TaxTMI 
TaxTMI 
TaxTMI 
2008 (3) TMI 658
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....d 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 app....
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....s 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 ....
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....cation 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 resp....
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....unt 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....
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.... 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 father- in-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 da....
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....erms 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 ....
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....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-in- law or mother-in-law. 18. Here, the house in question ....
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....ases. 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 Sta....
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....side 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 sub- section (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 ....
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....hers : (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 issuin....
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....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 Secti....