Monday, 31 August 2015

Whether Magistrate can issue non bailable warrant at first instance for recovery of amount granted under Domestic violence Act?

 Thus there is absolutely clear provision under the Code of Criminal Procedure, which lays down as to how the amount of maintenance, final or interim, is to be recovered. The Magistrate, in my opinion, could not have issued non-bailable warrant directly. He should have followed the procedure laid down in sub-section (3) of Section 125 and Section 421 of the  Code of Criminal Procedure. In the scheme of Code of Criminal Procedure, in the first place, the Magistrate was under obligation to issue a warrant for levy of the amount by attachment and sale of any movable property. The other remedy available was to issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both of the defaulter. The Magistrate could have sentenced the petitioner for the whole or any part of each month's allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which might extend to one month or until payment if sooner made.
Bombay High Court
Mr. Sachin vs Sau. Sushma on 6 May, 2014
Bench: M.L. Tahaliyani
DATED : 6 MAY, 2014.
Citation;2015CRLJ(NOC)400 Bom
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Whether parents' possession of child amount to an offence or wrongful confinement?

 A reading of the above provision would manifest that jurisdiction of the Magistrate is attracted only when he has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence. Since parents' possession of the child cannot, under ordinary circumstances, amount to an offence or wrongful confinement, jurisdiction under Section 97 Cr.P.C. was not available to the Magistrate for exercising powers against the child. The Magistrate having summoned the minor has gone a step ahead to withdraw his custody from the company of his mother and then to handover to grandmother and uncle.
Equivalent Citation: 2015CriLJ3189
WPC No. 2068 of 2014
Decided On: 24.03.2015
Appellants: Sonam Devi
Respondent: State of Chhattisgarh
Hon'ble Judges/Coram:Prashant Kumar Mishra, J.

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Whether unemployed husband is bound to pay maintenance to earning wife?

 In this context, we may profitably quote a passage from the
judgment rendered by the High Court of Delhi in Chander Prakash
Bodhraj v. Shila Rani Chander Prakash [AIR 1968 Delhi 174]
wherein it has been opined thus:-
“An able-bodied young man has to be presumed to be
capable of earning sufficient money so as to be able
reasonably to maintain his wife and child and he cannot be
heard to say that he is not in a position to earn enough to be
able to maintain them according to the family standard. It is
for such able-bodies person to show to the Court cogent
grounds for holding that he is unable to reasons beyond his
control, to earn enough to discharge his legal obligation of
maintaining his wife and child. When the husband does not
disclose to the Court the exact amount of his income, the
presumption will be easily permissible against him.”
22. From the aforesaid enunciation of law, it is absolutely
clear that once the husband is an able-bodied young man capable of
earning sufficient money, he cannot simply deny his legal obligation
of maintaining his wife.

23. It has to be remembered that when the woman leaves
the matrimonial home, the situation is quite different. She is deprived
of many a comfort. Sometimes the faith in life reduces. Sometimes,
she feels she has lost the tenderest friend. There may be a feeling
that her fearless courage has brought her misfortune. At this stage,
the only comfort that the law can impose is that the husband is
bound to give monetary comfort. That is the only soothing legal balm
for which she cannot be allowed to resign to destiny. Therefore, the
lawful imposition for grant of maintenance allowance. [ Ref: Shamima
Farooqui vs. Shahid Khan (supra)].
24. The learned counsel for the husband has vehemently
argued that the learned courts below have ignored the fact that the
wife is earning Rs.9,000/- by taking her income only to be Rs.5000/-.
I am afraid that such contention is belied from the records as the
learned appellate court has duly taken into consideration the fact that
the wife was getting a salary of Rs.9,000/-.
Cr.MMO No.26 of 2015 and Cr.
Revision No. 369 of 2014.

Date of decision: 1.6.2015.

Vipul Lakhanpal …… Petitioner.
Smt. Pooja Sharma ….. Respondent

The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

Citation; 2015 CRLJ 3451HP
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Whether wife of govt servant can claim to reside in official residence when right of husband on said residence has come to an end?

 Undoubtedly, the writ petitioner and his wife used to reside in the official accommodation/quarter allotted to the writ petitioner by the Haldia Dock Complex/Port Trust Authorities. The official accommodation/quarter, during the period of allotment, therefore, was the couple's home. However, the wife cannot claim possession of the official accommodation/quarter, once the writ petitioner became disentitled to occupy the same. A spouse's right to enjoy occupation of an official accommodation/quarter and even calling it his/her matrimonial home co-exists with the right of the allottee spouse to enjoy occupation of such accommodation/quarter, but cannot travel beyond the allottee spouse's entitlement or right to enjoy occupation of the official accommodation/quarter. In other words, the spouse's right or entitlement vis-a-vis the allottee spouse's right or entitlement is inalienable in nature.
W.P. 16492 (W) of 2014
Decided On: 18.06.2015
Appellants: Abdul Matleb
Respondent: Haldia Dock Complex and Ors.
Hon'ble Judges/Coram:Biswanath Somadder, J.
Citation: AIR2015Cal205
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