498a and DV is money extortion industry

DV Act does not give a woman right to eye her mother-in-law's property for maintenance

CASE NO.: Appeal (civil) 2003 of 2008 PETITIONER: Vimalben Ajitbhai Patel RESPONDENT: Vatslabeen Ashokbhai Patel and others DATE OF JUDGMENT: 14/03/2008 BENCH: S.B. SINHA & V.S. SIRPURKAR JUDGMENT: JUDGMENT CIVIL APPEAL NO 2003 OF 2008 [Arising out of SLP (Civil) No. 1061 of 2007] WITH CRIMINAL APPEAL NO. 502 OF 2008 [Arising out of SLP (Crl.) No. 213 of 2007] Ajitbhai Revandas Patel and another # Appellant Versus State of Gujarat and another # Respondents S.B. SINHA, J : 1. Leave granted in both the matters. 2. These two appeals being inter related were taken up together for hearing and are being disposed of by the common judgment. 3. Vimlaben Ajitbhai Patel (Appellant in Civil Appeal is the mother in law of Sonalben Rameshchandra Desai - respondent No.3 in Civil Appeal and respondent No.2 in Criminal Appeal) while she alongwith her husband are the appellants in the Criminal Appeal. For the purpose of disposal of these appeals, Vimalben Ajitbhai Patel is being described as Appellant No.1 while her husband Ajitbhai Revandas Patel is being described as Appellant No.2. 4. Sonalben Rameshchandra Desai was married to Jitendra Ajitbhai Patel (son of the appellants) on 4th May, 1992. The couple fell apart. In 1993 a complaint petition was filed by the 3rd respondent against her husband and the appellants alleging commission of an offence under Sections 406 and 114 of the Indian Penal Code. In the said complaint the 3rd respondent accepted that her husband had incurred huge losses in the business in United States. Appellants were granted bail subject to the condition that they would not leave India without prior permission of the Court. Allegedly on the premise that Appellant No.2 requires medical treatment, an application for permission was filed in October 1997 but they left India without obtaining the same from the Court. 5. An application was filed for cancellation of the bail which was rejected by the Metropolitan Magistrate as also by the Sessions Judge. The 3rd respondent filed an application before the High Court being Special Criminal Application NO.1360 of 1997. The said application was allowed by the High Court by its order dated 18th November, 1997 cancelling the bail of the appellants. The learned Metropolitan Magistrate was directed to issue Standing Warrant of arrest against the appellants as and when they returned to India. 6. On an application filed by the 3rd respondent on 24th April, 1998 the husband of the appellant was declared an absconder and a public proclamation was issued in terms of Section 82(2) of the Code of Criminal Procedure attaching her properties if she did not present before the Learned Magistrate within 30 days from the issuance of the said publication. There is nothing on record to show that the said order was served on the appellants. It, however, is not disputed that on their failure to remain present within a period of 30 days their properties were subjected to order of attachment under Section 85 of the Code of Criminal Procedure. By an order dated 5th January, 2004 the District Magistrate was asked by the Leaned Metropolitan Magistrate to take further action in terms of Section 85 of the Code of Criminal Procedure by holding a public auction of the said properties. In the said order it was wrongly sated that the properties belonged to the appellants and husband of the 3rd respondent, whereas in fact Appellant No.1 alone was the owner thereof. 7. The 1st Respondent (tenant) and the subsequent auction purchaser filed an application before the High Court of Gujarat which was marked as Special Civil Application No.15377 of 2004 against the Mamlatder. A learned Judge of the High Court by an order dated 5th April, 2005 directed :- "8. In view of the above, I am inclined to pass the following order: 8.1) Rule. By interim order it is directed that the Mamlatdar - Respondent No.1 shall proceed with the auction of the premises in question on condition that the auction which may be held shall be subject to the further condition that - i) the possession of the premises shall be handed over by the Mamlatdar to the auction purchaser, after the conclusion of the proceedings as ordered hereinafter by the ULC Authority against the petitioner as well as respondent No.3; ii) after the auction, it would be open to the Mamlatdar to notify the said aspect regarding the transfer effected by auction in the conspicuous part of the premises and such an intimation may also be given to the concerned local authority; iii) it is further directed that the Mamlatdar - Respondent No.1 herein shall make reference to competent Authority under ULC Act to examine the aspects as to whether the transaction between the absconder and Respondent No.3 can be said in breach of the condition of Scheme under Section 21 of the ULC Act and he shall also make reference on the aspects to the competent authority under ULC Act as to whether the action of the absconder and subsequently rectification by respondent No.3 to give the possession of the petitioner as tenant can be said in breach of the conditions of the Scheme under Section 21 on the basis of which the premises came to be allotted to the absconder # original allottee. Such reference shall be made within a period of two weeks from today and the Mamlatdar shall request the concerned authority to decide the reference within a period of three months from the date of receipt of the reference. In the event it is found by the competent authority under ULC Act that the action of absconder of entering into transaction with respondent No.3 and for handing over the possession to the petitioner as unlawful, the Mamlatdar shall be at liberty to take possession of the premises in question from the petitioner and thereafter he shall further be at liberty to hand over the vacant possession of the premises to the auction purchaser. iv) It is further directed that until the aforesaid reference is made and is decided by the Mamlatdar, the petitioner shall deposit the amount at the rate of Rs.1,500/= per month with the Mamlatdar without prejudice to the proceedings of the reference and the said amount shall remain as deposited with the Mamlatdar. In the event it is found by the competent authority under ULC Act as an outcome of the reference and the inquiry that the possession is unlawful of the petitioner and the transaction is unlawful of the absconder with respondent No.2, the Mamlatdar shall be at liberty to refund the amount. However, in the event it is found that the possession is lawful and there is no breach of the condition of allotment as per the scheme under Section 21 of the ULC Act, the Mamlatdar shall be at liberty to appropriate the amount in accordance with law." v) The aforesaid exercise of holding auction shall be completed within a period of five weeks from today. 9. The report of the proceedings and the outcome of the reference shall also be made by the Mamlatdar to this Court." 8. However, the appellant and her husband were not made parties therein. Against the said order, an LPA, which was marked as LPA NO. 1792 of 2005, was filed by the 1st respondent and a Division Bench of the High Court directed that the amount of rent deposited by him with the Mamlatder be deposited in the High Court and the 3rd respondent will be permitted to withdraw the same without prejudice to the rights and contentions of the parties. The said order was passed, purported to be on the premise, that the 3rd respondent had placed reliance on an order dated 13th May, 2005 passed by another Bench of the High Court in First Appeal No. 2626 of 2004 whereby her husband was directed to deposit a sum of Rs.10,000/- per month towards arrears of maintenance and to continue to deposit the same. 9. By an order dated 25th January, 2006 the 1st respondent was asked to deposit a sum of Rs. 4 lakhs (as he expressed his intention to purchase the said property) apart from a sum of Rs.10,000/- per month which was to be deposited with the Registrar by him from 10th February, 2006. It was furthermore directed :- "6.2 The withdrawal of Rs.10,000/- by respondent No. 2-Sonalben Rameshchandra Desai shall be adjusted against any amount which may be payable to her by Jitendra Ajitbhai Patel under any orders in First Appeal No. 2626 of 2004, in any other matrimonial proceedings or in any civil or criminal case between her, her husband and her mother in law." 10. Appellant No.1 made an application to get herself impleaded as a party but her application was dismissed by the High Court on 11.9.2006. On or about 21st November, 2006 the High Court directed the first respondent to pay a sum of Rs.17 lakhs to respondent No.3 in regard to the auction sale of the property in question. Respondent No.2, Mamlatdar, was also directed to execute the deed of conveyance and register the same in the name of the 1st respondent upon full payment. 11. Appellant and her husband returned to India. They filed an application for cancellation of the said Standing Warrants. By an order dated 27th June, 2006 the said application was allowed directing :- "Application is granted and warrant against both the applicant accused are ordered to be cancelled with a fine of Rs.3,000/- (Rupees three thousand only) each and with condition to submit one new surety of Rs.10,000/- (Ten thousand) and on executing the bond of such like amount. CONDITIONS 1. Accused shall not leave India, without prior permission of the court. 2. Accused shall surrender his passport before the court." 12. Indisputably pursuant to the said order the Passports were deposited on 28th June, 2006 by them. 13. The 3rd respondent filed an application for setting aside the said order by filing a Criminal Miscellaneous Application before the Sessions Judge, Ahmedabad inter alia contending that the Passports had not been deposited by the accused pursuant to the said order of 27th June, 2006. The learned Additional Sessions Judge set aside the said order dated 27th June, 2006 and non-bailable warrants were directed to be issued against the appellants herein. Aggrieved thereby she filed Criminal Misc. Application No. 14340 of 2006 before the High Court on 13th December, 2006 which by reason by of the impugned judgment and order dated 27th December, 2006 has been dismissed. 14. The questions which arise for consideration are :- (i) Whether in the facts and circumstances of the case, the property of Appellant No.1 could have been sold in auction? and (ii) Whether in a case of this nature, the bail granted to the appellants should have been directed to be cancelled? 15. Submissions of learned counsel appearing on behalf of the appellants are : i) Having regard to the provisions of the Hindu Adoptions and Maintenance Act, 1956 duty to maintain a wife being on the husband and not on her mother-in-law, the impugned judgments are wholly unsustainable; ii) The property of a person who is no longer absconding, cannot be subjected to continuous attachment or sale thereof. iii) Appellants having surrendered their Passports and having been attending the Court subsequently, the High Court committed a manifest error in directing cancellation of their bail without appreciating that the factors relevant for interfering with the order granting bail and directing cancellation of bail are distinct and different. 16. Submissions of Mr. Mayur Shah, learned counsel appearing on behalf of the 3rd respondent, are :- i) That her husband being the only son of his parents and the properties having been acquired through ancestral funds and there being no assertion that the properties are self acquired properties, she has a right of maintenance out of the Joint Family Property in terms of Section 18 of the Hindu Adoption and Maintenance Act. ii) In terms of Section 84 of the Code of Criminal Procedure, keeping in view the fact that her husband had been directed to pay maintenance @ Rs.10,000/- per month and which having not been paid, respondent No.3 could have prayed for realization of the said amount of maintenance from the sale proceeds of the auction sale. iii) Even an offer was made that one residential property would be transferred in her name, apparently goes to show that the properties are Joint Family Properties. She, having been denied her right of maintenance, could initiate the proceeding before the Metropolitan Magistrate as also before the High Court. iv) The Metropolitan Magistrate committed a serious error in granting bail upon cancellation of Standing Warrants as appellants have breached the conditions for grant of bail. They had, although placed a large number of documents and in particular medical certificates to show that they were ill, there is nothing on record to show that they were bed ridden and not permitted to move out. v) Their near relatives in India would be deemed to have knowledge of the pendency of the said proceeding and in that view of he matter neither under the guise of the medical certificates nor on the ground of age, they deserve any sympathy of the Court. 17. Mr. Nikhil Goel, learned counsel appearing on behalf of the 1st respondent (Auction Purchaser) would submit : i) The tenant has a right to reside in the property irrespective of the order of attachment and the same could not have been interfered with by Mamlatdar under the orders of the Learned Metropolitan Magistrate of the District Magistrate. ii) The 1st respondent had deposited a sum of Rs.10,000/- (Rupees ten thousand only) each month for a period of ten months which have been withdrawn by the 3rd respondent. Out of the total auction amount of Rs.17 lakhs, the 1st respondent had deposited Rs. 4 lakhs which has been invested in a short term deposit, besides a sum of Rs.1 lakhs. He has also deposited a further sum of Rs.12 lakhs which sum have, however, since been refunded. The learned counsel would contend that in this view of the matter the amount deposited by him should be directed to be refunded with interest. 18. Sonalben Rameshchandra Desai is an Advocate. She filed a large number of cases against her husband and in-laws. She initially filed a Complaint Petition before the Metropolitan Magistrate, Ahmedabad, under Section 498A of the Indian Penal Code which was registered as Case No.1662 of 1996. It was transferred to the Court of Chief Judicial Magistrate, Baroda. It has since been dismissed for default. She initiated another criminal proceeding against the appellants and their family members under Sections 323, 452, 427, 504, 506 and 114 of the Indian Penal Code, the same proceeding has also been dismissed as withdrawn. Another criminal case was initiated by her against appellant No.2, his son and another, being Case No.47 of 1996 under Section 406, 420, 468 and 114 of the Indian Penal Code, which is still pending. Another case, being No.2338 of 2006 was filed by her under Section 500 of the Indian Penal Code. Another case under Section 406 of the Indian Penal Code being Case No.2145 of 1993 was filed against the appellants. 19. Before embarking on the questions of law which arise our consideration, we may notice some statutory provisions. 20. The matter relating to grant of maintenance are now governed by the provisions of Hindu Adoptions and Maintenance Act, 1956. Sections 3 (b), 18 and 19 of the said Act read as under :- "3. (b) "Maintenance" includes- (i)in all cases, provision for food, clothing, residence, education and medical attendance and treatment; Section 18 - Maintenance of wife (1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her life time. Sub-section (2) of Section 18 thereof, however, lays down certain exceptions therefor. Sub-section (3) of Section 18 reads :- "(3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion." Section 19 - Maintenance of widowed daughter-in-law (1) A Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained after the death of her husband by her fatherin-law: Provided and to the extent that she is unable to maintain herself out of her own earnings or other property or, where she has no property of her own, is unable to obtain maintenance- (a) from the estate of her husband or her father or mother, or (b) from her son or daughter, if any, or his or her estate. (2) Any obligation under sub-section (1) shall not be enforceable if the father-in law has not the means to do so from any coparcenary property in his possession out of which the daughter-in-law has not obtained any share, and any such obligation shall cease on the re-marriage of the daughter-in-law." 21. Maintenance of a married wife, during subsistence of marriage, is on the husband. It is a personal obligation. The obligation to maintain a daughter-in-law arises only when the husband has died. Such an obligation can also be met from the properties of which the husband is a co-sharer and not otherwise. For invoking the said provision, the husband must have a share in the property. The property in the name of the mother-in-law can neither be a subject matter of attachment nor during the life time of the husband, his personal liability to maintain his wife can be directed to be enforced against such property. 22. Wholly un-contentious issues have been raised before us on behalf of Sonalben (wife). It is well settled that apparent state of affairs of state shall be taken a real state of affairs. It is not for an owner of the property to establish that it is his self-acquired property and the onus would be on the one, who pleads contra. Sonalben might be entitled to maintenance from her husband. An order of maintenance might have been passed but in view of the settled legal position, the decree, if any, must be executed against her husband and only his properties could be attached therefor but not of her mother-in-law. 23. Sections 4 and 28 of the Hindu Adoptions and Maintenance Act read as under :- "4. Overriding effect of Act Save as otherwise expressly provided in this Act,- (a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act; (b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus insofar as it is inconsistent with any of the provisions contained in this Act. 28. Effect of transfer of property on right to maintenance Where a dependant has a right to receive maintenance out of an estate, and such estate or any part thereof is transferred, the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right or if the transfer is gratuitous; but not against the transferee for consideration and without notice of the right." 24. Section 4 provides for a non obstante clause. In terms of the said provision itself any obligation on the part of in-laws in terms of any text, rule or interpretation of Hindu Law or any custom or usage as part of law before the commencement of the Act, are no longer valid. In view of the non obstante clause contained in Section 4, the provisions of the Act alone are applicable. Sections 18 and 19 prescribe the statutory liabilities in regard to maintenance of wife by her husband and only on his death upon the father-in-law, Mother-in-law, thus, cannot be fastened with any legal liability to maintain her daughter-in-law from her own property or otherwise. 25. In Unnamalai Ammal vs. F.W. Wilson : AIR 1921 Madras 1187 the obligation to maintain wife by a husband has been held to be a personal obligation. This Court in Kirtikant D. Vadodaria vs. State of Gujarat : (1996) 4 SCC 479 has held as under :- "8. We have given serious thought and consideration to the submissions made above by the learned counsel for the appellant and notice that Dhayalal Hirachand, the husband of Respondent 2 Smt Manjulaben, has been found to be a person of sufficient means and income. It is also true that there are 5 natural born sons of Respondent 2 besides 2 daughters, who are all major. It is also a fact that Dalip one of the sons had contested the Municipal Election and two other sons are carrying on various businesses. According to the Law of the Land with regard to maintenance, there is an obligation of the husband to maintain his wife which does not arise by reason of any contract # express or implied # but out of jural relationship of husband and wife consequent to the performance of marriage. Such an obligation of the husband to maintain his wife arises irrespective of the fact whether he has or has no property, as it is considered an imperative duty and a solemn obligation of the husband to maintain his wife." It was, furthermore, observed :- "Further, according to Section 20 of the Hindu Adoptions and Maintenance Act, 1956, a Hindu is under a legal obligation to maintain his wife, minor sons, unmarried daughters and aged or infirm parents. The obligation to maintain them is personal, legal and absolute in character and arises from the very existence of the relationship between the parties. But the question before us is whether a stepmother can claim maintenance from the stepson under Section 125 of the Code. In other words, whether Section 125 of the Code includes within its fold the stepmother also as one of the persons to claim maintenance from her stepson." 26. We may notice that in Balwant Kaur vs. Chanan Singh : (2000) 6 SCC 310, this Court reiterated the said principle in the following words :- "21. This provision clearly indicates that if the widowed daughter-in-law is a destitute and has no earnings of her own or other property and if she has nothing to fall back upon for maintenance on the estate of her husband or father or mother or from the estate of her son or daughter, if any, then she can fall back upon the estate of her father-in-law. This provision also indicates that in case of a widowed daughter-in-law of the family if she has no income of her own or no estate of her husband to fall back upon for maintenance, then she can legitimately claim maintenance from her father or mother. On the facts of the present case, therefore, it has to be held that Appellant 1, who was a destitute widowed daughter of the testator and who was staying with him and was being maintained by him in his lifetime, had nothing to fall back upon so far as her deceased husband's estate was concerned and she had no estate of her own. Consequently, as per Section 19(1)( a ) she could claim maintenance from the estate of her father even during her father's lifetime. This was a pre-existing right of the widowed daughter qua testator's estate in his own lifetime and this right which was tried to be crystallised in the Will in her favour after his demise fell squarely within the provisions of Section 22(2) of the Maintenance Act." 27. The Domestic Violence Act provides for a higher right in favour of a wife. She not only acquires a right to be maintained but also thereunder acquires a right of residence. The right of residence is a higher right. The said right as per the legislation extends to joint properties in which the husband has a share. 28. Interpreting the provisions of the Domestic Violence Act this Court in S.R. Batra vs. Taruna Batra : (2007) 3 SCC 169 held that even a wife could not claim a right of residence in the property belonging to her mother-in-law, stating : "17. 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-inlaw or mother-in-law. 18. Here, the house in question belongs to the motherin-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. 19. Appellant 2, the mother-in-law of Smt Taruna Batra has stated that she had taken a loan for acquiring the house and it is not a joint family property. We see no reason to disbelieve this statement." 29. Reliance placed by Mr. Goel on V. Tulasamma and others vs. Sehsa Reddy (Dead) by L.Rrs. : [1977] 3 SCR 261 is wholly misplaced. The question which arose for consideration therein was the nature or the right, a widow acquires in the property in which she had been in possession in lieu of maintenance. Interpreting sub-section (1) of Section 14 of the Hindu Succession Act this Court held that the term "possessed" should receive a wide meaning. It is in this context this Court noticed the authorities from Sastric Hindu Law whereupon our attention has been drawn :- "Similar observations have been made by the learned author at p. 528 of the book which may be extracted thus: 'According to both the schools, the lawfully wedded wife acquires from the moment of her marriage a right to the property belonging to the husband at the time and also to any popery that may subsequently be acquired by him. so that she becomes a co-owner of the husband, though her right is not co-equal to that of the husband, but a subordinate one. owing to her disability founded on her status of perpetual or life long tutelage or dependence. ... This right of the wife to maintenance from her husband is not lost even if the husband renounce Hinduism. This right subsists even after the husband's death although her husband's right as distinguished from hers may pass by survivorship or by succession to sons or even to collaterals; these simply step into the position of her husband, and she is required by Hindu law to live under their guardianship after her husband's death.' " 30. The orders passed by the High Court which are impugned before us are, thus, wholly unsustainable. They suffer from total non-application of mind. 31. The said orders might have been passed only on consideration that Sonalben is a harassed lady, but the fact that the appellant is also a much harassed lady was lost sight of. She has more sinned than sinning. Appellant and her husband are old. They suffer from various diseases. They have been able to show before the Court that they had to go to the United States of America for obtaining medical treatment. They, we would assume, have violated the conditions of grant of bail but the consequence therefore must be kept confined to the four corners of the statutes. 32. The provisions contained in Section 82 of the Code of Criminal Procedure were put on the statute book for certain purpose. It was enacted to secure the presence of the accused. Once the said purpose is achieved, the attachment shall be withdrawn. Even the property which was attached, should be restored. The provisions of the Code of Criminal Procedure do not warrant sale of the property despite the fact that the absconding accused had surrendered and obtained bail. Once he surrenders before the Court and the Standing Warrants cancelled, he is no longer an absconder. The purpose of attaching the property comes to an end. It is to be released subject to the provisions of the Code. Securing the attendance of an absconding accused, is a matter between the State and the accused. Complainant should not ordinarily derive any benefit therefrom. If the property is to be sold, it vests with the State subject to any order passed under Section 85 of the Code. It cannot be a subject matter of execution of a decree, far less for executing the decree of a third party, who had no right, title or interest thereon. 33. The learned Metropolitan Magistrate had, in his order dated 5th January, 2004 wrongly asked the District Magistrate to put the said properties on auction sale stating that to be belonging to the appellants and their son. The Mamlatdar appears to have exceeded his jurisdiction in trying to evict the 1st respondent. His right as a tenant could not have been affected by reason of any order of attachment. An order of attachment of a property has nothing to do with the right of tenancy. The terms and conditions of tenancy, being governed by statute, the tenant cannot be evicted except in accordance with law. It is a matter of grave concern that an independent right was also sought to be interfered with at the instance of Sonalben 34. Right to object in terms of Section 84 of the Code to which reliance has been placed by Mr. Mayur Shah, could not have been invoked by the wife as she has no independent claim over the property. The said provisions also could not have been invoked for the purpose of execution of a decree. 35. It is in the aforementioned context that we may now consider the impugned judgment of the High Court directing cancellation of bail of the appellants. 36. The fact that they have surrendered is not in dispute. They are of old age as also the fact that they have been suffering from various diseases has also not been disputed. 37. The contention of Sonalben that the passports had not been deposited, appears to be wholly incorrect. Ajitbhai Revandas Patel was the holder of U.S. Passport. The same having expired another Passport bearing No. 217921248 was issued. It is that passport which was deposited. This is the current Passport. Allegations that they are having other passports and may leave the country appears to be wholly without any basis. They have been attending the courts. The observation made by the Metropolitan Magistrate that they had not come of their own is unfortunate. Nobody wants to come to court of law and that too as an accused, of his own. 38. The High Court committed a manifest illegality in directing cancellation of bail in so far as it failed to take into consideration that the factors relevant for setting aside an order granting bail and directing cancellation of bail are wholly distinct and different. An application for cancellation of bail must be premised on the factors envisaged under subsection (2) of Section 439 of the Code of Criminal procedure. The learned Metropolitan Magistrate in passing the order dated 27th June, 2006 while granting bail took into consideration all the relevant factors. He imposed a fine on them. Even the passports had been surrendered. Application for cancellation of bail was filed on a mis-statement that the passports had not been surrendered. Various contentions, as noticed hereinbefore, in regard to purported suffering of the wife appears to have been taken into consideration which were wholly irrelevant. We have noticed hereinbefore that such contentions have also been raised before us not on the basis that there exists and legal principle behind the same but as an argument of desperation. 39. In Gurcharan Singh and others vs. State (Delhi Adminsitration) : 1978 (2) SCR 358 this Court held : "24. Section 439(1) Cr. P.C. of the new Code, on the other hand, confers special powers on the High Court or the Court of Session in respect of bail. Unlike under Section 437(1) there is no ban imposed under Section 439(1), Cr. P.C. against granting of bail by the High Court or the Court of Session to persons accused of an offence punishable with death or imprisonment for life. It is, however, legitimate to suppose that the High Court or the Court of Session will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail under Section 439(1) Cr. P.C of the new Code. The overriding considerations in granting bail to which we adverted to earlier and which are common both in the case of Section 437(1) and Section 439(1) Cr. P.C. of the new Code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many valuable factors, cannot be exhaustively set out. 25. The question of cancellation of bail under Section 439(2) Cr. P.C. of the new Code is certainly different from admission to bail under Section 439(1) Cr. P.C. The decisions of the various High Courts cited before us are mainly with regard to the admission to bail by the High Court under Section 498 Cr. P.C. (old). Power of the High Court or of the Sessions Judge to admit persons to bail under Section 498 Cr. P.C. (old) was always held to be wide without any express limitations in law. In considering the question of b ail justice to both sides governs the judicious exercise of the Court's judicial discretion." [See also Bhagirath Singh s/o. Mahipat Singh Judeja vs. State of Gujarat : [1984] 1 SCR 839 and Jayendra Saraswathi Swamigal vs. State of Tamilnadu : 2005 (2) SCC 13]. 40. We may notice that recently a Bench of this Court considered the consequence of issuance of warrant of arrest at some length in Inder Mohan Goswami and another vs. State of Uttaranchal and others : (2007) 12 SCALE 15. It was held :- "26. Before parting with this appeal, we would like to discuss an issue which is of great public importance, i.e. how and when warrants should be issued by the Court? It has come to our notice that in many cases that bailable and non-bailable warrants are issued casually and mechanically. In the instant case, the court without properly comprehending the nature of controversy involed and without exhausting the available remedies issued non-bailable warrants. The trial court disregard the settled legal position clearly enumerated in the following two cases." It was furthermore observed "51. In complaint cases, at the first instance, the court should direct serving of the summons along with the copy of the complaint. If the accused seem to be avoiding the summons, the court, in the second instance should issue bailable- warrant. In the third instance, when the court is fully satisfied that the accused is avoiding the court's proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to. Personal liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuing non-bailable warrants." 41. Keeping in view the entirety of the facts and circumstances of the case we are of the opinion that gross injustice has been caused to the appellant. She did not deserve such harsh treatments at the hands of the High Court. Respondent No.3 speaks of her own human rights, forgetting the human rights of the appellant, far less the funadamental right of life and liberty conferred on an accused in terms of Article 21 of the Constitution of India. 42. The right of property is no longer a fundamental right. But still it is a constitutional right. Apart from constitutional right it is also a human right. The procedures laid down for deprivation thereof must be scrupulously complied with [See-Devinder Singh and Ors. vs. State of Punjab and Ors. : JT 2007 (12) SC 256]. 43. Last but not the least, a plea of equity has been raised by Mr. Shah stating that this Court should issue some directions keeping in view the equitable principles. Reliance has been placed on Chandra Bansi Singh vs. State of Bihar : (1984) 4 SCC 316, wherein it was observed :- "16. On an analysis of the various steps taken by the parties and others in the taking of possession, there is undoubtedly a delay of about 1 years and for the purpose of calculation and convenience when rounded off, the delay may be taken to be of two years. So far as this delay is concerned, the appellants have undoubtedly a case for payment of some additional compensation in equity though not under law and as this Court is not only a Court of law but a Court of equity as well, it will be impossible for us to deny this relief to the appellants. After taking into consideration the various shades and aspects of the case we are clearly of the opinion that apart from compensation which may be awarded by the Collector or enhanced by the Judge or a higher Court, the appellants should get an equitable compensation in the form of interest calculated at the rate of 7 per cent per annum for two years on the value of land owned by each land-owner. This equitable compensation has been awarded in the special facts of this case and will not be the subject-matter of appeal, if any, under the Act on the amount of compensation. " 44. The said case arose out of a proceeding under the Land Acquisition Act which has no relevance to the issues involved in these appeals. 45. On cancellation of bail Mr. Shah has relied upon a decision of this Court in Raghubir Singh vs. State of Biahr: (1986) 4 SCC 481 wherein this Court observed :- "22. The result of our discussion and the case-law is this: An order for release on bail made under the proviso to Section 167(2) is not defeated by lapse of time, the filing of the charge-sheet or by remand to custody under Section 309(2). The order for release on bail may however be cancelled under Section 437(5) or Section 439(2). Generally the grounds for cancellation of bail, broadly, are, interference or attempt to interfere with the due course of administration of justice, or evasion or attempt to evade the course of justice, or abuse of the liberty granted to him. The due administration of justice may be interfered with by intimidating or suborning witnesses, by interfering with investigation, by creating or causing disappearance of evidence etc. The course of justice may be evaded or attempted to be evaded by leaving the country or going underground or otherwise placing himself beyond the reach of the sureties. He may abuse the liberty granted to him by indulging in similar or other unlawful acts. Where bail has been granted under the proviso to Section 167(2) for the default of the prosecution in not completing the investigation in 60 days, after the defect is cured by the filing of a chargesheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. In the last mentioned case, one would expect very strong grounds indeed. " 46. A bare perusal of the decision of this Court demonstrates that the ratio laid therein runs counter to the submissions of the learned counsel. 47. Reliance has also been placed on I.J. Divakar and others vs. Govt. of Andhra Pradesh and another : (1982) 3 SCC 341. The said decision was rendered under the Industrial Law. Regularization was directed to be provided to the workmen. A Constitution Bench of this Court in Secretary, State of Karnataka and others vs. Umadevi and others : (2006) 4 SCC 1 opined that all such decisions shall stand overruled. Sympathy or sentiment, as is well known, should not allow the Court to have any effect in its decision making process. Sympathy or sentiment can be invoked only in favour a person who is entitled thereto. It should never be taken into consideration as a result whereof the other side would suffer civil or evil consequences. 48. We are at a loss to understand as to on what premise such a contention has been raised. If we accept the contention of the learned counsel the same would mean that we send the old couple to jail or deprive them of their lawful right of a valuable property and/or ask them to meet obligations which statutorily are not theirs. Such a direction, in our opinion, should also not be passed, keeping in view the conduct of the 3rd respondent. She not only filed a large number of cases against her in-laws, some of which have been dismissed for default or withdrawn but also have been filing applications for cancellation of their bail on wholly wrong premise. 49. We may also notice that after the arguments were over, a strange submission was made before us. Learned counsel for respondent No.3 submitted that he may be permitted to withdraw from the case and the 3rd respondent be allowed to argue in person. Such a submission was not expected from a counsel practicing in this Court or form a party, who herself is an Advocate. We deprecate such practice. 50. Having regard to the facts and circumstances of this Court we are of the opinion that the interest of justice shall be subserved if the impugned judgments are set aside with the following directions :- i) The property in question shall be released from attachment. ii) The 3rd respondent shall refund the sum of Rs. 1 lakhs to the respondent with interest @ 6% per annum. iii) The amount of Rs. 4 lakhs deposited by the 1st respondent shall be refunded to him immediately with interest accrued thereon. iv) The 3rd respondent should be entitled to pursue her remedies against her husband in accordance with law. v) The Learned Magistrate before whom the cases filed by the 3d respondent are pending should bestow serious consideration of disposing of the same, as expeditiously as possible. vi) The 3rd respondent shall bear the costs of the appellant which is quantified at Rs.50,000/- (Rupees fifty thousand) consolidated. 51. The appeals are allowed with the aforesaid directions. I.A. for direction Dismissed.

Don"t Afraid...Nothing to Afraid ...If You are not Guilty....but don"t leave them

he best way to come out of false case is to fight for your respect and truth. So do not compromise if you want to come out clean.

There are two types of Compromises – Bringing back 498a girl & pay for 498a.

If 498a is brought back then she has upper hand. Reason – First time 498a Conviction rate is 2% : Second time 498aed Conviction Rate – 97%. The very high chance for success in the second round is also due to the fact that the girl learns new tricks to trap her innocent & improve on what she could not do earlier by learning from mistakes.

With regard to second type of compromise:-

As people go for compromise [legal extortion] results in 498a girl suggesting benefits to any other girl who is going for divorce.

I have seen that a person who faced 498a put up 498a to get back what is lost.

People are learning to do wrong from people who are successfully able to extort.

After 498a girl side push for compromise which I call as legal extortion against what Supreme Court calls “LEGAL TERRORISM”.

For each compromise 10 more girls who are friend/ relative of 498a girl will file 498a looking at the benefits.

To stop 498a from spreading please do not compromise & fight case on merit.

Affect – 498a girl will tell her friends that this is not tool for extorion of money.

If people start to fight the cases & not give to extortion then message will be

different.
tool for extortion. People will also like to know what was her experience. If a
498a girl tells that she is doomed, beaten and nailed down so her friends and
relatives will be afraid to file 498a. Also when such girl makes news that she
failed & is nailed then many more people will learn that it is not so easy to
extort.
favour but when she is beaten her life is miserable.
back by boy. MIL refused even when DSP asked boy to take back the girl. A
message went to her friends & relatives that after 498a girl is not taken back.
Girl side should understand that after 498a no compromise can be reached for
continuing the marriage. This was highlighted in Malimath Report.

Any 498a girl who faces a brave soul like us will tell that 498a is not good

We are doing a great job & have set examples that 498a girl may have law in her

Yesterday a 498a girl was pleading to return to her home but she was not taken

We must now start telling stories of how much misery comes to 498a girl.

This will create an atmosphere where 498a is feared by girl family.

Flipside of dowry law: Men recall how Section 498(A) is unfairly used against wives family

New Delhi: *Forty-six-year-old Alam (name changed) would love to get back to his village in Bihar’s Darbhanga district given half a chance. But he has been stuck in the Gulf country he is in now for eight years; he cannot come back home because he is wanted in a dowry case and also one of domestic violence, both of which he claims to be false.

*Navin (name withheld), an engineer from Tamil Nadu, got married in 2007 and flew to the United States, where was working for a long time. Things went horribly wrong when the recession struck. On the verge of losing his job, he asked his wife to go back to India along with their two-year-old daughter. After returning to India, his wife pressed charges under Section 498A of the IPC (dowry harassment and domestic violence) on him. He was arrested at the airport and got bail after five months.

Representational image. Reuters

Both would like to speak to their spouses and in-laws and try to settle the matter amicably, but the law does not allow them to do so. Despite a significant reduction in the number of domestic violence cases registered in the country in the past three years, thousands of Alams and Navins get thrown behind bars over petty domestic disputes, many of which have nothing to with dowry.

According to the provisional data of the National Crime Records Bureau (NCRB), a total number of 16,351, 4,204 and 531 cases have been registered under the Protection of Women Against Domestic Violence Act, 2005 in 2012, 2013 and 2014. Out of 90,000 to one lakh cases investigated every year, nearly 10,000 complaints of dowry harassment turn out to be false. The figure makes the Protection of Women Against Domestic Violence Act (498A) one of the most abused laws in the country.

The Supreme Court has said in a recent order that Section 498A has "dubious place of pride amongst the provisions that are used as a weapon rather than a shield by disgruntled wives".

The government is now mulling to make Section 498A compoundable, which means the couple would have provision of reconciliation and settlement, if the court allows, as suggested by Malimath Committee. At present, the offence is non-bailable and non-compoundable. Husbands and in-laws are immediately arrested once a case of dowry harassment or domestic violence is filed against them.

The Ministry of Home Affairs is learnt to have sent a draft note for the Union Cabinet to amend Section 498A of the IPC to the Law Ministry for drawing up a draft bill. Under the amended law, there will be a penalty provision of Rs 15,000 as against Rs 1,000 now if the case is found to be false.

However, the move won’t be so easy as Women and Child Development Minister Maneka Gandhi and women’s rights activists have been vociferously opposed it. They argue that any dilution of the law will affect millions of women whose cases may be genuine.

"I don’t think the law should be changed. I feel that this is the only law that gives women protection. It should stay as it is,” said Maneka.

Human rights lawyer Sudha Ramalingam says, “The Supreme Court has already amended the act. Now, husbands and in-laws cannot be arrested immediately after a complaint is registered against them. The police will have to be satisfied first about the need of the arrest. With the proposed amendment, the fear will also go.”

Advocate Satosh Paul, who practices at Supreme Court, believes, “What is the point of having such a law when a person cannot be arrested immediately for stalking a woman?

Harassed husbands and their families are welcoming the government’s move.

"I am extremely happy that the government is thinking on this line. It will come as a great relief for people like me to whom the word marriage now is dreadful. Most of us were set free after being put to untold mental torture and harassment. The conviction rate is very low,” said Suresh C from Andhra Pradesh.

Describing the "harassment of men" as "legal terrorism" perpetrated through “anti-male and anti-family laws”, Amit Gupta of Hridaya, a men’s rights organisation, said, "Section 498A is being widely misused and men are now facing legal terrorism. Large number of such cases are either dismissed or withdrawn."

He stressed on the need for reviewing the law which deals with cases of women being subjected to cruelty and carries a prison term of three years. He also said that contrary to popular belief, a large section of married men are victims of domestic violence.

"A total of 63,343 married men committed suicide in 2012, with a fair amount of them having faced domestic problems," he added.

An instrumentation engineer from Ghazipur in eastern UP who is a divorcee and associated with The Indian Family Foundation said, "Soon after my marriage, my wife wanted me to leave the parents and move to a separate house. I refused and when things went out of control, I got separated. She initiated a case under the Domestic Violence Act against me."

Describing 498A a "draconian law", he said, "Almost twice as many Indian husbands kill themselves as wives — one husband every 8.55 minutes to a wife every 16.7 minutes. But the society only seems to debate the wife’s death. Wife-beating might be an issue of concern, but there is a flip side to it."

"So many here have been beaten up by their wives," says Amit, "But no one uses the term ‘husband-beating’." Likewise, battering of wives by mother-in-law is not the whole truth. Amit says, "A survey has found that mothers beat their daughters eight times more than mothers-in-law do, but no one discusses that."

Accusing the judiciary of treating divorce cases like civil cases, Advocate RP Chugh of Crime Against Men said lengthy and cumbersome procedure is applied with the "little care for the human aspect". "Many divorce cases have been made to linger for decades. It is observed that deaths, suicides, murders, bride and bride groom burning is a direct consequence of defective marriage and divorce laws which do not provide any solution for unworkable marriages."

He further said, "The attitude of courts is over sympathetic to the wives. This approach, however, ignores the fact that denying divorce to the husband where there is no prospect of a happy married life does not solve the wife's problem. It rather creates more bitterness in the relationship."

Husband takes revenge for false 498a-kills four of wife's family. Solution for false 498a

https://www.youtube.com/watch?v=C4BO9t2RezQ

When Relation Goes Worse to Worst

जब रिश्ते ख़राब हो जाते है तो लड़की के परिवार के पास 498A,DV Act etc एक एसा हथियार है जिससे लड़के ब लड़के के परिवार की जिन्दगी बद से बदतर बना दी जाती है!लड़के बाले सामान्यतः इस केस का सामना करने के अलाबा कुछ ऑर कर भी नहीं सकते!
भारतीय कानून महिला अधिकारों से भरा पड़ा है जिसमे पुरुष के पास अपने अधिकारों के बचाब के लिए कोई कानून नही है!एक तरफ़ा कानून की आड़ में पुरुष के पास कोई उपाय नहीं 

Legal Womans Right

महिलाओं के कानूनी अधिकार
घरेलू हिंसा
[डोमेस्टिक वायलेंस एक्ट २००५]
१. शादीशुदा या अविवाहित स्त्रियाँ अपने साथ हो रहे अन्याय व प्रताड़ना को घरेलू हिंसा कानून के अंतर्गत दर्ज कराकर उसी घर में रहने का अधिकार पा सकती हैं जिसमे वे रह रही हैं|
२. यदि किसी महिला की इच्छा के विरूद्ध उसके पैसे, शेयर्स या बैंक अकाउंट का इस्तेमाल किया जा रहा हो तो इस कानून का इस्तेमाल करके वह इसे रोक सकती है|
३. इस कानून के अंतर्गत घर का बंटवारा कर महिला को उसी घर में रहने का अधिकार मिल जाता है और उसे प्रताड़ित करने वालों को उससे बात तक करने की इजाजत नहीं दी जाती|
४. विवाहित होने की स्थिति में अपने बच्चे की कस्टडी और मानसिक/शारीरिक प्रताड़ना का मुआवजा मांगने का भी उसे अधिकार है|
५. घरेलू हिंसा में महिलाएं खुद पर हो रहे अत्याचार के लिए सीधे न्यायालय से गुहार लगा सकती है, इसके लिए वकील को लेकर जाना जरुरी नहीं है| अपनी समस्या के निदान के लिए पीड़ित महिला- वकील प्रोटेक्शन ऑफिसर और सर्विस प्रोवाइडर में से किसी एक को साथ ले जा सकती है और चाहे तो खुद ही अपना पक्ष रख सकती है|
६. भारतीय दंड संहिता ४९८ के तहत किसी भी शादीशुदा महिला को दहेज़ के लिए प्रताड़ित करना कानूनन अपराध है| अब दोषी को सजा के लिए कोर्ट में लाने या सजा पाने की अवधि बढाकर आजीवन कर दी गई है|
७. हिन्दू विवाह अधिनियम १९९५ के तहत निम्न परिस्थितियों में कोई भी पत्नी अपने पति से तलाक ले सकती है- पहली पत्नी होने के वावजूद पति द्वारा दूसरी शादी करने पर, पति के सात साल तक लापता होने पर, परिणय संबंधों में संतुष्ट न कर पाने पर, मानसिक या शारीरिक रूप से प्रताड़ित करने पर, धर्म परिवर्तन करने पर, पति को गंभीर या लाइलाज बीमारी होने पर, यदि पति ने पत्नी को त्याग दिया हो और उन्हें अलग रहते हुए एक वर्ष से अधिक समय हो चुका हो तो|
८. यदि पति बच्चे की कस्टडी पाने के लिए कोर्ट में पत्नी से पहले याचिका दायर कर दे, तब भी महिला को बच्चे की कस्टडी प्राप्त करने का पूर्ण अधिकार है|
९. तलाक के बाद महिला को गुजाराभत्ता, स्त्रीधन और बच्चों की कस्टडी पाने का अधिकार भी होता है, लेकिन इसका फैसला साक्ष्यों के आधार पर अदालत ही करती है|
१०. पति की मृत्यु या तलाक होने की स्थिति में महिला अपने बच्चों की संरक्षक बनने का दावा कर सकती है|
११. भारतीय कानून के अनुसार, गर्भपात कराना अपराध की श्रेणी में आता है, लेकिन गर्भ की वजह से यदि किसी महिला के स्वास्थ्य को खतरा हो तो वह गर्भपात करा सकती है| ऐसी स्तिथि में उसका गर्भपात वैध माना जायेगा| साथ ही कोई व्यक्ति महिला की सहमति के बिना उसे गर्भपात के लिए बाध्य नहीं कर सकता| यदि वह ऐसा करता है तो महिला कानूनी दावा कर सकती है|
१२. तलाक की याचिका पर शादीशुदा स्त्री हिन्दू मैरेज एक्ट के सेक्शन २४ के तहत गुजाराभत्ता ले सकती है| तलाक लेने के निर्णय के बाद सेक्शन २५ के तहत परमानेंट एलिमनी लेने का भी प्रावधान है| विधवा महिलाएं यदि दूसरी शादी नहीं करती हैं तो वे अपने ससुर से मेंटेनेंस पाने का अधिकार रखती हैं| इतना ही नहीं, यदि पत्नी को दी गई रकम कम लगती है तो वह पति को अधिक खर्च देने के लिए बाध्य भी कर सकती है| गुजारेभत्ते का प्रावधान एडॉप्शन एंड मेंटेनेंस एक्ट में भी है|
१३. सीआर. पी. सी. के सेक्शन १२५ के अंतर्गत पत्नी को मेंटेनेंस, जो कि भरण-पोषण के लिए आवश्यक है, का अधिकार मिला है|
यहाँ पर यह जान लेना जरुरी होगा कि जिस तरह से हिन्दू महिलाओं को ये तमाम अधिकार मिले हैं, उसी तरह या उसके समकक्ष या सामानांतर अधिकार अन्य महिलाओं [जो कि हिन्दू नहीं हैं] को भी उनके पर्सनल लॉ में उपलब्ध हैं, जिनका उपयोग वे कर सकती हैं|
लिव इन रिलेशनशिप से जुड़े अधिकार
१४. लिव इन रिलेशनशिप में महिला पार्टनर को वही दर्जा प्राप्त है, जो किसी विवाहिता को मिलता है|
१५. लिव इन रिलेशनशिप संबंधों के दौरान यदि पार्टनर अपनी जीवनसाथी को मानसिक या शारीरिक प्रताड़ना दे तो पीड़ित महिला घरेलू हिंसा कानून की सहायता ले सकती है|
१६. लिव इन रिलेशनशिप से पैदा हुई संतान वैध मानी जाएगी और उसे भी संपत्ति में हिस्सा पाने का अधिकार होगा|
१७. पहली पत्नी के जीवित रहते हुए यदि कोई पुरुष दूसरी महिला से लिव इन रिलेशनशिप रखता है तो दूसरी पत्नी को भी गुजाराभत्ता पाने का अधिकार है|
बच्चों से सम्बंधित अधिकार
१८. प्रसव से पूर्व गर्भस्थ शिशु का लिंग जांचने वाले डॉक्टर और गर्भपात कराने का दबाव बनानेवाले पति दोनों को ही अपराधी करार दिया जायेगा| लिंग की जाँच करने वाले डॉक्टर को ३ से ५ वर्ष का कारावास और १० से १५ हजार रुपये का जुर्माना हो सकता है| लिंग जांच का दबाव डालने वाले पति और रिश्तेदारों के लिए भी सजा का प्रावधान है|
१९. १९५५ हिन्दू मैरेज एक्ट के सेक्शन २६ के अनुसार, पत्नी अपने बच्चे की सुरक्षा, भरण-पोषण और शिक्षा के लिए भी निवेदन कर सकती है|
२०. हिन्दू एडॉप्शन एंड सेक्शन एक्ट के तहत कोई भी वयस्क विवाहित या अविवाहित महिला बच्चे को गोद ले सकती है|
२१. यदि महिला विवाहित है तो पति की सहमति के बाद ही बच्चा गोद ले सकती है|
२२. दाखिले के लिए स्कूल के फॉर्म में पिता का नाम लिखना अब अनिवार्य नहीं है| बच्चे की माँ या पिता में से किसी भी एक अभिभावक का नाम लिखना ही पर्याप्त है|
जमीन जायदाद से जुड़े अधिकार
२३. विवाहित या अविवाहित, महिलाओं को अपने पिता की सम्पत्ति में बराबर का हिस्सा पाने का हक है| इसके अलावा विधवा बहू अपने ससुर से गुजराभात्ता व संपत्ति में हिस्सा पाने की भी हकदार है|
२४. हिन्दू मैरेज एक्ट १९५५ के सेक्शन २७ के तहत पति और पत्नी दोनों की जितनी भी संपत्ति है, उसके बंटवारे की भी मांग पत्नी कर सकती है| इसके अलावा पत्नी के अपने ‘स्त्री-धन’ पर भी उसका पूरा अधिकार रहता है|
२५. १९५४ के हिन्दू मैरेज एक्ट में महिलायें संपत्ति में बंटवारे की मांग नहीं कर सकती थीं, लेकिन अब कोपार्सेनरी राइट के तहत उन्हें अपने दादाजी या अपने पुरखों द्वारा अर्जित संपत्ति में से भी अपना हिस्सा पाने का पूरा अधिकार है| यह कानून सभी राज्यों में लागू हो चुका है|
कामकाजी महिलाओं के अधिकार
२६. इंडस्ट्रियल डिस्प्यूट एक्ट रूल- ५, शेड्यूल-५ के तहत यौन संपर्क के प्रस्ताव को न मानने के कारण कर्मचारी को काम से निकालने व एनी लाभों से वंचित करने पर कार्रवाई का प्रावधान है|
२७. समान काम के लिए महिलाओं को पुरुषों के बराबर वेतन पाने का अधिकार है|
२८. धारा ६६ के अनुसार, सूर्योदय से पहले [सुबह ६ बजे] और सूर्यास्त के बाद [शाम ७ बजे के बाद] काम करने के लिए महिलाओं को बाध्य नहीं किया जा सकता|
२९. भले ही उन्हें ओवरटाइम दिया जाए, लेकिन कोई महिला यदि शाम ७ बजे के बाद ऑफिस में न रुकना चाहे तो उसे रुकने के लिए बाध्य नहीं किया जा सकता|
३०. ऑफिस में होने वाले उत्पीड़न के खिलाफ महिलायें शिकायत दर्ज करा सकती हैं|
३१. प्रसूति सुविधा अधिनियम १९६१ के तहत, प्रसव के बाद महिलाओं को तीन माह की वैतनिक [सैलरी के साथ] मेटर्निटीलीव दी जाती है| इसके बाद भी वे चाहें तो तीन माह तक अवैतनिक [बिना सैलरी लिए] मेटर्निटी लीव ले सकती हैं|
३२. हिन्दू उत्तराधिकार अधिनियम १९५६ के तहत, विधवा अपने मृत पति की संपत्ति में अपने हिस्से की पूर्ण मालकिन होती है| पुनः विवाह कर लेने के बाद भी उसका यह अधिकार बना रहता है|
३३. यदि पत्नी पति के साथ न रहे तो भी उसका दाम्पत्य अधिकार कायम रहता है| यदि पति-पत्नी साथ नहीं भी रहते हैं या विवाहोत्तर सेक्स नहीं हुआ है तो दाम्पत्य अधिकार के प्रत्यास्थापन [रेस्टीट्यूशन ऑफ़ कॉन्जुगल राइट्स] की डिक्री पास की जा सकती है|
३४. यदि पत्नी एचआईवी ग्रस्त है तो उसे अधिकार है कि पति उसकी देखभाल करे|
३५. बलात्कार की शिकार महिला अपने सेक्सुअल बिहेवियरमें प्रोसिंक्टअस [Procinctus] तो भी उसे यह अधिकार है कि वह किसी के साथ और सबके साथ सेक्स सम्बन्ध से इनकार कर सकती है, क्योंकि वह किसी के या सबके द्वारा सेक्सुअल असॉल्ट के लिए असुरक्षित चीज या शिकार नहीं है|
३६. अन्य समुदायों की महिलाओं की तरह मुस्लिम महिला भी दंड प्रक्रिया संहिता की धारा १२५ के तहत गुजाराभत्ता पाने की हक़दार है| मुस्लिम महिला अपने तलाकशुदा पति से तब तक गुजाराभत्ता पाने की हक़दार है जब तक कि वह दूसरी शादी नहीं कर लेती है| [शाह बानो केस]
३७. हाल ही में बोम्बे हाई कोर्ट द्वारा एक केस में एक महत्वपूर्ण फैसला लिया गया कि दूसरी पत्नी को उसके पति द्वारा दोबारा विवाह के अपराध के लिए दोषी नहीं ठहराया जा सकता, क्योंकि यह बात नहीं कल्पित की जा सकती कि उसे अपने पति के पहले विवाह के बारे में जानकारी थी|
अधिकार से जुड़े कुछ मुद्दे ऐसे भी
३८. मासूम बच्चियों के साथ बढ़ते बलात्कार के मामले को गंभीरता से लेते हुए हाल ही में सुप्रीम कोर्ट ने जनहित याचिका पर महत्वपूर्ण निर्देश दिया है| अब बच्चियों से सेक्स करनेवाले या उन्हें वेश्यावृत्ति में धकेलने वाले लोगों के खिलाफ बलात्कार के आरोप में मुकदमें दर्ज होंगे, क्योंकि चाइल्ड प्रोस्टीट्यूशान बलात्कार के बराबर अपराध है|
३९. कई बार बलात्कार की शिकार महिलायें पुलिस जाँच और मुकदमें के दौरान जलालत व अपमान से बचने के लिए चुप रह जाती है| अतः हाल ही में सरकार ने सीआर. पी. सी. में बहुप्रतीक्षित संशोधनों का नोटिफिकेशान कर दिया है, जो इस प्रकार है-
बलात्कार से सम्बंधित मुकदमों की सुनवाई महिला जज ही करेगी|
ऐसे मामलों की सुनवाई दो महीनों में पूरी करने के प्रयास होंगे|
बलात्कार पीडिता के बयान महिला पुलिस अधिकारी दर्ज करेगी|
बयान पीडिता के घर में उसके परिजनों की मौजूदगी में लिखे जायेंगे|
४०. रुचिका-राठौड़ मामले से सबक लेते हुए कानून मंत्रालय अब छेड़छाड़ को सेक्सुअल क्राइम्स [स्पेशल कोटर्स] बिल २०१० नाम से एक विधेयक का एक मसौदा तैयार किया| इसके तहत छेडछाड को गैर-जमानती और संज्ञेय अपराध माना जायेगा| यदि ऐसा हुआ तो छेड़खानी करने वालों को सिर्फ एक शिकायत पर गिरफ्तार किया जा सकेगा और उन्हें थाने से जमानत भी नहीं मिलेगी|
४१. यदि कोई व्यक्ति सक्षम होने के बावजूद अपनी माँ, जो स्वतः अपना पोषण नहीं कर सकती, का भरण-पोषण करने की जिम्मेदारी नहीं लेता तो कोड ऑफ़ क्रिमिनल प्रोसीजर सेक्शन १२५ के तहत कोर्ट उसे माँ के पोषण के लिए पर्याप्त रकम देने का आदेश देता है|
४२. हाल में सरकार द्वारा लिए गए एक निर्णय के अनुसार अकेली रहने वाली महिला को खुद के नाम पर राशन कार्ड बनवाने का अधिकार है|
४३. लड़कियों को ग्रेजुएशन तक फ्री-एजुकेशन पाने का अधिकार है|
४४. यदि अभिभावक अपनी नाबालिग बेटी की शादी कर देते हैं तो वह लड़की बालिग होने पर दोबारा शादी कर सकती है, क्योंकि कानूनी तौर पर नाबालिग विवाह मान्य नहीं होती है|
पुलिस स्टेशन से जुड़े विशेष अधिकार
४५. आपके साथ हुआ अपराध या आपकी शिकायत गंभीर प्रकृति की है तो पुलिस एफआईआर यानी फर्स्ट इनफार्मेशन रिपोर्ट दर्ज करती है|
४६. यदि पुलिस एफआईआर दर्ज करती है तो एफआईआर की कॉपी देना पुलिस का कर्तव्य है|
४७. सूर्योदय से पहले और सूर्यास्त के बाद किसी भी तरह की पूछताछ के लिए किसी भी महिला को पुलिस स्टेशन में नहीं रोका जा सकता|
४८. पुलिस स्टेशन में किसी भी महिला से पूछताछ करने या उसकी तलाशी के दौरान महिला कॉन्सटेबल का होना जरुरी है|
४९. महिला अपराधी की डॉक्टरी जाँच महिला डॉक्टर करेगी या महिला डॉक्टर की उपस्थिति के दौरान कोई पुरुष डॉक्टर|
५०. किसी भी महिला गवाह को पूछताछ के लिए पुलिस स्टेशन आने के लिए बाध्य नहीं किया जा सकता| जरुरत पड़ने पर उससे पूछताछ के लिए पुलिस को ही उसके घर जाना होगा|

what is solution

In the current situation, the law is becoming a tool for the well-heeled and well-educated class but not reaching those who actually need it, according to Gokul. "The women who actually get physically abused mostly belong to the lower strata of society and they rarely make use of this law," he says.According to the victims, our system is not equipped for such law either. "The policemen involved know in most cases that they are dealing with a false case. But they go with whoever offers them bribes. There should be a proper investigation in each case before the arrest, and also there should be a fear of punishment in the event of misuse. As of now, if the charges are found to be false, the accused are just acquitted," says Sadhana.According to Lekha, a blanket ban on dowry will only lead to misuse of law. "Voluntary dowry should be made legal. Whatever is given as dowry should be recorded, together with the property or assets have been bought with it," she says. A few feel that laws should be made gender neutral. "This would ensure that the current laws cannot be held as a threat by one gender over the other. The original intention of the laws was to protect women. But today, because of one woman, there is a potential to falsely implicate more than one woman under these laws. Why is it that only a daughter-in-law has the right to law? What if the daughter-in-law is herself a perpetrator of domestic violence?" asks Kaushik C, yet another victim.However, there are also those who feel that the issue is being blown out of proportion. Says Preetha K K, a legal expert, "There is no strong law other than 498A to protect women from violence. Changing it for the sake of fear of misuse is ridiculous. People are conveniently forgetting the umpteen number of cases where the boy's family takes away the entire dowry amount, buys property with it in their own names, and throw the girl out of the house. The issue here is that genuine cases are not reaching the court

Indexes What Says about These cases in Delhi

NEW DELHI: Every year more than 10,000 complaints of dowry harassment are found to be false. Given that close to 90,000 to 1 lakh cases are investigated every year, the figure makes it one of the most abused laws in the country.Government is now working on a proposal to make Section 498A of the Indian Penal Code—that deals with offences engof dowry demand and cruelty by husband and in-laws—compoundable. This means that the law, if amended, would have the provision of settlement between the warring couple if the court allows the same.READ ALSO: False dowry charge ground for divorce, Supreme Court rulesAs the law stands now, the offence is non-compoundable and non-bailable. This leads to immediate arrest of husband and in-laws with onus to prove their innocence on them. It also rules out any effort at reconciliation.Sources in home ministry said that the ministry sent a draft note for the Union Cabinet to amend Section 498A of the IPC to the law ministry for drawing up a draft bill. Making dowry law compoundable was also among recommendations made by the law commission and Justice Malimath Committee.The new law would also have penalty provisions of Rs 15,000 as against Rs 1,000 now if the case is found to be false, said sources.However, it would not be easy to get an amendment such as this through easily as women's rights activists have been vociferously opposed to such moves in the past. The argument against any dilution of the law is that it is the strength that several economically dependent and helpless women have against dowry harassment. A dilution effected due to over 10% false cases will affect millions whose cases may be genuine.

If you juxtapose NCRB data on the crimes registered and persons convicted, it can be safely assumed that nearly 98% of Dowry cases registered in India are false.

Also, w.r.t. Domestic Violence Cases, the common perception is that they are also overwhelmingly false. A study done by a Bangalore based Mens Rights Organization put the no. of false cases upwards of 90%. Though no extensive independent study has been done about it and no data is collated by any government agency about the same.

Go to Different Foundation Helping Harassed Husbands

Go to Different Foundation Helping Harassed Husbands

The primary goal of SIFF is to put an end to the epidemic of false dowry, false domestic violence and false rape cases in India, to create gender neutral laws and end discrimination of men and male disposability. If you are looking for guidance for your marital problems and peace of mind, then a few of the wonderful guys with vast experience are associated with SIFF and its Partner Organisations. Here is the advice for you. (1) Do not Panic (2) Be Patient as you seek advice from them. Call Timings: 10 AM – 10 PM IST
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http://www.saveindianfamily.org/contact/

Guideline For Police Case via Arnesh Kumar SC Judgment

Although most of the time I see that the people joining men’s forums are not getting arrested upon 498A FIR, there are a few who have been arrested.  I think they are aware of the SC judgment against arbitrary arrest in 498A, but haven’t taken any action against police/magistrate after that.  The Arnesh Kumar SC judgment is already blogged here which gives full judgment text of “no automatic arrests in 498A” judgment by Supreme Court on Jul 2, 2014.  This post is meant for anyone who got arrested under 498A after Jul 2, 2014, and wants to do something about it.After the above judgment has come into force, based on my assessment from calls received, the number of arrests under 498A seem to have come down by 70-80% at least.  We cannot be sure of the exact statistics until NCRB (National Crime Records Bureau) releases its update of crime statistics which incorporate data after Jul 2014.  It’s also possible that in some states like West Bengal, Bihar, Jharkhand, many of the falsely accused don’t call men’s rights helplines, so with lower awareness of citizens’ rights the number of arrests may be more; and  also we don’t get to hear about many of those arrests.
Below, I give the main points from SC judgment, and basic scenarios how police may behave after 498A FIR is filed; and how to complain to authorities if you were unjustifiably arrested after filing of IPC 498A case after Jul 2, 2014.  Note that it is possible that along with IPC 498A there was another IPC section in complaint which has more than 7 years punishment, so the SC judgment on 498A/7 years limit may not be applicable.

In the Arnesh Kumar SC judgment, the 6 points at end of the judgment give all the steps which police needs to follow in line with CrPC 41 and 41A; those 6 points are reproduced verbatim below:

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Penal actions on police for arbitrary arrests under IPC 498a (and other offences up to 7 years punishment)
Penal actions on magistrates for routinely allowing arrests without scrutiny
Possible scenarios after 498A FIR is filed with respect to police and CrPC 41, 41A

(1) All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;

(2) All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);

(3) The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

(4) The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention

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(5) The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;

(6) Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;

Now after the above 6 points, follow the main points (7) and (8) in the Arnesh Kumar SC judgment (the headlines are mine, not part of judgment), which defined what action can be taken against police or magistrate or both of them.

(7) Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.

(8) Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

So what you need to do is check if the points (1) to (6) were followed or not fully.  If not, then using points (7) and (8) above you can approach senior police or high courts against police and magistrates for action against them.  Below is how various combination of scenarios will work out in any 498A case.

1. Happy scenario of law abiding police: Police follows CrPC 41 and 41A procedures, and sends notice of appearance under CrPC 41A to accused husband/his family.  This seems to be happening in most of cases these days.  If the accused cooperate, the police cannot do anything except call them maybe couple of times and take their statement etc.

2. Law abiding police, but accused go into hiding: Police follows CrPC 41 and 41A procedures, and sends notice of appearance to accused husband/his family.  The accused husband/familylose nerve fearing arrest, and instead of complying with notice, they go absconding trying to get an anticipatory bail in the meantime.  As per law (don’t ask me about the CrPC sections, I am not studying to become a lawyer), they can be declared absconders from law.  If they get anticipatory bail while absconding, well and good, but if they don’t, then they will have no choice left but appear in front of court and surrender, and hope to get bail same day or else get remanded to judicial custody.  In most places, people get bail after 3 days maximum but in few dark corners of India where men’s rights has not penetrated fully, it may happen only after 14-15 days.

3. Police follows oppressive tactics: Police does not follow CrPC 41 and 41A procedures, andarrest husband/family members arbitrarily and without reason, and police has no good evidence to show to court why arresting the accused was necessary.  Now when the accused are produced in front of magistrate, the magistrate has to look at the 6 points given above in Arnesh Kumar SC judgment, and if those points were not followed, then point (7) of the judgment can be used against police.  The magistrate finds from the records given by police that they did not follow the CrPC 41A procedure, and grants bail to accused, and also orders for departmental action against police personnel.  In fact, in order pasted at end of post, the Punjab and Haryana HC has done exactly that and started departmental action against police personnel by following point (7) of judgment.

4. Police oppressive, magistrates sleeping on job: Same scenario as in point 3 above, where police does not follow CrPC 41 and 41A procedures, and arrest husband/family members arbitrarily and without reason, and police has no good evidence to show to court why arresting the accused was necessary.  But what happens now is that the magistrate also does not do the job as he is expected to do, and does not check whether police recorded reasons for arrest, and/or whether the reasons recorded for arrest were justified or not.  Now in this case, both police and magistrate have failed and they are both liable for penal action against them.  Now along with point (7) against police, point (8) against magistrate will also come into play.