When she cries rape

June 18, 2009

When she cries rape

16 Jun 2009, 0000 hrs IST, ROSHNI K OLIVERA , TNN
http://timesofindia.indiatimes.com/Potpourri/When-she-cries-rape/articleshow/4658865.cms 
The questions being asked in Mumbai, in Bollywood, are not whether actor Shiney Ahuja did, as was reported, rape his 18-year-old domestic maid or had, as is suspected, consensual sex with her. The questions being asked are what happens to the man in such a case?
 
 How do the police distinguish between what was rape and consensual sex? Is it just the woman’s word against the man’s? What if she is lying? Or out to exploit and blackmail the man? Trap him into marrying her after what was just an affair but mutual agreement? And… further, what happens next? What is the sentence for rape? And can there be one for consensual sex between adults? Also, if (as in Shiney’s case) the man happens to be married and had consensual sex, is he only guilty of adultery? And if he is married and has committed rape, what kind of sentence does he face for the crime? Most Indian laws, framed during the colonial days of the British Raj, remain as grey as ever with prosecuting authorities struggling to get convictions while defence lawyers pick holes in the chargesheet. Even while the police muddle their way through the many ‘rape’ cases in their files, BT posed these questions to criminal law experts.

Can consensual sex be easily proved?
“In the case of rape, the evidence of the victim is enough,” says lawyer Satish Maneshinde. “Proving it wasn’t rape but consensual sex, is very difficult.” If there are no signs of aggression on the victim, it could indicate consensual sex, but that’s not sufficient as evidence. “To prove consensual sex, there should be evidence in the form of SMSes or telephonic calls which show there was an involvement. Even if the victim is known to be a prostitute or a condom was used, yet it’s not accepted as consensual sex,” says Maneshinde adding, “Where the victim is from a weak social and economical background or there’s an employer-employee angle, the tilt is always towards the victim.”

What amounts to rape?
According to Section 375 of the IPC, a man is said to commit “rape” when he has sexual intercourse with a woman… 1) Against her will 2) Without her consent 3) If her consent was obtained by putting her or any person she’s interested in under fear of death or of hurt 4) With her consent, when the man knows that he is not her husband, but she believes that he is the man she is lawfully married to 5) If consent was given under intoxication or unsound mind.
But change is the need of the hour. Lawyer Shrikant Bhat makes a point: “This section was drafted between 1833 to 1837. Times have changed, physiology hasn’t changed. So what requires to be changed is the interpretation. The word ‘consent’ or ‘against her will’ has to be interpreted such that one question is asked — whether the girl had the sexual desire during the period of physical intimacy (not necessarily intercourse). Lubrication of vagina would be one of the indications of sexual desire which medically can be found out. If the girl had a sexual desire then it’s not rape.”

Minor versus adult?
If the victim is a minor, then there’s no question of consent; it amounts to rape in any case, according to the IPC. When the victim is less than 16, it doesn’t matter whether the sexual act was carried out mutually or if the perpetrator and the victim were involved at one point.

What about adultery?
Whether it’s rape or consensual sex, what about adultery if the person is married? “Generally our system doesn’t take serious cognisance of adulterous activity. That’s because the aggrieved party, which is the wife, has not complained,” explains lawyer Majeed Memon. “There are two different aspects that come to the fore in the Shiney Ahuja case — 1) The exploitation of maids or aspiring actresses 2) You cannot rule out a conspiracy to falsely implicate a celebrity.”

Are men at a disadvantage in our system?
In matters of rape, men are always at a disadvantage in our system, feel experts. “That’s because they are considered the more aggressive of the two sexes,” says Maneshinde.

Bhat adds, “Section 114 A of the Evidence Act says, ‘If she states in her evidence before the court that she did not consent, the court shall presume that she did not consent.’ An innocent man will be convicted on this presumption. Also, the previous sexual conduct of the girl cannot be brought on record in the inquiry or cross examination under the same Act.”

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Dowry accused gangraped by Bhopal cops in custody

June 18, 2009

This letter is in response to the below mentioned news in Times of India.

Dowry accused gangraped by Bhopal cops in custody

6 Jun 2009, 0208 hrs IST, Suchandana Gupta, TNN

 

http://timesofindia.indiatimes.com/articleshow/4622046.cms

To,

Dr. Manmohan Singh,

Prime Minister of India,

South Block, Raisana Hill,

New Delhi – 110001.

 

Subject:  Demand for a CBI Investigation in the case of alleged rape of an Old female Dowry Accused from Jamwada village in district Betul, Bhopal, M.P. and Immediate notification of “THE CODE OF CRIMINAL PROCEDURE (AMENDMENT) BILL, 2008”

 

Respected Sir,

This is to bring to your kind attention that there is an alleged Gang rape of a woman accused in a dowry case as reported in the Times of India dated 06th of June 2009 titled “Dowry accused gangraped by Bhopal cops in custody”.

Sir, Indian Public has given you the mandate and this is the time to show commitment to women as per the promises in the manifesto of UPA. UPA government’s projection of their own initiatives to empower women and provide them safety and prosperity doesn’t end by just electing first woman speaker of Lok sabha or giving India its first woman president.

The real case has not started yet, but life of the poor old woman has got destroyed. The real question that arises after reading such the happenings of such horrific incidents is: “Why the notification of the “The Code of Criminal Procedure (Amendment) Bill, 2008” which could save innocent citizens from being jailed and fasten the process of investigation & trial of rape cases in the Gazette of India is on hold?”

I would request you sir to please order a CBI probe into the reported case as it is a sensitive case of harassment of a women accused in custody of police and against humanity. If the lawlessness in the state of Madhya Pradesh has been deteriorated to such an extent that the basic human rights and rights of an accused in custody, that too in just a family matter as envisaged in

  1. 1.      SHRI D.K. BASU VS STATE OF WEST BENGAL[1997] S.C.C. (crl) 92 And
  2. 2.      JOGINDER KUMAR Vs. STATE OF U.P. – 25/04/1994 (CITATION 1994 AIR 1349 1994 SCC (4) 260 JT 1994 (3) 423 1994 SCALE (2)662)

 

could not be protected, a serious and thorough probe by CBI is a must. The CBI must come out with a report into:

 

1. What was the need of arresting a female accused in case of dowry complaint (498a) when there had been on various occasions the Honb’le Supreme Court of India has instructed to practice caution while arresting the accused in cases of crime under section 498a of IPC. A thorough and complete report must immediately be sought from CBI to unearth the misuse of discretionary “powers of arrest” while there may not be a “need to arrest”.

I would like to draw attention of the Honb’le Prime Minister on the third report of the National Police Commission, which refers to the quality of arrest by the police in India. The report had mentioned that “power of arrest was one of the chief sources of corruption in the police. The report suggested that by and large nearly 60% of the arrests were either unnecessary or unjustified”.

It is to be noted that more than 1,23,497 women were arrested and most of them jailed in last 4 years under section 498a of IPC without investigation or credible evidence under the rule of UPA government. Surprisingly, statistics published by the National Crime Records Bureau in 2007, states that an overwhelming 94% of the individuals arrested under IPC Section 498A were found not guilty. This itself shows the enormous powers police used to enjoy.

Had the previous UPA govt. Notified the “The Code of Criminal Procedure (Amendment) Bill, 2008” in the Gazette of India, the life and modesty of the concerned old woman could have been saved. As in that case the Investigating officer must have to record the reasons for arresting her or he/she must have issued the accused woman a “Notice to appear as per the amended section 41 of CRPC. But the UPA govt. bowed down to the irrational demands and illegal protests of a handful of lawyers that too just in the courts of National capital Region of Delhi.

 

2. If the concerned female accused was arrested and produced in the local court, why the bail was not granted by the concerned Honb’le judge? The allegations against her would have been some “Dowry Harassment” and her custody must have been required just for the purpose of investigations in to the allegations of her daughter-in-law. Then why the learned Judge didn’t awarded her with a bail and secured her presence by way of a bail bond or surety? Was the lady a history sheeter or committed any heinous crime? Is this the price an old woman has to pay in the rule of UPA for being a mother of a man and marrying her son to a “legal terrorist”?

 

In all the lower courts in India especially in stated of Bihar, Madhya Pradesh, chhattisgarh U.P. etc. There is a strong nexus between judges, police and lawyers in bail matters for extorting money from the accused by threatening them to send them behind bars. In this nexus the lower court judges play important roles by flouting all the guidelines of the Honb’le Supreme court of India which has always and time to time pronounced in its judgments that “Bail is a rule and Jail is an exception” and that too in case of a female accused?

 

I again emphasise on the need of a CBI probe to unearth the scam between lower court judges, police and lawyers who all are sucking blood of poor accused for granting bail to them.

3. The rape of the old woman has alleged to be happened in the custody of non other than the police itself. Now when “Rakshak has become Bhakshak themselves”, nobody could imagine of a fair investigation and fast delivery of justice to the poor old rape victim. After a lot of deliberations when the “The Code of Criminal Procedure (Amendment) Bill, 2008” for the investigation and trial of rape cases and various safety measures has been passed by both the houses of parliament and the Honb’le president of India has already given her ascent to the bill, it is a shame on the part of the UPA government for causing unnecessary delay in notifying the “The Code of Criminal Procedure (Amendment) Bill, 2008”. The various sections of the bill provides for various new directions regarding the investigation of rape cases, like:

  • Recording of the statement of the victim at her own residence.
  • Rape investigation in a child rape case to be finished within 3 months
  • Confidentiality of the name and address of the parties.
  • Compensation and rehabilitation of  victims etc.

 National Commission for Women or Women and Child Development ministry is not going to do its duty and use its power to take suo motto cognizance of the crimes like reported above as no political angle could be given to the facts (unlike mangalore pub incidence) and no political milage could be obtained out of that. Elections are over !!

These landmark reforms in CrPC regarding the way police conducts itself will bridge the huge gap between police and the citizens. Till now, Indian police inherited unconditional power of arrest from police in British Raj, whose goal was to enforce fear in the minds of people of India. Indian police enjoyed the maximum powers to arrest people arbitrarily compared to many evolved democracies in the world.

India is a democracy which requires high concern of the life and liberty of its citizens. Regularization of process and introduction of accountability is a necessary ingredient of the requirement. Passing “The Code of Criminal Procedure (Amendment) Bill, 2008”, the Government of India will be implementing the above requirement in practicality.

All India Forgotten Women demand that the Government notify “The Code of Criminal Procedure (Amendment) Bill, 2008” in the Gazette of India at the earliest.

Bow down before your wife’s ‘diktat’, SC tells husbands

May 20, 2009

Bow down before your wife’s ‘diktat’, SC tells husbands

19 May 2009, 1848 hrs IST, PTI
http://timesofindia.indiatimes.com/India/Bow-down-before-your-wifes-diktat-SC-tells-husbands/articleshow/4552535.cms

NEW DELHI: If you want to buy matrimonial peace just do whatever your wife says!

This is not some piece of advice from a marriage counsellor, rather it is from the country’s apex court.

A vacation bench of justices Markandeya Katju and Deepak Verma observed, “Bibi joh boltee hai woh sunno (listen to whatever your wife says), as otherwise it could land you in trouble. Because if you do not listen to her, you will suffer the consequences.”

“Hum sab bhogi hai (we are all sufferers),” the bench said in a lighter vein.

The bench further said that a husband has to accept the suggestion of a wife irrespective of the fact whether it is sensible or not.

“If your wife asks you to put your face that side, put it that side. If she says, put it this side, then put it this side. Otherwise you will face trouble. Hum sub bhogi hai,” the bench remarked again.

The interesting suggestions from the apex court evolved on Tuesday during a matrimonial case involving an Air Force official Deepak Kumar who complained that his estranged wife Manisha had ruined him and his family by implicating them in false criminal cases including sodomy.

The couple got married 17 years ago but matrimonial disputes surfaced between the two soon after marriage.

A district court in Chandigarh dismissed Deepak’s plea for divorce as Manisha opposed it, but a single judge of the Punjab and Haryana High Court granted decree of judicial separation.

On an appeal from Manisha, a division bench granted the decree of divorce as the marriage “had irretrievably broken down” besides directing Rs 10 lakh maintenance amount from Deepak to her.

Aggrieved by the high court’s order Manisha filed the appeal in the apex court challenging the decree of divorce.

Deepak’s counsel argued that Manisha even though had implicated her husband and his family in a host of criminal cases was yet opposing the divorce despite the marriage breaking down irretrievably.

The vacation bench however, posted the matter for further hearing to July last week as there was no urgency in dealing with the matter.

“You have waited for 17 years, so wait for a few more days,” the bench said while switching over to the next item on the agenda.

AIFW On The Defeat Of The Grihavinashini

May 18, 2009
Grihavinashini Renuka Chaudhry

Grihavinashini Renuka Chaudhry

All India Forgotten Women press release on the trouncing received by The Grihavinashini, aka, Renuka Chaudhry, at the 2009 hustings.

Check the  website of AIFW to know more about them:

All India Forgotten Women

Also, check out the blog of the tireless crusader, Uma Challa:

http://uchalla.wordpress.com/

______________________________________
All India Forgotten Women (Regd.)

Press Release

Sub: Celebrating the defeat of family-breaker, Renuka Chaudhary.

All India Forgotten Women (Regd.) celebrates the defeat of family-breaker, ex-Minister of Women and Child Development, Smt. Renuka Chaudhary in the 2009 Lok Sabha Elections.

Smt. Renuka Chaudhary’s term as Minister of Women and Child Development witnessed the arrest and ruthless incarceration of thousands of innocent men, along with women, senior citizens and children. In the last four years alone 1,23,439 women have been unfairly arrested under IPC section 498A, without evidence or investigation. Smt. Renuka Chaudhary blatantly denied misuse of IPC Section 498A and turned down all requests, recommendations and demands from various quarters to review the law. It was not until the Minister for Human Resources Development, Arjun Singh, was accused of dowry harassment that Smt. Renuka Chaudhary finally acknowledged the misuse of anti-dowry laws in public. Nevertheless, law-abiding citizens continue to be summarily arrested on false charges of dowry harassment every day.

Smt. Renuka Chaudhary got the infamous Domestic Violence Act passed during her tenure without any debate or discussion on its relevance or pros and cons to the Indian society prior to its enactment. She promoted the DV Act as one of the most progressive legislations passed to empower women in India and to protect them from domestic abuse. In reality, the DV Act is a socially harmful legislation that facilitates violence against men, violates basic human rights of men, women and children and promotes family destruction.

When questioned on National TV about misuse of women-protection laws, Smt. Renuka Chaudhary blatantly said, “it is men’s turn to suffer”. When Karan Thapar asked her in an interview if she thought that men should first suffer before she considers amendments to check misuse of the law she replied, “”It is not such a bad idea, except that I have such pity for men.” In another instance, she publicly urged women to trust condoms and not their husbands. These are just a few instances which betray Smt. Renuka Chaudhary’s hatred of men.

It is not as if Smt. Renuka Chaudhary’s Ministry has done much good for children either. Child abuse, child labor and malnutrition among children are as rampant as ever. Disregarding recommendations of HRD and Finance Ministries, Smt. Renuka Chaudhary pushed for distributing pre-packaged food instead of freshly cooked hot meals to malnourished children under the Integrated Child Development Scheme. When she was requested to take immediate action on the issue of sexual and physical abuse of several little girls at an orphanage in Ghaziabad, she replied, “We can’t react like Hindi movies and just rush. Inquiries are going on.” Passing the buck on the issue of victims of child labour and physical abuse she said, “The law is there but I can’t do anything in that case. Please ask the labour minister.”

It is a shame that a gender extremist like Smt. Renuka Chaudhary who has no empathy for the plight of children was appointed as the Minister of Women and Child Development.

All India Forgotten Women (Regd.) considers the defeat of Smt. Renuka Chaudhary as the beginning of the end of anti-male, anti-family gender extremism in India. AIFW demands that the incoming Government make the following changes:

Ministry of Women’s Welfare should be separated from Ministry of Child Welfare.
Responsible, balanced and pro-family women should be appointed to head Ministry of Women’s Development and National Commission for Women.

Divorce Congress, Cry harassed Husbands: Save Family Foundation

April 16, 2009
Hello Everybody,
 
As you all must be aware of that today in the first round of General Elections, fate of Union Minister Smt. Renuka Chaudhary has been fused in the Electronics Voting machines.
 
Delhi constituencies are also becoming hot and so is the rising temperature in the burnt hearts of lacs of husbands their parents and siblings. We have seen many situations where our constant lobbying, protests etc. ultimately passed through a narrow road of bureaucracy and red tapism and ultimately collided with the tough & high wall of “No Political Will”.
1. We have seen, how Renuka Chowdhary fooled thousands of people by advertising them for a review of 498a and DV act in delhi but discussed ragging and surrogacy in the closed chamber of India Islamic Center on 25th June 2008.
 
2. We have seen, that the politicians accused of Dowry Harassment charges (Like L.K. Advani, Arjun Singh etc.) are freely roaming and are safe from any police of judicial harassment but common man and senior citizens are being jailed without any inquiary or investigations.
 
3. We have seen, our constant demand from Prime Minister and UPA chairperson, to provide a platform to men (In the form of National Commission for Men and a Ministry for Men Welfare) to get their Issues addressed is felling into dumb ears.
 
4. We have seen, that recent CrPC amendments to protect the innocent citizens of this country from police harrassment are not being Notified in the Gazette of Govt of India even after getting a presidential approval, because of lack of political will.
 
5. We are now wittnessing, after cast and religion divide political parties especially the Congress (I) is using Gender Divide for their political gains.
 
So, why to give in their hand, future of our families again?
 
Now harrassed husbands and their families have also joined this Dance of Democracy, where winning is no more a Prize but preventing others from winning is a remarkable achievement. A small cut in vote percentage of especially congress biggies in our first attempt is our sole motto. Of couse, they should feel the heat of 498a and DV fire, burning our houses.
Members of harrased husbands associations are gathering tommorrow 17th April 2009 at India Gate at 10:00 AM with their family members and friends to support their candidate Shri Sudhir Anand as he would be filing his nomination papers from New Delhi Consituency.
 
From India Gate all will proceed to file the nominations at:
12, Jamnagar House,
Shajahan Road, New Delhi.
Near India Gate.
Any clarification/suggestions: Sudhir : 9718719551, Deepak : 9953177508.

SC: A law cannot be invalidated on possibility of its misuse

April 12, 2009

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 976 OF 2001

Satish Kumar Batra & Ors. ….Appellants
Versus
State of Haryana ….Respondent

J U D G M E N T
Dr, ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a learned Single Judge of the Punjab and Haryana High Court dismissing the Criminal Revision Petition filed

by the present appellants. Challenge in the Revision Petition was to the judgment of learned Additional Sessions Judge, Sonepat, finding each of the present appellants guilty of offence punishable under Section 498A of the Indian Penal Code, 1860 (in short the ‘IPC’). Learned Chief Judicial Magistrate, Sonepat, had found the accused persons guilty and had convicted them as aforenoted. In appeal learned Additional Sessions Judge confirmed the same. Six persons were arrayed as accused persons on the basis of information lodged by Santosh Kumari.

2. Prosecution version in a nutshell is as follows:
Marriage between Santosh Kumari and Satish Kumar (Appellant No.1) was solemnization on 21.10.1985. According to FIR No. 695 dated 20.6.1992 that was  registered in Police Station City Sonepat at the behest of Santosh Kumari, at the time of her engagement, her parents had given sufficient articles valued at Rs.20,000/- to her husband and other members of his family. At the time of her marriage, various articles listed in the complaint were handed over to the accused and in all about Rs.1,50,000/- were spent thereon. Despite this, the persons mentioned in the complaint were not satisfied with the articles of dowry handed over to them, with the result that her husband Satish Kumar, mother-in-law Satya, brother-in-law Sunil Kumar, father-in-law Ram Lal, his sister Ishwar Devi and Om Parkash, brother-in-law of Ram Lal had been pressing her to bring more dowry. Satish Kumar husband had demanded Rs.5,000/- and Rs.10,000/- for purchase of goods for his shop which amount was given to him.

In spite of that, the petitioners were not satisfied and had been beating her on several occasions. After the birth of the children, the petitioners turned her out of the matrimonial home, so that her parents could be forced to spend money on the upbringing of the children. On the birth of each of her children, her parents had spent Rs.20,000/-. But this had not satisfied her in-laws. Om Prakash, the brother-in-law of her father-in-law used other methods to torture her and she bore the atrocities attributing them to her wedlock. On 01.12.1991 the appellants had tried to kill her by pouring kerosene oil on her, but she was able to save herself by running away. The neighbours had pacified her and assured that her in laws would behave properly in future. Despite this assurance, there was no change in their attitude and on 03.03.1992 her husband gave her severe beating and asked her to bring Rs.45,000/- for the purpose of taking agency and they could give only Rs.25,000/-. On account of the beating, she started bleeding and was about to leave for Delhi Police Station, but was dissuaded by the members of the locality from doing so. The attitude of the in-laws did not change and on 21.05.1992 she was turned out from the house after being told that she should not return to the matrimonial home, otherwise she and her children would be done to death. She was also told that if she wanted to settle with Satish Kumar then her parents should purchase a separate house for her.

The Stridhan was kept by them. On the basis of this complaint, formal FIR under Sections 406 and 498-A read with section 120-B IPC was registered. During investigation list of articles Ex.PB and letters alleged to have been written by Santosh Kumari Ex.PD, Ex.PE, Ex.PF, Ex.PG and Ex.PH were taken into possession vide recovery memo Ex.P5. On completion of the investigation challan was put in Court under sections 406, 498-A IPC. On going through the challan, the learned trial Court framed charges under sections 406 and 498-A IPC and when the accused pleaded not guilty to the charges, called upon the prosecution to lead evidence in support of its case. After completion of the trial, the learned trial court acquitted the appellants of the offence under Section 406 IPC but convicted them under Section 498A IPC and sentenced them to undergo R.I. for two years and to pay a fine of Rs.500/- each and in default of payment of fine to further undergo R.I. for one month.

Before trial was completed, Ram Lal, the father of Santosh Kumar died and the other five persons faced trial. Each one of them was convicted as in the case of the present appellants. They also filed appeals along with the present appellants and their appeals were dismissed. However, the High Court by order in a separate Criminal Revision Petition (Criminal Revision No. 607 of 2000) directed their acquittal. Conviction under Section 498A IPC was upheld by the High Court so far as the present appellants are concerned. Primarily the prosecution relied upon the version of the complainant (PW 1), mother (PW 5), and the brother (PW 6). The stand of the appellants all through was that the evidence of these witnesses does not inspire confidence. The High Court noted that there were lots of improvements and false implication of two other persons. The trial court, the First appellate court and the High Court did not accept this plea. However, finding that the evidence was inadequate, the High Court directed acquittal of the co-accused persons.

3. In support of the appeal learned counsel for the appellant submitted that the courts below did not notice the inherent improbabilities in the evidence of  PWs 1, 5 & 6. Though the High Court noted that there were lots of inconsistencies and improvements, yet chose to direct acquittal only of two persons while  upholding the conviction on the self-serve evidence qua the appellants. It is submitted that appellant No.1 has already suffered custody for more than 13 months.

4. Learned counsel for the respondent on the other hand supported the judgment of the courts below including the High Court.

5. It is to be noted that in the first information report the thrust of allegations was primarily directed against the acquitted accused persons i.e Om  Prakash and Ishwar Devi. They have been acquitted by the High Court. So far as the evidence of PWs 1, 5 & 6 is concerned, it is true as noticed by the High Court, that there were lots of improvements. But the High Court found that even if these improvements are kept out of consideration, the evidence was sufficient to hold the present appellants guilty. It is to be noted that these improvements primarily related to appellant Nos.2 & 3. Therefore, in our considered opinion the acquittal as directed qua the coaccused persons should have also been done in the case of appellant Nos.2 & 3. However, the evidence is clear and cogent so far as the appellant No.1 is concerned.

6. Section 498-A appears in Chapter XX-A IPC.

7. Substantive Section 498-A IPC and presumptive Section 113-B of the Indian Evidence Act, 1872 (in short “the Evidence Act”) have been inserted in the respective statutes by the Criminal Law (Second Amendment) Act, 1983 and by the Dowry Prohibition (Amendment) Act, 1986, respectively.

8. Section 498-A IPC and Section 113-B of the Evidence Act include in their amplitude past events of cruelty. Period of operation of Section 113-B of the  Evidence Act is seven years, presumption arises when a woman committed suicide within a period of seven years from the date of marriage.

9. Section 498-A reads as follows: “498-A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of  the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be  liable to fine.
Explanation.—For the purposes of this section,
‘cruelty’ means—
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or  valuable security or is on account of failure by her or any person related to her to meet such demand.”

10. Section 113-B reads as follows:
“113-B. Presumption as to dowry death.—When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume  that such person had caused the dowry death.
Explanation.—For the purpose of this section,‘dowry death’ shall have the same meaning as in Section 304-B of Indian Penal Code (45 of 1860).”

11. Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman are required to be established in order to bring home the application of Section 498-A IPC. Cruelty has been defined in the  Explanation for the purpose of Section 498-A. It is to be noted that Sections 304-B and 498-A IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the sections and that has to be proved. The Explanation to Section 498-A gives the meaning of “cruelty”. In Section 304-B there is no such explanation about the meaning of “cruelty”. But having regard to common background to these offences it has to be taken that the meaning of “cruelty” or “harassment” is the same as prescribed in the Explanation to Section 498-A under which “cruelty” by itself amounts to an offence.

12. The object for which Section 498-A IPC was introduced is amply reflected in the Statement of Objects and Reasons while enacting the Criminal Law (Second Amendment) Act 46 of 1983. As clearly stated therein the increase in the number of dowry deaths is a matter of serious concern. The extent of the evil has been commented upon by the Joint Committee of the Houses to examine the work of the Dowry Prohibition Act, 1961. In some cases, cruelty of the husband and the relatives of the husband which culminate in suicide by or murder of the helpless woman concerned, constitute only a small fraction involving such cruelty. Therefore, it was proposed to amend IPC, the Code of Criminal Procedure, 1973 (in short “CrPC”) and the Evidence Act suitably to deal effectively not only with cases of dowry deaths but also cases of cruelty to married women by the husband, in-laws and relatives. The avowed object is to combat the menace of dowry death and cruelty.

13. One other provision which is relevant to be noted is Section 306 IPC. The basic difference between the two sections i.e. Section 306 and Section 498-A is that of intention. Under the latter, cruelty committed by the husband or his relations drag the woman concerned to commit suicide, while under the former provision suicide is abetted and intended.

14. It is well settled that mere possibility of abuse of a provision of law does not per se invalidate a legislation. It must be presumed, unless the contrary is proved, that administration and application of a particular law would be done “not with an evil eye and unequal hand”. (See A. Thangal Kunju Musaliar v. M. Venkatichalam Potti (1955 (2) SCR 1196))

15. In Budhan Choudhry v. State of Bihar (1955 (1) SCR 1045) a contention was raised that a provision of law may not be discriminatory but it may lend itself  to abuse bringing about discrimination between the persons similarly situated. This Court repelled the contention holding that on the possibility of abuse of a provision by the authority, the legislation may not be held arbitrary or discriminatory and violative of Article 14 of the Constitution.

16. From the decided cases in India as well as in the United States of America, the principle appears to be well settled that if a statutory provision is otherwise intra vires, constitutional and valid, mere possibility of abuse of power in a given case would not make it objectionable, ultra vires or unconstitutional. In such cases, “action” and not the “section” may be vulnerable. If it is so, the court by upholding the provision of law, may still set aside the action, order or decision and grant appropriate relief to the person aggrieved.

17. In Mafatlal Industries Ltd. v. Union of India (1997 (5) SCC 536) a Bench of nine Judges observed that mere possibility of abuse of a provision by those in charge of administering it cannot be a ground for holding a provision procedurally or substantively unreasonable. In Collector of Customs v. Nathella Sampathu Chetty (1962 (3) SCR 786), this Court observed: (SCR p. 825) “The possibility of abuse of a statute otherwise valid does not  impart to it any element of invalidity.”

18. It was said in State of Rajasthan v. Union of India(1977 (3) SCC 592): (SCC p. 658, para 147)
“It must be remembered that merely because power may sometime be abused, it is no ground for denying the existence of power. The wisdom of man has not yet been able to conceive of a Government with power sufficient to answer all its legitimate needs and at the same time incapable of mischief.”
(Also see Commr., H.R.E. v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954 SCR 1005).

19. As observed in Maulavi Hussein Haji Abraham Umarji v. State of Gujara ((2004 (6) SCC 672), Unique Butyle Tube Industries (P) Ltd. v. U.P. Financial Corpn. (2003 (2) SCC 455) and Padma Sundara Rao v. State of T.N. ((2002 (3) SCC 533), while interpreting a provision, the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of the process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary.

20. In the instant case the evidence of PWs 1, 5 & 6 clearly establish the accusations so far as the accused appellant No.1 i.e. Satish Kumar is concerned and therefore we find nothing infirm in the judgment of the High Court in upholding the conviction of accused appellant Satish Kumar. The sentence imposed was two years. It is on record that he has undergone sentence of more than 13 months. He has been released on bail pursuant to order dated 9.7.2001. Therefore, while upholding the conviction, sentence is reduced to the period already undergone. So far as the appellant nos.2 & 3 i.e. Sunil Kumar and Satya Devi are concerned, the prosecution has not been able to establish the accusations so far as they are concerned. Their appeal is accepted and the conviction is set aside. The bail bonds executed by them for giving effect to the order dated 9.7.2001 shall stand discharged.

22. The appeal is disposed of accordingly.
…………………………J.(Dr. ARIJIT PASAYAT)
…………………………J.(Dr. MUKUNDAKAM SHARMA)
New Delhi;
April 01, 2009
15Reportable

Supreme Court: Courts Can’t Impose Irrelevant Conditions of Wife’s Maintenance while granting Anticipatory Bail

April 12, 2009

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 344 OF 2009

(Arising out of S.L.P. (Criminal) No. 637 of 2008)
Munish Bhasin & Ors. … Appellants
Versus
State (Govt. of N.C.T. of Delhi) & Anr. … Respondents

J U D G M E N T
J.M. PANCHAL, J.

1. Leave granted. The complainant (wife of first appellant) to whom notice was ordered on 25.01.2008 is
impleaded as second respondent.

2. Heard Counsel.

3. The appellant (accused no. 1) assails the condition imposed by the High Court requiring him to pay a sum of
Rs.12,500/- as maintenance to his wife and child while granting anticipatory bail to him and his parents with
reference to the complaint filed by his wife for alleged commission of offences punishable under Sections 498A
and 406 read with Section 34 of the Indian Penal Code.

4. The marriage of the appellant was solemnized with Ms. Renuka on December 05, 2004. She has filed a
complaint in November 2006, against the appellant and his parents for alleged commission of offences
punishable under Sections 498A and 406 read with Section 34 of the Penal Code on the grounds that after
marriage she was subjected to mental and physical cruelty for bringing less dowry and that her stri-dhan
entrusted to them has been dishonestly misappropriated by them.

5. Apprehending arrest, the appellant and his parents moved High Court of Delhi for anticipatory bail. The
application came up for consideration before a Learned Single Judge of the High Court on 22.02.2007. The
Learned Additional Public Prosecutor accepted notice and submitted that the matter was essentially a
matrimonial dispute and therefore the parties should be referred to the Mediation and Conciliation Cell of the
Delhi High Court. The Learned Judge agreed with the suggestion made by the Additional Public Prosecutor and
directed the parties to appear before the Mediation and Conciliation Cell of the Delhi High Court on March 02,
2007. The case was ordered to be listed on 10.05.2007. The Learned Judge further directed that in the event of
arrest of the appellant and his parents, before the next  date of hearing, they shall be released on bail on their
furnishing personal bond in the sum of Rs.25,000/- each with one surety of like amount to the satisfaction of the
Investigating Officer/ Arresting Officer concerned, subject however, to the condition that the appellant and
his parents shall surrender their passports to the Investigating Officer and shall file affidavits in the Court
that they would not leave the country without prior permission of the Court.

6. From the records, it appears that the conciliation proceedings failed and therefore the bail application was
taken up for hearing on merits. On representation made by the wife of the appellant, the counsel of the appellant
was directed to produce appellant’s salary slip. Accordingly, the salary slip of the appellant was produced before the Court which indicated that the appellant was drawing gross salary of Rs.41,598/- and after deductions of advance tax etc., his net salary was Rs.33,000/-. The Learned Single Judge of the High Court took the notice of the fact that the appellant had the duty to maintain his wife and the child and therefore as a condition for grant of anticipatory bail, directed the appellant, by the order dated 07.08.2007 to pay a sum of Rs.12,500/- per month by way of maintenance to his  wife and child. The Learned Single Judge also directed to pay arrears at the rate of Rs. 12,500/- per month from
August 2005, that is Rs. 3,00,000/- within six months.  The imposition of these conditions for grant of
anticipatory bail is the subject matter of challenge in the instant appeal.

7. From the perusal of the provisions of sub-section (2) of section 438, it is evident that when the High Court or
the Court of Session makes a direction under subsection (1) to release an accused alleged to have committed non-bailable offence, the Court may include such conditions in such direction in the light of the facts of the particular case, as it may think fit, including

(i) a condition that a person shall make himself available for interrogation by police officer as and when required,

(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person
acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer,

(iii) a condition that the person shall not leave India without the previous permission of the Court and

(iv) such other conditions as may be imposed under sub-section (3) of section 437, as if the bail were granted
under that section. Sub-section (3) of Section 437, interalia, provides that when a person accused or suspected
of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1), the Court shall impose the following conditions-
(a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter,
(b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and

(c) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
The Court may also impose, in the interests of justice, such other conditions as it considers necessary.

8. It is well settled that while exercising discretion to release an accused under Section 438 of the Code neither the High Court nor the Session Court would be justified in imposing freakish conditions. There is no manner of doubt that the Court having regard to the facts and circumstances of the case can impose necessary, just and efficacious conditions while enlarging an accused on bail under Section 438 of the Code. However, the accused cannot be subjected to any irrelevant condition at all. The conditions which can be imposed by the Court while granting anticipatory bail are enumerated in sub-section (2) of Section 438 and subsection (3) of Section 437 of the Code. Normally, conditions can be imposed

(i) to secure the presence of  the accused before the investigating officer or before the Court,

(ii) to prevent him from fleeing the course of  justice,

(iii) to prevent him from tampering with the evidence or to prevent him from inducing or intimidating the witnesses so as to dissuade them from disclosing the facts before the police or Court or

(iv) restricting the movements of the accused in a particular area or locality or to maintain law and order etc. To subject an accused to any other condition would be beyond jurisdiction of the power conferred on Court under section 438 of the Code. While imposing conditions on an accused who approaches the Court under section 438 of the Code, the Court should be extremely chary in imposing conditions and should not transgress its jurisdiction or power by imposing the conditions which are not called for at all. There is no manner of doubt that the conditions to be
imposed under section 438 of the Code cannot be harsh, onerous or excessive so as to frustrate the very object of
grant of anticipatory bail under section 438 of the Code.  In the instant case, the question before the Court was
whether having regard to the averments made by Ms. Renuka in her complaint, the appellant and his parents
were entitled to bail under section 438 of the Code.  When the High Court had found that a case for grant of
bail under section 438 was made out, it was not open to the Court to direct the appellant to pay Rs. 3,00,000/-
for past maintenance and a sum of Rs.12,500/- per month as future maintenance to his wife and child. In a
proceeding under section 438 of the Code, the Court would not be justified in awarding maintenance to the
wife and child. The case of the appellant is that his wife Renuka is employed and receiving a handsome salary
and therefore is not entitled to maintenance. Normally, the question of grant of maintenance should be left to be
decided by the competent Court in an appropriate proceedings where the parties can adduce evidence in
support of their respective case, after which liability of husband to pay maintenance could be determined and
appropriate order would be passed directing the husband to pay amount of maintenance to his wife. The record of
the instant case indicates that the wife of the appellant has already approached appropriate Court for grant of
maintenance and therefore the High Court should have refrained from granting maintenance to the wife and
child of the appellant while exercising powers under section 438 of the Code. The condition imposed by the
High court directing the appellant to pay a sum of Rs.12,500/- per month as maintenance to his wife and
child is onerous, unwarranted and is liable to be set aside.

9. For the foregoing reasons, the appeal succeeds. The direction contained in order dated August 07, 2007
rendered by Learned Single Judge of Delhi High Court in Bail Application No. 423 of 2007 requiring the appellant
to pay a sum of Rs.12,500/- per month by way of maintenance (both past and future) to his wife and child
is hereby deleted. Rest of the directions contained in the said order are maintained. It is however clarified that
any amount received by the wife of the appellant pursuant to the order of the High Court need not be refunded by her to the appellant and will be adjusted subject to the result of application for maintenance filed by wife of the appellant under Section 125 of the Code before the appropriate Court.

10. The Appeal is accordingly disposed of.

…………………………J.
[R.V. Raveendran]
…………………………J.
[J.M. Panchal]
New Delhi;
February 20, 2009.

CJI warns Advocates

April 12, 2009

CJI warns advocates
http://www.dinamalar.com/kutramnewsdetail.asp?News_id=2875&cls=row4&ncat=IN

Tamil News: Dinamalar April 11,2009

CJI Balakrishnan warns advocates in the 50th anniversay of indian bar association meeting that recently there are so many complaints against advocates that in criminal cases advocates are cheating their clients and colluding with
opponents for money. In some cases they demand huge amount of fees from the clients. It is necessary to take severe action against those lawyers.

Man pining for separated son commits suicide

April 12, 2009

Man pining for separated son commits suicide
10 Apr 2009, 0322 hrs IST, TNN
http://timesofindia.indiatimes.com/articleshow/4382247.cms

Bangalore : A single parent, who had been fighting for custody of his child, committed suicide on Thursday in JC Nagar. He was frustrated at not being able to see his child regularly.

Syed Makhdoom, a software engineer with a multi-national company, was a Canadian national but had settled in Bangalore. He got married six years ago and has a five-year-old son.

He got divorced two-and-half years ago, and since then had been fighting for visitation rights and custody of his child. Before committing suicide at his house in Benson Town, he left a note for his son saying he will miss him, but couldn’t continue living without him.

President of Children’s Rights Initiative For Shared Parenting (Crisp) Kumar V Jahgirdar said Makhdoom was a Crisp member for a long time. “He was fighting for custody of the child and visitation rights. His former wife would not let him meet their son,” he added.

JC Nagar police confirmed the suicide and said his family members were coming from Ahmedabad to receive the body.

HP Cong women cell’s vice-president arrested in dowry case

April 12, 2009

HP Cong women cell’s vice-president arrested in dowry case

http://www.indopia.in/India-usa-uk-news/latest-news/322830/National/1/20/1

Sundernagar (HP), Aug 28 Himachal Pradesh Congress women cell’s vice-president Padma Sharma and her son have been arrested here in a dowry harassment case lodged by her daughter-in-law.

On the complaint lodged by Ritu Sharma with the Sundernagar police station, Padma and her son Pawan Sharma were arrested from their residence in Pung locality of Sundernagar late last night, police said today. In her complaint, Ritu alleged her husband and in-laws wanted her to bring more dowry and beat her up and confined her to a room. She managed to talk to her relatives yesterday on telephone, who released her, police said.