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Court Has Discretion To Drop NI Act Proceedings Sans Complainant’s Consent If Accused Offers Fair Amount as Compensation: Allahabad The case in brief Essentially, a complaint was filed by Revisionist/Rani Gaur in August 2009 against the Accused under Section 138 of the . The matter is presently pending before the trial court. Now, during the course ofproceedings, the accused filed a demand draft of Rs. 11 lakhs n the court and made a prayer before it to direct the revisionist/complainant to compound the case.
The revisionist objected to compounding saying that she is not ready to settle the matter for Rs. 11 lakhs after a lapse of 13 years. The Magistrate concerned rejected the application of the accused on the ground that the complainant cannot be compelled to compound the matter. Thereafter, the accused challenged the aforesaid order by filing a revision; the revision came to be decided by the revisional court (Sessions Judge, Meerut) whereby the impugned order was set aside and the trial court was directed to pass an appropriate order as per the law laid down by the Apex Court.Then revisionist move to high court Court's order At the outset, the Court pursued the order of the Supreme Court to note that the Top Court has carved out a window in the existing scheme
of things saying that the case can be disposed of without obtaining direct consent of the complainant under certaincircumstances. Discretionary power under Section 258 crpc.

[ALTERING FATHER'S NAME IN BIRTH CERTIFICATE] BIOLOGICAL FATHER'S CONSENT NOT REQUIRED IN ABSENCE OF CHALLENGE TO ADOPTION DEED: GUJARAT HIGH COURT

The Gujarat High Court has reiterated that a Registrar under the Births and Deaths Registration Act is bound to issue certificate in the name of adoptive father where there is no rebuttal to the adoption deed of the Applicant.

The observation was made by Justice AS Supehia in a petition moved by the mother of one 'Nidhi', seeking to include her second husband/ Nidhi's adoptive father's name in Nidhi's birth certificate. The bench observed that the Registrar cannot insist on a decree of the Court with regard to the adoption since as per Section 16 of the Hindu Adoption and Maintenance Act, 1956, a "presumption" is drawn in favour of the Petitioner under Section 16 of the Adoptions Act, since there is no rebuttal to the adoption deed of her daughter "Nidhi".

'Nidhi' was born out of Petitioner's first marriage. As the husband of the Petitioner passed away, she remarried. Consequently, an adoption deed was executed in her husband's favour.

The Petitioner also applied for the change in name of her daughter's surname in accordance with her father's name and the same was published in the Gujarat Government Gazette, as well. In 2021, the Petitioner approached the Respondent Authority seeking issuance of a certificate in the name of the adoptive father, but the Respondent authority did not issue the certificate stating that no record was not available to the authority, and an "inaccessible certificate" was issued.

The Petitioner relied on Section 15 of the Registration of Births and Deaths Act, 1969 to aver that power has been vested in the Respondent authority to effect change in the name in the birth certificate. Per the Petitioner, the Respondent did not apply any mind in considering the documents produced on record and instead directed the Petitioner to obtain a judicial order from the High Court.

Reference was made to Sukumar Mehta vs. District Registrar, Births And Deaths, 1993 (1) G.L.R. 93, Sejalben Mukundbhai Patel W/o Khodabhai Joitaram Patel, 2019 (3) G.L.R. 1866 to insist that the Respondent authority is required to issue a certificate in the name of her adoptive father since the adoption deed was not questioned by anyone.

Justice Supehia noted that the register in which the birth of the Petitioner's name was in 'torn and shabby condition.' Further, the Respondent had 'conveniently' issued an inaccessible certificate instead of issuing a fresh birth certificate in the name of the Petitioner's daughter with her new surname. Additionally, the fact of the Petitioner's former husband's death and her remarriage were not in dispute. Proper documents, including the adoption deed of the Petitioner's daughter 'Nidhi', were available. The change in name had also been published in the Gujarat Government Gazette with her new surname.

It referred to a previous decision of the High Court where it was held: "while exercising powers under section 15 of the Registration Act, the Registrar can correct an entry already made in the Birth Register if the same is conceded, and such correction should legitimately take within its sweep the correction of entries rightfully made, since it is the correction of the name of the child at the instance of the parents of wards."

In view of the above, the Court directed the Registrar to correct the father's name incorporating the name of adoptive father and issue a fresh birth certificate within a period of three months.

Also Read: [Altering Father's Name In Birth Certificate] Biological Father's Consent Not Required In Absence Of Challenge To Adoption Deed: Gujarat High Court

Case Title: KAJALBEN RAKESHBHAI BHADIYADRA v/s THE REGISTRAR, REGISTRATION OF BIRTH AND DEATH

Case No.: C/SCA/18439/2021

Citation: 2022 LiveLaw (Guj) 240

TALAQNAMA NOT SUFFICIENT PROOF OF MUSLIM DIVORCE: BOMBAY HC

Mere existence of a document like talaqnama, is not sufficient to render a valid Talaq. Justice M.S. Sonak held that, for a valid Talaq, it is not sufficient that the prescribed expressions are pronounced thrice but the stages it is preceded by, are required to be pleaded and proved before the Court, if disputed by wife, the Court held.

The Bombay High Court in Shakil Ahmad Jalaluddin Shaikh vs. Vahida Shakil Shaikh has held that, mere existence of a document like talaqnama, is not sufficient to render a valid Talaq. Justice M.S. Sonak held that, for a valid Talaq, it is not sufficient that the prescribed expressions are pronounced thrice but the stages it is preceded by, are required to be pleaded and proved before the Court, if disputed by wife.
Context
In this case a Muslim wife's application under Section 125 CrPC was dismissed by Magistrate and by exercising revisional Jurisdiction, the Sessions Court had allowed it. The Husband challenged this order of Sessions court before the High Court contending that he had validly divorced his wife and thereafter in terms of the provisions contained in Muslim Women (Protection of Rights of Divorce) Act, 1986, there was no obligation on his part to give any maintenance to the wife beyond the Iddat period.
Mere Talaqnama not sufficient to prove divorce
Rejecting his contention that the Sessions Court exceeded its RevisionalJurisdiction, the High Court held that the Court has merely applied the legal position clarified by the Full Bench of Bombay High Court in the case of DAGDU CHOTU PATHAN VS. RAHIMBI DAGDU PATHAN. In, Dagdu Pathan case Full Bench had held the following
Even if such statement in writing or made orally before the Court is supported by a Talaknama, which may be a record of the fact of an oral Talaq or may be the deed by which the divorce is effected but that supportive document by itself does not lead to a conclusion that the Talaq was valid, effective and legal
Mere existence of this document does not make the Talaq valid or legal and, therefore, it is necessary that the factum of Talaq and the stages it is preceded by, are required to be proved before the Court, if disputed by the wife and mere intentions of the husband while making such a statement before the Court cannot be accepted to be a valid Talaq from the date such a statement was made before the Court and in any form.
The factum of conciliation or arbitration is also one of the conditions preceding the process of Talaq in any of these forms namely "Ahsan" and "Hasan".
Husband has to set out before the Court the reasons for such a divorce and whether he had sought the help of arbitrators for reconciliation at any time before the wife approached the Court before he filed his written statement or before he appeared in the witness box to take such a plea of Talaq.
Talaq should be duly proved and it is further proved that it was given by following the conditions precedent viz. that of arbitration/ reconciliation and for valid reasons and more so when the mode of divorce alleged to have been given in the "Ahsan" or "Hasan" form. The factum of divorce is required to be proved, including the conditions precedent therefor, by evidence both oral and documentary, when the same is disputed by the wife before a competent Court.
Applying the principles laid down by Full Bench, the Court held that in case the pre-condition with regard to the arbitration and reconciliation have not at all been established and there are neither any pleadings nor is there any material to establish that any arbiters or conciliators were at all appointed and that such arbiters or conciliators attempted any reconciliation, with a view to explore the possibility of the continuance. The Court upheld the Sessions Court order granting maintenance to wife holding that mere existence of a document like talaqnama, is not sufficient to render a valid Talaq.

PERSON INVOLVED IN LIVE-IN RELATION WITHOUT OBTAINING DIVORCE FROM SPOUSE MAY FACE BIGAMY CHARGE: P&H HIGH COURT

The Punjab & Haryana High Court recently observed that if a married person is in live-in-relationship, without obtaining a divorce from his/her spouse, then that may amount to an offence under 494 of the Indian Penal Code (Bigamy).

The Bench of Justice Ashok Kumar Verma observed thus while dealing with a plea filed by a woman, along with her partner, who was in a live-in relationship without obtaining a divorce from her husband.

Essentially, petitioners (Woman and her partner) approached the Court seeking issuance of directions to respondents No.1 to 3 to protect their life and liberty at the hands of private respondents, submitting that they are in live-in-relationship against the wishes of the private respondents.

The Court, perusing the case records, observed that petitioner No.1 (Harpreet Kaur) aged about 23 years is legally wedded wife of respondent No.4 (Gurjant Singh), and without seeking a divorce from her spouse, she is living a lustful and adulterous life with petitioner No.2.

In view of this, stressing that such a relationship does not fall within the phrase "live-in relationship" or "relationship" in the nature of marriage, the Court observed thus:

" Once petitioner No.1 is a married woman being the wife of respondent No.4-Gurjant Singh, the act of petitioners particularly petitioner No.1 (erroneously written in the order as petitioner number 2) may constitute an offense under Sections 494/495 IPC".
Further, noting that the instant petition had been filed just to obtain a seal of the Court on their so-called live-in-relationship, the Court added thus:

" Petitioners have no legal right for protection on the facts of the present case inasmuch as the protection as being asked may amount to protection against the commission of offence under Section 494/495 IPC. "
Last month, the Punjab & Haryana High Court had dismissed a protection plea filed by a live-in couple observing that they both are in living a lustful and adulterous life with each other without obtaining a divorce from their respective spouses.

The Bench of Justice Arvind Singh Sangwan was dealing with a plea filed by a live-in couple who submitted that they both are in love with each other for the last so many years and are in a live-in relationship for the last one month.

In related news, denying police protection to a widow, who was living with a married man, the Rajasthan High Court had recently observed that such a relationship between the petitioners doesn't come under the purview of a legal Live-in relationship and rather, such relationships are 'Purely Illegal' and 'Anti-Social'.

Observing that live-in-relationship cannot be at the cost of the social fabric of this Country¸the Allahabad High Court recently dismissed the protection plea of a married woman living with her partner with an exemplary cost of Rs.5,000.

Calling her live-in relationship with her partner an illicit relationship, the Bench of Justice Dr. Kaushal Jayendra Thaker and Justice Subhash Chand had observed thus:

" Directing the police to grant protection to them may indirectly give our assent to such illicit relations"
However, the Punjab & Haryana High Court had expressed its disagreement with the Allahabad HC's and had held that no offence would be made out if being adults, two people are in a live-in relationship with each other, even though they are already married to someone else.

Case title - Harpreet Kaur and another v. State of Punjab and others

[N.I ACT]COURT WITHIN WHOSE JURISDICTION THE BANK BRANCH WHERE THE PAYEE MAINTAINS THE ACCOUNT IS SITUATED, CAN TRY CHEQUE BOUNCE COMPLAINT: SC

The court within whose jurisdiction the branch of the bank where the payee maintains the account is situated, will have jurisdiction to try the offence, if the cheque is delivered for collection through an account, noted the Supreme Court while dismissing a transfer petition.

In this case, Himalaya Self Farming Group had approached the Apex Court by filing a petition under Section 406 of CrPC contending that under the delivery challan, all disputes between the parties are made subject to the jurisdiction of courts in Siliguri; and that when the Group has its Head Office in Siliguri there was no reason to lodge the complaint at Agra except to harass it.

The court said that if the delivery challan which states that all disputes will be subject to the jurisdiction of courts in Siliguri, is construed by the petitioners to constitute a bar for the courts in any other jurisdiction to entertain the proceedings, it is always open to the petitioners to raise this point before the Agra Court. This cannot be a ground for seeking transfer, the court added.

Regarding the second ground, Justice V. Ramasubramanian said:

The fact that the respondent has its Head Office at Siliguri and that there is no reason why it chose to file a complaint in Agra except to harass the petitioners, cannot also be a ground for seeking transfer. Under Section 142(2)(a) of the Negotiable Instrument Act, the court within whose jurisdiction the branch of the bank where the payee maintains the account is situated, will have jurisdiction to try the offence, if the cheque is delivered for collection through an account. Therefore, all the grounds on which the petitioners seek transfer, are unsustainable.
In Dashrath Rupsingh Rathod vs. State of Maharashtra, a three Judge Bench of the Supreme Court held that a Complaint of Dis-honour of Cheque can be filed only to the Court within whose local jurisdiction the offence was committed, which in the present context is where the cheque is dishonoured by the bank on which it is drawn.

Vide 2015 amendment to Negotiable Instruments Act, the above judicial dictum was nullified. Now the offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction,—(a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or (b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated.

Case name: M/S HIMALAYA SELF FARMING GROUP vs. M/S GOYAL FEED SUPPLIERS
Case no.: Transfer Petition (Criminal) No.273 of 2020
Coram: JUSTICE V. RAMASUBRAMANIAN

GIRLFRIEND OR CONCUBINE NOT LIABLE FOR PROSECUTION U/S 498A IPC: ANDHRA PRADESH HIGH COURT

The Andhra Pradesh High Court earlier this week held that only a relative of a husband by blood or marriage is liable for prosecution under Section 498-A IPC (cruelty to woman).

Justice Cheekati Manavendranath while quashing the FIR against the petitioner, observed that a girlfriend or concubine, not being connected by blood or marriage, is not a relative of the husband for the purpose of Section 498-A IPC.

The petitioner was arrayed as the second accused in a case registered under Sections 498-A and 114 IPC. The allegation raised by the defacto complainant was that her husband, who is arraigned as the first accused, developed illegal intimacy with the petitioner. According to the complainant, the petitioner was her husband's girlfriend.

Advocate Naga Praveen Vankayalapati appeared for the petitioner and sought to quash the FIR primarily on the ground that only relatives of the husband connected by blood or marriage are liable for prosecution under Section 498-A IPC. It was argued that a girlfriend or concubine was therefore not liable for prosecution under the provision.

This Court found considerable force in the above contention of the petitioner, and opined as follows:

"It is now well-settled law that only a relative of a husband by blood or marriage is liable for prosecution under Section 498-A IPC. Girlfriend or concubine, being not connected by blood or marriage, is not a relative of the husband for the purpose of Section 498-A IPC. The Apex Court in the case of U. Suvetha Vs. State [(2009) 6 SCC 757], held that persons who can commit offence under Section 498-A IPC are husbands and relatives only. A girlfriend, being not a relative, cannot be charged under Section 498-A IPC."

In the light of the aforesaid legal position, the Court observed that the petitioner could make out a strong case warranting interference of the Court to ascertain whether launching of criminal prosecution under Section 498 A IPC was legally sustainable and whether the FIR registered against her was liable to be quashed or not.

Therefore, given the facts and circumstances of the case, the Court ordered that there shall be a stay of further proceedings pursuant to registration of FIR, only in respect of the petitioner. The Investigating Officer was also directed not to take any coercive steps including arrest against the petitioner. However, the Single Bench clarified that the investigation against the other accused shall go on.

Case Title: Anumala Aruna Deepika v. State of Andhra Pradesh

How To Get Divorce For Muslim Men

Three year imprisonment for pronouncing Talaq and no bail to the husband until the wife gives consent for the bail not only makes the Muslim male in turmoil but Muslim males have no law for divorce right now.

How can a Muslim men can divorce right now in India. What is the solution for them. The family court of Chennai is entertaining divorce petition from Muslim in the Suit format but it also places a hurdle that the maintainability of the suit is decided on the trial only by the presiding Judge.

The Indian Government has not said that any other format of Talaq is valid and the court also not discloses whether the Declaration suit for Divorce is valid. I Don’t know why the entire Muslim community is keeping quiet when there is a lawlessness situation for Muslim men in case of Divorce and matrimonial dispute when the female counterparts are protected with the Divorce and Matrimonial laws.

Whether the lawmakers doesn’t see this a gender inequality. After the implementation of The Muslim Women (Protection of Rights on Marriage) Act, 2019 ,Where the new law makes all declaration of talaq, including in written or electronic form, to be void (i.e. not enforceable in law) and illegal. It defines talaq as talaq-e-biddat or any other similar form of talaq pronounced by a Muslim man resulting in instant and irrevocable divorce.

Now Pronouncing talaq was made as a cognizable offence, attracting up to three years imprisonment with a fine. (A cognizable offence is one for which a police officer may arrest an accused person without warrant.) The offence will be cognizable only if information relating to the offence is given by:

(i) the married woman (against whom talaq has been declared), or

(ii) any person related to her by blood or marriage.)

The Law provides that the Magistrate may grant bail to the accused. The bail may be granted only after hearing the woman (against whom talaq has been pronounced), and if the Magistrate is satisfied that there are reasonable grounds for granting bail.

A Muslim woman against whom such talaq has been declared, is entitled to seek custody of her minor children. The manner of custody will be determined by the Magistrate.

In Chennai the Principal Family court has took a decision to try the Muslim Male divorce case by the family court and even the maintainability should be decided by the family court. It is unsolvable question whether the grounds of divorce is according to the Muslim personal law or Policies.

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