Courts Reject Attempt to Overturn Divorce Decree

READ HIGHLIGHTED POINT-11 REGARDING VIEW OF COURTS FOR MIS-
REPRESENTATION OF FACTS AND FRAUDS

THIS JUSDMENT REFERING TO THE VARIOUS JUDGEMENTS ( JAPANI SAHOO VS
CHANDRASHEKHAR MOHANTY CASE) AND OTHERS AND DEFINING THE
LIMITATION PERIOD
VERY USEFUL JUDGEMENT FOR THOSE WHO ARE FACING DOMESTIC VIOLENCE
CASE FILED AFTER A LONG PERIOD OF TIME..EVERY LINE OF THIS JUDGEMENT IS
WORTH READING
DV LIMITATION
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1635 of 2011
(Arising out of SLP(Crl.) No. 7787 of 2010)
Inderjit Singh Grewal Appellant
Versus
State of Punjab & Anr. Respondents
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. Leave granted.
2. The instant appeal reveals a very sorry state of affair where the wife files a criminal complaint
before the competent court to initiate criminal proceedings against her husband alleging that they
had obtained decree of divorce by playing fraud upon the court without realising that in such a
fact-situation she herself would be an accomplice in the crime and equally responsible for the
offence. More so, the appeal raises a substantial question of law as to whether the judgment and
decree of a competent Civil Court can be declared null and void in collateral proceedings, that
too, criminal proceedings.
3. This criminal appeal arises from the judgment and final order dated 9.8.2010 in Criminal
Misc. No. M-29339 of 2009 (O&M) passed by the High Court of Punjab & Haryana at
Chandigarh, by which the High Court has dismissed the application filed by the appellant under
Section 482 of Code of Criminal Procedure, 1973 (hereinafter called as `Cr.P.C.) for quashing
the complaint No. 87/02/09 dated 12.6.2009 filed by respondent no. 2 under Section 12 of the
Protection of Women from Domestic Violence Act, 2005 (hereinafter called the Àct 2005).
4. Facts and circumstances giving rise to present case are as under: A. That the appellant and
respondent no. 2 got married on 23.9.1998 at Jalandhar as per Sikh rites and from the said
wedlock a son, namely, Gurarjit Singh was born on 5.10.1999. The parties to the marriage could
not pull on well together because of temperamental differences and decided to get divorce and,
therefore, filed HMA Case No. 168 of 19.9.2007 before the District Judge, Ludhiana under 2
Section 13-B of Hindu Marriage Act, 1955 (hereinafter called the Àct 1955) for dissolution of
marriage by mutual consent. In the said case, statements of appellant and respondent no. 2 were
recorded on 19.9.2007 and proceedings were adjourned for a period of more than six months to
enable them to ponder over the issue. B. The parties again appeared before the court on
20.3.2008 on second motion and their statements were recorded and both of them affirmed that it
was not possible for them to live together and, therefore, the learned District Judge, Ludhiana
vide judgment and order dated 20.3.2008 allowed the said petition and dissolved their marriage.
C. Respondent no. 2 filed a complaint before Senior Superintendent of Police, Ludhiana against
the appellant on 4.5.2009 under the provisions of the Act 2005 alleging that the decree of divorce
obtained by them was a sham transaction. Even after getting divorce, both of them had been
living together as husband and wife. She was forced to leave the matrimonial home. Thus, she
prayed for justice. The said complaint was sent to SP, City-I, Ludhiana for conducting inquiry.
The said SP, City-I conducted the full-fledged inquiry and submitted the report on 4.5.2009 to
the effect that the parties had been living 3
separately after divorce and, no case was made out against the present appellant. However, he
suggested to seek legal opinion in the matter. D. Accordingly, legal opinion dated 2.6.2009 was
sought, wherein it was opined that the parties had obtained the divorce decree by mutual consent
and the allegations made by respondent no. 2 against the appellant were false and baseless and
the purpose of filing the complaint was only to harass the appellant.
E. Respondent no. 2 subsequently filed a complaint under the Act 2005 on 12.6.2009. The
learned Magistrate issued the summons to the appellant on the same date. The Magistrate vide
order dated 3.10.2009 summoned the minor child for counseling. The appellant, being aggrieved
of the order of Ld. Magistrate dated 12.6.2009, filed application dated 13.10.2009 under Section
482 Cr.P.C. for quashing the complaint dated 12.6.2009.
F. In the meanwhile, respondent no. 2 filed Civil Suit on 17.7.2009 in the court of Civil Judge
(Senior Division), Ludhiana, seeking declaration that the judgment and decree dated 20.3.2008,
i.e. decree of divorce, was null and void as it had been obtained by fraud. The said suit is still
pending.
G. Respondent no. 2 also filed application dated 17.12.2009 under Guardians and Wards Act,
1890 for grant of custody and guardianship of the minor child Gurarjit Singh and the same is
pending for consideration before the Additional Civil Judge (Senior Division), Ludhiana.
H. Respondent no. 2 on 11.2.2010 also lodged an FIR under Sections 406, 498-A, 376, 120-B of
the Indian Penal Code, 1860 (hereinafter called ÌPC) against the appellant and his mother and
sister.
I. The High Court vide impugned judgment and order dated 9.8.2010 dismissed the application
filed by the appellant. Hence, this appeal.
5. Shri Ranjit Kumar, learned senior counsel appearing for the appellant has submitted that the
High Court erred in rejecting the application of the appellant under Section 482 Cr.P.C., as none
of the reliefs claimed by the respondent no.2 could be entertained by the criminal court while
dealing with the complaint; the complaint itself is time barred, thus, the Magistrate Court could
not take cognizance thereof. The complaint has been filed because of malice in order to extract
money from the appellant. More so, the plea of fraud alleged 5
by the respondent no.2 in the complaint for obtaining the decree of divorce before the Civil
Court as per her own version, succinctly reveals that she herself had been a party to this fraud.
The High Court failed to appreciate as to what extent her version could be accepted as she
herself being the accomplice in the said offence of fraud committed upon the court. Even if the
allegations made therein are true, she is equally liable for punishment under Section 107 IPC.
More so, the reliefs claimed by the respondent no. 2 in the civil suit for declaring the decree of
divorce as null and void and in another suit for getting the custody of the child referred to
hereinabove, would meet her requirements. Thus, the appeal deserves to be allowed.
6. On the contrary, Shri Manoj Swarup, learned counsel appearing for the respondent no.2 has
vehemently opposed the appeal contending that decree of divorce is a nullity as it has been
obtained by fraud. The relationship of husband and wife between the appellant and respondent
no.2 still subsists and thus, complaint is maintainable. The court has to take the complaint on its
face value and the allegations made in the complaint require adjudication on facts. The issue of
limitation etc. can be examined by the Magistrate Court itself. The appeal lacks merit and is
liable to be dismissed. 6
7. We have considered the rival submissions made by learned counsel for the parties and perused
the record.
8. Before we proceed to determine the case on merit, it is desirable to highlight the admitted facts
of the case:
I. Appellant and respondent no.2 are highly qualified persons. Both of them are employed and
economically independent. Appellant is an Assistant Professor and respondent no. 2 is a
Lecturer. The appellant is Ph.D and respondent no.2 has registered herself for Ph.D. They are
competent to understand the complications of law and other facts prevailing in the case.
II. Both of them got married in year 1998 and had been blessed with a son in year 1999. There
was no complaint by respondent no.2 against the appellant of any cruelty, demand of dowry etc.
before getting the decree of divorce dated 20.3.2008 by mutual consent. III. The decree of
divorce has been obtained under Section 13-B of the Act 1955. Respondent no.2 was examined
by the court on first motion on 19.9.2007 wherein she stated, inter-alia, as under: We are living
separately from each other since 23.9.2005. Now there is no chance of our living
together as husband and wife.
IV. Respondent no.2 was examined in the second motion by the learned District Judge, Ludhiana
on 20.3.2008, wherein she stated as under:
My statement was recorded on 19.9.2007 alongwith the statement of my husband Inderjit Singh
Grewal. Six months time was given to us to ponder over the matter but we could not reconcile.
One child was born from our wedlock namely Gurarjit Singh Grewal whose custody has been
handed over by me to my husband Inderjit Singh Grewal and he shall look after the welfare of
the said child. We have settled all our disputes regarding dowry articles and past and future
permanent alimony. Now there is nothing left out against each other. A draft of Rs.3,00,000/-
.has been received by me towards permanent alimony and maintenance and in lieu of dowry
articles left by me in the matrimonial home. We are living separately since 23.9.2005. After that
there is no co-habitation between us. There is no scope of our living together as husband and
wife. I will remain bound by the terms and conditions as enshrined in the petition. I have left
with no claim against petitioner No.1. Our marriage may be dissolved by passing a decree of
divorce by mutual consent. V. The learned District Judge, Ludhiana granted the decree of
divorce dated 20.3.2008 observing as under:
They have settled all their disputes regarding dowry articles, past and future alimony.They
are living separately from each other since 23.9.2005The petitioners have not been able to
reconcile.The petitioners have settled all their disputes regarding dowry, stridhan and past and
8
future permanent alimony.The custody of the son of the petitioners is handed over to Inderjit
Singh Grewal by Amandeep Kaur. The petition is
allowed. The marriage between the petitioners is henceforth declared dissolved.
VI. The complaint dated 4.5.2009 filed by respondent no. 2 before the Senior Superintendent of
Police, Ludhiana was investigated by the Superintendent of Police, City-I, Ludhiana. He
recorded statements of several neighbours and maid servant working in appellants house and
submitted the report to the effect that as the husband and wife could not live together, they
obtained the decree of divorce by mutual consent. However, the complainant Amandeep Kaur
had alleged that she was induced by her husband to get divorce for settling in the United States
and it was his intention to kick her out from the house. However, the husband stated that she had
been paid Rs.3,00,000/- in the court by draft and Rs.27,00,000/- in cash for which the husband
Inderjit Singh Grewal had entered into an agreement to sell his ancestral property. The
complainant had not been living with the appellant after the decree of divorce and they were not
having physical relationship with each other. It was further suggested in the report that legal
opinion may also be taken.
VII. Legal opinion dated 2.6.2009 had been to the effect that the parties had taken divorce by
mutual consent due to their differences. The allegation to the extent that they had been living
together even after divorce were false and baseless and had been labelled only to harass the
appellant.
9. The instant case is required to be considered in the aforesaid factual backdrop.
So far as the complaint dated 12.6.2009 is concerned, there had been allegation of mis-behaviour
against the appellant during the period of year 2005. Respondent no. 2 alleged that during that
period she had not been treated well by the appellant, thus, she had to take shelter in the house of
her parents; all her belongings including the dowry articles were kept by the appellant and his
parents. She has further given details how both of them have obtained decree of divorce by
mutual consent as they wanted to settle in United States and therefore, they had decided to get
divorce on paper so that the appellant may go to U.S.A. and get American citizenship by
negotiating a marriage of convenience with some U.S. citizen and divorce her and again re-marry
the complainant. She further alleged that even after decree of divorce she had been living with
the appellant till 7.2.2009 1
and continued co-habitation with him. They had visited several places together during this
period. The child had been forcibly snatched from her by the appellant. Therefore, she was
entitled to the custody of the minor child along with other reliefs.
10. The question does arise as to whether reliefs sought in the complaint can be granted by the
criminal court so long as the judgment and decree of the Civil Court dated 20.3.2008 subsists.
Respondent no.2 has prayed as under:
It is therefore prayed that the respondent no.1 be directed to hand over the custody of the minor
child Gurarjit Singh Grewal forthwith. It is also prayed that the respondent no.1 be directed to
pay to her a sum of Rs.15,000/- per month by way of rent of the premises to be hired by her at
Ludhiana for her residence. It is also prayed that all the respondents be directed to restore to her
all the dowry articles as detailed in Annexure A to C or in the alternative they be directed to pay
to her a sum of Rs.22,95,000/- as the price of the dowry articles. Affidavit attached.
Thus, the reliefs sought have been threefolds:
(a) Custody of the minor son; (b) right of residence; and (c) restoration of dowry articles.
11. It is a settled legal proposition that where a person gets an order/office by making
misrepresentation or playing fraud 1
upon the competent authority, such order cannot be sustained in the eyes of the law as fraud
unravels everything. Equity is always known to defend the law from crafty evasions and new
subtleties invented to evade law. It is a trite that Fraud and justice never dwell together (fraus
et jus nunquam cohabitant). Fraud is an act of deliberate deception with a design to secure
something, which is otherwise not due. Fraud and deception are synonymous. Fraud is an
anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or
saved by the application of any equitable doctrine. An act of fraud on court is always viewed
seriously. (Vide: Meghmala & Ors. v. G. Narasimha Reddy & Ors., (2010) 8 SCC 383)
12. However, the question does arise as to whether it is permissible for a party to treat the
judgment and order as null and void without getting it set aside from the competent court.
The issue is no more res integra and stands settled by a catena of decisions of this Court. For
setting aside such an order, even if void, the party has to approach the appropriate forum. (Vide:
State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) & Ors., AIR
1996 SC 906; and Tayabbhai M. 1
Bagasarwalla & Anr. v. Hind Rubber Industries Pvt. Ltd., AIR 1997 SC 1240).
13. In Sultan Sadik v. Sanjay Raj Subba & Ors., AIR 2004 SC 1377, this Court held that there
cannot be any doubt that even if an order is void or voidable, the same requires to be set aside by
the competent court.
14. In M. Meenakshi & Ors. v. Metadin Agarwal (dead) by Lrs. & Ors., (2006) 7 SCC 470, this
Court considered the issue at length and observed that if the party feels that the order passed by
the court or a statutory authority is non-est/void, he should question the validity of the said order
before the appropriate forum resorting to the appropriate proceedings. The Court observed as
under:-
It is well settled principle of law that even a void order is required to be set aside by a
competent Court of law, inasmuch as an order may be void in respect of one person but may be
valid in respect of another. A void order is necessarily not non-est. An order cannot be declared
to be void in collateral proceedings and that too in the absence of the authorities who were the
authors thereof. (Emphasis added)
Similar view has been reiterated by this Court in Sneh Gupta v. Devi Sarup & Ors., (2009) 6
SCC 194.
From the above, it is evident that even if a decree is void ab initio, declaration to that effect has
to be obtained by the person aggrieved from the competent court. More so, such a declaration
cannot be obtained in collateral proceedings.
15. Respondent no.2 herself had been a party to the fraud committed by the appellant upon the
civil court for getting the decree of divorce as alleged by her in the impugned complaint. Thus,
according to her own admission she herself is an abettor to the crime. A person alleging his own
infamy cannot be heard at any forum as explained by the legal maxim allegans suam
turpetudinem non est audiendus. No one should have an advantage from his own wrong
(commondum ex injuria sua memo habere debet). No action arises from an immoral cause (ex
turpi cause non oritur action). Damage suffered by consent is not a cause of action (volenti non
fit injuria). The statements/allegations made by the respondent no.2 patently and latently involve
her in the alleged fraud committed upon the court. Thus, she made herself disentitled for any
equitable relief. 1
16. The offence of abetment is complete when the alleged abettor has instigated another or
engaged with another in a conspiracy to commit offence. (Vide: Faguna Kanta Nath v. The State
of Assam, AIR 1959 SC 673; and Jamuna Singh v. State of Bihar AIR 1967 SC 553). If more
than one person combining both in intent and act, commit an offence jointly, each is guilty, as if
he has done the whole act alone. Offence has been defined under Section 40 IPC and Section 43
IPC defines illegality. Making false statement on oath before the court is an offence under
Section 191 IPC and punishable under Section 193 IPC.
17. While granting the decree of divorce, the statement of respondent no.2 had been recorded in
the first as well as in the second motion as mentioned hereinabove. Period of more than 6 months
was given to her to think over the issue. However, she made a similar statement in the second
motion as well.
18. As per the statutory requirement, the purpose of second motion after a period of six months is
that parties may make further efforts for reconciliation in order to save their marriage. There is
also obligation 1
on the part of the court under Section 23(2) of the Act 1955 to make every endeavour to bring
about a reconciliation between the parties. In Jagraj Singh v. Birpal Kaur, AIR 2007 SC 2083,
this Court held that conjugal rights are not merely creature of statute but inherent in the very
institution of marriage. Hence, the approach of a court of law in matrimonial matters should be
much more constructive, affirmative and productive rather than abstract, theoretical or
doctrinaire. The court should not give up the effort of reconciliation merely on the ground that
there is no chance for reconciliation or one party or the other says that there is no possibility of
living together. Therefore, it is merely a misgiving that the courts are not concerned and
obligated to save the sanctity of the institution of marriage.
19. In Smt. Sureshta Devi v. Om Prakash, AIR 1992 SC 1304, this Court held that mere filing
the petition for divorce by mutual consent does not authorise the court to make a decree for
divorce. The interregnum waiting period from 6 to 18 months is obviously intended to give time
and opportunity to the parties to reflect on their move and seek advice from relations and friends.
In this transitional period one of the parties may have a second thought and change the mind not
to proceed with the petition. The court must be satisfied about the bona 1
fides and the consent of the parties for the reason that court gets jurisdiction to make a decree for
divorce only on mutual consent at the time of enquiry. The consent must continue to decree nisi
and must be valid subsisting consent when the case is heard. Thus, withdrawal of consent can be
unilateral prior to second motion. The Court further observed:
The living separately for a period of one year should be immediately preceding the
presentation of the petition. It is necessary that immediately preceding the presentation of
petition, the parties must have been living separately. The expression living separately,
connotes to our mind not living like husband and wife. It has no reference to the place of living.
The parties may live under the same roof by force of circumstances, and yet they may not be
living as husband and wife. The. parties may be living in different houses and yet they could live
as husband and wife. What seems
to be necesssary is that they have no desire to perform marital obligations and with that mental
attitude they have been living separately for a period of one year immediately preceding the
presentation of the petition. The second requirement that they have not been able to live
together seems to indicate the concept of broken down marriage and it would not be possible to
reconcile themselves. The third requirement is that they have mutually agreed that the marriage
should be dissolved. (Emphasis added)
20. For grant of divorce in such a case, the Court has to be satisfied about the existence of mutual
consent between the parties on some 1
tangible materials which demonstrably disclose such consent. (Vide: Hitesh Bhatnagar v. Deepa
Bhatnagar, AIR 2011 SC 1637).
21. Respondent no.2, who did not change her stand in the second motion and obtained a sham
decree of divorce as alleged by her asked the criminal court to sit in appeal against the judgment
and decree of the competent Civil Court. The complaint was filed before the Magistrate,
Jalandhar while the decree of divorce had been granted by the District Judge, Ludhiana i.e. of
another district. Therefore, it is beyond our imagination as under what circumstances a
subordinate criminal court can sit in appeal against the judgment and order of the superior Civil
Court, having a different territorial jurisdiction.
22. In the facts and circumstances of the case, the submission made on behalf of respondent no.2
that the judgment and decree of a Civil Court granting divorce is null and void and they
continued to be the husband and wife, cannot be taken note of at this stage unless the suit filed by
the respondent no.2 to declare the said judgment and decree dated 20.3.2008 is decided in her
favour. In view thereof, the evidence adduced by her particularly the record of the telephone
calls, photographs attending a wedding together and her signatures in school 1
diary of the child cannot be taken into consideration so long as the judgment and decree of the
Civil Court subsists. On the similar footing, the contention advanced by her counsel that even
after the decree of divorce, they continued to live together as husband and wife and therefore the
complaint under the Act 2005 is maintainable, is not worth acceptance at this stage.
23. In D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469, this Court considered the
expression domestic relationship under Section 2(f) of the Act 2005 placing reliance on earlier
judgment in Savitaben Somabhai Bhatiya v. State of Gujarat & Ors., (2005) 3 SCC 636 and held
that relationship in the nature of marriage is akin to a common law marriage. However, the
couple must hold themselves out to society as being akin to spouses in addition to fulfilling all
other requisite conditions for a valid marriage.
The said judgments are distinguishable on facts as those cases relate to live-in relationship
without marriage. In the instant case, the parties got married and the decree of Civil Court for
divorce still subsists. More so, a suit to declare the said judgment and decree as a nullity is still
pending consideration before the competent court. 1
24. Submissions made by Shri Ranjit Kumar on the issue of limitation, in view of the provisions
of Section 468 Cr.P.C., that the complaint could be filed only within a period of one year from
the date of the incident seem to be preponderous in view of the provisions of Sections 28 and 32
of the Act 2005 read with Rule 15(6) of The Protection of Women from Domestic Violence
Rules, 2006 which make the provisions of Cr.P.C. applicable and stand fortified by the
judgments of this court inJapani Sahoo v. Chandra Sekhar Mohanty, AIR 2007 SC 2762; and
Noida Entrepreneurs Association v. Noida & Ors., (2011) 6 SCC 508.
25. In view of the above, we are of the considered opinion that permitting the Magistrate to
proceed further with the complaint under the provisions of the Act 2005 is not compatible and in
consonance with the decree of divorce which still subsists and thus, the process amounts to abuse
of the process of the court. Undoubtedly, for quashing a complaint, the court has to take its
contents on its face value and in case the same discloses an offence, the court generally does not
interfere with the same. However, in the backdrop of the factual matrix of this case, permitting
the court to proceed with the complaint would 2
be travesty of justice. Thus, interest of justice warrants quashing of the same.
26. The appeal succeeds and is allowed. The impugned judgment and order dated 9.8.2010 is
hereby set aside. Petition filed by the appellant under Section 482 Cr.P.C. is allowed. Complaint
No. 87/02/09 pending before the Magistrate, Jalandhar and all orders passed therein are quashed.
Before parting with the case, we clarify that respondent no.2 shall be entitled to continue with
her other cases and the court concerned may proceed in accordance with law without being
influenced by the observations made herein. The said observations have been made only to
decide the application under Section 482 Cr.P.C. filed by the appellant.
(P. SATHASIVAM)
(Dr. B.S. CHAUHAN)
New Delhi
August 23, 2011
Supreme Court of India

Meghmala & Ors vs G.Narasimha Reddy & Ors on 16 August, 2010
Author: . B Chauhan
Bench: P. Sathasivam, B.S. Chauhan
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal Nos. 6656-6657 of 2010
(Arising out of SLP (C) Nos. 14447-14448 of 2007) Meghmala & Ors. ..Appellants Versus
G. Narasimha Reddy & Ors. ..Respondents JUDGMENT
Dr. B.S. CHAUHAN, J.
1. Leave granted.
2. Judicial pronouncements unlike sand dunes are known for their stability/finality. However, in this case, in
spite of the completion of several rounds of litigation upto the High Court, and one round of litigation before
this Court, the respondents claim a right to abuse the process of the Court with the perception that whatever
may be the orders of the High Court or this Court, inter-se parties the dispute shall be protracted and will
never come to an end.
3. These appeals have been preferred against the Judgment and Order dated 26.04.2007 of the High Court of
Andhra Pradesh, at Hyderabad, passed in Writ Petition Nos. 19962-19963 of 2006, by which the High Court
has allowed the said petitions against the Judgment and order of the Special Court under the Andhra Pradesh
Land Grabbing (Prohibition) Act, 1982 (hereinafter called, "Act 1982"), dismissing the review application No.
397/2005 in LGC No. 76/1996 and in LGCSR 357/2005.
4. Facts and circumstances giving rise to the present cases are as under :- (A) V. Ram Chandra Reddy and his
brother (vendors) had a huge chunk of land and a part of it could have been the subject matter of the
provisions of Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter called the Act 1976). The said
vendors entered into an agreement to sell dated 23.01.1976 for selling a part of the land (hereinafter called
`suit land') to a cooperative society namely, Gruha Lakshmi Cooperative Housing Society Ltd. (hereinafter
called, "the Society"). The vendors, V. Ram Chandra Reddy and his brother executed a sale deed in favour of
A. Sambashiva Rao (hereinafter called the appellant/applicant) which was registered on 21.05.1980 vide
document No. 4758/80 and the appellants were put in possession of the suit land.
2
(B) The appellant/applicant- vendee filed LGC No. 76/1996 against the respondents under the provisions of
the Act, 1982 alleging that he had been working in Andhra Pradesh State Road Transport Corporation and was
mostly out of station, and the respondents had forcibly grabbed his land and raised construction thereon. Thus,
he sought the relief of their dispossession and action against them under the provisions of the Act, 1982. (C)
After complying with the requirements of the statutory provisions i.e. taking the sanction etc., the respondents
were issued a show cause notice. The respondents filed their reply submitting that in respect of the suit land,
there was an agreement to sell, dated 23.01.1976, in favour of the society and once such an agreement to sell
had been executed, vendors had no right to transfer the land in favour of the appellant/applicant. The society
Indian Kanoon - http://indiankanoon.org/doc/1329151/ 1
had allotted the suit land in their favour, therefore, the application was liable to be rejected.
(D) The Special Court after appreciating the evidence, vide Judgment and order dated 4.11.1997 came to the
conclusion that the appellant/applicant was the owner of the suit land and that the respondents had no right,
title or claim over the suit land. They had forcibly occupied the land and they were land grabbers, thus, they
were liable to be evicted and orders for that purpose were passed.
3
(E) Being aggrieved by the order of the Special Court dated 4.11.1997, the respondents preferred writ petition
No. 33572/1997 before the High Court of Andhra Pradesh, which was dismissed vide Judgment and Order
dated 3.07.2001.
(F) Being aggrieved by the order of the High Court, the respondents preferred Special Leave Petition (c) No.
18218/2001 before this Court, which was dismissed as withdrawn vide order dated 2.11.2001 giving liberty to
the respondents to file review petition before the High Court. (G) The respondents filed review petition No.
31506/2002 before the High Court. However, the said review petition was dismissed by the High Court vide
order dated 16.12.2002.
(H) In the intervening period, when the review petition was pending before the High Court, the
appellant/applicant filed execution proceedings by moving IA No. 518/2002. The Respondents also moved an
application to summon the record of the Revenue Divisional Officer, Secundrabad, pertaining to the survey of
the suit land along with an application for the stay of Execution proceedings. The Special Court vide order
dated 7.11.2002 allowed the Execution Application filed by the appellant/applicant but dismissed the
application filed by respondents directing the Revenue Divisional Officer to implement the order dated
4.11.1997. 4
(I) The respondents being aggrieved by the common order dated 7.11.2002, filed writ petition nos. 22953 and
23105 of 2002, which were, dismissed by the High Court vide order dated 17.12.2002. (J) In pursuance of the
order in Execution Proceedings dated 7.11.2002, the appellants were put into possession of the suit land on
16.12.2002. (K) The respondents being aggrieved by the order of the High Court dated 17.12.2002, preferred
review petitions before the High Court, which were dismissed by the Court vide order dated 17.11.2003. (L)
The respondents filed Review Application no. 397/2005 in LGC No. 76 after an inordinate delay, seeking
review of the order dated 4.11.1997. The respondents subsequently filed an application in LGCSR No.
357/2005 before the Special Court for fresh declaration that they were the owners and that the appellants, who
had succeeded throughout the litigation, were the land grabbers. The respondents in the said application
impleaded persons other than the appellant/applicant also, i.e. the vendors of the appellant/applicant and govt.
officials etc., who are the other appellants in these cases. The Special Court dismissed the said applications
vide orders dated 6.7.2006 and 11.7.2006.
(M) The respondents, being aggrieved by both the orders, filed Writ Petition Nos. 19962 and 19963 of 2006,
which have been allowed by the 5
High Court vide impugned Judgment and order dated 26.04.2007, directing the Special Court to decide both
the applications afresh on merit, as in the opinion of the High Court, the applications required certain inquiry
on factual matters and the claim of the respondents could not have been rejected merely on the determination
and attaining finality of orders in earlier proceedings. Hence, these appeals.
5. Sh. P. Vishwanatha Shetty, learned senior counsel appearing for the appellants, has submitted that even if
there was an agreement to sell by the vendor of the appellants in favour of the society, such an agreement did
not confer any title in the suit land in their favour. The respondents had not been the members of the said
Society, nor had any allotment ever been made by the Society in their favour. The earlier proceedings came to
an end after having several rounds of litigation upto the High Court and one round upto this Court. The orders
passed therein attained finality and in pursuance of the same, the appellant/applicant came into possession of
the suit land. Issues of fraud and identification of land had been in issue in some of the earlier proceedings.
Once the respondents had approached this Court, the question of entertaining the review petition after an
inordinate delay of 7-8 years does not arise. The respondents have no locus standi to ask the Special Court to
determine under what circumstances the 6
appellant/applicant had obtained the suit land. An application to call for certain records in respect of the suit
land from 1972 to 2002, the survey reports etc. cannot be made by them. The High Court has gravely erred in
interfering with the orders of the Special Court rejecting both the applications. Thus, the appeals deserve to be
allowed.
6. Per contra, Sh. M.V. Durga Prasad, learned counsel appearing for the respondents submitted that the
transfer of land in favour of the appellant/applicant vide registered sale deed dated 21.05.1980 was itself a
fraudulent transaction and material in this regard was suppressed from the Special Court while obtaining the
orders in their favour. Fraud vitiates everything. The respondents have raised the issue of the identification of
the suit land. Thus, the applications filed by the respondents were maintainable and the High Court has rightly
reversed the orders passed by the Special Court. The appeals lack merit and no interference is warranted by
this Court.
7. We have considered the rival submissions made by the learned counsel for the parties and perused the
record.
Admittedly, there is a registered sale deed in favour of the appellant/applicant dated 21.05.1980 and there may
be an agreement to sell in favour of the society dated 23.01.1976. It is settled legal proposition that 7
an agreement to sell does not create any right, or title in favour of the intending buyer. The Society did not file
suit for specific performance against the vendors prior to the execution of sale deed in favour of the
appellant/applicant on 21.05.1980. The Special Court, after appreciating the entire evidence on record, came
to the conclusion that the appellant/applicant was the owner and was in actual physical possession of the land
and that the respondents had grabbed the said land. The Special Court has observed as under :-
"In the cross-examination, RW1 (respondent No.1
herein) had to admit that they have not filed any document to show that the said plot was allotted in their
favour by the society and that they have not filed any document to show that they are the
members of the said society. He also admitted that without any municipal sanction or permission, they raised
the construction in the scheduled land."
The Special Court further held that the respondents were land grabbers within the meaning of the Act, 1982
and thus, they were directed to restore the premises to the appellant/applicant. These findings of fact had been
affirmed upto the High Court.
8. The record of the case reveals that respondents have filed review petitions before the Special Court as well
as before the High Court. However, all the applications had been dismissed by the Courts concerned. 8
The respondents again filed an application seeking review of the order dated 4.11.1997. Section 17-A of the
Act, 1982 provides that in order to prevent the miscarriage of justice, a review application can be entertained
on the grounds that the order has been passed under a mistake of fact, ignorance of any material fact or an
error apparent on the face of law. Limitation for filing the review application before the Special Court has
been prescribed under Rule 18 of the Andhra Pradesh Land Grabbing (Prohibition) Rules, 1988, as 30 days
from the date of the order of which the review is sought. The respondents had earlier challenged the said order
dated 4.11.1997 before the High Court, as well as before this Court. Review petitions had been filed before
the Special Court, as well as before the High Court. Thus, question does arise as to whether it is permissible
for a litigant to file a review application after approaching the superior forum/court. Review - After
approaching the Higher Forum:-
9. In M/s. Kabari Pvt. Ltd. Vs. Shivnath Shroff & Ors. AIR 1996 SC 742, this Court had taken a view that the
court cannot entertain an application for review if before making the review application, the superior court
had been moved for getting the self-same relief, for the reason that for 9
the self-same relief two parallel proceedings before the two forums cannot be taken.
10. In State of Maharashtra & Anr. Vs. Prabhakar Bhikaji Ingle AIR 1996 SC 3069, this Court held that when
a special leave petition from the order of the Tribunal was dismissed by a non-speaking order, the main order
was confirmed by the Court. Thereafter, the power of review cannot be exercised by the Tribunal as it would
be "deleterious to the judicial discipline".
11. Same view has been reiterated by this Court in Raj Kumar Sharma Vs. Union of India (1995) 2 Scale 23;
Sree Narayana Dharmasanghom Trust Vs. Swami Prakasananda & Ors. AIR 1997 SC 3277; K. Ajit Babu &
Ors. Vs. Union of India & Ors. (1997) 6 SCC 473; and Gopabandhu Biswal Vs. Krishna Chandra Mohanty &
Ors. AIR 1998 SC 1872.
12. In Abbai Maligai Partnership Firm & Anr. Vs. K. Santhakumaran & Ors. AIR 1999 SC 1486, a three
Judge Bench of this Court considered the issue afresh and held that filing of the review petition after dismissal
of the special leave petition by it against the self-same order amounted to an abuse of process of the court and
the entertainment of such a 1
review application was in affront to its order and it was subversive of judicial discipline.
13. In Kunhayammed & Ors. Vs. State of Kerala & Anr. AIR 2000 SC 2587, a three Judge Bench of this
Court reconsidered the issue and all above referred judgments and came to the conclusion that dismissal of
special leave petition in limine by a non-speaking order may not be a bar for entertaining a review petition by
the court below for the reason that this Court may not be inclined to exercise its discretion under Article 136
of the Constitution. The declaration of law will be governed by Article 141 where the matter has been decided
on merit by a speaking judgment. In that case doctrine of merger would come into place and lay down the
following principles:-
(i) Where an appeal or revision is provided
against an order passed by a court, tribunal or
any other authority before superior forum and
such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the
subordinate forum merges in the decision by
the superior forum and it is the latter which
subsists, remains operative and is capable of
enforcement in the eye of law.
(ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. The first stage is
upto the disposal of prayer for special leave to file an appeal. The second stage
commences if and when the leave to appeal is
1
granted and the special leave petition is converted into an appeal.
(iii) Doctrine of merger is not a doctrine of
universal or unlimited application. It will depend on the nature of jurisdiction exercised by the
superior forum and the content or subject-matter of challenge laid or capable of being laid shall be
determinative of the applicability of merger. The superior jurisdiction should be capable of
reversing, modifying or affirming the order put in issue before it. Under Article 136 of the
Constitution the Supreme Court may reverse,
modify or affirm the judgment-decree or order
appealed against while exercising its appellate
jurisdiction and not while exercising the
discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger
can therefore be applied to the former and not to the latter.
(iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In
either case it does not attract the doctrine of
merger. An order refusing special leave to appeal does not stand substituted in place of the order under
challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the
appeal being filed.
(v) If the order refusing leave to appeal is a
speaking order, i.e., gives reasons for refusing the grant of leave, then the order has two
implications. Firstly, the statement of law
contained in the order is a declaration of law by the Supreme Court within the meaning of Article
141 of the Constitution. Secondly, other than the 1
declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court
which would bind the parties thereto and also the court, tribunal or authority in any proceedings
subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the
country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood
merged in the order of the Supreme
Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as
res judicata in subsequent proceedings between the parties.
14. The Court came to the conclusion that where the matter has been decided by a non-speaking order in
limine the party may approach the High Court by filing a review petition.
Similar view has been reiterated in National Housing Coop. Society Ltd. Vs. State of Rajasthan & Ors. (2005)
12 SCC 149.
15. In K. Rajamouli Vs. A.V.K.N. Swamy AIR 2001 SC 2316, this Court considered the ratio of the judgment
in Kunhayammed (supra); and Abbai Maligai Partnership Firm (supra) and held that if a review application
has been filed before the High Court prior to filing the special leave petition before this Court and review
petition is decided/rejected, special leave petition against that order of review would be maintainable. In case
the review application has been filed subsequent to dismissal of the 1
special leave petition it would amount to abuse of process of the court and shall be governed by the ratio of
the judgment in Abbai Maligai Partnership Firm (supra). The said judgment has been approved and followed
by this Court in M/s. Green View Tea & Industries Vs. Collector, Golaghat, Assam & Anr. AIR 2004 SC
1738.
16. In Kumaran Silk Trade (P) Ltd. Vs. Devendra AIR 2007 SC 1185, this Court held as under :-
"As a matter of fact at the earlier stage this Court did not consider the question whether one of the appeals
against the order dismissing the Review Petition on merits was maintainable. At best the order of remand and
the decision in Kunhayammed & Ors. v. State of Kerala & Anr. (2000) 6 SCC 359 would enable the
petitioner to get over the ratio of the three Judge Bench decision in Abbai Maligai Partnership Firm & Anr. v.
K. Santhakumaran & Ors. (1998) 7 SCC 386 that the seeking of a review after the petition for special leave to
appeal was dismissed without reserving any liberty in the petitioner was an abuse of process."
17. Thus, the law on the issue stands crystallized to the effect that in case a litigant files a review petition
before filing the Special Leave Petition before this Court and it remains pending till the Special Leave Petition
stands dismissed, the review petition deserves to be considered. In case it is filed subsequent to dismissal of
the Special Leave Petition, the process of filing review application amounts to abuse of process of the court. 1
18. In view of the above, we are of the considered opinion that filing of such a review application by the
respondents at a belated stage amounts to abuse of process of the Court and such an application is not
maintainable. Thus, the High Court ought not to have entertained the writ petition against the order of
dismissal of the review application by the Special Court and the order of the High Court to that extent is liable
to be set aside.
19. So far as the other application filed by the respondents before the Special Court is concerned, it is based
on the grounds that earlier judgment and order had been obtained by the appellant/applicant suppressing
material facts and the suit land had not been identified properly, and therefore, the judgment of the Special
Court duly affirmed by the High Court stood vitiated.
Fraud/Misrepresentation: -
20. It is settled proposition of law that where an applicant gets an order/office by making misrepresentation or
playing fraud upon the competent Authority, such order cannot be sustained in the eyes of law. "Fraud avoids
all judicial acts ecclesiastical or temporal." (Vide S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath
(dead) by L.Rs. & Ors. AIR 1994 SC 853). In Lazarus Estate Ltd. Vs. Besalay 1956 All. 1
E.R. 349), the Court observed without equivocation that "no judgment of a Court, no order of a Minister can
be allowed to stand if it has been obtained by fraud, for fraud unravels everything."
21. In Andhra Pradesh State Financial Corporation Vs. M/s. GAR Re-Rolling Mills & Anr. AIR 1994 SC
2151; and State of Maharashtra & Ors. Vs. Prabhu (1994) 2 SCC 481. this Court observed that a writ Court,
while exercising its equitable jurisdiction, should not act as to prevent perpetration of a legal fraud as the
courts are obliged to do justice by promotion of good faith. "Equity is, also, known to prevent the law from
the crafty evasions and sub-letties invented to evade law."
22. In Smt. Shrisht Dhawan Vs. M/s. Shaw Brothers. AIR 1992 SC 1555, it has been held as under:-
"Fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It is a
concept descriptive of human conduct."
23. In United India Insurance Co. Ltd. Vs. Rajendra Singh & Ors. AIR 2000 SC 1165, this Court observed
that "Fraud and justice never dwell together" (fraus et jus nunquam cohabitant) and it is a pristine maxim
which has never lost its temper over all these centuries. 1
24. The ratio laid down by this Court in various cases is that dishonesty should not be permitted to bear the
fruit and benefit to the persons who played fraud or made misrepresentation and in such circumstances the
Court should not perpetuate the fraud. (See District Collector & Chairman, Vizianagaram Social Welfare
Residential School Society, Vizianagaram & Anr. Vs. M. Tripura Sundari Devi (1990) 3 SCC 655; Union of
India & Ors. Vs. M. Bhaskaran (1995) Suppl. 4 SCC 100; Vice Chairman, Kendriya Vidyalaya Sangathan &
Anr. Vs. Girdharilal Yadav (2004) 6 SCC 325; State of Maharashtra v. Ravi Prakash Babulalsing Parmar
(2007) 1 SCC 80; Himadri Chemicals Industries Ltd. Vs. Coal Tar Refining Company AIR 2007 SC 2798;
and Mohammed Ibrahim & Ors. Vs. State of Bihar & Anr. (2009) 8 SCC 751).
25. Fraud is an intrinsic, collateral act, and fraud of an egregious nature would vitiate the most solemn
proceedings of courts of justice. Fraud is an act of deliberate deception with a design to secure something,
which is otherwise not due. The expression "fraud" involves two elements, deceit and injury to the person
deceived. It is a cheating intended to get an advantage. (Vide Dr. Vimla Vs. Delhi Administration AIR 1963
SC 1572; Indian Bank Vs. Satyam Fibres (India) Pvt. Ltd. (1996) 5 SCC 550; State of Andhra Pradesh Vs. T.
Suryachandra Rao AIR 2005 SC 3110; K.D. 1
Sharma Vs. Steel Authority of India Ltd. & Ors. (2008) 12 SCC 481; and Regional Manager, Central Bank of
India Vs. Madhulika Guruprasad Dahir & Ors. (2008) 13 SCC 170).
26. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the
rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception
are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all
equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any
equitable doctrine including res judicata. Fraud is proved when it is shown that a false representation has been
made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false.
Suppression of a material document would also amount to a fraud on the court. (Vide S.P. Changalvaraya
Naidu (supra); Gowrishankar & Anr. Vs. Joshi Amba Shankar Family Trust & Ors. AIR 1996 SC 2202; Ram
Chandra Singh Vs. Savitri Devi & Ors. (2003) 8 SCC 319; Roshan Deen Vs. Preeti Lal AIR 2002 SC 33; Ram
Preeti Yadav Vs. U.P. Board of High School & Intermediate Education AIR 2003 SC 4628; and Ashok
Leyland Ltd. Vs. State of Tamil Nadu & Anr. AIR 2004 SC 2836).
1
27. In kinch Vs. Walcott (1929) AC 482, it has been held that "....mere constructive fraud is not, at all events
after long delay, sufficient but such a judgment will not be set aside upon mere proof that the judgment was
obtained y perjury."
Thus, detection/discovery of constructive fraud at a much belated stage may not be sufficient to set aside the
judgment procured by perjury.
28. From the above, it is evident that even in judicial proceedings, once a fraud is proved, all advantages
gained by playing fraud can be taken away. In such an eventuality the questions of non-executing of the
statutory remedies or statutory bars like doctrine of res judicata are not attracted. Suppression of any material
fact/document amounts to a fraud on the court. Every court has an inherent power to recall its own order
obtained by fraud as the order so obtained is non est.
29. The instant case required to be examined in the light of the aforesaid settled legal propositions.
The case of the respondents has been that transfer by the vendor in favour of the appellant was not genuine.
Material information had been suppressed from the Special Court. More so, there was no proper identification
of the suit land in the earlier litigation. The reports submitted in this regard were not correct.
1
30. Respondents have never been able to show as under what circumstances they are interested in the suit land
because before the Special Court in the first round they failed to show any document that land had ever been
transferred by the tenure holders/owners in favour of the Society or the Society had made any allotment in
their favour or they were member of the said Society or they obtained any sanction from statutory authority to
raise the construction.
Shri M.V. Durga Prasad, Ld. Counsel appearing for the said respondents was repeatedly asked by us to show
any document on record linking the said respondents with the suit land. Though, he argued for a long time,
raised large number of issues but could not point out a single document which may reflect that respondents
could have any claim on the suit land. Therefore, we are of the considered opinion that the application at their
behest was not maintainable.
31. The issue of mis-representation/fraud, suppression of material fact and identification of land had been in
issue in earlier review petitions before the Special Court and in the Writ Petitions before the High Court. In
this regard, the Special Court in execution proceedings was fully satisfied regarding the identity of land on the
basis of revenue record and came to the conclusion that there was no mis-representation or fraud on the part of
the 2
appellant/applicant. The order of the Special Court dated 11th July, 2006 made it clear that all these issues had
been agitated in earlier proceedings. The Special Court has held as under:
"The applicants herein as contended in this L.G.C. have filed IA No.869/2002 for stay of proceedings and IA
No. 861/2002 for summoning the record in File No.B/9815/97 from the office of the Revenue Divisional
Officer on the ground of alleged fraud played by the Mandal Revenue Officer and the Mandal Surveyor.
Those petitions were heard at length and were dismissed holding that the alleged fraud as contended by the
applicants herein was not made out and the property which is the subject matter of L.G.C. No.76/96 should be
delivered to the respondents herein by evicting the applicants. As mentioned already, in execution of the said
order, applicants herein were evicted and possession was delivered to the respondents. Admittedly, the
common order passed in IA Nos.
518/2002, 861/2002 and 869/2002, by this Court was questioned by the applicants herein by filing Writ
Petitions before the Hon'ble High Court of A.P. and the same was also dismissed holding that the applicants
herein are trying to protract the litigation and to delay the delivery of possession of the property in question to
the respondents."(emphasis added)
32. In another case decided by the Special Court vide order dated 6th July, 2006 the Court had taken note of
the pleadings in respect of identification of land and mis-representation/fraud/collusion in the earlier
proceedings and the observations made by the Writ Court in its order dated 17th December, 2002 that the said
respondents were interested in protracting the litigation and obstructing the implementation of the order of the
Special Court dated 2
4.11.1997. The said order had been passed in Application No. 51 of 2002 where one of the main grounds had
been that the appellant/applicant had played fraud in obtaining the said order as is taken note of in paragraph
13 of the said order by the Special Court. The Special Court also took note of earlier direction to the Revenue
Divisional Officer to identify the land and possession of the same was delivered to the decree holder. The said
order was under challenge before the High Court in Writ Petition Nos. 22953/2002 and 23105/2002 wherein
pleading of the alleged fraud and mis-identification of suit land were taken. The Special Court came to the
conclusion that there was no suppression of any fact by the revenue authorities or the court was misled at the
time of obtaining such orders.
33. There is a registered sale deed dated 21.5.1980 in favour of the appellant/applicant. Nobody has ever filed
any application before the competent court to declare said sale deed as null and void. Respondents have no
right or interest in the suit property. The Society claimed to have an agreement to sell in its favour which did
not confer any title in favour of the Society. A finding of fact had been recorded in earlier proceedings that the
appellant/applicant was in actual physical possession of the land and he was illegally/forcibly dispossessed by
the respondents. 2
Forcible dispossession:-
34. Even a trespasser cannot be evicted forcibly. Thus, a person in illegal occupation of the land has to be
evicted following the procedure prescribed under the law. (Vide Midnapur Zamindary Co. Ltd. Vs. Naresh
Narayan Roy AIR 1924 PC 124; Lallu Yeshwant Singh Vs. Rao Jagdish Singh & Ors. AIR 1968 SC 620;
Ram Ratan Vs. State of U.P. AIR 1977 SC 619; Express Newspapers Pvt. Ltd. & Ors. Vs. Union of India &
Ors. AIR 1986 SC 872; and Krishna Ram Mahale Vs. Mrs. Shobha Vankat Rao AIR 1989 SC 2097) .
35. In Nagar Palika, Jind Vs. Jagat Singh AIR 1995 SC 1377, this Court observed that Section 6 of the
Specific Relief Act 1963 is based on the principle that even a trespasser is entitled to protect his possession
except against the true owner and purports to protect a person in possession from being dispossessed except in
due process of law.
36. Even the State authorities cannot dispossess a person by an executive order. The authorities cannot
become the law unto themselves. It would be in violation of the rule of law. Government can resume
possession only in a manner known to or recognised by law and not otherwise. (Vide Bishan Das Vs. State of
Punjab AIR 1961 SC 1570; Express Newspapers Pvt. Ltd. (supra); State of U.P. & Ors. Vs. Maharaja
Dharmander Prasad Singh 2
& Ors. AIR 1989 SC 997; and State of West Bengal & Ors. Vs. Vishnunarayan & Associates (P) Ltd. & Anr.
(2002) 4 SCC 134).
37. The forcible eviction of the appellant/applicant by the respondents was unwarranted and unlawful.
Proceedings had been initiated under the Act, 1982. It is a special Act to prevent illegal activities of land
grabbing. The Legislature, in its wisdom, constituted a Special Court presided over by a person who is or
eligible to be the Judge of the High Court, and consisting of the Members who are or eligible to become
District Judge and District Collector. Therefore, persons having enough experience and who have acquired a
higher status have been given responsibility to adjudicate upon the disputes under the Act 1982. That Special
Court has been conferred with the powers of Civil or Criminal Courts.
As per the provisions of Section 10 of the Act 1982, the burden of proof is on the accused to prove that he is
not guilty. Thus, it is not like any other criminal case where accused is presumed to be innocent unless the
guilt is proved. The presumption of innocence is a human right, however, subject to the statutory exceptions,
the said principle forms the basis of Criminal Jurisprudence. For this purpose, the nature of offence, its
seriousness and gravity thereof has to be taken into consideration. Statutes like Negotiable Instruments Act,
1881; Prevention of Corruption Act, 1988; 2
and Terrorist and Disruptive Activities (Prevention) Act, 1987, provide for presumption of guilt if the
circumstances provided in those Statutes are found to be fulfilled and shift the burden of proof of innocence
on the accused. Thus, the Legislature has adopted a deviating course from ordinary criminal law shifting the
burden on the accused to prove that he was not guilty. The High Court while deciding these cases has not
considered the issue of the locus standi of the respondents to maintain the application for eviction of the
appellant/applicant. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations
by cheaply invoking the jurisdiction of the court. The court proceedings ought not to be permitted to
degenerate into a weapon of harassment and persecution.
38. In view of the above factual position, we reach the following conclusions:
(i) There has been a registered sale deed in favour of the appellant/applicant by the vendors which was
registered on 21.5.1980 and he was put in possession.
(ii) Prior to the execution of the said sale deed there has been an agreement to sell dated 23.1.1976 in favour
of the Society. 2
(iii) In respect of the said agreement to sell the litigation remained pending before the Civil Court but there is
nothing on record to show as to what had been its outcome.
(iv) An agreement to sell did not confer any right on the Society, though the appellant acquired the title over
the suit land by execution and registration of the sale deed dated 21.5.1980.
(v) The respondents had not been the members of the Society nor Society made any allotment in their favour.
(vi) Before the Special Court, the respondents could not show as under what circumstances they could stake
their claim on the suit land and no document worth the name could be shown which may link them to the suit
land.
(vii) Respondents grabbed the suit land forcibly and raised a construction without any authorisation.
(viii) In spite of our repeated queries, learned counsel for the respondents could not point out a single
document on record to show that they could have any right, interest or title in the suit land. (ix) The litigation
completed several rounds before the High Court and this is the second round of litigation before this Court. 2
(x) All the courts proceedings reveal that after proper adjudication the declaration had been made that suit
land belonged to the appellant/applicant and respondents were merely land grabbers.
(xi) In earlier review petitions filed by the respondents before the Special Court and further taking the matter
to the High Court in Writ Petitions and Review Applications before the High Court the issue of mis-
representation/fraud/collusion and mis-identification of the suit land had been raised but they could not
succeed.
(xii) In execution proceedings, the appellant/applicant succeeded and came in possession of the suit land in
2002.
(xiii) Respondents filed frivolous application raising the issue of fraud and mis-identification of the suit land
which had earlier been adjudicated upon. The review application was filed at much belated stage. (xiv) The
review application was certainly not maintainable as the respondents had approached the higher forum and it
merely amounted to abuse of process of the court.
(xv) The respondents had been interested only to protract the litigation by one way or the other.
(xvi) Fresh proceedings taken by the respondents before the Special Court in fact, is tantamount to malicious
prosecution. 2
39. The High Court failed to take all aforesaid factors into consideration before passing impugned judgment
and order.
40. In view of the above, we are of the considered opinion that judgment and order of the High Court
impugned herein, is not sustainable in the eyes of law. The appeals are allowed. The judgment of the High
Court dated 26.4.2007 is set aside and the judgments and orders dated 6.7.2006 and 11.7.2006 passed by the
Special Court are restored. No costs. ..................................J.
(P. SATHASIVAM)
..................................J.
New Delhi, (Dr. B.S. CHAUHAN) August 16, 2010
2
IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : DOMESTIC VIOLENCE ACT, 2005
Date of Judgment:11.02.2014.
CRL.REV.P. 637/2013

SMT RANJANA GUPTA ..... Petitioner
Through Mr.Kuldeep Kumar, Adv.

versus
RAJNESH GUPTA & ORS ..... Respondents
Through Ms.Fizani Hussain, APP.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.(Oral)

1 The petitioner is aggrieved by the impugned order dated 29.07.2013
endorsing the finding of the learned MM dated 28.03.2012 vide which the
order passed on the complaint case (CC No.174/2003) under Section 12 of
the Protection of Women from Domestic Violence Act, 2005 (hereinafter
referred to as PWDVA) had been disposed of without granting any relief to
the petitioner. Relevant would it be to extract that part of the order passed by
the learned MM. It reads as under:-
9. Relief.
As far as relief is concerned, complainant has sought firstly protection
order u/s 18 PW DV Act. Complainant has been residing separately since
05.10.2004. There are no complaints in the intervening period or even prior
to that for commission of acts of domestic violence by the respondent.
Accordingly, no relief u/s 18 PW DV Act is made out.
Secondly complainant has prayed for relief u/s 19 & 20 PW DV Act.
Admittedly, respondent is residing in the house of his parents and has no
separate accommodation. Similarly, the complainant is residing with her
parents and is financially independent. Admittedly salary of complainant is
approximately Rs. 40,000/- per month. Similarly respondent is earning a
salary of approximately Rs. 39-40 thousand per month. I feel that financially
both the parties are equally placed. Therefore, I am not inclined to pass any
maintenance order. Residence order is also declined for the reason that
complainant being a Government servant is also entitled to HRA which
should be equivalent to HRA earned by the respondent and therefore the said
relief is also declined.
Now coming to Section 22 PW DV Act. Complainant has not placed on
record any proof that she has suffered any injury due to harassment caused
by the respondent, therefore, I am not inclined to pass any compensation
order and the same is declined.
Petition is accordingly disposed off.

2 This order was assailed before the Sessions Judge. The Sessions Judge
as noted supra has endorsed this finding passed by the trial Court.

3 Learned counsel for the petitioner is aggrieved by this fact finding.
His submission is that the order has been passed by both the two courts
below cursorily on surmises and conjectures without applying the settled
legal proposition; submission being that the mother-in-law of the petitioner
namely Urmil Gupta had been deleted from the complaint case on an
application filed by her without any formal order; this was on the pretext that
a female does not qualify as a respondent under the PWDVA; submission
being that this was based on a wrong proposition of law as the Honble Apex
Court in 2011 (2) SCALE 94 Sou Sandhya Manoj Wankhade Vs. Manoj
Bhimrao Wankhade & Ors. had in this context noted that the Legislature did
not intend to exclude a female relative of the husband or male partner from
the ambit of a complaint that can be made under the provisions of
PWDVA. Submission being that in this case the allegations of the
petitioner were specific that the mother-in-law of the petitioner namely
Urmil Gupta had kept her jewellery articles and the same had not been
returned. Attention has been drawn to internal page 4 of the order of the
learned MM; submission being that a specific allegation had been made by
the petitioner that her entire jewellery articles were with her mother-in-law.

4 The Court had further noted that the test of cross-examination has
been passed by the petitioner; it thus stood proved that the jewellery articles
were with the mother-in-law but the same had not been returned and the two
courts below not directing the mother-in-law to return the jewellery articles
of the petitioner to her in terms of Section 19 (8) of the PWDVA has
committed an illegality.

5 The trial Court record had been requisitioned. The same has been
perused. Before adverting to these arguments propounded by the learned
counsel for the petitioner, it would be relevant to state that this Court is
sitting in revisional jurisdiction and unless and until, there is patent illegality
or perversity pointed out that this Court can interfere in the fact finding; the
scope of interference in revisional jurisdiction is limited as the fact finding
returned by the two competent courts cannot be easily interfered with.

6 Learned MM in para 8 had framed an issued which reads as under:-
Whether prima facie case of domestic violence is made out?

7 The evidence led by the complainant and the respondent has been
discussed. It had noted that there was an allegation made by the complainant
that her jewellery is with the mother-in-law although the mother-in-law is
not a party to the present complaint. The Court had thereafter gone on to
hold that the complainant has been able to prove the allegations of cruelty
and harassment meted out by the respondent to the complainant and has
proved the same; it has noted that she had resided in the house for about 8-9
months and thereafter she was living separately. It had also noted that
separate proceedings under Section 498-A and 406 of the IPC are pending
against the respondent and his family members. The fact findings returned
by the learned MM nowhere recorded a positive fact that the complainant
had been able to prove that her jewellery articles were lying with the mother-
in-law. The Sessions Judge noted these facts in the correct perspective and
held that the petitioner had taken a vacillating stand as far as her jewellery is
concerned and although in her complaint, she had stated that she had handed
over her gold jewellery on advice of her husband to him but in her cross-
examination she denied that the gold jewellery articles were being retained
by the respondent. The respondent in his evidence had categorically stated
that the gold articles had been taken back by the complainant when she had
left her matrimonial home.

8 The findings returned by the Sessions Judge read here as under:-
7. List of respondents was not filed along with application under
Section 12 of PWDV Act. It is only in Domestic Investigation Report (DIR)
filed by the Protection Officer, names of four respondents i.e. Rajnesh
Gupta/husband (R-1), Satish Chand Gupta/father-in-law (R-2), Urmil
Gupta/mother-in-law(R-3) and Anju Gupta/sister-in-law (R-4) were
mentioned. An application on behalf of respondents to drop the proceedings
against respondent no. 2 to respondent no. 5 was filed. Learned Counsel for
appellant submits that names of Smt. Urmil Gupta/mother-in-law (R-3) and
Smt. Anju Gupta/sister-in-law (R-4) had been deleted from the arrays of the
parties, although both of them had filed reply before the Trial Court. He
submits that Learned Trial Court has not given any reasons in the impugned
order as to how Urmil Gupta (R-3) and Anju Gupta (R-4) were dropped and
no order was passed by Learned Trial Court on the application filed on
behalf of respondent no. 2 to respondent no. 5 for dropping the proceedings
against them.
8. It is submitted that in her affidavit in evidence dated 30.11.2010,
appellant/complainant has stated that she was tortured and manhandled by
her husband/R-1, his parents, sister in law and brother in law, right from the
day one of her marriage. She deposed that on 16.01.2004, her husband had
advised her to hand over her gold ornaments which were received from her
parents side and from her in-law side and the said ornaments are still in
possession of her mother-in-law. It is stated that she was mentally tortured at
all the regular intervals. On 17.01.2004, her husband, her parents and sister-
in-law abused her for not bringing car and AC. It is stated that in March
2004, her husband and mother-in-law abused appellant and told her to leave
her job. In September 2004, her husband and in-laws started increasing
pressure on her to leave her matrimonial home and to bring AC, car and Rs.
5,00,000/- . She was threatened that if their demands were not fulfilled, her
husband and parents-in-law would kill her by burning while preparing food.
It is stated that respondents with common intention used to threaten her to
kill and assault. Appellant/complainant further stated that she handed over
gold jewellery on the advise of her husband (R-1). In cross examination,
appellant/complainant denied that no gold or dowry articles were retained by
respondents or that she had taken back all her gold and many costly articles
at the time of leaving of her matrimonial home. She denied the suggestion
that remaining dowry articles were returned after registration of a case under
Section 498-A/406/34 IPC. On the other hand, in his affidavit husband/R-1
deposed that appellant/complainant had deserted her matrimonial home
without any reason on 5.10.2004. She left her matrimonial home in a pre-
planned manner and she had taken away all her gold and silver jewellery. In
cross examination, he reiterated that gold articles mentioned in the list, were
taken back by appellant/complainant when she left her matrimonial home.
9. On perusal of evidence adduced by the parties, Learned Trial Court
found that complainant was a victim of domestic violence and a prima-facie
case of domestic violence was made out against husband/R-1. It was found
that there were no specific allegations against father-in-law/R-2 and no case
of domestic violence was made out against Ajay Gupta/R-5 (nandoi).
Similarly no case is made out against Smt. Urmil Gupta (R-3) and Smt.Anju
Gupta (R-4). Learned trial Court further noted that appellant/complainant
was residing separately since 05.10.2004 and there were no complaints
during the intervening period or even prior to that for commission of
domestic violence by the respondents. I was found that husband/R-1 was
residing in the house of his parents and had no separate accommodation.
Similarly, appellant/complainant was residing with her parents and was
financially independent. Trial Court found that both the parties were
financially equally placed, therefore, no maintenance order was passed.
Residence order was also declined for the reason that appellant/complainant
was a Government servant, who was also entitled to House Rent Allowance
(HRA). Learned Trial Court found that appellant/complainant had not placed
on record any proof that she suffered injury due to alleged harassment
caused by the respondents. In view of the aforesaid reasons, no relief was
granted to appellant/complainant.

9 These fact findings in no manner call for any interference. The scope
of misuse of proposition of law as noted in the judgment of Sou Sandhya
Manoj Wankhade (supra) would not arise as there was no fact finding that
the jewellary articles/istridhan were lying with the mother-in-law. Moreover,
on a specific query put to the learned counsel for the petitioner about the
proceedings under Sections 498-A/406 of the IPC, there has been no denial.
It is but obvious that these sections would also encompass the same relief.

10 This petition is an abuse of the process of the Court. Dismissed with
costs of Rs.5,000/-.

Sd/-
INDERMEET KAUR, J
FEBRUARY 11, 2014
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Appellate/Revisional/Civil Jurisdiction
Present:
The Hon'ble Mr. Justice Bhaskar Bhattacharya
And
The Hon'ble Mr. Justice Prasenjit Mandal
F.A. 07 of 2007
Smt. Mousumi Banerjee
Versus
Sri Bidyut Kumar Banerjee
For the Appellant-Wife: Mr. Probal Mukherjee, Mr. Soma Priya Chowdhury.
For the Respondent-Husband: Mr. Gopal Ghosh, Mr. Om Narayan Rai.
Heard on: 20.08.09. & 27.08.09
Judgment on: 11th September, 2009.
Bhaskar Bhattacharya, J.:
This appeal is at the instance of a wife in a suit for divorce on the ground of cruelty and is directed against the
judgment and decree dated 16th May, 2005 passed by the Additional District Judge, Third Court, Barassat in
Matrimonial Suit No.17 of 2002 by which the learned Trial Judge granted the decree for divorce.
Being dissatisfied, the wife has come up with the present first appeal. The husband filed a suit being
Matrimonial Suit No.1294 of 2001 in the Court of the learned District Judge, Barasat for divorce on the
ground of cruelty. The said suit was subsequently transferred to the Court of the learned Additional District
Judge, Third Court, Barasat and was renumbered as Matrimonial Suit No.17 of 2002.
The case made out by the husband may be summed up thus: (a) After the marriage of the parties, they started
staying together at the house of the husband at 12/1, Mahajati Nagar, Birati and immediately after the
marriage, the trouble started in the family of the husband at the instigation of the mother of the wife who used
to visit the house of the husband quite often. On her advice, the wife stated misbehaving with the husband and
his parents and the main object of the mother of the wife was to separate the husband from his old parents or
to make him a domesticated son-in-law in the house of the wife at Salt Lake. (b) In the meantime, a child was
born on 26th November, 1994 but the wife at the instigation of her mother deprived the husband and his
parents from the love and affection of the child. The wife left the matrimonial home with her child without
informing the parent of the husband and continued to stay at Salt Lake. After long persuasion and through the
intervention of the Mahila Samity, although the wife returned to her matrimonial home, when the parents of
the husband approached the child, the wife reacted violently and she denied the access of the child to the
Smt. Mousumi Banerjee vs Sri Bidyut Kumar Banerjee on 11 September, 2009
parents of the husband and again left the matrimonial home on 19th April, 1996 without informing the
husband and his parents and then came back on 3rd May, 1996. Thereafter, the wife again left the matrimonial
home on 15th August, 1996 without any information and came back after a short span and finally on 14th
October, 1996 she left without informing anybody just leaving a sheet of paper indicating her departure. The
husband approached the respondent at her residence at Salt Lake for returning to her matrimonial home which
she flatly refused. As a result, the husband filed a proceeding for restitution of conjugal right under Section 9
of the Hindu Marriage Act. However, the said petition was ultimately withdrawn by the husband. The wife,
however, served a notice to the employer of the husband making baseless allegation that amount of alimony
was due to her under the order of the Court and she took step for attachment of the salary. She also by going
to the office of the husband abused him in the presence of his colleagues thereby affecting his social status
and dignity in the esteem of his colleagues. Ultimately, the wife on 10th August, 2001 again came back to the
matrimonial home being armed with an order under Section 144 of the Cr.P.C. with the help of police by
occupying the entire ground floor consisting five rooms by denying access to the husband and his parents in
the ground floor. The respondent also used to threat the husband of initiating proceeding under Section 498A
of the Indian Penal Code; as a result, the husband with his parents had left the place and started living in a
rented house.
The suit was contested by the wife by filing written statement denying the material allegation made in the
petition for divorce and according to her, the mother of the husband subjected the wife to cruelty and also
manhandled her during her stay in the matrimonial home. According to her, she was abused in filthy language
by the father of the husband. It was denied that she had voluntarily abandoned her matrimonial home on 14th
October, 1996. She expressed her desire to stay in her matrimonial home with the male child. As indicated
earlier, the learned Trial Judge on the basis of evidence on record came to the conclusion that the husband has
proved cruelty on the part of the wife and consequently, granted a decree for divorce. Being dissatisfied, the
wife has come up with the present first appeal. After hearing the learned counsel for the parties and after
going through the materials on record, we find that it has been well established from the Exbt.3, the
handwritten note of the wife, that she had left the house without disclosing the reason. The learned Trial
Judge, as it appears from the judgment impugned, rightly recorded that the mother of the wife made deliberate
false statement on oath before the Court at the time of deposition. She stated that she was very much
disappointed in the family of the applicant. She openly expressed that her daughter had no duty to take care of
the old parents. The wife in her evidence stated that she did not like her in-laws and wanted her husband
separately. The learned Trial Judge has further found that in spite of specific direction for production of the
child in the Court, the wife did not give access of the son to the husband. The learned Trial Judge has further
found that a false Money Execution Case No.64 of 2000 was filed by the wife for issue of warrant of arrest
against the husband and the same was issued by the Judicial Magistrate but the learned District Judge, Barasat
in Criminal Revision Case No.438 of 2001 recalled said warrant of arrest with a finding that there was no such
due. It further appears that after leaving the house she came back with police and occupied the entire ground
floor consisting of five rooms and threatened the husband with initiation of proceeding under Section 498A of
the Indian Penal Code, as a result, the husband was compelled to take shelter in a rented house leaving his
own house.
From the aforesaid material it is clear that the act of the wife amounted to cruelty within the meaning of
Section 13(1) (i)(a) of the Hindu Marriage Act and we find no reason to take different view from the one
taken by the learned Trial Judge.
At the time of hearing of this appeal, the husband produced before us his monthly salary certificate which
shows that his monthly income is Rs.27,000/- and odd and after deduction of income-tax and other necessary
deduction we can safely treat his monthly income to be Rs.25,000/-. In such circumstances, we are of the view
that the wife should be entitled to get a onetime permanent alimony of Rs.6 lakh from the husband in full
satisfaction of the claim for future alimony.
The only son of the parties is living with the wife and is a student of class IX. After taking into consideration
the expenditure of his studies and other maintenance, we, for the time being, direct the husband to pay a sum
of Rs.5,000/- for the maintenance of the son on condition that the son will stay with the husband for a day in a
week. The husband should pick up the son from his wife's house on every Saturday evening and return the
child in the afternoon of Sunday. He will go on sending the money by account payee cheque in the joint
account of the mother with the son. If the son refuses to comply with the direction of staying with his father
for a day in a week, he will not be entitled to get the maintenance ordered by us by this order.
We, therefore, affirm the decree for divorce on the ground of cruelty and in addition, grant a decree for
permanent alimony for the wife and also for the maintenance of the only child of the parties as indicated
above. The appeal is, thus, disposed of with the aforesaid observation. In the facts and circumstances, there
will be, however, no order as to costs.
(Bhaskar Bhattacharya, J.)
I agree.
(Prasenjit Mandal, J.)

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LALIT KISHORE v. MEERU SHARMA & ANR.
[2009] INSC 1372 (4 August 2009)
Judgement NON REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL
APPELLATE J URISDICTION CIVIL APPEAL NO. 5077 OF 2009 (Arising out of
S.L.P. (C) No.680 of 2009) Lalit Kishore ----Appellant Versus Meeru Sharma &
Anr. ----Respondents
TARUN CHATTERJ EE, J .
1. Leave granted.
2. This is an appeal filed against the judgment and order dated 2nd of December,
2008 in W.P.No.10290 of 2007 of the High Court of Madhya Pradesh at J abalpur
by which the application filed by the husband-appellant for medical examination
of his wife-respondent for ascertaining her mental condition was rejected by the
Family Court at J abalpur, which was affirmed by the High Court in W.P.No.10290
of 2007.
2
3. In our view, the High Court as well as the Family Court was not justified in
rejecting the application for medical examination of the wife-respondent. It is
difficult to conceive that the Family Court cannot be conferred with jurisdiction to
pass an order for medical examination in an appropriate case because when
such report is received, that would facilitate the court in giving a positive
conclusion on the mental condition of the wife-respondent. It is true that the
Hindu Marriage Act or any other law governing the field does not contain any
express provision empowering the court to issue direction upon a party in a
matrimonial proceeding to compel him to submit herself/himself to a medical
examination. But, in our view, it does not preclude the court from passing such
an order. The court is always empowered to satisfy itself as to whether a party
before it suffers from mental illness or not either for the purpose of taking
evidence on the ground for which the matrimonial proceeding was started. It is
well settled that the primary duty of 3 the court is to see that the truth comes out.
Therefore, although the medical examination for a party is not provided in the
Act, even then, the court has complete inherent power in an appropriate case
under Section 151 of the Code of Civil Procedure to pass all orders for doing
complete justice to the parties to the suit. In Sharda vs. Dharmpal [(2003) 4 SCC
493], a three-J udge Bench decision of this Court has taken into consideration the
power of the court to allow such application for medical examination of a party in
a matrimonial proceeding and observed as under :- "In certain cases medical
examination by the experts in the field may not only be found to be leading to the
truth of the matter but may also lead to removal of misunderstanding between the
parties. It may being the parties to terms."
4. In view of the aforesaid decision of this Court and considering the fact that the
report of the medical expert would only be an evidence in the proceeding, we do
not find any reason why such application for 4 appointment of a medical expert to
examine the wife-respondent cannot be granted.
5. For the reasons aforesaid, the impugned order as well as the order of the
Family Court are set aside.
The application for appointment of a medical expert for medical examination of
the wife-respondent filed at the instance of the husband-appellant is thus
allowed.
6. The appeal is thus allowed. There will be no order as to costs.
...........................J .
[Tarun Chatterjee] New Delhi; ...........................J .

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URL: http://www.commonlii.org/in/cases/INSC/2009/1372.html
In Sharda v. Dharmpalhttp://www.ebc-india.com/lawyer/articles/2004v5a2.htm - Ref87
the Supreme Court took a very positive view regarding importance as well as
admissibility of DNA evidence in matrimonial cases. The Supreme Court categorically
observed that: (SCC p. 524, para 81)
1. A matrimonial court has the power to order a person to undergo medical test.
2. Passing of such an order by the court would not be in violation of the right to personal
liberty under Article 21 of the Indian Constitution.
3. However, the court should exercise such a power if the applicant has a strong prima
facie case and there is sufficient material before the court. If despite the order of the
court, the respondent refuses to submit himself to medical examination, the court will be
entitled to draw an adverse inference against him.

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Ritula Singh vs Lt.Col. Rajeshwar Singh on 26 February, 2010
Cites 5 docs
The Hindu Marriage Act, 1955
Section 24 in The Hindu Marriage Act, 1955
Section 25 in The Hindu Marriage Act, 1955
Parveen Mehta vs Inderjit Mehta on 11 J uly, 2002
Section 20(2) in The Hindu Marriage Act, 1955
Citedby 15 docs - [View All]
Radhabai And Ramchandra Konher vs Anantrav Bhagvant Deshpande on 13 J anuary,
1885
Ananta Balacharya vs Damodhar Makund on 13 February, 1888
Kalu Bin Bhiwaji vs Vishram Mawaji on 14 February, 1877
Lakshman Ramchandra J oshi And ... vs Satyabhamabai, Widow Of Govind ... on 21
December, 1877
Keval Kuber And Anr. vs The Talukdari Settlement Officer ... on 5 March, 1877

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Mumbai High Court
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Bench: R S Dalvi
1
PGK
IN THE HIGH COURT OF J UDICATURE AT BOMBAY APPELLATE SIDE
Writ Petition No.6686 of 2009
Ritula Singh .. .. Petitioner vs.
Lt.Col. Rajeshwar Singh .. Respondent
Ms.Sumangala with Ms.Veena Goud for Petitioner. Mr.G.S. Hegde for Respondent.
----
CORAM : SMT.ROSHAN DALVI, J .
DATED : 26th February, 2010
ORAL ORDER :
1.Rule, returnable forthwith.
2.The parties are wife and husband. They have been married since 22.10.1986. The wife
has filed a Divorce Petition in the Family Court in 2008. She has applied for interim
maintenance under Section 24 of the Hindu Marriage Act, 1955 for herself and her 2
daughters admittedly born on 13.10.1988 and 4.1.1991. Her Advocate argued that the
daughters are 19 years and 17 years old respectively which is arithmetically incorrect.
The daughters are 21 years and 19 years, respectively.
2
3. The interim maintenance application would have to be considered for the Petitioner-
wife under Section 24 of the Hindu Marriage Act and for her children under Section
20(2) and (3) of the Hindu Adoptions and Maintenance Act,1956. The learned J udge has
considered the application on behalf of three of them. The wife has been refused the
interim maintenance. The children have been granted interim maintenance of Rs.3,000/-
each. They attend college and are dependent children though they have attained majority.
4.The wife has not been granted any interim maintenance. She has challenged that part of
the order. The Petitioner-wife is a teacher. She earns Rs.35,000/-. The interim
maintenance has to be granted under Section 24 of the Hindu Marriage Act, 1955, which
runs thus:-
24. Maintenance, pendente lite and expenses of proceedings.- Where in any proceeding
under this Act it appears to the Court that either the wife or the husband, as the case may
be, has no independent income sufficient for her or his support and the necessary
expenses of the proceeding, it may, on the application of the wife or the husband, order
the respondent to pay to the petitioner the expenses of the proceeding, it may, 3
on the application of the wife or the husband, order the respondent to pay to the petitioner
the expenses of the proceeding, and monthly during the proceeding such sum as, having
regard to the petitioner's own income and the income of the respondent, it may seem to
the Court to be reasonable.
Under that section, the Court has to see whether the Petitioner-wife earns any
independent income sufficient for her support and the expenses of the proceedings. Rs.
35,000/- can be taken to be sufficient for the support of the Petitioner pending the
Petition.
5.The Petition has reached the stage of the cross- examination of the Petitioner-wife who
has filed the Petition. She has instead taken out the application for enhanced amendment
of the Petition to claim maintenance on the ground that the husband s income has been
enhanced under the 6th Pay Commission Report. The husband is a Military Officer. He
used to earn Rs. 35,000/-. He now earns Rs.65,000/-. The wife has been refused the
interim maintenance on the ground that she has independent income sufficient to
maintain herself. Because the husband starts earning additional amount, she cannot be
taken not to have income sufficient to maintain herself ipso facto.
4
6.This rule of law applies to interim applications. That is because extensive evidence
relating to all the assets and properties of the husband as also his income from all sources
cannot be looked into in an application for interim maintenance.
7.The wife would be entitled to alimony, depending upon the income of the husband and
his assets and properties at the final hearing of the Petition for divorce when the
permanent alimony and maintenance would be considered under Section 25 of the Hindu
Marriage Act, which runs thus:-
25. Permanent alimony and maintenance.- (1) Any Court exercising jurisdiction under the
Act may, at the time of passing any decree or at any time subsequent thereto, on
application made to it for the purpose by either the wife or the husband, as the case may
be, order that the respondent shall pay to the applicant for her or his maintenance and
support such gross sum or such monthly or periodical sum for a term not exceeding the
life of the applicant as, having regard to the respondent s own income and other property,
if any, the income and other property of the applicant, the conduct of the parties and other
5
circumstances of the case, it may seem to the Court to be just, and any such payment
maybe secured, if necessary, by a charge on the immovable property of the respondent.
Consequently, for determination of the permanent alimony and maintenance, the
Petitioner s other income and other properties as also the Respondent s income and other
properties as also conduct of the parties and other circumstances would be seen by the
Court upon the entire evidence led in that behalf. It is at that time that the wife s equal
right to the property of the husband would be adjudicated upon. It is at that time that the
status the parties enjoyed whilst their marriage continued would also be seen from the
evidence which is led.
8.It may be mentioned that the Petitioner being a wife of 22 years before the Petition
came to be filed would certainly be entitled to an equal share in the assets and propitiates
of the husband as also in the amount of alimony upon the law of equality of spouses laid
down since 1979 in the case of Dinesh Gijubhai Mehta vs. Smt.Usha Dinesh Mehta, AIR
1979 Bombay 173 DB.
9.However, since the Petitioner has income sufficient for her maintenance that principle
of equality would essentially apply at the final hearing after the entire 6
evidence is recorded which would be soon hereafter, the insistence upon being given
interim maintenance and applying for enhancement thereof is counter productive and a
cause for delay of final relief.
10.The distinction between the law laid down under Sections 24 and 25 of the Hindu
Marriage Act is distinct and clear. It is so because of the specific circumstances that the
Court would require to see at the time of each of these applications. It may be clarified
that for considering the application for interim maintenance under Section 24 of the
Hindu Marriage Act, which is decided upon affidavits of the parties alone, the Court
cannot and would not consider the precise income, standard of living, conduct of the
parties, other properties and other circumstances of the case. The amount that would have
to be granted for the maintenance of the wife would be for her support and necessary
expenses of the proceedings. That amount would be granted if she does not have income
sufficient for her support and necessary expenses of the proceedings. The ambit for grant
of interim maintenance under Section 24 is, therefore, far narrower than the ambit under
Section 25. It is the distinction between the two sections which is required to be
understood for the Court to grant the maintenance amounts thereunder. 7
11.Under Section 25 of the Hindu Marriage Act as aforesaid, the entire evidence relating
to the income, properties of both the parties and their conduct and circumstances would
be and can be seen. That is because the evidence is led in that behalf at the time of final
hearing.
12.Consequently, the impugned order not granting any maintenance pending the Petition
to a wife who earns Rs.35,000/- per month cannot be faulted. Of course, she would be
entitled to permanent alimony and maintenance from the date of the Petition itself on the
merits of her case which would be adjudicated upon on completely different parameters
which can be seen from the evidence that she would lead.
13.The Advocate on behalf of the husband states that the Petition is adjourned to 17th
April 2009 for her cross-examination and the Respondent would go on with the hearing
on that day.
14.The Advocate for the wife states that she has applied for amendment of the Petition to
claim an enhanced amount of maintenance consequent upon the enhancement of the
salary of the Respondent. Such amendment would certainly be allowed by the Family 8
Court as the wife would be ultimately granted any such amount upon she proving the
additional income for grant of additional maintenance amount at the final hearing of the
Petition on merits. In view of the aforesaid statement of the Advocate of the husband, I
am sure, the husband would not, as he cannot, needlessly oppose such amendment. The
case of both the parties would then be considered on merits and the sooner it is
considered the better for both.
15.Under the aforesaid circumstances taken together, the order of maintenance is not
required to be interfered with.
16.The Writ Petition is dismissed and Rule is discharged except for the clarification that
the parties shall proceed with the Petition as allowed to be amended by the learned J udge
of the Family Court on 17.4.2010 and thereafter from day to day as fixed by the learned
J udge.
17.No order as to costs.
(SMT.ROSHAN DALVI, J .)

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