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.

 

 

Specific Relief Act is a procedural statute

Specific Relief Act, 1963 is an enactment in procedural law is purported to be drawn from the decisions in Adhunik Steels Ltd. v. Orissa Manganese & Minerals Pvt. Ltd (2007), Radheshyam Kamila v. Kiran Bala (1971) and Moulvi Ali Hossain Mian v. Rajkumar Halda (1943).

 

 

Amendment to procedural law (specific relief act) would not apply retrospectively. (Specific Relief Act, 1963 is an enactment in procedural law is purported to be drawn from the decisions in Adhunik Steels Ltd. v. Orissa Manganese & Minerals Pvt. Ltd (2007), Radheshyam Kamila v. Kiran Bala (1971) and Moulvi Ali Hossain Mian v. Rajkumar Halda (1943).)

 

Commissioner of Income Tax v. Vatika Township Private Limited (2014) – for the proposition that distinction  that amendment confer benefits without imposing corresponding duties, and therefore attract the rule against retrospective operation are distinct.

Third parties permitted to challenge the award

Chennai Container Terminal Pvt. Ltd. v. Union of India, 2007 SCC OnLine Mad 253 : (2007) 3 Arb LR 218 : (2007) 3 Mad LJ 1 at page 228

16. To sum up the findings, though Government of India was not a signatory to the arbitration agreement, it was a party non-signatory. Therefore, not only a party to the arbitration agreement but a party non-signatory also can challenge the impugned award passed by the learned arbitrator. Further, the scheme of the Code of Civil Procedure applies to the proceedings under Section 34 of the Arbitration and Conciliation Act, 1996. Therefore, the proposition of law that an aggrieved party can challenge the judgment will have to be applied to the facts and circumstances of this case. The contextual facts and circumstances warrant expansion of the definition found under Section 2(1)(h) of the Arbitration and Conciliation Act, 1996 to include the Government of India who is a party non-signatory for the purpose of challenging the award under Section 34 of the said Act. In view of the above, sustaining the order passed by this court granting leave to Union of India to prefer the original petition challenging the award passed by the learned arbitrators, Application No. 169 of 2007 filed by Chennai Container Terminal Private Limited seeking to recall and set aside the order dated 09.01.2007 stands dismissed.

 

File notings are not decisions

Union of India v. Ashok Kumar Aggarwal, (2013) 16 SCC 147 : (2014) 3 SCC (L&S) 405 : 2013 SCC OnLine SC 1031 at page 166

37. In Jasbir Singh Chhabra v. State of Punjab [(2010) 4 SCC 192] , this Court held: (SCC p. 209, para 35)

“35. … However, the final decision is required to be taken by the designated authority keeping in view the larger public interest. The notings recorded in the files cannot be made basis for recording a finding that the ultimate decision taken by the Government is tainted by mala fides or is influenced by extraneous considerations.”

 

Abandon plea - new ground

The point not urged before the High Court cannot be argued before this Hon'ble Court (2008) 2 SCC 95 Md Akram Ansari v. Chief Election Officer

 

Whether immovable property falls in the ambit of section 406 ipc

AIR 1962 SC 1821 (RK DALMIA)

2019 SCCONLINE KER 1789 (DAMODAR PANIKKAR)

Section 150 of Income Tax Act, 1961

In ITO v. M/s Neetee Clothing, 2015 SCC OnLine ITAT 11513, ITAT Delhi held that “Further, we concur with the opinion of the ld CIT(A) that the words “any proceeding under this Act by way of appeal reference or revision” cannot be read as to give effect to an order made in any case and for any period and of any person. These words should be so construed as referable to an order made for a particular year or years of that particular assessee and not of others.”

 

 

In DCIT v. Sai Baba Sales, 2016 SCC OnLine ITAT 13642, the ITAT Pune has allowed proceedings ordered by CIT(A) under S.148 r/w S.150 of the Income Tax Act, 1961 to identify the correct assessee in a case where it could not be ascertained from the material on record whether income is to be taxed in the hands of the director or the company

 

Landmark Supreme Court is CIT v. Greenworld Corpn., (2009) 7 SCC 69

Independence at every stage of proceeding

CIT v. Greenworld Corpn., (2009) 7 SCC 69 at page 98

55. When a statute provides for different hierarchies providing for forums in relation to passing of an order as also appellate or original order, by no stretch of imagination a higher authority can interfere with the independence which is the basic feature of any statutory scheme involving adjudicatory process.

 

Contradicting the proceedings recorded in an order should be deprecated - consent not given

Rajiv Ranjan Singh ‘Lalan’ (V) v. Union of India, (2005) 11 SCC 312 : (2006) 1 SCC (Cri) 249 at page 313

2. This portion of the order was passed by consent of all the parties. Now it is claimed by the applicant in Crl. MPs Nos. 5519-20 of 2005 that the order is not by consent. However, even in this application it is admitted that his counsel had not objected to this order. After consenting and/or in any case after not objecting submissions are made before learned Acting Chief Justice of the Patna High Court that this Court had no jurisdiction to constitute a Bench and that power to constitute Benches rests only with the Chief Justice. We deprecate this practice of a party obtaining an order by consent and/or not objecting to an order and then making contrary submissions before another forum. If the party had felt aggrieved the proper course was to immediately come back to this Court and get the order clarified by this Court.

Procedure for 340 CrPC proceedings

2018 SCC OnLine Del 8180

J 1

In the High Court of Delhi at New Delhi

(Before Yogesh Khanna, J.)

M/s. Bhatia Propcon Pvt. Ltd. .…. Plaintiff

Ms. Rachna Agrawal, Advocate.

v.

Ashok Mehta .…. Defendant

8. The main contention raised by the defendant is since an offence under Section 195(1)(b) is not committed in relation to documents produced or given in evidence hence this application is not maintainable However in H.S. Bedi v. National Highway Authority of India, 227 (2016) DLT 129 it was noted:

"14. Conclusions Section 209 of the Penal Code, 1860, is a salutary provision enacted to preserve the sanctity of the Courts and to safeguard the administration of law by deterring the litigants from making the false claims. However, this provision has been seldom invoked by the Courts. The disastrous result of not invoking Section 209 is that the litigants indulge in false claims because of the confidence that no action will be taken.

14.1 Making a false averment in the pleading pollutes the stream of justice. It is an attempt at inviting the Court into passing a wrong judgment and that is why it has been be treated as an offence.

14.2 False evidence in the vast majority of cases springs out of false pleading, and would entirely banish from the Courts if false pleading could be prevented.

14.3 Unless the judicial system protects itself from such wrongdoing by taking cognizance, directing prosecution, and punishing those found guilty, it will be failing in its duty to render justice to the citizens.

14.4 The justice delivery system has to be pure and should be such that the person who are approaching the Courts must be afraid of making false claims.

14.5 To enable the Courts to ward off unjustified interference in their working, those who indulge in immoral acts like false claims have to be appropriately dealt with, without which it would not be possible for any Court to administer justice in the true sense and to the satisfaction of those who approach it in the hope that truth would ultimately prevail.

14.6 Whenever a false claim is made before a Court, it would be appropriate, in the first instance, to issue a show cause notice to the litigant to show cause as to why a complaint be not made under Section 340 Cr.P.C. for having made a false claim under Section 209 of the Penal Code, 1860 and a reasonable opportunity be afforded to the litigant to reply to the same. The Court may record the evidence, if considered it necessary.

14.7 If the facts are sufficient to return a finding that an offence appears to have been committed and it is expedient in the interests of justice to proceed to make a complaint under Section 340 Cr.P.C., the Court need not order a preliminary inquiry. But if they are not and there is suspicion, albeit a strong one, the Court may order a preliminary inquiry. For that purpose, it can direct the State agency to investigate and file a report along with such other evidence that they are able to gather.

14.8 Before making a complaint under Section 340 Cr.P.C., the Court shall consider whether it is expedient in the interest of justice to make a complaint.

14.9 Once it prima facie appears that an offence under Section 209 IPC has been made out and it is expedient in the interest of justice, the Court should not hesitate to make a complaint under Section 340 Cr.P.C.

15. This Court hopes that the Courts below shall invoke Section 209 of the Penal Code, 1860 in appropriate cases to prevent the abuse of process of law, secure the ends of justice, keep the path of justice clear of obstructions and give effect to the principles laid down by the Supreme Court in T. Arivandandam v. T.V. Satyapal (supra), S.P. Chengalvaraya Naida v. Jagannath (supra), Dalip Singh v. State of U.P. (supra), Ramrameshwari Devi v. Nirmala Devi (supra), Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria (supra), Kishore Samrite v. State of Uttar Pradesh (supra) and Subrata Roy Sahara v. Union of India (supra)."

9. Hence in the circumstances as the pleadings are wholly contradictory to stand taken by the defendant in reply to legal notice and prima facie it amounts to making false averments in pleadings. Thus, a show cause notice is hereby issued to the defendant as to why a complaint be not made under Section 340 Cr P C for having made a false averment in the written statement, under Section 209 of the IPC and the defendant is directed to reply within 6 weeks from today.

Mr. Atul Bandhu, Advocate with defendant in person.

CS(COMM) 928/2016