Quashing in Matrimonial Cases

Kailash Chandra Agrawal v. State of U.P., (2014) 16 SCC 551 : (2015) 3 SCC (Cri) 536 : 2014 SCC OnLine SC 722 at page 553

8. We have gone through the FIR and the criminal complaint. In the FIR, the appellants have not been named and in the criminal complaint they have been named without attributing any specific role to them. The relationship of the appellants with the husband of the complainant is distant. In Kans Raj v. State of Punjab [Kans Raj v. State of Punjab, (2000) 5 SCC 207 : 2000 SCC (Cri) 935] , it was observed: (SCC p. 215, para 5)

“5. … A tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case.”

The Court has, thus, to be careful in summoning distant relatives without there being specific material. Only the husband, his parents or at best close family members may be expected to demand dowry or to harass the wife but not distant relations, unless there is tangible material to support allegations made against such distant relations. Mere naming of distant relations is not enough to summon them in absence of any specific role and material to support such role.

 

Clever Drafting and Cause of Action

hge

Review when an appropriate remedy

Bhavnagar University v. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111 at page 131

61. Before parting with the case, we may notice that Mr Tanna appearing on behalf of South Gujarat University in CA No. 1540 of 2002 submitted that various other contentions had also been raised before the High Court. We are not prepared to go into the said contentions inasmuch as assuming the same to be correct, the remedy of the appellants would lie in filing appropriate application for review before the High Court. Incidentally, we may notice that even in the special leave petition no substantial question of law in this behalf has been raised nor has any affidavit been affirmed by the learned advocate who had appeared before the High Court or by any officer of the appellant who was present in court that certain other submissions were made before the High Court which were not taken into consideration. In State of Maharashtra v. Ramdas Shrinivas Nayak [(1982) 2 SCC 463 : 1982 SCC (Cri) 478 : AIR 1982 SC 1249] this Court observed: (SCC p. 467, para 4)

“4. When we drew the attention of the learned Attorney-General to the concession made before the High Court, Shri A.K. Sen, who appeared for the State of Maharashtra before the High Court and led the arguments for the respondents there and who appeared for Shri Antulay before us intervened and protested that he never made any such concession and invited us to peruse the written submissions made by him in the High Court. We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. ‘Judgments cannot be treated as mere counters in the game of litigation.’ (Per Lord Atkinson in Somasundaram Chetty v. Subramanian Chetty [AIR 1926 PC 136] .) We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error (Per Lord Buckmaster in Madhu Sudan Chowdhri v. Chandrabati Chowdhrain [AIR 1917 PC 30 : 21 CWN 897] .) That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an appellate court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment.”

 

 

person aggrieved

Court Fees on Memorandum of Objection.

In Damodar Prasad v. Masudan Singh [A.I.R., 1928 Pat., 85.] a single Judge of the Patna High Court has expressly held that no court fee is chargeable upon a memorandum of objections filed under order XLI, rule 26. I agree to his reasoning and conclusion. No authority to the contrary has been shown to me.

Reproduction / Copy Paste In orders

Mere reproduction of police dossier in detention order cannot justify judicial application of mind and is reflective of callous attitude of authorities
[Surinder Singh v. Union Territory of J&K, 2020 SCC Online J&K 394, decided on 11-08-2020]

DV - maintenance orders not to be interfered with easily

 

Talha Abdul Rahman B.C.L. (Oxon.) B.A.,LL.B. (Hons.)(Nalsar)		Address: D-6, First Floor H. Nizamuddin West New Delhi 110013   Landline: +91- 11-4100-11-15	w:
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Supreme Court of India

 

 

Second Criminal Revision is barred

Kailash Verma v. Punjab State Civil Supplies Corpn., (2005) 2 SCC 571 : 2005 SCC (Cri) 538 at page 574

5. It may also be noticed that this Court in Rajathi v. C. Ganesan [(1999) 6 SCC 326 : 1999 SCC (Cri) 1118] said that the power under Section 482 of the Criminal Procedure Code has to be exercised sparingly and such power shall not be utilised as a substitute for second revision. Ordinarily, when a revision has been barred under Section 397(3) of the Code, the complainant or the accused cannot be allowed to take recourse to revision before the High Court under Section 397(1) of the Criminal Procedure Code as it is prohibited under Section 397(3) thereof. However, the High Court can entertain a petition under Section 482 of the Criminal Procedure Code when there is serious miscarriage of justice and abuse of the process of the court or when mandatory provisions of law are not complied with and when the High Court feels that the inherent jurisdiction is to be exercised to correct the mistake committed by the revisional court.

 

Scope of Art 227 in Criminal Matters

State (NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402 : (2016) 1 SCC (Cri) 510 : 2015 SCC OnLine SC 799 at page 425

28. It will also be pertinent to mention that power of judicial superintendence under Article 227 of the Constitution and under Section 482 CrPC has to be exercised sparingly when there is patent error or gross injustice in the view taken by a subordinate court [Jasbir Singh v. State of Punjab, (2006) 8 SCC 294 : (2006) 3 SCC (Cri) 470, paras 10 to 14] . A finding to this effect has to be supported by reasons. In the present case, the High Court has allowed the prayer of the accused, even while finding no error in the view taken by the trial court, merely by saying that exercise of power was required for granting fair and proper opportunity to the accused. No reasons have been recorded in support of this observation. On the contrary, the view taken by the trial court rejecting the stand of the accused has been affirmed. Thus, the conclusion appears to be inconsistent with the reasons in the impugned order.

 

Adulterer - a party to proceedings in divorce cases

In the following cases the adulterer was not made a party to the case:

Sanjay Khanderao Bodake v. Ashwini Sanjay Bodake

Relevant para 4 and 5

The learned trial Judge rejected the application principally on the ground that at the time of filing H.M.P, the petitioner did not seek permission as required under Rule-5 of Bombay High Court Hindu Marriage and Divorce Rules 1955 (for short ‘Rules’). If the petitioner was not aware of the name of such person at the time of filing of the Petition etc, he should have sought permission to dispense with joinder of such person. The learned trial judge observed that in the present case, neither that person is made party nor such permission was sought. Here the petitioner did not implead him as party at the time of filing of the Petition and also no permission was sought for dispensing with the joinder of adulterer. Therefore he cannot be made a party to the case.

 

Ayyapan v. Vasanta, A.I.R. 1988 Kerala 314, Relevant para 3 and 4

The question that arises for consideration is as to whether the failure to implead the alleged adulterer is fatal to the petition. It has also to be considered whether he could be impleaded at a later stage. Rule 11(a) envisages that in every petition for divorce on the ground that the respondent is living in adultery or has, after the solemnisation of the marriage, had sexual intercourse with any person, the petitioner shall make such person as co-respondent. This is a mandatory Rule. Rule 11(d) reads:—

“The petitioner may, however, apply to the Court by an application supported by an affidavit for leave to dispense with the joinder of the co-respondent in cases covered by sub-rule (a) above on any of the following grounds:—

(i) that the name of such person is unknown to the petitioner although he has made due efforts for discovery.

(ii) that such person is dead.

(iii) that the respondent being the wife is leading the life of a prostitute and the petitioner knows of no person with whom she has committed adultery or has had sexual intercourse.

(iv) for any other reason that the Court may deem fit and sufficient to consider.”

Thus the position admits no doubt that in cases not covered by R. 11(d) it is incumbent upon the petitioner to implead the adulterer as co-respondent, Having not done so when the original petition was filed before the Court and having not filed a petition supported by the affidavit under R. 11(d), the petitioner cannot at a later stage implead the adulterer as co-respondent.

Gajanan s/o Prabhakar Deshpande Versus Smita Gajanan Deshpande: (2011) 5 Mah LJ 936 , Relevant para 6 and 7

Rule 5 of the Bombay High Court Special Marriage Rules, 1954 (hereinafter referred to as “the Rules of 1954”) has not been complied with in the instant case by the appellant-husband inasmuch as the alleged adulterer was not added as co-respondent nor the appellant was excused by the trial Court from doing so and, therefore, the petition was bad for non-joinder of the necessary party. In short, she prayed for dismissal of Appeal with costs.