Case laws

Ans: By this petition purported to have been filed under Article 32 of the Constitution of India, 1950 (in short `the Constitution') prayer is to declare Section 498A of Indian Penal Code, 1860 (in short `the IPC') to be unconstitutional and ultra vires in the alternative to formulate guidelines so that innocent persons are victimized by unscrupulous persons making false accusations.  Further prayer is made that whenever, any court comes to the conclusion that the allegations made regarding commission of offence under Section 498 IPC are unfounded, stringent action should be taken against person making the allegations. This according to the petitioner, would discourage persons from coming to courts with unclean hands and ulterior motives. Several instances have been highlighted to exhibit how commission of offence punishable under Section 498A IPC has been made with oblige motive and with a view to harass the husband, in-laws and relatives.  According to the petitioner there i...

Ans: In the citation of MANJU RAM KALITA V. STATE OF ASSAM, 2009, the honourable Supreme Court relying on several precedents observed that the meaning of “Cruelty” differs in each statutory provision and hence must be established in the context of Section 498A of IPC. The conduct of the man, the seriousness of his acts must be compared with the likeliness of the woman to commit suicide, etc. It must be established that the woman has been subjected to cruelty continuously or at least in close proximity of time of lodging the complaint. Petty quarrels would not come under the purview of “cruelty”. Accordingly, the Court set aside the conviction order under Section 498A of IPC. x

Ans: In the citation of BHASKAR LAL SHARMA & ANR. V. MONICA, the honourable Supreme Court observed that all the essential elements required for an offence under Section 498A of the IPC were not fulfilled in the present case. The respondent took all coercive steps to ensure the presence of appellants in India without making any effort at conciliation. The court was of the view that merely because the mother-in-law kicked the daughter-in-law and threatened her with divorce, the same did not amount to cruelty under Section 498A of IPC. Thus, no case was made out against the appellants under Section 498A of IPC. x

Ans:  In case of Bhagwan Dutt v. Kamla Devi, (1975) 2 SCC 386, the honourable Supreme Court held that the object of the provisions of maintenance are to prevent vagrancy as well as destitution. The Magistrate has to find out as to what is required by the wife to maintain the standard of living which is neither luxurious nor penurious but is modestly consistent with the status of the family. The requirements of the wife for such moderate living can be fairly determined, only if her separate income, also, is taken into account together with the earnings of the husband as well as his commitments. The Supreme Court of India held that the separate or independent income of the wife should also be considered while determining the amount of maintenance payable to her. Therefore, the Court passed the appeal and set aside the judgment delivered by the High Court. The Court decided to send the case back to the trial Magistrate to readjust the amount of maintenance. x x

Ans: According to the citation of Naresh Chandra V. Reshma Bai : 1992, Cri.L.J 579: 1992, the the Madhya Pradesh High Court held that the absence of facts are essential to put forward to constitute a valid marriage. Court can not grant interim maintenance in favour of alleged wife but the illegitimate child is entitled to interim relief. x

Ans: In accordance with the citation of Swastika sen V. State of West Bengal, 2003, , the Calcutta High Court held that if a wife is an employed person or has a business and earns a definite sum by way of regular income and if the court finds that such income is sufficient to maintain her to earn for her livelihood, she can not claim maintenance from the husband. The ITR proves that the wife was able to maintain herself during the interim period, thus the application was dismissed.

Ans: The High Court of Telangana replied the question if a wife who is earning, be operated as a bar from awarding maintenance to suit the lifestyle of her husband in the matrimonial home, though the case of Nikhat Fatima v. Syed Razi Ahmed,( Tr.C.M.P.Nos.758 and 760 of 2018) which was decided through the learned bench led by M.S.Ramachandra Rao.  In the present case, the family court dismissed the interim application filed by the first petitioner on the ground that the wife herself had mentioned that she was earning Rs 20,000/- per month. The court ordered the first respondent to pay 7 Thousand per month to each petitioner 2 and 3 that were his children towards interim maintenance, from the date of the petition, pending disposal of maintenance case and the petition to the extent of petitioner 1 that is the wife was dismissed.  The wife being aggrieved by the order approached the HC for revision. Once the case was brought before the High Court,  the court referred to...

Ans: In Andhra Pradesh High Court , Amravati S Madhusudhana Rao vs N J Prasanthi on 30 November, 2021, the learned high court said that the earning of wife was not a bar to maintenance of wife . The learned Andhra Pradesh High Court admitted that the wife was entitled to maintenance according to the status and lifestyle of her husband as if she were living in her husband’s home.

Ans: Section 139 of the Negotiable Instruments Act The Section 139 states that it will be presumed unless the contrary is proved, that the payee received the cheque of the nature referred in Section 138 for the discharge, in wholly or partly, of any debt or any liability.  This presumption is no doubt rebuttable by the accused, by ‘preponderance of probabilities’. So, if the accused can establish a probable defence, that creates a reasonable doubt about the existence of a legally enforceable debt or liability, then the prosecution would fail and the accused can do so by only using the materials or evidence presented by the prosecution and in many cases an accused did not need to present another or own evidence. Virender Kumar vs Sumit on 25 April, 2018 IN THE COURT OF SHRI PUNEET NAGPAL, MM (NI ACT)-01, SOUTH-WEST DISTRICT: NEW DELHI. The Section 139 states that it will be presumed unless the contrary is proved for drawer under negotiable instrument act. Section 140 of the Negotiab...

Ans: Section 139 of the Negotiable Instruments Act The Section 139 states that it will be presumed unless the contrary is proved, that the payee received the cheque of the nature referred in Section 138 for the discharge, in wholly or partly, of any debt or any liability.  This presumption is no doubt rebuttable by the accused, by ‘preponderance of probabilities’. So, if the accused can establish a probable defence, that creates a reasonable doubt about the existence of a legally enforceable debt or liability, then the prosecution would fail and the accused can do so by only using the materials or evidence presented by the prosecution and in many cases the accused did not need to present another or own evidence. Virender Kumar vs Sumit on 25 April, 2018 IN THE COURT OF SHRI PUNEET NAGPAL, MM (NI ACT)-01, SOUTH-WEST DISTRICT: NEW DELHI. Section 140 of the Negotiable Instruments Act, lays down that there is no such defence, that the drawer has no reason to believe, when the cheque wa...

Ans: Friendly loan concerning unaccounted money Section 138 of the Negotiable Instruments Act, does not include within its purview the liability to pay an unaccounted cash amount. So, if there was a loan given which was in the form of an unaccounted cash, then it is not legally enforceable to repay it. Sanjay Mishra v. Ms. Kanishka Kapoor In this case, it was held by the Mumbai High Court Court that the applicant has failed to prove that the cheque issued by the respondent was in discharge of a legal liability of the loan amount, and also the respondent denied her signatures on the bill of exchange as well as the cheque and also the learned Judge had considered that the applicant acknowledged that the amount advanced was unaccounted and the same was not disclosed to the Income Tax Authority. x

 Ans: Cheque bounced given as a security  If an accused or the drawer of the cheque, proves that the cheque issued, was not in discharge of any debt or liability, while issuing the cheque, as well as it was just given as security deposit, hence it would not attract the offence under the Section 138, of the Negotiable Instruments Act.  Joseph Vilangadan v. Phenomenal Health Care Services In this case, the appellants said that the given cheque was the refundable security deposit to ensure the performance of the work and the terms of the contract, as well as there was no existing debt or liability. Also, when the agreement was entered , there was no debt or liability on the part of the drawer, and it was mentioned in the terms of the contract that if the contractor fails to perform his services then the respondent or holder could encash and can recover the amount. But it did not happen so and the work was performed, and therefore, it did not come under the purview of  S...

Ans: Some of the significant features of the 2002 amendment in negotiable instrument act are as follows:  1)​The period within, which the payee must render notice to the drawer, extended to thirty days against fifteen days earlier.  2)​The maximum jail term for offences enhanced to two years from one year.  3)​The trials, as far as practicable, must be continued from day to day, consistently with the interest of justice, until the conclusion. 4. Endeavour must be to conclude the trial within six months from the date of filing of the complaint;  5)​A copy of the summons issued by a magistrate to an accused or witness would also be served through special post or impaneled couriers. 6)​The evidence of the complainant may be given by him on an affidavit as well as be read in evidence, and the court, if it thinks fit, shall on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavits (with exceptions).  7)​Offences...

Ans: The dishonour of cheque is not an offence punishable under criminal law and the holder of a cheque had an only civil remedy and if the holder of cheque wanted to make it a criminal offence he had to take recourse to section 420 of Indian Penal Code alleging cheating on the part of the drawer of the cheque. The punishment provided for such cheating under section 420 of the Indian Penal Code is imprisonment up to seven years as well as a fine. Two things are important for the implication of section 420 of the Indian Penal Code i.e., dishonest intention as well as men’s rea. If the fraudulent or dishonest intention is absent, the question of committing an offence under section 420 of the Indian Penal Code does not arise. x

Ans: For committing an offence under Section 138 of the Act “mens rea” is not an important ingredient. Section 138 of the Negotiable Instruments Act, 1881, excludes mens rea by creating strict liability as well as this is explicit from the words 'such person shall be deemed to have committed an offence.  The liability which does not depend on actual negligence is strict liability.  The returning of the cheque by the bank either because the amount of money standing to the credit of the drawer of the cheque is insufficient or the amount covered by the cheque is in the excess of the amount arranged to be paid from that account by an agreement with the bank are the two essential conditions creating strict liability. x

Ans: If an application is moved to set aside the ex- parte order, then the Magistrate will examine the same. Application is to be made within three months from the date of passing the ex-parte order. The Court in dealing with applications u/s 125 of the CrPC shall have the power to set aside such order as to costs as may be just. In the case of Mohd. Naim Siddiqui v. Sultana Khatoon, the Court clarified that an ex-parte order u/s 125 CrPC to be set aside where the husband was not served. x

Ans: CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE Date : 02/12/2022 ORAL JUDGMENT 1.By way of present application, the applicant has requested to quash and set aside the judgment and order dated 13.08.2021 passed by learned Family Court at Ahmedabad in Criminal Misc. Application No. 450 of 2013. 2. Brief facts of the present case are as under: That, the marriage of the applicant and respondent no.2 was solemnized on 24.11.2008 at Ahmedabad and out of their wedlock, one daughter namely Brahmi was born and later on matrimonial disputes were started between the applicant and the respondent no.2 and therefore, the respondent no.2 had left her marital home with the respondent no.3 and started residing at her parental home. Thereafter, applicant preferred an application being CRMA No. 356 of 2022 for getting custody of his daughter from the respondent no.2 as well as the respondent no.2 has filed application being Criminal Misc. Application No. 450 of 2013 for getting maintenance. Thereafter, ...

Ans: In the citation of  Shripal Raja Rajendra kumar Shah v. State of Gujarat & Ors, 2023, it is the legal duty of the husband to maintain his wife as well as to render financial support to her and his children and the man cannot shirk his responsibility as husband for wife as well as father for children to maintain his legally wedded wife and children, which is his social as well as lawful duty towards them and the wife and children would be entitled to the same standard of living, which they were enjoying while living with him.

Ans: The Hon’ble High Court of Calcutta in a recent case, Ramiz Raza vs. The State of West Bengal & Ors. has held that a wife has statutory right to seek maintenance from her husband regardless of the fact that whether she is an earning individual or not. It is mentioned, by virtue of the decision of the Supreme Court in the case of Bhagwan Dutt (supra) that even a wife who has substantial income of her own or even a working lady will be entitled to claim maintenance from her husband. Even if initially it was a misconception that a working woman is not entitled to claim maintenance because she has some substantial income and is able to maintain herself, but considering the decision rendered by the Supreme Court in the said case, it is evident that she can claim maintenance although she is an earning lady. Finally, it can be inferred from the above said statutory provisions as well as the case laws that the earning wives do have right to seek maintenance subject to the income st...

Ans: In citation of Sunita Kachwaha v. Anil Kachwaha [Sunita Kachwaha v. Anil Kachwaha, (2014) 16 SCC 715 : (2015) 3 SCC (Civ) 753 : (2015) 3 SCC (Cri) 589], the wife had a postgraduate degree, and was employed as a teacher in Jabalpur. The husband raised a contention that since the wife had sufficient income, she would not require financial assistance from the husband. The Supreme Court repelled this contention, and held that merely because the wife was earning some income, it could not be a ground to reject her claim for maintenance.