/504/506 IPC, which is rejected by the court of the magistrate. Now Mr X submitted a revision application against such rejection. I want to appear in that revision application. Is there any law in this regard?
Yes, you may appear before the court in that revision application. According to section 401(2) of the code of criminal procedure [crpc], the court shall not take any decision unless giving an opportunity of hearing to the accused person.
You are a proposed accused in this case because the court rejects the complaint of Mr X. However, the proposed accused also has the right to invoke section 401(2) crpc. It does not matter that the court did not issue any process like summons or warrant against the accused.
Section 401(1) CrPC
In the case of any proceeding the record of which has been called for by itself or Which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392.
Section 401[2] No order under this section shall be made to the prejudice of the accused or another person unless he has had an opportunity of being heard either personally or by pleader in his defence.
In A.N. Santhanam vs K. Elangovan [2012] 12 SCC; the Supreme Court of India holds that proposed accused has the right to appear in revision application against the dismissal of the complaint. In Priyanka Srivastava vs the State of U.P. [2015] 3 SCC supreme court of India directed all the subordinate courts to take affidavit in support of allegations made in the application under section 156[3] crpc as well as applicable under section 200 crpc. The purpose of the oath is to bound the applicant with his averments stated in the application.
In M. M. Kakadia vs S. M. Patel [2013] 1 SCC Criminal; proposed accused has right to hear in the revision application preferred by the complainant against the order of dismissal of the complaint under section 203 crpc.
सर,मेरा नाम लख्मीचंद है मुझ पर १३८ का एक मामला दर्ज है जिसमे मामला दायर करने वाले का बयान हो चूका है मेने दूसरा वकील कर लिया है ..वकील मामला दर्ज कराने वाले का दोबारा बयान करवाना चाहता है, परन्तु अपील ख़ारिज होती नजर आ रही है यदि दोबारा बयान होता है तो मुझे न्याय मिल सकता है क्योकि मेने २४१२०० का चेक दिया था ९०००० नकद दिया था १५१२०० का दूसरा चेक दिया फिर २४१२०० का चेक कैंसल कर करके १५१२०० का चेक बाउंस हुवा है पर मामला दायर करने वाले ने ९०००० नकद का कही भी जिक्र नहीं किया ..न न्यायलय में न ऑडिट रिपोर्ट में …दोबारा बयान होगा तो सच सामने आ सकता है में बच सकता हु ..मेरी मदद कीजिये सर
जब किसी चेक का पार्ट पेमेंट किया जाता है तो उस कारन से चेक पर लायबिलिटी समाप्त नहीं होता है। Ramnarayan Madanlal Khandelwar vs.Proprietor Daulat Enterprise, 2005 (4) Mh L.J. 796) लेकिन किसी विषय पर यदि गवाह ने किसी तथ्य को छिपा लिया है तो उसको पुनः परिक्षण करने के लिए परक्राम्य लिखत की धारा १४५(२) के तहत दरखास्त दे सकते हैं। यदि न्यायलय को लगता है की गवाह के वयं लेना चाहिए या किसी तथ्य को छिपा लिया है तो उसे बयानहल्फी पर बयान देने के लिया आदेश दे सकता है।
आपको साबित करना होगा की किस तरह से गवाह का बयान मामले की लिए आवश्यक है। यदि कंप्लेंट में २४१२०० रूपये के चेक का वर्णन किया गया है तो ये पूरा केस quash हो जायेगा क्योकि परिवाद का आधार ही गलत है। यदि १५२२०० के चेक पर परिवाद किया गया है तो कोई विशेष लाभ नहीं मिल पायेगा।
One of the partners of our firm has filed a false case under section 406/420 IPC. I, as a director of the firm taken some loan about 35 lakh @ 15% interest. Later on, my partner demanded to repay it out of the firm’s income. The dispute has arisen between us and finally, he filed a false case against me.
This loan was taken for the business of the firm and brought it into the firm’s assets. What is a remedy for me against this false case?
You should file a petition before the High Court under section 482 Cr.P.C. because no offences of criminal breach of trust (Section 406 IPC) & Cheating (Section 420 IPC)are made out against you. It is a civil dispute hence, he cannot seek a remedy in the criminal proceeding.
He initiated the criminal proceeding with the intention of causing you unnecessary harassment. You can file above-mentioned quashing petition if the investigation is pending and investigating officer is about to file charge sheet before the court.
If charge sheet has filed then you should file a discharge petition before the trial court. If material or evidence collected by investigating officer is insufficient or do not infer that alleged offence is committed then accused is discharged by the trial court.
For the offence of criminal breach of trust, the money or property must be entrusted in accused. If accused does misappropriate the said property he commits the offence of criminal breach of trust.
In your case it was purely a commercial transaction and money was borrowed on certain terms and condition and both lender and borrower were partners of the firm. G. Sagar Suri vs State of U.P. AIR 2000 SC; the commercial transaction does not come under the purview of entrusting, it is a breach of contract instead of breach of trust.
Section 420: Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
No offence under section 420 is made out because at the time of contract there was no dishonest and fraudulent intention of accused to breach of contract.
It is purely a civil nature case but he initiated a criminal proceeding. He should have filed a civil suit for the proper remedy. A criminal case shall not be sustained in your case, therefore, the High Court may quash this criminal proceeding.
