Dowry cases: HC puts curbs on arrest of in-laws, relatives

IN THE HIGH COURT OF DELHI AT NEW DELHI


Bail Application No. 1627/2008


04.08.2008

Judgment delivered on: 04.8.2008


Chander Bhan and Anr. ...... Petitioners
Through: Mr. Rajesh Khanna Adv.


versus


State ..... Respondent
Through: Mr. Pawan Sharma APP


CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1. Whether the Reporters of local papers may
be allowed to see the judgment? yes

2. To be referred to Reporter or not? yes

3. Whether the judgment should be reported
in the Digest? yes

KAILASH GAMBHIR, J. (Oral)

By way of the present petition the petitioners who are parents-
in-law of the complainant seek grant of anticipatory bail.
Mr. Sharma counsel for the State submits that allegations are
serious in nature against the petitioners, therefore, the petitioners do not
deserve grant of anticipatory bail.
Complainant is present in the court. She states that there is no
possibility of her going back to the matrimonial home. However, the
complainant is not averse to the matter being sent before the mediation cell.
Let the matter be sent to the Mediation Cell, Rohini Court, Delhi for exploring
the possibility of amicable settlement between the parties.
Let the parties appear before the Mediation Cell, Rohini Court,
Delhi on 11.8.2008 at 4.00 P.M.
List the matter before the court on 23.9.2008.
Till then the petitioners shall not be arrested.
Before parting with this case, I deem it expedient and in the
larger interest of saving matrimony of the couples and to restore peace between
the two hostile families of husband and wife who once must have celebrated the


marriage of couple with great zeal, fervor and enthusiasm but when faced with
many facets and stark realities of life entangled themselves to fight a long
drawn legal battle instead of building confidence, trust, understanding, mutual
respect for each other and their respective families.
The offence of cruelty by husband or relatives of husband (Section 498-A)
was added in 1986 to curb the vise of subjecting women to coerce them or their
relatives to meet unlawful demands for dowry.
Since its enactment, this provision has been subjected to systematic and
sustained attack. It has been called unfair and responsible for the
victimisation of husbands by their wives and her relatives. No doubt there may
be many deserving cases where women are being subjected to mental and physical
cruelty at the hands of the avaricious in-laws. But such cases have to be
distinguished from other cases where merely due to trivial fights and ego
clashes the matrimony is facing disaster.
What is not comprehended by young minds while invoking the provisions of
the likes of Section 498-A and 406 of IPC is that these provisions to a large
extent have done incalculable harm in breaking matrimony of the couples. Despite
the western culture influencing the young minds of our country, still it has
been seen that Indian families value their own age old traditions and culture,
where, mutual respect, character and morals are still kept at a very high
pedestal.
It has been noticed in diverse cases, where the brides and their family
members in litigation find the doors of conciliation shut from the side of groom
and his family members only on account of there having suffered the wrath of
Police harassment first at the stage when matter is pending before crime against
women cell and thereafter at the time of seeking grant of anticipatory or
regular bail and then the ordeal of long drawn trial.
Daily, matters come before this court seeking bail and for quashing of
FIR?s registered under Sections 498A/406 of the IPC. This court is of the view
that it is essential to lay down some broad guidelines and to give directions in
such matters in order to salvage and save the institution of marriage and
matrimonial homes of the couples.
Guidelines:
1. Social workers/NGO
There is no iota of doubt that most of the complaints are filed in the
heat of the moment over trifling fights and ego clashes. It is also a matter of
common knowledge that in their tussle and ongoing hostility the hapless children
are the worst victims. Before a wife moves to file a complaint with the Women
Cell, a lot of persuasion and conciliation is required.
(a) The Delhi Legal Service Authority, National Commission for Women, NGO?s and
social worker?s working for upliftment of women should set up a desk in crime
against women cell to provide them with conciliation services, so that before
the State machinery is set in motion, the matter is amicably settled at that
very stage. But, if ultimately even after efforts put by the social workers
reconciliation seems not possible then the matter should be undertaken by the
police officials of Crime against Women cell and there also, serious efforts
should be made to settle the matter amicably.
2. Police Authorities:
(a) Pursuant to directions given by the Apex Court, the Commissioner of Police,
Delhi vide Standing Order No. 330/2007 had already issued guidelines for arrest
in the dowry cases registered under Sections 498-A/406 IPC and the said
guidelines should be followed by the Delhi Police strictly and scrupulously.
(i) No case under Section 498-A/406 IPC should be registered without the prior
approval of DCP/Addl. DCP.
(ii) Arrest of main accused should be made only after thorough investigation has
been conducted and with the prior approval of the ACP/DCP.


(iii) Arrest of the collateral accused such as father-in-law, mother-in-law,
brother-in-law or sister-in-law etc should only be made after prior approval of
DCP on file.
(b) Police should also depute a well trained and a well behaved staff in all the
crime against women cells especially the lady officers, all well equipped with
the abilities of perseverance, persuasion, patience and forbearance.
(c) FIR in such cases should not be registered in a routine manner.
(d) The endeavor of the Police should be to scrutinize complaints very carefully
and then register FIR.
(e) The FIR should be registered only against those persons against whom there
are strong allegations of causing any kind of physical or mental cruelty as well
as breach of trust.
(f) All possible efforts should be made, before recommending registration of any
FIR, for reconciliation and in case it is found that there is no possibility of
settlement, then necessary steps in the first instance be taken to ensure return
of stridhan and dowry articles etc. by the accused party to the complainant.

3. Lawyers:
Lawyers also have a great responsibility in this regard.
(a) While drafting pleadings/complaints, the lawyers should not unnecessarily
suggest incorporation of wild allegations, or in character assassination of any
of the parties or their family members whatever the case may be.
(b) Lawyers are also to endeavour to bring about amicable settlement between the
parties as they are expected to discharge sacred duty as social engineers in
such cases instead of making them target for monetary considerations by
multiplying their cases.

4. Courts:
Subordinate courts, be it trying civil or criminal cases concerning bail,
maintenance, custody, divorce or other related matters shall in the first
instance, in every case where it is possible so to do consistently with the
nature and circumstances of the case, to make every endeavour to bring about
reconciliation between the parties.
a) The first endeavor should be for possible reunion and restitution of the
parties and as a last endeavor to bring about peaceful separation.
b) If possible extra time should be devoted to such matters to restore peace in
the lives of rival parties be it by re-uniting them or even in case of their
parting ways.
c) Conciliatory proceedings by the court should preferably be held in camera to
avoid embarrassment.
d) Wherever, the courts are overburdened with the work, necessary assistance of
Mediation and Conciliation cells should be sought.
Apart from above directions it would not be out of place to ask parties
also to themselves adopt a conciliatory approach without intervention of any
outside agency and unless there are very compelling reasons, steps for launching
prosecution against any spouse or his/her in-laws be not initiated just in a
huff, anger, desperation or frustration.
DASTI.

KAILASH GAMBHIR, J
August 04, 2008
?mg?






Bail Application No. 1627/2008
Page 11 of 11

voluntarily incapacitates from earning is not entitled for maintanance

1999 AIR(Raj) 304

Govind Singh
v
Smt. Vidya.

21 Apr 1999

BENCH
A. K. SINGH

THIS JUDGMENT WAS FOLLOWED IN 1 CASE(S)

ACTS REFERRED
Hindu Marriage Act, 1955[s. 24]

CASE NO
Civil Misc. Appeal No. 140 of 1999.

LAWYERS
B. P. Rajpurohit

.JUDGMENT TEXT

The Judgment was delivered by :

:- Heard the learned counsel for the appellant and perused the
impugned order dated 30-1-1999 whereby the application filed by the
appellant under Section 24 of the Hindu Marriage Act, 1955 was
rejected.

2. The appellant was formerly earning his living by running an auto-
rikshaw on hire. He has stopped that work. The respondent is said to
be working as a nurse in hospital. The learned trial Court rejected
the application filed by the appellant under Section 24 of the Hindu
Marriage Act, 1955 on the ground that there was nothing to show that
the appellant was incapable of earning his living.

3. I have carefully considered the reasons given by the learned trial
Court for rejecting the application filed by the appellant for
interim maintenance. It is true that Section 24 of the Hindu Marriage
Act, 1955 entitles either party to move an application for
maintenance provided such party has no means of subsistence and the
other party is in a position to provide maintenance. But it does not
mean that the husband who is otherwise capable of earning his living
should stop earning the living and start depending on earning of his
wife. In the instant case it appears that the appellant Govind Singh
has incapacitated himself by stopping the running the auto-rikshaw on
hire. It is a well-established maxim of Anglo Saxon jurisprudence
that no person can be allowed to incapacitate himself. That maxim is
applicable to the case of earning husband. A person who voluntarily
incapacitates himself from earning is not entitled to claim
maintenance from the other spouse.

4. I, therefore, do not find any force in this appeal. It deserves to
be dismissed at the admission and is hereby dismissed.

Appeal dismissed.

Daughter-In-Law has not right on her In-laws property

IN THE HIGH COURT OF DELHI AT NEW DELHI


Date of Reserve: September 05, 2008
Date of Order : September 30, 2008

CM(M) 105/2006
30.09.2008
Neetu Mittal ...Petitioner
Through: Ms. Radhika Chandrasekhar, Adv.


Versus


Kanta Mittal and Ors. ...Respondents
Through: Ms. Nandni Sahni, Adv. for R.1 and 2
Mr. Devendra Singh, Adv. for R.3


JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the
judgment? Yes.

2. To be referred to the reporter or not ? Yes.

3. Whether judgment should be reported in Digest ? Yes.


JUDGMENT:
1. The petitioner is aggrieved by an order dated 4th January, 2006
passed by the learned Additional Senior Judge allowing an appeal of the
respondent against order dated 24.5.2005 of Civil Judge dismissing an
application under Order 39 Rule 1 and 2 CPC.
2. The respondents had filed a suit making petitioner, their son
and in-laws of the son as defendants wherein they prayed for permanent
injunction. An application under Order 39 Rule 1 and 2 was made that the
petitioner and other respondents be restrained from forcibly and illegally
entering into their house No. B-2/23, Phase-II, Ashok Vihar and from interfering
with their peaceful living. The petitioner is wife of Sh. Vikas Mittal son of
respondents, Smt. Kanta Mittal and Sh. Ram Kishan Mittal.
3. The learned Senior Civil Judge while allowing appeal observed
that wife has a right to live in the matrimonial home after marriage but there
was no specific definition of matrimonial home. However, matrimonial home was
not just a building made of bricks and walls. It was a home/place comprising of
sweetness of relations of family members and elders, full of blessing. In the
matrimonial home, matrimonial rights and obligations are to be equally observed.
Practically speaking, the residence of husband should be the home of the wife
where both the spouses have equal right to reside.
4. The learned Senior Civil Jude found that in this case, the
respondents were parents of Sh. Vikas Mittal and in-laws of Neetu Mittal
(petitioner). They had separated from their son. The son had taken a flat in
Rohini for his own residence and residence of his wife. The son and his wife
had agreed to shift there on 10th May, 2005 under a compromise arrived at Police
Station. However, the wife did not stay in the flat at Rohini. Her grievance
was that flat was not habitable due to deficiency of fan, cooler, etc.


Thereafter, she asserted that she had a right to live in her in-laws' house in
Ashok Vihar and she wanted to forcibly live there which compelled respondents
no. 1 and 2 to file the suit. The learned Senior Civil Judge found that the
respondents were aged parents. They had shown by filing medical record that
they were suffering from various ailments and at this age of their life they
have a right to live peacefully at their home. Since the relations of
petitioner were not cordial with them, there was every likelihood of breach of
peace to the detriment to their mental and physical health. Due regards have to
be given to their rights. It was a admitted fact that the respondents and
petitioner could not live together under one roof with peace and harmony. The
common use of dining and one kitchen would create further problems and a
situation may come when parties may everyday land up at Police station or in the
Court, fighting on minor issues.
5. Learned Sr. Civil Judge also observed that the
respondents(parents) even apprehend danger to their lives and dignity, as per
the complaint made by them to the Police. Under these circumstances, the
learned Senior Civil Judge allowed the application under Order 39 Rule 1 and 2
CPC and restrained the defendants (petitioner herein) from forcibly entering
into their house and disturbing the peaceful possession of the respondents.
6. Counsel for the petitioner argued that the petitioner being wife
of son of respondents no. 1 and 2 has a right to live in the matrimonial home
and no injunction could legally have been issued by the learned Civil Judge.
She referred to Protection of Women from Domestic Violence Act, 2005 and argued
that the right of women to live in the shared household was to be protected by
every Court and the house of in-laws was a shared household and a matrimonial
home and she had a right to live there.
7. In S.R. Batra vs. Taruna Batra AIR 2007 SC 1118, Supreme Court
observed as under:
?16. There is no such law in India, like the British Matrimonial Homes Act, 1967
and in any case, the rights which may be available under any law can only be as
against the husband and not against the father-in-law or mother-in-law.

17. Here, the house in question belongs to the mother-in-law of Smt. Taruna
Batra and it does not belong to her husband Amit Batra. Hence, Smt. Taruna
Batra cannot claim any right to live in the said house.

xxxxx xxxxx xxxxx

27. Learned counsel for the respondent Smt. Taruna Batra has relied upon Section
19(1)(f) of the Act and claimed that she should be given an alternative
accommodation. In our opinion, the claim for alternative accommodation can only
be made against the husband and not against the husband's in-laws or other
relatives.

28. As regards Section 17(1) of the Act, in our opinion the wife is only
entitled to claim a right to residence in a shared household, and a 'shared
household' would only mean the house belonging to or taken on rent by the
husband, or the house which belongs to the joint family of which the husband is
a member. The property in question in the present case neither belongs to Amit
Batra nor was it taken on rent by him nor is it a joint family property of which
the husband Amit Batra is a member. It is the exclusive property of appellant
no.2, mother of Amit Batra. Hence it cannot be called a 'shared household'.?

8. As observed by the Supreme Court, 'Matrimonial home' is not
defined in any of the statutory provisions. However, phrase ?Matrimonial home?
refers to the place which is dwelling house used by the parties, i.e., husband
and wife or a place which was being used by husband and wife as the family


residence. Matrimonial home is not necessarily the house of the parents of the
husband. In fact the parents of the husband may allow him to live with them so
long as their relations with the son (husband) are cordial and full of love and
affection. But if the relations of the son or daughter-in-law with the parents
of husband turn sour and are not cordial, the parents can turn them out of
their house. The son can live in the house of parents as a matter of right only
if the house is an ancestral house in which the son has a share and he can
enforce the partition. Where the house is self-acquired house of the parents,
son, whether married or unmarried, has no legal right to live in that house and
he can live in that house only at the mercy of his parents upto the time the
parents allow. Merely because the parents have allowed him to live in the house
so long as his relations with the parents were cordial, does not mean that the
parents have to bear his burden throughout the life.
9. Once a person gains majority, he becomes independent and parents
have no liability to maintain him. It is different thing that out of love and
affection, the parents may continue to support him even when he becomes
financially independent or continue to help him even after his marriage. This
help and support of parents to the son is available only out of their love and
affection and out of mutual trust and understanding. There is no legal
liability on the parents to continue to support a dis-obedient son or a son
which becomes liability on them or a son who dis-respects or dis-regards them or
becomes a source of nuisance for them or trouble for them. The parents can
always forsake such a son and daughter-in-law and tell them to leave their house
and lead their own life and let them live in peace. It is because of love,
affection, mutual trust, respect and support that members of a joint family gain
from each other that the parents keep supporting their sons and families of
sons. In turn, the parents get equal support, love, affection and care. Where
this mutual relationship of love, care, trust and support goes, the parents
cannot be forced to keep a son or daughter in law with them nor there is any
statutory provision which compels parents to suffer because of the acts of
residence and his son or daughter in law. A woman has her rights of maintenance
against her husband or sons/daughters. She can assert her rights, if any,
against the property of her husband, but she cannot thrust herself against the
parents of her husband, nor can claim a right to live in the house of parents of
her husband, against their consult and wishes.
10. I therefore consider that the order passed by the learned
Senior Civil Jude granting injunction does not suffer from any illegality and
the petition is hereby dismissed.


September 30, 2008 SHIV NARAYAN DHINGRA J.