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Posted on 2nd August 202322nd September 2023 by rajatbindal5gmailcom — 1 Comment

Developement authority cannot charge inspection fee/supervision fee/sub division charges/impact fees

SUPREME COURT OF INDIA

DIVISION BENCH

MATHURA VRINDAVAN DEVELOPMENT AUTHORITY AND ANOTHER — Appellant RAJESH SHARMA AND OTHERS — Respondent

( Before : M.R. Shah and C.T. Ravikumar, JJ. )

Civil Appeal No. 5645 of 2015 with Civil Appeal No. 1976 of 2023; Civil Appeal No. 1979 of 2023; Civil Appeal No. 1984 of 2023; Civil Appeal No. 5647 of 2015; Civil Appeal No. 5646 of 2015; Civil Appeal No. 6536 of 2015; Civil Appeal No. 658 of 2016; Civil Appeal No. 4438 of 2014; Civil Appeal No. 4198 of 2014; Civil Appeal No. 4489 of 2014; Civil Appeal No. 3636 of 2018; Civil Appeal No. 1977 of 2023; Civil Appeal No. 1988 of 2023; Civil Appeal No. 1983 of 2023; Civil Appeal Nos. 5912-5915 of 2014; Civil Appeal No. 4492 of 2014; Civil Appeal No. 5910 of 2014; Civil Appeal No. 2041 of 2023; Civil Appeal No. 6247 of 2014; Civil Appeal No. 6249 of 2014; Civil Appeal No. 6250 of 2014; Civil Appeal No. 6248 of 2014; Civil Appeal No. 3176 of 2015; Civil Appeal No. 3242 of 2015; Civil Appeal No. 6537 of 2015; Civil Appeal No. 6540 of 2015; Civil Appeal No. 6541 of 2015; Civil Appeal No. 6538 of 2015; Civil Appeal No. 6539 of 2015; Civil Appeal No. 1982 of 2023; Civil Appeal No. 1978 of 2023; Civil Appeal Nos. 1980-1981 of 2023; Civil Appeal No. 5918 of 2014 and Civil Appeal No. 5919 of 2014

Decided on : 28-04-2023

Constitution of India, 1950 – Article 265 – Uttar Pradesh Urban Planning and Development Act, 1973 – Sections 15(2-A) and 41 – Completion Certificate – In exercise of powers under Section 41 of the Act, 1973, the State could not have issued the orders permitting/allowing the Development Authorities to levy the charges/fees other than provided under Section 15(2-A) of the Act, 1973. At this stage, it is required to be noted that the levy of fees/charges provided under Section 15(2-A), all of them have been specifically defined under Section 2 of the Act, 1973. Therefore, the intention of the Act is to levy only those charges/fees provided/mentioned under Section 15(2-A) of the Act, 1973, otherwise the other charges also would have been defined under the Act, 1973. Levy of such other charges can be said to be hit by Article 265 of the Constitution of India. As per Article 265 of the Constitution of India, there shall not be any levy of tax/fees/charges except in accordance with law and/or as provided under the statute – High Court has rightly set aside the various demand notices by way of levy of inspection fee/supervision fee while granting of sanction lay out plan, sub-division charges, impact fee etc.

Counsel for Appearing Parties

Mr. Pardeep Gupta, Advocate, Mr. Parinav Gupta, Advocate, Mrs. Mansi Gupta, Advocate, Mr. Rahul Kumar Choudhary, Advocate, Dr. (mrs. ) Vipin Gupta, Advocate, Mr. Abhisth Kumar, Advocate, Mr. Kamlendra Mishra, Advocate, Mr. Shashibhushan P. Adgaonkar, Advocate, Mr. Omkar Jayant Deshpande, Advocate, Mrs. Pradnya Shashibhushan Adgaonkar, Advocate, Mr. Ajesh K Chawla, Advocate, Ms. Saket Gautam, Advocate, Ms. Shivangi Singh, Advocate, Mr. Satish Kumar, Advocate, Mr. Sudhir Kulshreshtha, Advocate, Mr. S. R. Singh, Sr. Advocate, Mr. Prithvi Yadav, Advocate, Mr. Gaurav Lomes, Advocate, Mr. Ankur Yadav, Advocate, Mr. Himanshu Tyagi, Advocate, Mr. Rajeev Mishra, Advocate, Mr. Ayush Negi, Advocate, Ms. Shashi Kiran, Advocate, Mr. Satish Chandra, Advocate, Mr. Arjun Sain, Advocate, Ms. Sangeeta Bhalla, Advocate, Mr. V.K. Shukla, Sr. Advocate, Ms. Parul Shukla, Advocate, Ms. Shreya Bhojnagarwala, Advocate, Mr. Udayaditya Banerjee, Advocate, Mr. Prashant Shukla, Advocate, Mr. Abhishek Chaudhary, Advocate, Mrs. Anchal Sharma, Advocate, Mr. Abhishek Sharma, Advocate, Mr. Vivek Bansal, Advocate, Mr. Vineet Bhagat, Advocate, Mr. Ajay Kumar Singh, Advocate, Ms. Manju Bhagat, Advocate, Mr. Mohit Gulati, Advocate, Ms. Preetika Dwivedi, Advocate, Mr. Abhisek Mohanty, Advocate, Mr. Ravi Prakash Mehrotra, Sr. Advocate, Mrs. Anil Katiyar, Advocate, Mr. Praveen Chaturvedi, Advocate, Mr. Tejaswi Kumar Pradhan, Advocate, Mr. Manoranjan Paikaray, Advocate, Mr. Aniruddha Purushotham, Advocate, Mr. Mohan Prasad Gupta, Advocate, Mr. A. N. Arora, Advocate, Mr. Jatin Zaveri, Advocate, Mr. Ritesh Agrawal, Advocate, Mr. Tripurari Ray, Advocate, Mr. Balwant Singh Billowria, Advocate, Mr. Vivekanand Singh, Advocate, Mr. Anirudh Ray, Advocate, Mr. Nithyananda Murthy P, Advocate, Ms. Bhanu Prabha, Advocate, Ms. Shilpa Singh, Advocate, Mr. S. S. Kulshrestha, Sr. Advocate, Mr. Ajeet Pandey, Advocate, Mr. Naresh Kumar, Advocate, Mr. Abhinav Agrawal, Advocate, Mr. Rakesh Garg, Advocate, Mr. A. G. Garg, Advocate, Ms. Shweta Garg, Advocate, Mr. Kishan Chand Jain, Advocate, Mr. E. C. Agrawala, Advocate, Mr. Sanchit Garga, Advocate, Mrs. Mithu Jain, Advocate, Mr. Madhav Anand, Advocate, Mr. Nikunj Jain, Advocate, Mr. Ashutosh Garga, Advocate, Mr. Ankur Yadav, Advocate, Mr. Rajeev Kumar Dubey, Advocate, Mr. Kamlendra Mishra, Advocate, Mr. T. Mahipal, Advocate, Mr. Rameshwar Prasad Goyal, Advocate, Mr. Sanjay Kumar Tyagi, Advocate, Ms. Aishwarya Bhati, ASG M/S. V. Maheshwari & Co., Advocate, Ms. Harshita Raghuvansi, Advocate, Ms. Sangeeta Singh, Advocate, Ms. Priyanka Swami, Advocate, Mr. Abhisth Kumar, Advocate, Mr. Himanshu Shekhar Tripathi, Advocate, Mr. T. N. Singh, Advocate, Mr. Vikas Kumar Singh, Advocate, Ms. Rajshree Singh, Advocate, Dr. Sham Chand, Advocate, Mr. Vikram Singh, Advocate, Mr. Kunal Verma, Advocate, Mr. Shantanu Sagar, Advocate, for the Appearing Parties.

Cases Referred

K.K. Bhalla v. State of M.P., reported in (2006) 3 SCC 581
Poonam Verma v. Delhi Development Authority, (2007) 13 SCC 154
State of U.P. & Others v. Malti Kaul (Smt.) & Another, reported in (1996) 10 SCC 4

JUDGMENT

M.R. Shah, J. – As common question of law and facts arise in this group of appeals, all these appeals are decided and disposed of together, by this common judgment and order.

2. Feeling aggrieved and dissatisfied with the impugned judgment(s) and order(s) passed by the High Court of Judicature at Allahabad passed in the respective writ petitions, by which the High Court has quashed and set aside the various demand notices raised by the respective Development Authorities and the State of UP, the Development Authorities and the State of U.P. have preferred the present appeals.

2.1 Some of the appeals have been preferred by the original writ petitioners challenging the interim orders passed by the High Court in the respective writ petitions refusing to stay the demand notices, however, subject to the outcome of the proceedings pending before this Court which are being disposed of by this common judgment and order and directing the respective Development Authorities that in case the decision in the present proceedings is against the Development Authorities/State of U.P., they shall refund the amount of various fees collected with 6% interest per annum.

2.2 By the impugned judgment(s) and order(s), the High Court has set aside the various demand notices except the levy of development fees/charges. However, so far as Civil Appeal No. 4489 of 2014 (State of U.P. v. Rekha Rani & Others) is concerned, the High Court has even set aside the levy/demand of development charges/fees also.

3. The dispute before the High Court by way of various writ petitions was with respect to challenge to the various demand notices by way of external/internal development charges, inspection fee/supervision fee while granting of sanction layout plan, development charges, sub-division charges, stacking charges and impact fee etc. Except in one case, namely, Rekha Rani (supra), in all other cases, the Allahabad High Court as such has upheld the levy of development charges/fees. However, the other levies/demands are concerned, i.e., other than development fees/charges, more particularly the subdivision charges etc., the High Court has set aside the said levy and/or demand notices on the ground that U.P. Urban Planning and Development Act, 1973 (hereinafter referred to as the Act, 1973) does not permit the levy of other charges other than provided under Section 15(2-A) of the Act, 1973. The High Court has also observed and held that such levy on the basis of the orders issued by the State Government, issued in exercise of powers under Section 41 of the Act, 1973, is illegal and bad in law. The levy of other charges, other than development fees/charges is held to be bad in law and in violation of Article 265 of the Constitution of India.

3.1 Quashing and setting aside the levy/demand notices with respect to external/internal development charges, inspection fee/supervision fee while granting of sanction layout plan, sub-division charges, stacking charges and impact fee etc. is the subject matter of present appeals. The State of U.P. has also preferred appeal being Civil Appeal No. 4489/2014 [Rekha Rani (supra)] challenging the impugned judgment and order passed by the High Court by which the High Court has set aside the levy/demand with respect to development charges/fees also.

4. Shri Rana Mukherjee, learned Senior Advocate appearing on behalf of the State of U.P. has vehemently submitted that the State of U.P. in exercise of powers under Section 41 of the Act, 1973 issued orders permitting the Development Authorities in the State to recover the charges /fees with respect to external/internal development charges, inspection fee/supervision fee while granting of sanction layout plan, development charges, sub-division charges, stacking charges and impact fee etc. It is submitted that the said orders came to be issued in exercise of powers under Section 41 of the Act, 1973, which as such were in the larger public interest and for development of the area including the development plan/scheme and for development of other areas included within the limits of Development Authorities.

4.1 It is further submitted by Shri Rana Mukherjee, learned Senior Advocate appearing on behalf of the State of U.P. that as such the levy towards the development charges/fees has been upheld by this Court in the case of State of U.P. & Others v. Malti Kaul (Smt.) & Another, reported in (1996) 10 SCC 425. It is submitted that therefore the High Court in the case of Rekha Rani (supra) (Civil Appeal No. 4489/2014) ought not to have and could not have set aside the levy of development charges/fees which as such came to be affirmed by this Court.

4.2 Learned counsel appearing on behalf of the respective Development Authorities, while adopting the submissions made by Shri Rana Mukherjee, learned Senior Advocate appearing on behalf of the State of U.P., have further submitted that in fact they collected the respective charges, other than development charges/fees, under the orders issued by the State Government.

4.3 Learned counsel appearing on behalf of the respective original writ petitioners , as such, are not in a position to dispute that so far as the levy of development charges/fees is concerned, the same is held to be legal in view of the decision of this Court in the case of Malti Kaul (supra).

4.4 It is submitted that so far as the other charges are concerned, the same are rightly held to be illegal and/or not in accordance with law, in view of Section 15(2-A) of the Act, 1973. It is submitted that only those charges which are enumerated/mentioned in Section 15(2-A) of the Act, 1973 can be recovered/levied. It is submitted that as per Article 265 of the Constitution of India, there cannot be any levy/charges except in accordance with law.

Meaning thereby, unless the law permits, there cannot be any levy of tax/charges.

4.5 Insofar as reliance placed upon Section 41 of the Act, 1973 on behalf of the State as well as Development Authorities is concerned, it is submitted that in exercise of powers under Section 41 of the Act, 1973, there cannot be any levy and/or no charge/fee can be recovered, if otherwise the same is not permissible under the Act. It is submitted that the powers under Section 41 of the Act, 1973, as such, are supervisory in nature and the directions can be issued by the State Government upon the concerned Development Authorities to carry out the functions under the Act. It is submitted that Section 41 does not permit the State to issue orders for levy of charges other than mentioned in Section 15(2-A) of the Act, 1973.

4.6 In one of the cases, learned counsel appearing on behalf of the original writ petitioner has vehemently submitted that as such though the property in question may be within the limits of the Development Authorities, however, with respect to the land which is not covered by the development plan, there cannot be any levy of even development charges/fees.

5. We have heard learned counsel for the respective parties at length.

At the outset, it is required to be noted that before the High Court the dispute was with respect to various demand notices by way of external/internal development charges, inspection fee/supervision fee while granting of sanction layout plan, development charges, sub-division charges, stacking charges and impact fee etc.

6. Insofar as the levy of development fees/charges is concerned, the issue is now not res integra, in view of the direct decision of this Court in the case of Malti Kaul (supra). After taking into consideration the entire scheme and the relevant provisions of the Act, 1973, more particularly Sections 14, 15(2-A), 41 & 59 of the Act, 1973, this Court has upheld the levy of development charges/fees. Therefore, the issue with respect to levy of development charges/fees is concerned, the same is concluded by this Court in the case of Malti Kaul (supra). Under the circumstances, as such the High Court has rightly upheld the levy of development fees/charges except in the case of Rekha Rani (supra). The decision of the High Court in the case of Rekha Rani (supra) quashing and setting aside the levy of development charges/fees thus is unsustainable and the same deserves to be quashed and set aside and the levy of development charges/fees, which otherwise is permissible under section 15(2-A) of the Act, 1973 is to be upheld.

7. Insofar as the submission on behalf of one of the counsel that as the area in one of the cases is not included within the development plan, but the same is within the area of Development Authorities and therefore there shall not be any levy of development charges/fees is concerned, the same has no substance. It is required to be noted that the levy of development fee/charges is for the area where development has already taken place and/or which is yet to be developed. The said aspect has already been considered by this Court in the case of Malti Kaul (supra). In paragraph 5 of the said decision, it is observed and held as under:

“5. Section 4 contemplates that the State Government may, by notification in the Gazette, constitute, for the purpose of the Act, an authority called “Development Authority” for any development area. Development has been defined in Section 2( e) with its grammatical variations, to mean the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in any building or land, and includes redevelopment. “Development area” has been defined in Section 2( f) to mean any area declared to be development area under Section 3. It has been empowered, where the Government in exercise of the power under Section 3 has declared that any area within the State requires to be developed according to the plan, to declare such area to be a development area. Section 7 envisages the objects of the authority and gives power to the developing authority to acquire, hold, manage or dispose of a land and any other property, to carry out building, engineering, mining and other operations, to execute works in connection with the supply of water and electricity, to dispose of sewage and to provide and maintain other services and amenities and generally to do anything necessary or expedient for purposes of such development and for purposes incidental thereto. Amenity has been so defined in Section 2( a) as to include road, water supply, street lighting, drainage, sewerage, public works and such other convenience as the State Government may, by notification in the Gazette specify to be an amenity for the purposes of the Act. The expression “engineering operations” has been defined under Section 2( h) and includes the formation or laying out means of access to a road or the laying out of means of water supply. “Means of access” has been defined under Section 2( i) and includes any means of access, whether private or public, for vehicles or for foot passengers and includes a road.”

8. Insofar as the levy of other charges by way of inspection fee/supervision fee while granting of sanction layout plan, sub-division charges, stacking charges and impact fee etc., except levy of development charges/fees, is concerned, while considering the legality of the levy of such charges, the relevant provisions of the Act, 1973 are required to be considered, which are as under:

“S. 2. Definitions – In this Act unless the context otherwise requires-

(e) development with its grammatical variations, means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in any building or land, and includes re-development:

(f) Development Area means any area declared, development area under Section 3:

(g) the Development Authority or the Authority, in relation to any development area, means the Development Authority constituted under Section 4 for that area:

(ggg) development fee means the fee levied upon a person or body under Section 15 for construction of road, drain, sewer line, electric supply and water supply lines in the development area by the Development Authority):]

(h) engineering operation includes the formation or laying out means of access to a road or the laying out of means of water supply:

(hh) Land use conversion charge means the charge levied on a person or body under section 38-A for the change of land use in the Master Plan or Zonal Plan;]

(ii) mutation charges means the charges, levied under Section 15 upon the person seeking mutation in his name of a property allotted by the Authority to another person:]

(kk) Stacking fees means the fees levied under Section 15 upon the person or body who keeps building materials on the land of the Authority or on a public street or public places:]

(ll) water fees means the fees levied under Section 15 upon a person or body for using water supplied by the Authority for building operation or construction of buildings.]

xxx xxx xxx

S. 14. Development of the land in the developed area -(1) After the declaration of any area as development area under Section 3, no development of land shall be undertaken or carried out or continued in that area by any person or body (including a department of Government)-unless permission for such development has been obtained in writing from the [Vice-Chairman) in accordance with the provision of this Act.

(2) After the coming into operation of any of the plans in any development area no development shall be undertaken or carried out or continued in that area unless such development is also in accordance, with such plans.

(3) Notwithstanding anything contained In Sub-sections (1) and (2), the following provisions shall apply in relation to development of land by any department of any State Government or the Central Government or any local authority-

(a) When any such department or local authority intends to carry out any development of land it shall inform the (Vice Chairman) in writing of its intention to do so giving full, particulars thereof, including any plans and documents, at least 30 days before undertaking such development;

(b) In the case of a department of any State Government or the Central Government, if the (Vice-Chairman) has no objections, it should inform such department of the same within three weeks from the date of receipt by it under Clause (a) of the department’s intention, and if the ViceChairman does not make any objection within the said period, the department shall be free to carry out the proposed development;

(c) Where the (Vice-Chairman) raises any objection to the proposed development on the ground that the development is not conformity with any Master Plan or Zonal Development Plan prepared or intended to be prepared by it, or on any other ground, such department or the local authority, as the case be, shall-

(i) either make necessary modifications in the proposal development to meet the objections raised by the [ViceChairman] or

(ii) submit the proposals for development together with the objections raised by the [Vice-Chairman] to the State Government for decision under Clause (d)

(d) The State Government, on receipt of proposals for development together with the objections of the (ViceChairman) may either approve the proposals with or without modifications or direct the department or the local authority, as the case may be, to make such modification as proposed by the Government and the decision of the State Government shall be final:

the development of any land begun by any such department or subject to the provisions of Section 59 by any such local authority before the declaration referred to in Sub-section (1) may be completed by that department or local authority with compliance with the requirement of Sub-sections (1) and (2).

S. 15. Application for permission-(1) Every person or body (other than any department of Government or any local authority) desiring to obtain the permission referred to in Section 14 shall make an application in writing to the [Vice-Chairman] in such form and containing such particulars in respect of the development to which the Application relates as may be prescribed by [bye-laws].

(2) Every application under Sub-section (1) shall be accompanied by such fee as may be prescribed by rules.

[(2-A) The Authority shall be entitled to levy development fees, mutation charges, stacking fees and water fees in such manner and at such rates as may be prescribed.]

Provided that the amount of stacking fees levied in respect of an area which is not being developed or has not been developed, by the Authority, shall be transferred to the local authority within whose local limits such area is situated.]

xxx xxx xxx

S. 41. Control by State Government – (1) The [Authority, the Chairman or the Vice-Chairman] shall carry out such directions as may be issued to it from time to time by the State Government for the efficient administration of this Act.

(2) If in, or in connection with, the exercise of its powers and discharge of its functions by the [Authority, the Chairman or the Vice-Chairman) under this Act any dispute arises between the authority, the Chairman or the Vice-Chairman) and the State Government the decision of the State Government on such dispute shall be final.

(3) The State Government may, at any time, either on its own motion or on application made to it in this behalf, call for the records of any case disposed of or order passed by the [Authority or the Chairman) for the purpose of satisfying itself as to the legality or propriety of any order passed or direction issued and may pass such order or issue such direction in relation thereto as it may think fit:

Provided that the State Government shall not pass an order prejudicial to any person without affording such person a reasonable opportunity of being heard.

[(4) Every order of the State Government made in exercise of the powers conferred by this Act shall be final and shall not be called in question in any court.]

xxx xxx xxx

S. 59. Repeal etc. and Savings – (1)(a) The operation of Clause (c) of Section 5, Sections 54, 55 and 56, Clause (xxxiii) of Section 114, Sub-section (3) of Section 117, Clause (c) of Sub-section (1) of Section 119, Section 191, Sections 316, 317, 318, 319, 320, 321, 322, 323, 324, 325, 326, 327, 328, 329 and 333, Clauses (a) and (b) of Sub-section (1) of Section 334, Sections 335, 336, Chapter XIV of the Uttar Pradesh [U.P. Municipal Corporation Act, 1959] Sections 178, 179, 180, 180-A, 181, 182, 183, 184, 185, 186, 203, 204, 205, 206, 207, 208, 209, 210 and 222 of the [U.P. Municipalities Act, 1916] (or the said sections as extended under Section 338 thereof or under Section 38 of the [United Provinces Town Areas Act, 1914], or as the, case may be, of Sections 162 to 171 of the [U.P. Kshetra Panchayat Zila Panchayat Adhiniyam, 1961] and of the Uttar Pradesh (Regulation of Building Operations) Act, 1958 and the Uttar Pradesh Avas-Evam Vikas Parishad Adhinlyam, 1965, [except in relation to those housing or Improvement schemes which have either been notified under Section 32 of Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 before the declaration of the area comprised therein as development area or which having been notified under Section 28 of the said Adhiniyam before the said declarations are bye-thereafter approved by the State Government for continuance under the said Adhiniyam or which are initiated after such declaration with the approval of the State Government, hereinafter in this section referred to as Special Avas Parishad Schemes] shall in respect of a development area remain suspended and Sub-section (3) of Section 139 of the Uttar Pradesh [Municipal Corporation Act, 1959) shall have effect as if the requirement as to constitution of a Development Fund were suspended with effect from the date of constitution of the Authority for that area and until the dissolution of such Authority and the provisions of [Sections 6 and 24 of the United Provinces General Clauses Act, 1904) shall apply, in relation to such suspension as if the suspension amounted to repeal of the said enactment by this Act, and in particular, all proceedings relating to acquisition of land and interest in land for Improvement schemes under the said enactment pending immediately before such suspension before any court, tribunal or authority may be continued and concluded in accordance with the provisions of the said enactment (which shall mutatis mutandis apply) as if those provisions were not suspended and the powers, for doing anything which could but for such suspension of the Uttar Pradesh (Regulation of Building not Operations) Act, 1958, be done by the Prescribed Authority and controlling authority and which can, after such suspension be done by virtue of the application of Section 6 of the Uttar Pradesh General Clause Act, 1904, shall vest in the Vice-Chairman and the Chairman respectively).

(b) The operation of the provisions suspended by virtue of Clause (a) shall revive upon the dissolution of the Authority under Section 58, the provisions of [Sections 6 and 24 of the United Provinces General Clauses Act, 1904] shall apply in relation to the cesser of application of the corresponding provisions of this Act as if such cesser amounted to a repeal of these provisions of this Act by an Uttar Pradesh Act.

(c) Without prejudice to the generality of the provisions of Clauses (a) and (b), and bye-laws, directions or regulations under the [U.P. Municipalities Act, 1916] or the Uttar Pradesh (Regulation of Building Operations) Act, 1958 or the [U.P. Municipal Corporation Act, 1959) as the case may be, and in force on the date immediately before the date of commencement of this Act, shall, insofar as they are not inconsistent with the provisions of this Act, continue in force, until altered, repealed or amended by any competent authority under this Act).

(6) Notwithstanding the provisions of Sub-sections (1) and (2)

(a) anything done or any action taken (including any notification issued or order or scheme made or permission granted) under any of the enactments referred to in Sub-sections (1) and shall, so far as it is not inconsistent with the provisions of the Act continue in force and be deemed to have been done or take under the provisions of this Act unless and until it is superseded by anything done or any action taken under the provisions this Act;

Therefore, as per Section 15(2-A) of the Act, 1973, the Development Authority can levy only those charges, namely, development fees, mutation charges, stacking fees and water fees. The Act, 1973 does not permit levy of other charges other than provided under Section 15(2-A) of the Act, 1973.

9. Insofar as the reliance placed upon Section 41 of the Act, 1973 by the State as well as the Development Authorities is concerned, at the outset, it is required to be noted that the power exercisable under Section 41 by the State, as such, are supervisory in nature and under the said provision, the State Government can issue various directions to the Development Authorities for implementation of the provisions of the said Act. In para 9 in the case of Malti Kaul (supra), it is observed and held as under:

“9. Section 41 envisages control by the State Government in implementation of the provisions of the Act. Under sub-section (1) thereof, the authority, the Chairman or the Vice-Chairman shall carry out such directions as may be issued to it/him from time to time by the State Government for the efficient administration of this Act. Section 56 gives power to make regulations under the Act. Sub-section (1) thereof provides that any authority may, with the previous approval of the State Government, make regulations, not inconsistent with this Act and the rules made thereunder, for the administration of the affairs of the authority. Therefore, the general power is available under Section 56 for the authority to make regulations for the administration of the affairs of the authority. In particular sub-section (2) thereof provides that despite the generality of the power given in sub-section (1) specific power has been given by way of regulations as enumerated thereunder. Clause (i) which is a residuary clause provides for any other matter which has to be or may be prescribed by the regulations.”

10. An identical question came to be considered by this Court in the case of K.K. Bhalla v. State of M.P., reported in (2006) 3 SCC 581. While dealing with the powers of the State Government under the Madhya Pradesh Act, which is pari materia to Section 41 of the Act, 1973, in paragraph 62, it is observed and held as under:

“62. Furthermore, in terms of Section 73 of the 1973 Act, the power of the State Government to issue direction to the officers appointed under Section 3 and the authorities constituted under the Act is confined only to matters of policy and not any other. Such matters of policy yet again must be in relation to discharge of duties by the officers of the authority and not in derogation thereof.”

11. In the case of Poonam Verma v. Delhi Development Authority, (2007) 13 SCC 154, while dealing with the pari materia provision under the Delhi Development Authority Act (Section 41 of the DDA Act), this Court has observed and held in para 13 as under:

“13. Having failed to establish any legal right in themselves as also purported deficiency in services on the part of the respondent before competent legal forums, they took recourse to remedies on administrative side which stricto sensu were not available. It has not been shown as to on what premise the Central Government can interfere with the day-to-day affairs of the respondent. Section 41 of the Act, only envisages that the respondent would carry out such directions that may be issued by the Central Government from time to time for the efficient administration of the Act. The same does not take within its fold an order which can be passed by the Central Government in the matter of allotment of flats by the Authority. Section 41 speaks about policy decision. Any direction issued must have a nexus with the efficient administration of the Act. It has nothing to do with carrying out of the plans of the authority in respect of a particular scheme.”

12. Under the circumstances, in exercise of powers under Section 41 of the Act, 1973, the State could not have issued the orders permitting/allowing the Development Authorities to levy the charges/fees other than provided under Section 15(2-A) of the Act, 1973. At this stage, it is required to be noted that the levy of fees/charges provided under Section 15(2-A), all of them have been specifically defined under Section 2 of the Act, 1973. Therefore, the intention of the Act is to levy only those charges/fees provided/mentioned under Section 15(2-A) of the Act, 1973, otherwise the other charges also would have been defined under the Act, 1973. Levy of such other charges can be said to be hit by Article 265 of the Constitution of India. As per Article 265 of the Constitution of India, there shall not be any levy of tax/fees/charges except in accordance with law and/or as provided under the statute. Under the circumstances and in view of the above, the High Court has rightly set aside the various demand notices by way of levy of inspection fee/supervision fee while granting of sanction lay out plan, sub-division charges, impact fee etc.

13. In view of the above and for the reasons stated above, the levy of development charges/fees by the various Development Authorities of the State of U.P. is hereby confirmed. The decision of the High Court in the case of Rekha Rani (supra) (Civil Appeal No. 4489/2014) quashing and setting aside the levy of development charges/fees is hereby quashed and set aside to that extent. The impugned judgments and orders passed by the High Court quashing and setting aside the demand notices/levy of other charges/fees, namely, inspection fee/supervision fee while granting of sanction layout plan, sub-division charges, impact fee etc. (other than development charges/fees) are hereby confirmed.

14. It is observed and directed that any amount already paid by the respective original writ petitioners other than the development charges/fees and the charges provided under Section 15(2-A), now be refunded to the respective original writ petitioners with 6% interest per annum, within a period of twelve months from today, of course after adjusting development charges/fees. It is made clear that we have not expressed anything on the levy of betterment charges, which, as such, is otherwise permissible under section 35 of the Act, 1973. It is also made clear that the order of refund shall be applicable only with respect to those original writ petitioners/persons who have challenged the demand notices and who were before the High Court. It is also observed and it is made clear that if any individual/original writ petitioner has any other grievances, it will be open for them to approach the High Court by way of independent proceedings.

15. The present appeals stand disposed of in terms of the above. In the facts and circumstances of the case, there shall be no order as to costs.

Posted on 3rd March 202322nd September 2023 by rajatbindal5gmailcom — Leave a comment

Devesh Yadav VS Meenal – Complaints to senior officers of husband is mental cruelty – divorce granted.

(2022) AIR(Punjab) 102 : (2022) 2 LawHerald 1064 : (2022) 3 RCR(Civil) 399

PUNJAB AND HARYANA HIGH COURT

DIVISION BENCH

DEVESH YADAV — Appellant

Vs.

SMT. MEENAL — Respondent

( Before : Ritu Bahri and Ashok Kumar Verma, JJ. )

FAO-M-208 of 2013

Decided on : 08-04-2022

Hindu Marriage Act, 1955 – Section 13 – Divorce – Mental Cruelty – Wife bent upon destroying the career and reputation of the husband as she made complaints against him to his senior officers in the Air Force – Conduct of the wife in filing a complaint making unfounded, indecent and defamatory allegations against her husband and parents-in-law indicates that she made all attempts to ensure that husband and his parents are put in jail and the husband is removed from his job – No manner of doubt that this conduct of wife has caused mental cruelty to the husband – It is well settled that once the parties have separated and separation has continued for a sufficient length of time and anyone of them presented a petition for divorce, it can well be presumed that the marriage has broken down. The Court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties – Decree of divorce is granted – Appeal allowed.

Counsel for Appearing Parties

Mr. Gurpreet Singh, Advocate, for the Appellant, Mr. Gautam Diwan, Advocate, for the Respondent.

Cases Referred

A Jayachandra vs. Aneel Kaur, (2005) (2) SCC 22
Chandra Kala Trivedi vs. Dr. S.P.Trivedi, (1993) (4) SCC 232
K. Srinivas Rao vs. DA. Deepa, (2013) (2) RCR (Civil) 232
Mangayakarasi vs. M. Yuvaraj, (2020)(2) R.C.R.(Civil) 155
Naveen Kohli vs. Neetu Kohli, (2006) (4) SCC 558
Ravi Kumar vs. Julmidevi, (2010) (2) RCR (Civil) 178
Samar Ghosh vs. Jaya Ghosh, (2007) (4) SCC 511
Samar Ghosh vs. Jay a Ghosh, (2007) (4) SCC 511
Seth Ramdayal Jat vs. Laxmi Prasad, (2009)(11) SCC 545
Sheldon vs. Sheldon, (1966) 2 WLR 993

ORDER

Ashok Kumar Verma, J. – The appellant-husband has come up in appeal before this Court seeking setting aside of judgment and decree dated 26.02.2013 passed by the District Judge, Rohtak, whereby petition filed by him under Section 13 of the Hindu Marriage Act, 1955 (for short ‘the HMA’) for dissolution of marriage by a decree of divorce, has been dismissed.

2. Brief facts of the case are that appellant-husband filed a petition under Section 13 of the HMA for dissolution of marriage by a decree of divorce pleading therein that marriage between the parties was solemnized on 19.11.1998 and the same was registered on 23.11.1998 at Rohtak. At the time of marriage, appellant-husband was posted at Srinagar and they lived there upto March, 2000. Respondent-wife insisted that delivery of the child should take place at Rohtak, therefore, appellant acceded to her request and they went to Rohtak, where they were blessed with a son, namely, Jalaj on 24.08.1999. Thereafter, appellant was transferred to Jammu and parties lived together there upto April, 2002. The appellant remained posted at Jammu upto September, 2002 and then was transferred to Lucknow. It is alleged by the appellant-husband that from the beginning of the marriage, conduct, behaviour and attitude of the respondent-wife had been cruel, unwarranted and harsh and she used to pick up quarrels over trifles without any justifiable cause. The respondent deserted the appellant in April, 2002 and since then she had not returned to matrimonial home, whereas appellant had always been giving love and affection to the respondent and his son. In the beginning of December, 1999 appellant had taken the respondent along with his son to his place of posting at Srinagar and at the request of respondent her mother was also taken there and appellant provided proper food, clothing and every good lodging facility to the respondent, her mother and the son. In mid December, 1999, respondent suffered with breast abscess and she was got treated and operated at Army Hospital, Srinagar. In December, 1999, respondent was again operated at PGIMS, Rohtak, as the said ailment had re-developed. In April, 2002, respondent went to the house of her parents at Rohtak and thereafter in spite of best efforts of the appellant, she did not return to her matrimonial home. Appellant had also written several letters from the place of his posting requesting respondent and her parents to send the respondent and his son to him but in vain. Whenever, appellant came on leave at Rohtak and tried to meet his wife and the child, respondent’s parents did not allow him to meet them. Rather, Pawan, brother of the respondent, misbehaved with the appellant whenever appellant visited the house of his in-laws. Appellant also met the respondent in April, 2006 and requested her to accompany him and apprised her that he had booked seats for journey but she flatly refused to accompany him and threatened that if he tried to take her with him, she would commit suicide. It is further alleged that respondent failed to discharge her matrimonial duties and obligations and rather she ill-treated and mal-treated the appellant, caused physical and mental cruelty upon him, did not cooperate in married life and made his life hell. The respondent even failed to give any respect and regard to the parents of the appellant. When respondent expressed her desire to do a job, appellant agreed to her request and she had worked at Army Public School, Jammu, from July, 2001 to March, 2002. As in spite of best efforts made by the appellant, respondent did not join the matrimonial home, he was compelled to institute a divorce petition bearing No.58 of 2006. The matter was referred to Lok Adalat/mediation. During the course of these proceedings, respondent agreed to withdraw her complaint made to the Air Force authorities as well as the application for maintenance filed before the Senior Air Force Officer, on withdrawal of said petition by the appellant. The matter was compromised on the basis of separate statements dated 21.12.2008 and the petition filed by the appellant was dismissed as withdrawn. Appellant further alleged that respondent was working as lecturer in mathematics in Matu Ram Institute of Engineering and Management at Rohtak. Even during vacations she never joined the company of the appellant. Despite having given undertaking before the Court in her statement dated 21.12.2008, she had not withdrawn her complaint and maintenance application filed before the Senior Air Force Officer and did not join the company of the appellant at the matrimonial home at the place of his posting i.e. at M.E.T. Flight Air Force Station, Sirsa (Haryana). Therefore, appellant sought decree of divorce on the ground of cruelty and desertion.

3. Respondent-wife contested the petition admitting the factum of solemnization of her marriage with the appellant and the birth of the son out of their wedlock. Respondent denied that she insisted that the delivery of the child should take place at Rohtak. It was also denied that from the beginning of the marriage, her conduct, behaviour and attitude had been cruel, unwarranted, harsh and she used to pick up quarrels with the appellant without any good cause and reason. It was also denied that she deserted the appellant in April, 2002 whereas the appellant had caused mental as well as physical cruelty to her. In the beginning of December, 1999 she was taken to Srinagar by the appellant and the mother of the respondent had to accompany her as there was no one else to look after her and her son. There respondent suffered with breast abscess in December, 1999 but the appellant refused to consult the doctors at Air Force Hospital being male staff and pressurized her to consult a nurse and due to the delay, the respondent had to undergo an operation at Srinagar Army Base Hospital and her mother had to look-after her. Since she was not fully recovered, she had to undergo another operation in December, 1999 at PGIMS, Rohtak. As her mother-in-law refused to look after her, therefore, her sister stayed there to look after her and her mother took care of the child. The appellant did not avail leave at that time to join her in such painful moments. In march, 2000 respondent returned to the matrimonial home and went to appellant’s place of posting at Jammu, however, appellant started teasing her by hurting her physically and mentally. On several occasions, respondent was thrashed by the appellant and in the midnight of June 19, 2000 she was turned out of the matrimonial home. Appellant levelleved false allegations about her character. Therefore, her brother had to come to Jammu to patch up the matter. On 27/28 August, 2000, appellant repeated his behaviour and left the respondent and her son at Ambala at her brother’s house forcibly. He came in November, 2000 and had taken the respondent and their son back on 18.11.2000. However, after a few days, appellant again started treating the respondent like a slave and demanded money to pay his loan taken for purchase of a car. As a result, respondent had to go back to her parental home as it was not possible to live in such isolation where she was compelled to keep even every window shut with curtains and not to talk to any person. After reaching Rohtak, it was revealed that the respondent had conceived again but appellant forced her to abort the pregnancy alleging that the same did not belong to him. After that appellant went to the house of the respondent and apologized for his mis-behaviour. Respondent denied that she did not allow the appellant to meet his son Jalaj. She also denied that she deserted the company of the appellant continuously since April, 2002. She joined the company of the appellant after April, 2002 and lived together at Lucknow and they along with their son Jalaj visited Imambara and other historical places of Lucknow. They also visited Nainital and enjoyed picnic and photographs were snapped at those places. Respondent alleged that marriage of her brother was solemnized in February, 2003 and appellant and her family members attended the said marriage. Respondent admitted the factum of filing of earlier divorce petition by the appellant but after compromise, the same was got dismissed as withdrawn and thereafter respondent joined the company of the appellant. She was ready to withdraw her complaint moved by her before the Air Force authorities, however, appellant turned her out of his place of posting and deserted her. It is further alleged that in fact appellant had withdrawn his earlier divorce petition because he wanted the respondent to withdraw the complaint filed before the Air Force authorities. While denying all other allegations, respondent-wife sought dismissal of the petition.

4. Appellant-husband filed replication controverting the contents of the written statement and reasserted the contents of the petition.

5. From the pleadings of the parties, following issues were framed by the Family Court on 07.01.2010: –

“1. Whether the petitioner is entitled for a decree of divorce on the ground of cruelty, harassment and desertion, as alleged in the petition? OPP

2. Whether the present petition is not maintainable? OPR3. Whether the petitioner is estopped from filing the present petition by his own act and conduct? OPR

4. Whether the petitioner has no cause of action to file the present petition? OPR.

5. Relief

6. In order to prove his case, appellant-husband stepped into witness box as PW1, besides examining his mother Usha Yadav as PW2. He tendered his duly sworn affidavit Ex.PW1/A.

7. On the other hand, respondent-wife herself appeared as RW1 besides examining her father Bhagat Singh Malik as RW2. She tendered her duly sworn affidavit Ex.RW1/A.

8. The Family Court has returned the findings against the appellant-husband and decided issue No.l in favour of the respondent-wife observing that appellant had not been able to prove the ground of cruelty, harassment and desertion, as alleged in the petition. Therefore, petition under Section 13 of the HMA filed by the appellant was dismissed.

9. Learned counsel for the appellant vehemently has contended that impugned judgment and decree passed by the Family Court dismissing the petition filed by the appellant-husband under Section 13 of the HMA is erroneous and contrary to the material on record as during her stay at matrimonial home, respondent treated the appellant with cruelty and she herself deserted the appellant-husband in April, 2002 without any reasonable cause. Efforts of the appellant to bring back the respondent to her matrimonial home went in vain since she refused to join the company of the appellant-husband. Learned counsel has further contended that respondent-wife made complaints to the senior officers of the appellant-husband in the Air Force, which caused great mental cruelty to him and affected his service career. Learned counsel has contended that on a false complaint filed by the respondent-wife, FIR No.644 dated 20.10.2010 under Sections 498-A, 406, 313, 323, 506 IPC was registered at Police Station Civil Lines, Rohtak, against the appellant-husband and his parents. During investigation, parents of the appellant were found innocent whereas appellant was tried for the offences under Sections 498-A, 406, 313, 323, 506 IPC and during the pendency of present appeal the trial Court, finding the allegations against the appellant-husband false, acquitted him of the charges vide judgment dated 16.04.2015 (Annexure P-A). The false complaint leveling serious allegations against the appellant is itself a cruelty by the respondent. Learned counsel has, thus, contended that there is no possibility of reconciliation of the marriage and the marriage is irretrievably broken and they are residing separately for the last about 20 years (11 years on the date of order of the Family Court) which aspect has not been considered by the Court below while passing the impugned judgment and decree. In support of his contentions, learned counsel for the appellant placed reliance on the judgments in the cases of K. Srinivas Rao vs. D.A. Deepa, (2013) 5 Supreme Court Cases 226; FAO-1767 of 2017-Smt Veena v. Shri Naveen decided on 23.09.2021 (P&H); FAO-M-261 of 2008-Santro Devi v. Virender Kumar alias Virender Singh decided on 18.02.2015 (P&H); FAO-326 of2007-Soma Banerjee v. Subhrojyoti Banerjee decided on 05.08.2009 (Calcutta High Court); K. Srinivas v. K. Sunita, (2014) 16 Supreme Court Cases 34 and Civil Appeal No.4905 of 2012-Vishwanath v. Sau. Sarla Vishwanath Agrawal decided on 04.07.2012.

10. Per contra, learned counsel for the respondent-wife sought to justify the impugned judgment and decree passed by the Court below and has contended that the appellant had not made out any ground to grant divorce. The appellant failed to prove cruelty on the part of the respondent. Learned counsel has further contended that respondent-wife has never deserted the appellant-husband, therefore, he is not entitled for decree of divorce on the grounds of cruelty, desertion or on the ground of irretrievable break down of the marriage. Earlier also the appellant-husband had filed divorce petition in the Court of Additional District Judge, Rohtak. However, the matter was compromised on 21.12.2008 according to which parties mutually agreed to resolve all their disputes and appellant agreed to withdraw the divorce petition whereas respondent-wife assured that she would withdraw the application for maintenance filed before the senior Air Force officers. Learned counsel for the respondent has further contended that factum of lodging of FIR against the appellant and his family members was not pleaded in the petition under Section 13 of the HMA, therefore, appellant cannot be allowed to take benefit of the judgment of acquittal dated 16.04.2015, which is subsequent to the judgment and decree dated 26.02.2013 dismissing the petition under Section 13 of the HMA filed by the appellant. Only vague and baseless allegations have been levelled against the respondent. Therefore, he sought dismissal of the present appeal. In support of his contentions, learned counsel for the respondent placed reliance on the judgments of the Hon’ble Supreme Court in Seth Ramdayal Jat v. Laxmi Prasad, 2009(11) SCC 545 and Mangayakarasi v. M. Yuvaraj, 2020(2) R.C.R.(Civil) 155.

11. We have considered the rival submissions made by learned counsel for the parties and perused the records.

12. Matrimonial cases are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by statute framed, keeping in view such norms and changed social order. It is sought to be controlled in the interest of the individuals as well as in broader perspective, for regulating matrimonial norms for making of a well-knit, healthy and not a disturbed and porous society. The institution of marriage occupies an important place and role to play in the society, in general.

13. It is undisputed fact that the marriage between the appellant and respondent was solemnized on 19.11.1998 and the same was registered on 23.11.1998. On 24.08.1999 a child, namely, Jalaj was born out of the wedlock. According to the appellant, in the month of April, 2002, the respondent left the company of the appellant and went to her parents’ house and the efforts made by the appellant to bring her back went in vain. It is the specific case of the respondent-wife that she never deserted the appellant nor caused any cruelty to him. The Family Court, considering the averments of both the parties, dismissed the petition filed by the husband under Section 13 of the HMA.

14. In view of the above circumstances, before proceeding with the appeal on merits, taking into consideration the fact that the parties were residing separately for about 12 years, vide order dated 28.04.2014, the parties were directed to appear before the Mediation and Conciliation Centre of this Court on 19.05.2014. However, on several occasions parties did not appear before the mediator. Therefore, due to lackadaisical approach of both the parties to settle the matter and due to expiry of the stipulated period, mediator referred back the matter to this Court on 14.08.2014. Thus, the appeal was admitted on 20.02.2015.

15. Being fed up of the behavior of the respondent-wife, earlier also appellant had instituted a petition for divorce bearing No.58 of 2006, which was referred to the Lok Adalat. The matter was compromised on 21.12.2008 and on assurance of the respondent to withdraw her complaint made to the Air Force authorities and the application for maintenance filed by her before the senior Air Force officer, appellant had withdrawn the said petition for divorce.

16. To prove her case, respondent-wife Meenal appeared as RW1 in the witness box. In her cross-examination she has stated that it is correct that earlier the matter was compromised in Lok Adalat and it was agreed by her that she would withdraw her application for maintenance as well as application/complaint moved by her against her husband to the higher authorities of Air Force. Application for maintenance was not withdrawn. I worked in Army Public School, Jammu from July 2001 to March 2002. I also worked at M.K.J.K. College, Rohtak, from August, 2002 to February, 2003. Now, I am working in Matu Ram Institute since July, 2008. I am getting salary of Rs. 18,000/- to Rs.20,000/- per month. My son Jalaj is studying in Indus Public School in 8^th standard. I have a driving licence and a PAN card. It is correct that I do not write name of my husband along with my name. It is correct that I had given complaint against my husband before his senior officers because he was not keeping me with him. I met my husband in October, 2010. My husband also visited me in October, 2010. I have been residing separately since 20.04.2009. It is correct that we know each other prior to marriage and it was a love-cum-arranged marriage. It is correct that I remained in Srinagar up to March, 2000. While working in Army Public School, Jammu, I used to go with my husband on picnic etc. It is correct that our joint statement was recorded before the Lok Adalat on 21.12.2008. I visited Sirsa 7/8 times. It is correct that my husband has been paying the maintenance to me and my child as per orders of the Air Force Authorities. It is correct that in my affidavit I have shown address of my parents’ and not the address of my sister, who is residing in H. No.2 507, Sector 1, Rohtak.

17. From the above deposition of the respondent-wife it is axiomatic that entire case set up by her stands demolished from her own statement wherein she has admitted in so many words that despite compromise, as assured, she had not withdrawn the complaint filed by her before the Air Force authorities and the application for maintenance before Senior Air Force officer. It is also clear from her statement that even after compromise she had not resided with the appellant rather visited him at Sirsa 7/8 times.

18. RW2 Bhagat Singh Malik, father of respondent-Meenal, also deposed in the similar manner. He stated that petitioner (appellant herein) never gave beatings to the respondent in any manner in my presence. I cannot tell the date, month and year when she was abused by the petitioner. I do not know if the respondent had lodged any complaint to the senior officers of the petitioner in the Air Force about his conduct. The alleged incident of threatening my daughter with knife had taken place at my house at Rohtak. I did not see the said incident of threatening by showing knife by the petitioner to the respondent. However, my wife had seen the said incident. The child goes to the school sometimes from my house and sometimes from the house of my elder daughter namely Pushpa. I cannot tell since which year my daughter is residing with me at Rohtak.

19. During the pendency of the present appeal, learned counsel for the appellant has placed on record judgment dated 16.04.2015 (Annexure P-A), whereby appellant has been acquitted of the charges under Sections 498-A, 406, 313, 323 and 506 IPC. The FIR was registered on the basis of complaint dated 13.10.2010 of respondent-wife against the appellant-husband and his parents, namely, B.S. Yadav (father) and Usha Rani (mother). During investigation, parents of the appellant were found innocent. After facing trial about 4M? years appellant has been acquitted of the charges as the allegations levelled by the respondent against the appellant were found to be false.

20. Another argument which has been articulated on behalf of the learned counsel for the respondent is that the filing of the criminal complaint has not been pleaded in the petition itself. As we see it, the criminal complaint was filed by the wife after filing of the husband’s divorce petition, and being subsequent events could have been looked into by the Court. In any event, both the parties were fully aware of this facet of cruelty which was allegedly suffered by the husband. We are, therefore, not impressed by this argument raised on her behalf.

21. Respondent wife also bent upon destroying the career and reputation of the appellant-husband as she made complaints against him to his senior officers in the Air Force.

22. At this juncture, it is important to make reference to the judgment passed by the Hon’ble Supreme Court in Raj Talreja vs. Kavita Talreja, Civil Appeal No. 10719 of 2013, decided on 24.04.2017, wherein, it was held that a false complaint was registered against the husband by the wife, after wife herself inflicted injuries on her person. In criminal proceedings, the husband had been acquitted and thereafter, proceedings against the wife were launched. On this account, the husband was held entitled to decree of divorce, on the ground of cruelty. It was further observed as herein given :-

“9. This Court in Para 16 of K. Srinivas Rao v. DA. Deepa, 2013 (2) RCR (Civil) 232 has held as follows: “16. Thus, to the instances illustrative of mental cruelty noted in Samar Ghosh v. Jaya Ghosh, 2007 (4) SCC 511, we could add a few more. Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse.”

In Ravi Kumar v. Julmidevi, 2010 (2) RCR (Civil) 178, this Court while dealing with the definition of cruelty held as follows:

“19. It may be true that there is no definition of cruelty under the said Act. Actually such a definition is not possible. In matrimonial relationship, cruelty would obviously mean absence of mutual respect and understanding between the spouses which embitters the relationship and often leads to various outbursts of behaviour which can be termed as cruelty. Sometime cruelty in a matrimonial relationship may take the form of violence, sometime it may take a different form. At times, it may be just an attitude or an approach. Silence in some situations may amount to cruelty.

20. Therefore, cruelty in matrimonial behaviour defies any definition and its categories can never be closed. Whether the husband is cruel to his wife or the wife is cruel to her husband has to be ascertained and judged by taking into account the entire facts and circumstances of the given case and not by any predetermined rigid formula. Cruelty in matrimonial cases can be of infinite variety-it may be subtle or even brutal and may be by gestures and words. That possibly explains why Lord Denning in Sheldon v. Sheldon, (1966) 2 WLR 993 held that categories of cruelty in matrimonial cases are never closed.

10. Cruelty can never be defined with exactitude. What is cruelty will depend upon the facts and circumstances of each case. In the present case, from the facts narrated above, it is apparent that the wife made reckless, defamatory and false accusations against her husband, his family members and colleagues, which would definitely have the effect of lowering his reputation in the eyes of his peers. Mere filing of complaints is not cruelty, if there are justifiable reasons to file the complaints. Merely because no action is taken on the complaint or after trial the accused is acquitted may not be a ground to treat such accusations of the wife as cruelty within the meaning of the Hindu Marriage Act 1955 (for short ‘the Act’). However, if it is found that the allegations are patently false, then there can be no manner of doubt that the said conduct of a spouse levelling false accusations against the other spouse would be an act of cruelty. In the present case, all the allegations were found to be false. Later, she filed another complaint alleging that her husband along with some other persons had trespassed into her house and assaulted her. The police found, on investigation, that not only was the complaint false but also the injuries were self-inflicted by the wife. Thereafter, proceedings were launched against the wife under Section 182 of IPC.”

23. Likewise in Joydeep Majumdar vs. Bharti Jaiswal Majumdar, Civil Appeal Nos.3786-3787 of 2020, decided on 26.02.2021 (Law Finder Doc Id #1813316), where defamatory complaints had been made by wife to husband’s superior officers and the complaint so made by the wife was held to have affected the career progress of the husband, the Hon’ble Apex Court held that it amounted to ‘mental cruelty’ as the husband had suffered adverse consequences, in his life and career, on account of allegations, made by wife. The Family Court, had granted divorce to the husband, on the ground of cruelty. However, the High Court had reversed the finding of the Family Court. The Hon’ble Apex Court, while deciding the matter, referred to another judgment passed in Samar Ghosh vs. Jay a Ghosh, 2007 (4) SCC 511, wherein, it was observed that in order to make out a case of mental cruelty, no uniform standard can be laid down and each case will have to be decided, on its own facts. Further, in Joy deep Majumdar’s case (supra), it was observed as herein given :-

“11. The materials in the present case reveal that the respondent had made several defamatory complaints to the appellant’s superiors in the Army for which, a Court of inquiry was held by the Army authorities against the appellant. Primarily for those, the appellant’s career progress got affected. The Respondent was also making complaints to other authorities, such as, the State Commission for Women and has posted defamatory materials on other platforms. The net outcome of above is that the appellant’s career and reputation had suffered.

12. When the appellant has suffered adverse consequences in his life and career on account of the allegations made by the respondent, the legal consequences must follow and those cannot be prevented only because, no Court has determined that the allegations were false. The High Court however felt that without any definite finding on the credibility of the wife’s allegation, the wronged spouse would be disentitled to relief. This is not found to be the correct way to deal with the issue.

13. Proceeding with the above understanding, the question which requires to be answered here is whether the conduct of the respondent would fall within the realm of mental cruelty. Here the allegations are levelled by a highly educated spouse and they do have the propensity to irreparably damage the character and reputation of the appellant. When the reputation of the spouse is sullied amongst his colleagues, his superiors and the society at large, it would be difficult to expect condonation of such conduct by the affected party.”

24. No doubt, criminal complaint was made by the respondent- wife after filing of the divorce petition by the appellant-husband, however, the fact remains that earlier also she filed complaints against the appellant before his senior officers in the Air force, which she assured to withdraw after withdrawal of the said petition for divorce by the appellant-husband. Filing of the complaint and initiation of criminal proceedings which were found to be baseless and false, do cause harassment and torture to the husband and his family. One such complaint is sufficient to constitute matrimonial cruelty. In this regard, reference is made to K. Srinivas v. Sunita (supra).

25. In K. Srinivas Rao vs. D.A. Deepa (supra), the Hon’ble Supreme Court had examined a complaint, where the wife had raised allegation that mother of her husband had asked her to sleep with father of her husband. This allegation was found to be false and it amounted to extreme mental cruelty to the husband. Ultimately, divorce was granted to the husband. The Hon’ble Supreme Court therein observed as herein given :-

“28. In the ultimate analysis, we hold that the respondent-wife has caused, by her conduct, mental cruelty to the appellant-husband and the marriage has irretrievably broken down. Dissolution of marriage will relieve both sides of pain and anguish. In this Court, the respondent-wife expressed that she wants to go back to the appellant-husband, but, that is not possible now. The appellant-husband is not willing to take her back. Even if, we refuse decree of divorce to the appellant-husband, there are hardly any chances of the respondent-wife leading a happy life with the appellant-husband because a lot of bitterness is created by the conduct of the respondent-wife. “

26. The conduct of the respondent-wife in filing a complaint making unfounded, indecent and defamatory allegations against her husband and parents-in-law indicates that she made all attempts to ensure that appellant and his parents are put in jail and the appellant is removed from his job. We have no manner of doubt that this conduct of respondent-wife has caused mental cruelty to the appellant-husband.

27. The issue for consideration in the present appeal would be whether the relationship of the husband and wife has come to an end and if the respondent-wife is not ready to give mutual divorce to the appellant-husband, whether this act of her, would amount to cruelty towards husband, keeping in view the fact that she is not staying with her husband for the last twenty years and there is no scope that they can cohabit as husband and wife again. Reference at this stage can be made to a judgment of Hon’ble the Supreme Court of India in a case of Chandra Kala Trivedi vs. Dr. S.P.Trivedi, 1993 (4) SCC 232 wherein Hon’ble the Supreme Court was considering a case where marriage was irretrievably broken down and held that in these cases, the decree of divorce can be granted where both the parties have levelled such allegations against each other that the marriage appears to be practically dead and the parties cannot live together.

28. Reference at this stage can be made to a judgment of three Judge Bench of Hon’ble the Supreme Court of India in case of A Jayachandra vs. Aneel Kaur, 2005 (2) SCC 22 wherein Hon’ble the Supreme Court was having an occasion to consider the case of divorce on the basis of cruelty including mental cruelty. While examining the pleadings and evidence brought on record, the Hon’ble Supreme Court emphasized that the allegation of cruelty is of such nature in which resumption of marriage is not possible, however, referring various decisions, the Hon’ble Supreme Court observed that irretrievable breaking down of marriage is not one of statutory grounds on which Court can direct dissolution of marriage, the Hon’ble Supreme Court has with a view to do complete justice and shorten the agony of the parties engaged in long drawn legal battle, directed in those cases dissolution of marriage. In para 17, it has been observed as under:-

“17. Several decisions, as noted above, were cited by learned counsel for the respondent to contend that even if marriage has broken down irretrievably decree of divorce cannot be passed. In all these cases it has been categorically held that in extreme cases the court can direct dissolution of marriage on the ground that the marriage had broken down irretrievably as is clear from para 9 of Shyam Sunder case. The factual position in each of the other cases is also distinguishable. It was held that long absence of physical company cannot be a ground for divorce if the same was on account of the husband’s conduct. In Shyam Sunder case it was noted that the husband was leading adulterous life and he cannot take advantage of his wife shunning his company. Though the High Court held by the impugned judgment that the said case was similar, it unfortunately failed to notice the relevant factual difference in the two cases. It is true that irretrievable breaking of marriage is not one of the statutory grounds on which court can direct dissolution of marriage, this Court has with a view to do complete justice and shorten the agony of the parties engaged in long- drawn legal battle, directed in those cases dissolution of marriage. But as noted in the said cases themselves, those were exceptional cases.”

29. Hon’ble the Supreme Court in the case of Naveen Kohli vs. Neetu Kohli, 2006 (4) SCC 558 was considering a case of irretrievable break down of marriage. In this case, wife was living separately for long but did not want divorce by mutual consent, only to make life of her husband miserable. Thus, the decree of divorce was granted and held it a cruel treatment and showed that the marriage had broken irretrievably. In para 62, 67, 68 and 69, it has been observed as under:-

“62. Even at this stage, the respondent does not want divorce by mutual consent. From the analysis and evaluation of the entire evidence, it is clear that the respondent has resolved to live in agony only to make life a miserable hell for the appellant as well. This type of adamant and callous attitude, in the context of the facts of this case, leaves no manner of doubt in our mind that the respondent is bent upon treating the appellant with mental cruelty. It is abundantly clear that the marriage between the parties had broken down irretrievably and there is no chance of their coming together, or living together again. The High Court ought to have visualized that preservation of such a marriage is totally unworkable which has ceased to be effective and would be greater source of misery for the parties, xxx xxx xxx

67. The High Court ought to have considered that a human problem can be properly resolved by adopting a human approach. In the instant case, not to grant a decree of divorce would be disastrous for the parties. Otherwise, there may be a ray of hope for the parties that after a passage of time (after obtaining a decree of divorce) the parties may psychologically and emotionally settle down and start a new chapter in life.

68. In our considered view, looking to the peculiar facts of the case, the High Court was not justified in setting aside the order of the Trial Court. In our opinion, wisdom lies in accepting the pragmatic reality of life and take a decision which would ultimately be conducive in the interest of both the parties.

69. Consequently, we set aside the impugned judgment of the High Court and direct that the marriage between the parties should be dissolved according to the provisions of the Hindu Marriage Act, 1955. In the extra-ordinary facts and circumstances of the case, to resolve the problem in the interest of all concerned, while dissolving the marriage between the parties, we direct the appellant to pay Rs.25,00,000/- (Rupees Twenty five lacs) to the respondent towards permanent maintenance to be paid within eight weeks. This amount would include Rs. 5,00,000/- (Rupees five lacs with interest) deposited by the appellant on the direction of the Trial Court. The respondent would be at liberty to withdraw this amount with interest. Therefore, now the appellant would pay only Rs.20,00,000/- (Rupees Twenty lacs) to the respondent within the stipulated period. In case the appellant fails to pay the amount as indicated above within the stipulated period, the direction given by us would be of no avail and the appeal shall stand dismissed. In awarding permanent maintenance we have taken into consideration the financial standing of the appellant.”

30. In the present case, the marriage between the parties had broken down irretrievably and there is no chance of their coming together, or living together again. Further, not to grant decree of divorce would be disastrous for the parties.

31. The three-Judge Bench of Hon’ble the Supreme Court in a case of Samar Ghosh (supra) passed the decree on the ground of mental cruelty but the concept of irretrievable breakdown of marriage has been discussed in detail referring the 71^st report of the Law Commission of India.

32. Hon’ble the Supreme Court in a case of K. Srinivas Rao vs. D.A. Deepa (supra) has observed that though irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, however, marriage which is dead for all purposes, cannot be revived by Court’s verdict, if parties are not willing since marriage involves human sentiments and emotions and if they have dried up, there is hardly any chance of their springing back to life on account of artificial reunion created by court decree.

33. Now, once the respondent-wife who is not staying with the appellant for the last about 20 years and is not ready to give mutual divorce to the appellant-husband, reference at this stage can be made to Naveen Kohl Vs case (supra), which was a case of cruelty (physical and mental) where Hon’ble the Supreme Court considered the concept of irretrievable breakdown of marriage. In this case as well, the parties were living separately for the last 10 years and the wife was not ready to give divorce to the husband. Hon’ble the Supreme Court granted decree of divorce but directed the husband to pay a sum of Rs.25 lacs towards permanent maintenance. In para 58, it has been observed as undents. The High Court ought to have considered the repercussions, consequences, impact and ramifications of all the criminal and other proceedings initiated by the parties against each other in proper perspective. For illustration, the High Court has mentioned that so far as the publication of the news item is concerned, the status of husband in a registered company was only that of an employee and if any news item is published, in such a situation, it could not, by any stretch of imagination be taken to have lowered the prestige of the husband. In the next para 69 of the judgment that in one of the news item what has been indicated was that in the company, Nikhil Rubber (P) Ltd., the appellant was only a Director along with Mrs. Neelu Kohli whom held 94.5% share of Rs.100/-each in the company. The news item further indicated that Naveen Kohli was acting against the spirit of the Article of the Association of Nikhil Rubber (P) Ltd., had caused immense loss of business and goodwill. He has stealthily removed produce of the company, besides diverted orders of foreign buyers to his proprietorship firm M/s Navneet Elastomers. He had opened bank account with forged signatures of Mrs. Neelu Kohli and fabricated resolution of the Board of Directors of the company. Statutory authority-Companies Act had refused to register documents filed by Mr. Naveen Kolhi and had issued show cause notice. All business associates were cautioned to avoid dealing with him alone. Neither the company nor Mrs. Neelu Kohli shall be liable for the acts of Mr. Naveen Kohli. Despite the aforementioned finding that the news item was intended to caution business associates to avoid dealing with the appellant then to come to this finding in the next para that it will by no stretch of imagination result in mental cruelty is wholly untenable.”

34. It is well settled that once the parties have separated and separation has continued for a sufficient length of time and anyone of them presented a petition for divorce, it can well be presumed that the marriage has broken down. The Court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties.

35. In the present case, the appellant-husband and the respondent-wife are living separately since April, 2002. Firstly, efforts were made to resolve the matrimonial dispute through the process of mediation, which is one of the effective mode of alternative mechanism in resolving the personal dispute but in vain.

36. Applying the ratio of the above-mentioned judgments to the facts of the present case and keeping in view the extra-ordinary facts and circumstances of the case, the appeal is allowed, judgment dated 26.02.2013 passed by the District Judge, Rohtak, is set aside and decree of divorce is granted accordingly in favour of the appellant-husband. Decree-sheet be prepared accordingly. However, we direct the appellant-husband to make an F.D. of ?20 lakhs as permanent alimony in the name of the respondent-wife.

Posted on 22nd February 202313th October 2023 by rajatbindal5gmailcom — Leave a comment

B V SESHAIAH Vs. THE STATE OF TELANGANA AND ANOTHER — Case of Dishonour of Cheaque is compoundable – Court cannot impose trial if parties settles. Supreme Court – Decided on 01.02.2023

SUPREME COURT OF INDIA

DIVISION BENCH

B V SESHAIAH — Appellant

Vs.

THE STATE OF TELANGANA AND ANOTHER — Respondent

( Before : Krishna Murari and V. Ramasubramanian, JJ. )

Criminal Appeal No. of 2023 (Arising out of SLP(Crl.) No. 7099 of 2018) with Criminal Appeal No. of 2023 (Arising out of SLP(Crl) No. 7100 of 2018)

Decided on : 01-02-2023

Negotiable Instruments Act, 1881 – Section 138 – Dishonour of cheque – Compromise between parties – A very clear case of the parties entering into an agreement and compounding the offence to save themselves from the process of litigation – When such a step has been taken by the parties, and the law very clearly allows them to do the same, the High Court then cannot override such compounding and impose its will – Respondent No.2 was duty bound to file a compromise petition before the High Court, and by not doing the same has withdrawn key information from the High Court, which has led to an unwarranted confirmation of the Appellants’ conviction – Order of conviction is set aside – Appeal allowed.

Continue reading B V SESHAIAH Vs. THE STATE OF TELANGANA AND ANOTHER — Case of Dishonour of Cheaque is compoundable – Court cannot impose trial if parties settles. Supreme Court – Decided on 01.02.2023

Posted on 28th June 202221st March 2024 by rajatbindal5gmailcom — Leave a comment

Gujarat Riots -Conspiracy cannot be inferred on the basis of the failure of the State administration.

SUPREME COURT OF INDIA FULL BENCH

ZAKIA AHSAN JAFRI — Appellant Vs. STATE OF GUJARAT AND ANOTHER — Respondent ( Before : A.M. Khanwilkar, Dinesh Maheshwari and C.T. Ravikumar, JJ. ) Criminal Appeal No. 2022 (Arising Out of SLP (Crl.) No. 2022 @ Diary No. 34207/2018) Decided on : 24-06-2022

A. Gujarat Riots – Clean-Chit to Prime – Conspiracy cannot be readily inferred merely on the basis of the inaction or failure of the State administration. B. Gujarat Riots – Larger Criminal Conspiracy – To make out a case of larger criminal conspiracy, it is essential to establish a link indicative of meeting of minds of the concerned persons for commission of the crime(s), committed during the relevant period across the State. C. Gujarat Riots – Larger Criminal conspiracy – In any case, inaction or failure of some officials of one section of the State administration cannot be the basis to infer a pre-planned criminal conspiracy by the authorities of the State Government or to term it as a State sponsored crime (violence) against the minority community. D. Gujarat Riots – Larger Criminal Conspiracy – Inaction and negligence of the erring officials has been taken note of at the appropriate level including by initiating departmental action against them – Such inaction or negligence cannot pass the muster of hatching of a criminal conspiracy, for which the degree of participation in the planning of commission of an offence of this magnitude must come to the fore in some way. E. Gujarat Riots – Larger Criminal Conspiracy – In light of such timely corrective measures taken by the State Government in right earnest and repeated public assurances given by the then Chief Minister that guilty will be punished for their crime(s), and to maintain peace, it would be beyond comprehension of any person of ordinary prudence to bear suspicion about the meeting of minds of named offenders and hatching of conspiracy by the State at the highest level, as alleged, much less grave or strong suspicion as being the quintessence for sending the accused for trial for an offence of criminal conspiracy. F. Gujarat Riots – Larger Criminal Conspiracy – Further investigation – Question of further investigation would have arisen only on the availability of new material/information in connection with the allegation of larger conspiracy at the highest level, which is not forthcoming in this case. G. Gujarat Riots – Larger Criminal Conspiracy – Materials collected during the investigation do not give rise to strong or grave suspicion regarding hatching of larger criminal conspiracy at the highest level for causing mass violence across the State against the minority community and more so, indicating involvement of the named offenders and their meeting of minds at some level in that regard. H. Gujarat Riots – Larger Criminal Conspiracy – SIT Report – No fault can be found with the approach of the Special Investigation Team (SIT) in submitting final report, which is backed by firm logic, expositing analytical mind and dealing with all aspects objectively for discarding the allegations regarding larger criminal conspiracy (at the highest level) for causing and precipitating mass violence across the State against the minority community during the relevant period. I. Constitution of India, 1950 – Article 356 – Gujarat Riots – Breakdown of Constitutional machinery – Larger Criminal Conspiracy – Breakdown of law-and-order situation in the State including attributable to the alleged inaction of the (State) duty holders, owing to spontaneous mass violence cannot be a safe measure to infer as being a part of the criminal conspiracy at the highest level of political dispensation unless there is clear evidence to so conclude regarding meeting of the minds of all concerned and their concerted efforts to commit or promote commission of such crime. J. Constitution of India, 1950 – Article 356 – Gujarat Riots – Breakdown of Constitutional machinery – Larger Criminal Conspiracy – Breakdown of law-and-order situation if for short duration, cannot partake the colour of breakdown of rule of law or constitutional crisis – To put it differently, misgovernance or failure to maintain law-and-order during a brief period may not be a case of failure of constitutional machinery in the context of tenets embodied in Article 356 of the Constitution – There must be credible evidence regarding State sponsored breakdown of law-and-order situation; not spontaneous or isolated instances or events of failure of State administration to control the situation. K. Gujarat Riots – Larger Criminal Conspiracy – Protagonists of quest for justice sitting in a comfortable environment in their air-conditioned office may succeed in connecting failures of the State administration at different levels during such horrendous situation, little knowing or even referring to the ground realities and the continual effort put in by the duty holders in controlling the spontaneous evolving situation unfolding aftermath mass violence across the State. L. Gujarat Riots – Larger Criminal Conspiracy – Overrunning of State administration is not an unknown phenomenon, such lapses would not indicate a criminal conspiracy – It has been witnessed all over the globe during the second wave of pandemic, where the countries with even best of medical facilities crumbled and their management skills were overrun under the pressure. M. Gujarat Riots – Larger Criminal Conspiracy – Overrunning of State administration – Not amount to hatching criminal conspiracy – Failures is not enough to entertain a suspicion about hatching of criminal conspiracy at the highest level, which requires a concerted effort of all the persons concerned and more importantly, clear evidence about meeting of the minds to accomplish such design, much less of causing and precipitating mass violence across the State. N. Gujarat Riots – Larger Criminal Conspiracy – Factum of conspiracy can be inferred, but absent any perceivable link, much less about the meeting of minds of all concerned, it is not open to assume conspiracy in the air. O. Gujarat Riots – Larger Criminal Conspiracy – Investigation by Special Investigation Team (SIT) – Investigation done by the SIT in all the nine (9) sets of cases, no material was discovered pointing towards any meeting of minds/conspiracy in the higher echelons of the administration or the political establishment conspired with other persons to cause such riots or for having turned nelson’s eye when the riots had triggered and continued – There is no chain or any perceivable link or connection in these occurrences during the relevant period, which ought to be the quintessence had it been a case of larger conspiracy at the highest level. P. Gujarat Riots – Larger Criminal Conspiracy – False claim – For, persons not privy to the stated meeting, where utterances were allegedly made by the then Chief Minister, falsely claimed themselves to be eye-witnesses and after thorough investigation by the SIT, it has become clear that their claim of being present in the meeting was itself false to their knowledge. On such false claim, the structure of larger criminal conspiracy at the highest level has been erected. The same stands collapsed like a house of cards, aftermath thorough investigation by the SIT.

Counsel for Appearing Parties Mr. Kapil Sibal, Sr. Advocate, Mr. Mihir Desai, Sr. Advocate, Ms. Aparna Bhat, Advocate, Ms. Karishma Maria, Advocate, for the Appellant;

Mr. Tushar Mehta, SG, Mr. Mukul Rohatgi, Sr. Advocate, Mr. Maninder Singh, Sr. Advocate, Mr. Kanu Agrawal, Advocate, Ms. Devanshi Singh, Advocate, Mr. Prabhas Bajaj, Advocate, Mr. Pranav Saigal, Advocate, Mr. Shantnu Sharma, Advocate, Mr. Madhav Sinhal, Advocate, Ms. Deepanwita Priyanka, Advocate, for the Respondent;

Mr. Aldanish Rein, Advocate, for the Intervenor.

Cases Referred Abhinandan Jha & Ors. vs. Dinesh Mishra, AIR 1968 SC 117 = 1967 (3) SCR 668 Amish Devgan vs. Union of India & Ors., (2021) 1 SCC 1 Bhagwant Singh v. Commr. of Police, (1985) 2 SCC 537 Bihar vs. Ramesh Singh, (1977) 4 SCC 39 Central Bureau of Investigation vs. V.C. Shukla & Ors., (1998) 3 SCC 410 Dayal Singh & Ors. vs. State of Uttaranchal, (2012) 8 SCC 263 Firozuddin Basheeruddin & Ors. vs. State of Kerala, (2001) 7 SCC 596 Gura Singh vs. State of Rajasthan, (2001) 2 SCC 205 H.N. Rishbund & Anr. vs. State of Delhi, AIR 1955 SC 196 = 1955 1 SCR 1150 Jakia Naseem Ahesan & Anr. vs. State of Gujarat & Ors, (2011) 12 SCC 302 Jakia Naseem Ahesan & Anr. vs. State of Gujarat & Ors, 2009 SCC Online SC 6 Kehar Singh & Ors. vs. State (Delhi Administration), (1988) 3 SCC 609 M.C. Abraham & Anr. vs. State of Maharashtra & Ors., (2003) 2 SCC 649 M.C. Mehta (Taj Corridor Scam) v. Union of India, (2007) 1 SCC 110 M.C. Mehta v. Union of India, (2008) 1 SCC 407 Narmada Bai v. State of Gujarat, (2011) 5 SCC 79 National Human Rights Commission vs. State of Gujarat & Ors, (2009) 6 SCC 342 National Human Rights Commission vs. State of Gujarat & Ors, (2009) 6 SCC 767 Nazir Khan & Ors. vs. State of Delhi, (2003) 8 SCC 461 Nirmal Singh Kahlon vs. State of Punjab & Ors., (2009) 1 SCC 441 Piara Singh & Ors. vs. State of Punjab, (1977) 4 SCC 452 Popular Muthiah vs. State represented by Inspector of Police, (2006) 7 SCC 296 R. Venkatkrishnan vs. Central Bureau of Investigation, (2009) 11 SCC 737 R.K. Anand vs. Registrar, Delhi High Court, (2009) 8 SCC 106 Rajat Prasad vs. Central Bureau of Investigation, (2014) 6 SCC 495 S. Nambi Narayanan vs. Siby Mathews & Ors., (2018) 10 SCC 804 S.K. Sinha, Chief Enforcement Officer vs. Videocon International Ltd. & Ors., (2008) 2 SCC 492 Sanjiv Rajendra Bhatt vs. Union of India & Ors. (2016) 1 SCC 1 Shariff Ahmed & Ors. vs. State (NCT of Delhi), (2009) 14 SCC 184 Shri Ram Krishna Dalmia vs. Shri Justice S.R. Tendolkar & Ors., 1959 SCR 279 State (Delhi Admn.) vs. I.K. Nangia & Anr., (1980) 1 SCC 258 State (NCT Delhi) vs. Shiv Charan Bansal & Ors., (2020) 2 SCC 290 State of Bihar & Anr. vs. JAC Saldanha & Ors., (1980) 1 SCC 554 State of Gujarat vs. Afroz Mohammed Hasanfatta, (2019) 20 SCC 539 State of Karnataka & Anr. vs. Dr. Praveen Bhai Thogadia, (2004) 4 SCC 684 Testa Setalvad & Anr. vs. State of Gujarat & Ors., (2004) 10 SCC 88 Union of India & Ors. vs. Sushil Kumar Modi & Ors., (1998) 8 SCC 661 Union of India v. Sushil Kumar Modi, (1998) 8 SCC 661 Vineet Narain & Ors. vs. Union of India & Anr., (1996) 2 SCC 199 Vineet Narain v. Union of India, (1996) 2 SCC 199 Vishnu Kumar Tiwari vs. State of Uttar Pradesh & Anr., (2019) 8 SCC 27 Zahira Habibulla H. Sheikh & Anr. vs. State of Gujarat & Ors., (2004) 4 SCC 158 Zahira Habibulla Sheikh (5) & Anr. vs. State of Gujarat & Ors., (2006) 3 SCC 374 JUDGMENT 1. There is a delay of 216 days in filing of this special leave petition against the judgment and order dated 5.10.2017 passed by the High Court of Gujarat at Ahmedabad[1] in Criminal Revision Application No. 205/2014.

Even though the explanation offered in the application for condonation of delay is blissfully vague and bereft of any material facts and particulars, keeping in mind the subject matter involved, we deemed it appropriate to ignore/condone the delay and proceeded to hear the matter on merits. [1] for short, ‘the High Court’ 2. We must note that the respondents had faintly objected to the hearing of this matter on merits owing to unexplained delay in filing of the petition. However, they have a serious objection to the joining of Ms. Teesta Setalvad (as petitioner No. 2). Firstly, because, the protest petition on which impugned order had been passed and assailed in this appeal, was filed only by the appellant[2] – Zakia Ahsan Jafri, wife of deceased – Mr. Ehsan Jafri and on the earlier occasion (proceedings before the High Court), it has been ruled that she had no locus standi to join the cause of appellant, which opinion has become final as it has not been reversed by this Court in SLP(Crl.) No. 1088/2008. Secondly, the antecedents of Ms. Teesta Setalvad need to be reckoned and also because she has been vindictively persecuting this lis for her ulterior design by exploiting the emotions and sentiments of appellant – Zakia Ahsan Jafri, the real victim of the circumstances. On the other hand, according to Ms. Teesta Setalvad, she is a bonafide crusader of human rights issues and has been following this case closely being fully convinced about the cause in quest of justice. However, as aforementioned, we have leaned in favour of examining the merits of the challenge to the impugned order(s) at the instance of appellant – Zakia Ahsan Jafri. For, because of the subject matter, this Court in the past had to invoke its role of parens patriae in issuing sui generis directions including in constituting a Special Investigation Team[3] to investigate into the matter and to present appropriate report before the Metropolitan Magistrate taking cognizance of Crime Report (CR) No. 67/2002 dealing with the Gulberg Society, Meghaninagar case. Thus, we do not wish to dilate on the issue of locus of Ms. Teesta Setalvad and keep that preliminary objection open to be decided in an appropriate case. [2] hereinafter, ‘appellant’ means Zakia Ahsan Jafri only [3] for short, ‘SIT’ 3. In that light, we have granted leave to appeal and decided to examine the matter on merits at the instance of the appellant – Zakia Ahsan Jafri. PREFACE 4. Shorn of unnecessary factual matrix, this matter essentially emanates from the sui generis directions given by this Court on 27.4.2009[4] in SLP(Crl.) No. 1088/2008, whilst considering challenge to the decision of the High Court dated 2.11.2007, rejecting the prayer of the appellant – Zakia Ahsan Jafri for issuing direction to the concerned authority to register an FIR on the basis of complaint presented by her on 8.6.2006 to the Director General of Police, Gujarat. However, this Court vide stated order (dated 27.4.2009[5]), directed the SIT appointed by it in terms of the order dated 26.3.2008[6], to ‘look into’ the complaint dated 8.6.2006 and take steps as required by law and to give its report to this Court within three months. Consequent to such direction, the SIT submitted its successive reports on the basis of investigation done by it including by taking into account the observations of the Amicus Curiae appointed by this Court. Treating the further report submitted by the SIT as analogous to report under Section 173(8) of the Code of Criminal Procedure[7], this Court permitted the SIT to place it before the Magistrate taking cognizance of CR No. 67/2002 concerning trial in Gulberg Society case with further direction to the Magistrate to then proceed in accordance with law, including to give opportunity to the appellant in the event of final report submitted by the SIT was to recommend closure of her complaint. Appellant – Zakia Ahsan Jafri, after being served with the final report dated 8.2.2012 alongwith relevant materials adverted to therein, then filed protest petition on 15.4.2013. This protest petition came to be rejected by the Metropolitan Magistrate vide order dated 26.12.2013 and instead, the final report of the SIT came to be accepted. This decision was carried before the High Court by way of Criminal Revision Application No. 205/2014. The revision application came to be disposed of on 5.10.2017, against which the present appeal arises for our consideration. [4] 2009 SCC Online SC 6 – Jakia Naseem Ahesan & Anr. vs. State of Gujarat & Ors. [5] supra at footnote No. 4 [6] (2009) 6 SCC 342 – National Human Rights Commission vs. State of Gujarat & Ors. [7] for short, ‘the Code’ FACTS 5. (a) Briefly stated, the abhorrent Godhra incident occurred in the morning of 27.2.2002, wherein Kar-sevaks travelling in Sabarmati Express train, returning from Ayodhya, were allegedly attacked and coaches of the train were set on fire at Godhra Railway Station at around 7.45 a.m., as a result of which, 58 persons were charred to death and 59th victim succumbed to the burn injuries on 3.4.2002. As aftermath of that incident, there was unrest and violence all across the State of Gujarat. In that process – a violent mob attacked the inhabitants of Gulberg Society, Meghaninagar, killing 69 persons at the stated location including the husband of appellant – Zakia Ahsan Jafri, who had unsuccessfully attempted to dissuade the mob. In connection with this incident, a crime was registered at ‘Meghaninagar Police Station’ being CR No. 67/2002. Multiple chargesheets were filed against the concerned accused and the case was committed to Sessions. (b) Since there was widespread violence bordering on failure of the State machinery to prevent and control the same including to arrest all the perpetrators of the crime and undertake fair investigation, the National Human Rights Commission[8] filed a writ petition before this Court being W.P.(Crl.) No. 109/2003. In that writ petition, the Court appointed Mr. Harish Salve, learned senior counsel as Amicus Curiae vide order dated 9.10.2003[9]. [8] for short, ‘the NHRC’ [9] ‘ORDER W.P.(Crl.) No. 109/2003 An affidavit has been filed by the Chief Secretary to the Government of Gujarat on 7th October, 2003. The said affidavit discloses that the State has moved to the High Court for amending the criminal appeal filed against the judgment passed by the Sessions Court acquitting the accused and the Court has permitted the appeal to be amended. In the aforesaid view of the matter, we feel that in this case an Amicus Curiae is required to be appointed. We request Shri Harish N. Salve, Sr. Advocate to appear in this case as Amicus Curiae which he has accepted. Mr. Bhargava V. Desai, Advocate-on-Record is also appointed as Amicus Curiae to assist Mr. Harish N. Salve, Sr. Adv. List this matter as also TP(Crl.) Nos. 194-202/2003, WP(Crl.) No. D17953/2003, SLP(Crl.) No. 3770/2003, SLP(C) No. 7951/2002 and WP (Crl.) Nos. 11-15/2003 on 17th October, 2003. Counter affidavit filed today in Court on behalf of Respondents Nos. 2 to 22 in SLP(C) No. 3770/2003 be taken on record. Let a complete set of paperbooks be given to the learned Amicus Curiae within 48 hours by the State of Gujarat. ..’ (c) This Court vide order dated 21.11.2003[10], stayed the trial of 9 (nine) major criminal cases mentioned in the order, including the one arising from CR No. 67/2002 concerning the Gulberg Society. [10] ‘ORDER TP(Crl) 194-202/203. Issue notice. Notice has been accepted by Ms.H.Wahi, learned counsel appearing for respondent no.1 State of Gujarat. She prays for and is allowed two weeks time to file counter affidavit. Notice to the remaining respondents shall be served through the State of Gujarat within a period of two weeks. Until further orders, the trial in the following cases shall remain stayed: – 1 .ARISING OUT OF FIR NO.09/2002 DATED 27.2.2002 OF POLICE STATION GODHRA: (i) Criminal Case Nos.1-6/2003 titled State v. Mohmad Rafudan Ansari & Ors. pending in the Court of Special Judge, POTA, Ahmedabad; (ii)Crime No.09/2002 titled State v. Junia Farooq Hassan & Ors. pending in the Juvenile Court, Godhra; 2. Criminal Case No.275/2002 arising out of FIR No.46/2002 dated 28.2.2002 of Police Station Bijaypur, titled State v. Patel Rameshbhai Kanjibhai & Ors. pending in the Court of Sessions Judge, Mehsana, Gujarat; 3. ARISING OUT OF FIR NO.67/2002 DATED 28.2.2002 OF POLICE STATION MEGHANINAGAR: (i)Sessions Case No.152/2002 titled State v. Kailash Lalchand Bhai Dhobi & Ors. pending in the Court of Sessions Judge, Bhadra, Ahmedabad; (ii)Criminal Case No.1720/2002 titled State v. Shankarji Hakaji Mali & Ors. pending in the Metropolitan Magistrate Court No.XI, Ahmedabad; (iii)Criminal Case No.296/2003 titled State v. Sandeep alia Sonu Ghunghru Val Valo & Ors. pending in the Metropolitan Magistrate Court No.XI, Ahmedabad; (iv)Criminal Case No.524/2002 titled State v. Vishal Badrilal Nayee & Ors. pending in the Juvenile Court No.IV, Ahmedabad; 4. ARISING OUT OF FIR NO.100/2002 DATED 28.2.2002 OF POLICE STATION NARODA, AHMEDABAD: (i)Criminal Case No.982/2002 titled State v. Naresh Amarsingh Chhara & Ors. pending in the Metropolitan Magistrate Court No.XI, Ahmedabad, and (ii)Criminal Case No.1662/2002 titled State v. Padmendra Singh & Ors. pending in the Metropolitan Magistrate Court No.XI, Ahmedabad. Learned counsel for the petitioner in TP(Crl) Nos.194-202/2003 prays for and is permitted to amend the petitions for including the Sessions trial arising out of CR No.23/2002 and CR No.27/ 2002 (ODE Massacre). However, further trial in those cases shall remain stayed. List on 19th December, 2003. SLP(Cr) 4409/2003. Issue notice. Ms.H. Wahi, learned counsel accepts notice. She prays for and is allowed two weeks time to file reply. In the meantime, further trial in Sessions Case No.180/2002 shall remain stayed. List along with WP(Crl) No.109/2003 etc. (emphasis supplied) ..’ (d) In the subsequent order passed in the group of petitions on 17.8.2004, this Court directed that in cases where ‘A’ Summary Report(s) had been filed (around 2000 cases) should be further investigated by the concerned Range Inspector Generals of Police in the State of Gujarat, who should ascertain the correctness or otherwise of such reports. In this appeal, we are not concerned with those cases. (e) As noted earlier, this matter emanates from the complaint filed by appellant – Zakia Ahsan Jafri on 8.6.2006 addressed to the Director General of Police, Gujarat and other high officials including Mr. D.A. Vaghela, P.I., Sector 21 Police Station, opposite Old Sachivalaya, Gandhinagar, the Chief Secretary, State of Gujarat, Sachivalaya, Gandhinagar and the Home Secretary, State of Gujarat, Sachivalaya, Gandhinagar. We shall advert to the contents of this complaint in detail a little later. (f) Broadly stated, in this complaint, appellant – Zakia Ahsan Jafri mentioned names of 63 persons, who according to her, were also involved in larger conspiracy and abetment of the crime resulting in carnage between February, 2002 and May, 2002, that shook the State of Gujarat. This allegation was against the then Chief Minister and Ministers of the State, as well as high police officials and bureaucrats and others for having committed offence under Section 302 read with Section 120B, Section 193 read with Section 114 and Sections 185, 153A, 186 and 187 of the Indian Penal Code[11] and Section 6 of the Commission of Inquiry Act, 1952[12] and also under various provisions of the Gujarat Police Act, 1951[13] and the Human Rights Act, 1991[14]. [11] for short, ‘IPC’ [12] for short, ‘the 1952 Act’ [13] for short, ‘the 1951 Act’ [14] for short, ‘the 1991 Act’ (g) Appellant – Zakia Ahsan Jafri alongwith Ms. Teesta Setalvad being the Secretary of Citizens for Justice and Peace forum, then filed an application before the High Court on 1.3.2007 bearing Special Criminal Application No. 421/2007 under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code. During the pendency of the said petition before the High Court, the Tehelka Tape surfaced, which according to the appellant, unravelled the role of the concerned persons being involved in the build-up to the commission of crime including conspiring and abetting the State-wide violence. Be that as it may, the stated writ petition filed before the High Court was finally dismissed on 2.11.2007, in which the Court passed the following order: – ’43. For the reasons stated above, present petition is dismissed. As the petitioners had not adopted the procedure of to file the complaint under section 190 r.w. section 200 of the Criminal Procedure Code, the petitioner No.1 is relegated to file appropriate private complaint to invoke the provisions of section 190 r.w. section 200 of the Criminal Procedure Code by filing the private complaint and the same shall be considered in accordance with law and on merits after following due procedure under Criminal Procedure Code. It is, however, made clear that this Court has not expressed any opinion on the merits of the case in favour of either parties. Rule discharged.’ (emphasis supplied) Notably, the High Court did not issue any direction for registration of FIR in respect of the complaint presented by appellant – Zakia Ahsan Jafri, dated 8.6.2006. (h) Being aggrieved by this decision, the appellant alongwith Ms. Teesta Setalvad filed SLP(Crl.) No. 1088/2008, hearing whereof was tagged alongwith writ petition filed by the NHRC being W.P.(Crl.) No. 109/2003. Vide order dated 3.3.2008[15], Mr. Prashant Bhushan, learned counsel was appointed as Amicus Curiae in SLP(Crl.) No. 1088/2008 to espouse the cause of the appellant herein. ‘ORDER The High Court’s order does not render the petitioners remedyless. But, various important aspects arise for consideration. In a given case, a person who has knowledge of the commission of a crime may not be examined by the police. The question is what is the remedy available to such person? We, therefore, issue notice only to respondent Nos. 1 and 2 and the Union of India. Though, in the proceedings, the Central Bureau of Investigation is respondent No. 3, there is presently no need for issuing any notice to the CBI, as we would like to have the views of the Union of India also. Mr. Prashant Bhushan, learned counsel has agreed to assist the Court as an Amicus-Curiae. We would also request other learned senior members of the Bar to assist the Court, as the question is of vital importance in the administration of criminal justice.’ (i) When both these matters were listed on 26.3.2008[16], this Court passed the following order: – ‘Order After having heard learned counsel for the parties, we feel that considering the sensitive nature of the cases involved, appointment of a Special Investigation Team (in short ‘SIT’) is warranted. Communal harmony is the hallmark of a democracy. No religion teaches hatred. If in the name of religion, people are killed, that is essentially a slur and blot on the society governed by rule of law. The Constitution of India, in its preamble refers to secularism. Religious fanatics really do not belong to any religion. They are no better than terrorists who kill innocent people for no rhyme or reason in a society which as noted above is governed by rule of law. These are cases where there is an element of communal disharmony, which is not to be countenanced. The State of Gujarat has stated that it has no objection if further investigation is done so that peoples’ faith on the transparency of action taken by the State is fortified. Mr. Mukul Rohtagi, learned senior counsel appearing for the State stated that the State’s approach is fair and it is not interested in shielding any culprit or a guilty person, but on the other hand, would like all those who are guilty, to be punished. This statement of Mr. Rohtagi is not accepted by some of the learned counsel appearing for the alleged victims. We need not go into that aspect, in view of the fact that there is an agreement that there is need for a Special Investigation Team. We, therefore, direct that an appropriate notification shall be issued by the State Government regarding the creation of SIT, the constitution of which shall be as follows.:- 1. Shri R.K. Raghavan, retd. Director of the CBI. 2. Shri C.B. Satpathy, retd. DG, Director, Uttar Pradesh, Police College, Moradabad 3. Ms. Geeta Johri 4. Shri Shivanand Jha 5. Shri Ashish Bhatia The notification by the State be issued as early as practicable, preferably within ten days. Officers at Sl Nos. 3 to 5 are IG rank officers. Shri Raghavan will be the chairman of the committee and Ms. Geeta Johri shall be the convener. The committee shall in its first meeting work out the modalities to be adopted for the purpose of enquiry/investigation. If any person wants to make statement before the SIT for giving his or her version of the alleged incidents, the SIT shall record it. Those who want to give their version shall in writing intimate the convenor of the committee so that the SIT can call him or her for the purpose of recording his/her statement. It is needless to say that the SIT shall not confine the investigation by recording statement of those who come forward to give his or her version and shall be free to make such inquiries/investigation as felt necessary by it. The State Government shall provide necessary infrastructure and provide resources for effective working of the SIT. The report of the SIT shall be furnished to this Court in a sealed cover after completion of the inquiry/investigation for which three months time is granted. After the report is submitted, the further action required to be taken shall be dealt with by this Court. The SIT shall conduct inquiries/investigations including further investigation in the following cases:- I. GODHRA FIR NO.09/2002 DATED 27.2.2002: i) CR NOS.1-6/2002 titled Mohd Rafudan Ansari & Ors. ii) CR NOS.09/2002 titled State Vs. Junia Farooq Hassaan & Ors. pending in Juvenile court II. SARDARURA, MEHSANA CR Nos. 275/2002 arising out of FIR No.46/2002 dated 28.2.2002 of police station Bijapur, Mehsana III. GULBERG SOCIETY, MEGHANINAGAR AHMEDABAD CR Nos.67/2002 at Meghaninagar Police Station i) Sessions Case No.152/2002 titled State V/s. Kailash Lalchand Dhobhi & Ors. ii) Criminal Case No.1720/2002 titled State V/s. Shankarji Hakaji Mali pending Metro Magistrate court, Ahmedabad iii) Criminal Case No.296/2003 titled State V. Sandeep pending in the Metropolitan Magistrate court, Ahmedabad iv) Criminal Case No.524/2002 titled State V. Vishal Badrilal Nayee & Ors. pending in the Junenile court, Ahmedabad IV. NARODA PATIYA Arising out of FIR No.100/2002 dated 28.2.2002 of PS Naroda, Ahmedabad i) CR No.982/2002 titled State v. Naresh Chahra pending in MM Court, Ahmedabad ii) CR No.1662/2002 titled State V. Padmendra Singh & Ors. V. ODE ANAND DISTRICT Cr.Nos.23/2002 and 27/2002 (Ode Massacre). Leave was granted to petitioners, CJP, to amend petition to include these Session Trials. Trials were stayed. VI. NARODA GAON Inadvertently left out. CJP filed a TP(Crl.) No.233/2004 and trial was stayed on 23.8.2004. VII. W.P.No.284/2003 TP(Crl.) No.43/2004 Imran Dawood Vs. Union of India. So far as SLP(Crl.) No.4409/2003 and Writ Petition(Crl.) 216/2003 are concerned, though it is pointed out by learned counsel by the State of Gujarat that the trial is at concluding stage, in view of the orders passed in the other cases, we feel it would be appropriate if the inquiry/investigation including further investigation is done, in this case also. The relevant case No.is FIR 60/02 commonly known as ‘Deepda Darwaza’. So far as Writ Petition(Crl.)No.284/03 and T.P.(Crl.)43/2004 are concerned, the case is commonly known as ‘British Nationals Case’ and relates to Himmat Nagar, Prantij P.S district Sabarkantta and relates to FIR 1/26/2002. We make it clear that SIT shall be free to work out the modalities and the norms required to be followed for the purpose of inquiry/investigation including further investigation. Needless to say the sole object of the Criminal Justice System is to ensure that a person who is guilty of an offence is punished. Mr. K.T.S. Tulsi, learned senior counsel had submitted that in some cases the alleged victims themselves say that wrong persons have been included by the police officials as accused and the real culprits are sheltered. He, therefore, suggested that trial should go on, notwithstanding the inquiry/investigation including further investigation as directed by us. We find that the course would not be appropriate because if the trial continues and fresh evidence/materials surface, it would require almost a de novo trial which would be not desirable. These matters shall be listed for further directions in the last week of August, 2008. The pleadings in all these matters be completed within a period of three months.’ (emphasis supplied) [16]supra at footnote No. 6 (j) In furtherance of the above order, the SIT published a public notice on 28.4.2008 inviting the public wanting to share information and record their statement(s) before the SIT, as notified. After the publication of notice, the SIT started recording statements of concerned persons willing to depose before it including others as directed by this Court. (k) In due course, the special leave petition filed by the appellant being SLP(Crl.) No. 1088/2008 came up for hearing on 27.4.2009[17], when this Court passed the following order: – ‘ORDER Having heard learned counsel for the parties we direct that complaint dated 8/6/2006 which the petitioners herein claim to have sent to the DGP of Gujarat shall be examined by the Special Investigation Team (in short ‘SIT’) constituted pursuant to the orders of this Court. The SIT shall look into the matter and take steps as required in law and give its report to this Court within three months. Call this matter after three months. This case shall be heard along with writ petition (Crl.) No. 109 of 2003 and connected cases.’ (emphasis supplied) [17] supra at footnote No. 4 Be it noted that when this order was passed, it must be assumed, that this Court was aware of the fact that the FIR had already been registered in connection with Gulberg Society case being CR No. 67/2002 and the same was committed to sessions for trial of the named accused. Further, the special leave petition filed by the appellant to challenge the order of the High Court refusing to issue direction for registration of FIR on the basis of complaint of appellant – Zakia Ahsan Jafri, dated 8.6.2006, was still pending before it. (l) Nevertheless, vide judgment dated 1.5.2009[18], this Court vacated the stay of the trials and directed the prosecution of cases in Special Courts; and SIT appointed by it to submit progress report. The relevant extract of the said judgment reads thus: – ‘4. Several important aspects need to be noted in these cases. Firstly, due to the efforts of SIT, persons who were not earlier arrayed as accused have now been arrayed as accused. From the details indicated above it appears that in most of the cases a large number of persons have been additionally made accused. Besides this, a large number of witnesses were also examined in each case. This goes to show the apparent thoroughness with which SIT has worked. Therefore, SIT shall continue to function until the completion of trial in all the cases and if any further inquiry/investigation is to be done the same can be done as provided in law, more particularly, under Section 173(8) of the Code of Criminal Procedure, 1973 (in short ‘the Code’). xxx xxx xxx 37. Since the protection of a witness is of paramount importance it is imperative that if and when any witness seeks protection so that he or she can depose freely in court, the same has to be provided. It is therefore directed that if a person who is examined as a witness needs protection to ensure his or her safety to depose freely in a court he or she shall make an application to SIT and SIT shall pass necessary orders in the matter and shall take into account all the relevant aspects and direct such police official/officials as it considers proper to provide the protection to the person concerned. It shall be the duty of the State to abide by the direction of SIT in this regard. It is essential that in riot cases and cases involving communal factors the trials should be held expeditiously. Therefore, we request the Hon’ble Chief Justice of Gujarat High Court to designate court(s) in each district where the trial of the cases concerned are to be held. The Designated Courts shall take up the cases in question. 38. Taking into account the number of witnesses and the accused persons and the volumes of evidence, it is open to the High Court to designate more than one court in a particular district. Needless to say that these cases shall be taken up by the Designated Court on a day-to-day basis and efforts shall be made to complete the trial with utmost expedition. SIT shall furnish periodic reports if there is any further inquiry/investigation. The State of Gujarat shall also file a status report regarding the constitution of the courts in terms of the directions to be given by the Hon’ble Chief Justice of the High Court within three months. The matter shall be listed further as and when directed by this Court. 39 The matter was then heard from time to time and an order was then made on 26-3-2008 directing the establishment of SIT, and for a further investigation into these matters. The matters under investigation were those arising out of (a) Crime No. 9 of 2002 (b) Crime No. 100 of 2002 (c) Crime No. 23 of 2002 (d) Crime No. 98 of 2002 (e) Crime No. 46 of 2002 (f) Crime No. 67 of 2002 (g) Crime No. 60 of 2002 (h) Crime No. 26 of 2002 (i) Crime No. 27 of 2002 The reports of SIT, in respect of each of these cases have now been received. 40. We have considered the submissions made by Mr Harish N. Salve, learned amicus curiae, Mr Mukul Rohatgi, learned counsel for the State, Ms Indira Jaising and other learned counsel. The following directions are given presently: (i) Supplementary charge-sheets shall be filed in each of these cases as SIT has found further material and/or has identified other accused against whom charges are now to be brought. (ii) The conduct of the trials has to be resumed on a dayto-day basis keeping in view the fact that the incidents are of January 2002 and the trials already stand delayed by seven years. The need for early completion of sensitive cases more particularly in cases involving communal disturbances cannot be overstated. (iii) SIT has suggested that the six ‘Fast Track Courts’ be designated by the High Court to conduct trial, on a day-today basis, in the five districts as follows: (i) Ahmedabad (Naroda Patia, Naroda Gam) (ii) Ahmedabad (Gulbarg) (iii) Mehsana (for two cases) (iv) Saabarkantha opened (British Nationale case) (v) Anand (vi) Godhra train case (at Sabarmati Jail, Ahmedabad) (iv) It is imperative, considering the nature and sensitivity of these nominated cases, and the history of the entire litigation, that senior judicial officers be appointed so that these trials can be concluded as soon as possible and in the most satisfactory manner. In order to ensure that all concerned have the highest degree of confidence in the system being put in place, it would be advisable if the Chief Justice of the High Court of Gujarat selects the judicial officers to be so nominated. The State of Gujarat has, in its suggestions, stated that it has no objection to constitution of such ‘Fast Track Courts’, and has also suggested that this may be left to Hon’ble the Chief Justice of the High Court. (v) Experienced lawyers familiar with the conduct of criminal trials are to be appointed as Public Prosecutors. In the facts and circumstances of the present case, such Public Prosecutors shall be appointed in consultation with the Chairman of SIT. The suggestions of the State Government indicate acceptance of this proposal. It shall be open to the Chairman of SIT to seek change of any Public Prosecutor so appointed if any deficiency in performance is noticed. If it appears that a trial is not proceeding as it should, and the Chairman of SIT is satisfied that the situation calls for a change of the Public Prosecutor or the appointment of an Additional Public Prosecutor, to either assist or lead the existing Public Prosecutor, he may make a request to this effect to the Advocate General of the State, who shall take appropriate action in light of the recommendation by SIT. (vi) If necessary and so considered appropriate SIT may nominate officers of SIT to assist the Public Prosecutor in the course of the trial. Such officer shall act as the communication link between SIT and the Public Prosecutor, to ensure that all the help and necessary assistance is made available to such Public Prosecutor. (vii) The Chairman of SIT shall keep track of the progress of the trials in order to ensure that they are proceeding smoothly and shall submit quarterly reports to this Court in regard to the smooth and satisfactory progress of the trials. (viii) The stay on the conduct of the trials are vacated in order to enable the trials to continue. In a number of cases bail had been granted by the High Court/Sessions Court principally on the ground that the trials had been stayed. Wherever considered necessary, SIT can request the Public Prosecutor to seek cancellation of the bails already granted. (ix-i) For ensuring of a sense of confidence in the mind of the victims and their relatives, and to ensure that witnesses depose freely and fearlessly before the court, in case of witnesses following steps shall be taken: (a) Ensuring safe passage for the witnesses to and from the court precincts. (b) Providing security to the witnesses in their place of residence wherever considered necessary, and (c) Relocation of witnesses to another State wherever such a step is necessary. (ix-ii) As far as the first and the second is concerned, SIT shall be the nodal agency to decide as to which witnesses require protection and the kind of witness protection that is to be made available to such witness. (ix-iii) In the case of the first and the second kind of witness protection, the Chairman, SIT could, in appropriate cases, decide which witnesses require security of the paramilitary forces and upon his request same shall be made available by providing necessary security facilities. (ix-iv) In the third kind of a situation, where the Chairman, SIT is satisfied that the witness requires to be relocated outside the State of Gujarat, it would be for the Union of India to make appropriate arrangements for the relocation of such witness. The Chairman, SIT shall send an appropriate request for this purpose to the Home Secretary, Union of India, who would take such steps as are necessary to relocate the witnesses. (ix-v) All the aforesaid directions are to be considered by SIT by looking into the threat perception, if any. (x) SIT would continue to function and carry out any investigations that are yet to be completed, or any further investigation that may arise in the course of the trials. SIT would also discharge such functions as have been cast upon them by the present order. (xi) If there are any matters on which directions are considered necessary (including by way of change of Public Prosecutors or witness protection), the Chairman of SIT may (either directly or through the amicus curiae) move this Court for appropriate directions. (xii) It was apprehension of some learned counsel that unruly situations may be created in court to terrorise witnesses. It needs no indication that the court shall have to deal with such situations sternly and pass necessary orders. SIT shall also look into this area. (xiii) Periodic three monthly reports shall be submitted by SIT to this Court in sealed covers. 41. List after four months.’ (emphasis supplied) [18] (2009) 6 SCC 767 – National Human Rights Commission vs. State of Gujarat & Ors. (paras 4, 37 to 40) It is thus noticed that this Court permitted trial of concerned (nine) cases including the Gulberg Society case being CR No. 67/2002 to proceed. This judgment is also indicative of the high trust reposed by this Court in the SIT including about directing the State authorities to abide by the instructions given by the SIT. (m) As directed by this Court vide order dated 27.4.2009[19], the SIT examined the complaint and also recorded statements of the concerned persons. Mr. A.K. Malhotra, former DIG, CBI and a member of the SIT recorded statements of total 187 witnesses and Mr. Himanshu Shukla, DCP, Crime Branch and I.O., SIT examined 145 witnesses, in connection with the complaint of appellant – Zakia Ahsan Jafri, dated 8.6.2006. A total of approximately 275 persons were questioned by them in compliance with the direction given by this Court. Two new members came to be inducted in the SIT on 15.5.2009. When the investigation into the stated complaint was ongoing, the SIT submitted last supplementary chargesheet in the Gulberg Society case being CR No. 67/2002, on 12.8.2009, which fact was placed on record before this Court. [19] supra at footnote Nos. 4 and 17 (n) SLP(Crl.) No. 1088/2008 then came up for hearing on 19.1.2010 alongwith other cases. The Court was duly informed that the SIT had submitted an interim report and asked for five months’ further time to complete the investigation in respect of complaint of appellant – Zakia Ahsan Jafri, dated 8.6.2006. This Court granted time till 30.4.2010. The order dated 19.1.2010, reads thus: – ‘ORDER In regard to the investigations in SLP(Crl.) No. 1088 of 2008, an interim report has been submitted by the Special Investigating Team (SIT). In the said report it has been reported that having regard to the gravity, complexity and vast spread of the allegations across Gujarat State, a very large number of suspects and witnesses have to be examined. It is also reported that a large number of vital documents are still awaited from the Government of Gujarat. The Committee has prayed for grant of 5 months’ further time for completion of the enquiry and submission of its final report in the matter. The Committee has also sought direction to the Government of Gujarat to hand over all the vital documents requisitioned by it from them. Having perused the correspondence between the SIT and the State Government, filed as annexures with the report, we direct the Government of Gujarat to hand over all the documents, which have been requisitioned by the SIT without any further delay. The SIT would try to complete the enquiry in the matter expeditiously and submit its report by 30th April, 2010. The report shall be kept in the sealed covers. ..’ (o) On 6.5.2010, Gulberg Society case being CR No. 67/2002 was put on hold because of the resignation of the Special Public Prosecutor appearing in that case. This Court took notice of I.A. No. 19816/2009 and passed the following order on 6.5.2010: – ‘ORDER Crl.M.P. No. 19816/2009: Having perused the comments submitted by the learned Amicus Curiae on the allegations in the application (I.A. No. 19816 of 2009), and discussed the matter with him and the Chairman SIT at some length, we feel that it would be appropriate and expedient to direct Mr. A.K. Malhotra, D.I.G. (Retd) C.B.I. to examine all police records in the possession of the SIT and submit a report about the veracity of the explanation given by the SIT on each of the points raised in the said application. The report shall be submitted within eight weeks. We further direct that though it seems unlikely that the trials would conclude shortly, but if in any one of the cases the trial is concluded before the next date, the concerned Trial Court(s) shall not pronounce the final judgment till further orders by this Court. List the application along with other listed applications for directions on 6th August, 2010. A report has been submitted by the Chairman SIT, on the letter of Shri Nigam R. Shukla, the Special Public Prosecutor, in Naroda Police Station case (CR.No.98 of 2002). We request the learned Amicus Curia to assist the Chairman, SIT in finding out suitable replacements for S/Shri R.K. Shah and N.R. Nigam, Special Public Prosecutors. As soon as the names are finalised by the Chairman SIT and communicated to the State Government, appropriate orders in that behalf shall be issued by the authorities concerned and in both the cases, which were being handled by them, shall resume subject to the orders, if any, by the Gujarat High Court in transfer petition arising from C.R. No. 67 of 2001. The progress report in Writ Petition (Crl.) No. 109 of 2003 filed by the SIT is taken on record. The same be kept in the sealed covers.’ (emphasis supplied) In other words, this Court once again passed an interim order in respect of trial in Gulberg Society case being CR No. 67/2002, directing the trial Court to proceed but not to pronounce the final verdict. On 12.5.2010, the SIT submitted a report prepared by Mr. A.K. Malhotra asking for time for further investigation to enquire into the role of Mr. Gordhan Zadafia, the then Minister of State (Home), Mr. M.K. Tandon, the then Joint Commissioner of Police, Sector-II, Ahmedabad City and P.B. Gondia, the then DCP, Zone-IV, Ahmedabad City. (p) This Court, on 26.10.2010, permitted Mr. Prashant Bhushan, learned Amicus Curiae to withdraw from the case and instead nominated Mr. Rohinton Fali Nariman, learned senior counsel (as he then was) in his place, to assist the Court. In addition, the Court directed handing over of the reports of Mr. A.K. Malhotra to the Amicus Curiae, after taking it on record. This Court also lifted the stay on the pronouncement of the judgment except in Gulberg Society case being CR No. 67/2002. Relevant portion of the said order dated 26.10.2010, reads thus: – ‘O R D E R SLP(Crl.) No. 1088/2008 At the outset, Mr. Prashant Bhushan has expressed unwillingness to continue as the Amicus Curiae and requested that he may be relieved from the case. We accede to the request and appoint Mr. Rohinton Fali Nariman as an Amicus Curiae to assist the Court in this case. Mr. Bhushan states that he will return the papers of the case received from the office in a sealed cover. On receipt of the record, the office shall forward the same to Mr. Nariman. Report dated 20th October, 2010 on further investigation against Shri M.K. Tandan Etc. has been filed by the Chairman and one of the Members of the Special Investigation Team. According to the report, the investigation is likely to be concluded within a fortnight. The report is taken on record. Let the final report be filed before the next date. List on 2nd December, 2010, at 3.00 p.m. for consideration of the reports. Crl.M.P. No. 22117 and 22115 of 2010 in SLP(Crl.) No. 1088/2008 In view of the fact that Mr. Prashant Bhushan has been discharged from the case as Amicus Curiae, both these applications are rendered infructuous and are disposed of accordingly. Crl.M.P. No. 19816 of 2009 In WP(Crl.) Nos. 37-52/2002 In view of the subsequent developments, no further orders are called for in this application and the same is dismissed accordingly. Crl.M.P. Nos. 22161-22162 of 2010 In WP(Crl.) Nos. 37- 52 of 2002 Adjourned sine die. Crl.M.P. No. 22325/2010 In WP(Crl.) NOs. 37-52 of 2002 At this stage, no orders are called for in the application. The application stands disposed of accordingly. Crl.M.P.NOs. 22326-22327/2010 in WP(Crl.) No. 109/2003 In the light of the report of Mr. A.K. Malhotra dated 13th August, 2010 and the submissions of learned Amicus Curiae, we lift the restraint order passed on 6th May, 2010, in all the cases, except in Cr. No. 67 of 2002 (Meghani Nagar Gulbery Society case), in which case the trial may proceed but the final judgment shall not be pronounced. The trial Courts are now free to pronounce the final judgments. The applications are disposed of accordingly. WP(Crl.) No. 109/2003. A report dated 20th October, 2010 has been filed by the Chairman, SIT, indicating the progress in trials in all the cases. The Chairman has stated that the trials are being closely monitored by him and other members of his team. According to the report, the trials in all the cases, on the whole, are proceeding quite satisfactorily. Let a copy of the report be supplied to the learned Amicus Curiae. The report will be taken up for consideration on 2nd December, 2010, at 3.00 p.m. We direct that in future the office shall list only those applications in which specific orders for listing are made. All the disposed of applications shall be detached from the record and shall not be shown in the cause list. The office shall also prepare a complete list of all the pending applications and place before the Court for appropriate orders on the next date. The aforestated two reports filed by the SIT shall be kept in the sealed covers. SLP(Crl.) No. 7046/2010 In the first instance, issue notice to respondent No.1. Ms. Hemantika Wahi waives service of notice on behalf of the said respondent and seeks time to file reply affidavit. Let the needful be done within two weeks with advance copy to the learned counsel for the petitioners and to learned Amicus Curiae. Rejoinder affidavit, if necessary, shall be filed by the next date. Copies of the petition shall also be supplied to Mr. Harish N Salve, the learned Amicus Curiae and the Chairman, SIT for their comments. List on 2nd December, 2010 at 3.00 p.m.’ (emphasis supplied) (q) The further report filed in this case had mentioned that most of the allegations were not borne out from the statements and materials collated during investigation. However, it was recommended that further investigation under Section 173(8) of the Code in respect of Mr. Gordhan Zadafia, Mr. M.K. Tandon and Mr. P.B. Gondia, may be necessary. Notably, the further investigation was conducted by Mr. Himanshu Shukla, DCP, Crime Branch and I.O., SIT and report was submitted by him to this Court on 17.11.2010. (r) As noticed earlier, on one hand, the trial concerning Gulberg Society case being CR No. 67/2002 involving the gruesome killing of the husband of the appellant and others by a violent mob was allowed to proceed by this Court even when the SIT was enquiring into the complaint of appellant – Zakia Ahsan Jafri, dated 8.6.2006; and in that process, the deposition of Mr. Ashish Khaitan, senior journalist (who had conducted the Tehelka Sting Operation) was recorded by the trial Court on 2.8.2010, of Mr. Rahul Sharma on 15.9.2010 and of appellant – Zakia Ahsan Jafri on 22.10.2010. (s) Further investigation report came to be submitted before this Court by Mr. Himanshu Shukla on 17.11.2010. On 23.11.201020, Mr. Rohinton Fali Nariman, learned Amicus Curiae requested the Court to allow him to withdraw from the case. That request was acceded to by the Court and in his place, Mr. Raju Ramchandran was appointed as Amicus Curiae to be assisted by Mr. Gaurav Agrawal, learned counsel. The Court also directed handing over to both the newly appointed Amicus Curiae, the reports of SIT. The Amicus Curiae in turn examined the SIT reports concerning complaint of appellant, dated 8.6.2006, and placed their observations on record in the form of a note made over to the SIT. This Court then vide order dated 20.1.2011, directed thus: – ‘ORDER W.P.(CRL.)NO. 109/2003 Mr. Harish N. Salve, the learned amicus curiae, has placed before us a note, pointing out that the Presiding Judge conducting trial in Naroda Police Station I.CR No.100/2002, has since been transferred by the High Court in routine transfers of the Judicial Officers in the State. Learned amicus suggests that since the trial in the said case is at an advanced stage, the Officer may not be shifted. We feel that it will be proper and expedient if this request is made by the Chairman, Special Investigation Team (SIT) before the Chief Justice of Gujarat High Court on the administrative side. We are confident that having regard to the fact situation, the learned Chief Justice will pass appropriate orders on the request of the Chairman, SIT. A Progress Report, dated 18th January, 2011, regarding nine under trial cases has been filed by the Chairman, SIT. It appears from the said report that except for two Naroda cases, trial in other cases is nearing completion. In the said report, it is also pointed out that Presiding officer looking after the trial of Gulberg Society case (Shri B.U. Joshi) and Naroda Patiya case (Ms. Jyotsnaben Yagnik) have been transferred out of Ahmedabad on 30th December, 2010. The report is taken on record and shall be kept in a sealed cover. Special Leave Petition (Criminal) No. 7046 of 2010 Ms. Kamini Jaiswal, learned counsel appearing for the petitioners prays that orders on the petition may be deferred for some time as she has not yet received complete instructions in the matter. Call on 3rd March, 2011 at 3.00 p.m. W.P.(CRL.) NO. 37-52/2002 An additional affidavit has been filed by Ms. Teesta Setalvad, one of the petitioners, explaining the circumstances under which copies of two letters addressed by her to Shri R.K. Raghavan, Chairman, SIT, were endorsed to the Office of High Commissioner for Human Rights (OHCHR), at Geneva. Ms. Kamini Jaiswal states on instructions from Ms. Teesta Setalvad, who is present in Court, that in future no such letters shall be sent to the said organization. In light of the statement, we close the issue at that. SLP (CRL.)…CRLMP.NO.1127/2011 Delay condoned. No ground is made out for grant of permission to file the Special Leave Petition. The Special Leave Petition is dismissed accordingly. SLP (CRL)..CRLMP. NO.1519/2011 Delay condoned. Issue notice returnable on 3rd March, 2011. SLP(CRL) NO. 1088 OF 2008 A note has been submitted by Mr. Raju Ramachandran, learned amicus curiae, for our perusal. A copy of the said note has also been supplied to the Chairman, SIT, who is present in Court today. List the matter on 3rd March, 2011 at 3.00 p.m.’ (emphasis supplied) [20] ‘ORDER Since Mr. Rohinton Fali Nariman, Senior Advocate has expressed his inability to assist the Court in this case, we request Mr. Raju Ramachandran, Senior Advocate and Mr. Gaurav Agarwal, Advocate, to assist the Court in this case as Amicus Curiae. All the papers received back from Mr. Prashant Bhushan, learned counsel, in sealed cover shall be forwarded to Mr. Gaurav Agarwal.’ It is noticed from this order that certain issues were raised in connection with two letters addressed by Ms. Teesta Setalvad to Dr. R.K. Raghavan, Chairman, SIT, which were also endorsed to the Office of High Commissioner for Human Rights Council (OHCHR), Geneva. Ms. Teesta Setalvad was called upon to explain the same. In response to which she had to give assurance to this Court that in future she will not repeat the act of forwarding letters written by her to SIT to the said organisation (OHCHR) and on such assurance, the issue stood closed. (t) The matters were then listed on 15.3.2011, when Mr. Raju Ramchandran, learned Amicus Curiae submitted a note, which had already been supplied to the Chairman, SIT. The Court directed the Chairman, SIT to look into the observations made by the Amicus Curiae against each of the findings made by the SIT. The order reads thus: – ‘ORDER SLP(Crl.) No. 1088/2008 A copy of the note submitted by the learned amicus curiae has already been supplied to the Chairman, Special Investigation Team (SIT). Let the Chairman, SIT, look into the observations made by the learned amicus curiae against each of the findings given by the SIT on the allegations made in the complaint and submit his report thereon. If considered necessary, it will be open to the SIT to carry out further investigations in light of the observations made in the said note. The report shall be submitted by 25th April, 2011. List the case on 27th April, 2011 at 3.00 p.m. The note submitted by the learned amicus curiae shall be kept in a sealed cover. (emphasis supplied) ..’ (u) What is significant to notice is order dated 5.5.2011 passed by this Court. The same reads thus: – ‘ORDER SLP(Crl.) No. 1088/2018 Pursuant to our order dated 15th March, 2011, the Chairman, Special Investigation Team (SIT) has filed report on the further investigations carried out by his team along with his remarks thereon. Statements of witnesses as also the documents have been placed on record in separate volumes. Let a copy of all these documents along with the report of the Chairman be supplied to Mr. Raju Ramachandran, the learned Amicus Curiae. The learned Amicus Curiae shall examine the report, analyse and have his own independent assessment of the statements of the witnesses recorded by the SIT and submit his comments thereon. It will be open to the learned Amicus Curiae to interact with any of the witnesses, who have been examined by the SIT, including the police officers, as he may deem fit. If the learned Amicus Curiae forms an opinion that on the basis of the material on record, any offence is made out against any person, he shall mention the same in his report. List on 28th July, 2011 at 3.00 p.m. CRL.M.P. Nos. 21849/2009 and 21850/2009 in SLP(CRL.) No. 1088/2008 At the request of learned counsel for the applicants, adjourned to 28th July, 2011 at 3.00 p.m. for preliminary hearing. SLP(CRL.) NO. 1032/2011 Learned counsel for the respondents submit that they do not propose to file any counter affidavit to the petition. List the matter for final disposal on 28th July, 2011 at 3.00 p.m. All the reports shall be kept in a sealed cover.’ (emphasis supplied) In terms of this order, Mr. Raju Ramchandran, learned Amicus Curiae was granted liberty to examine the SIT report, analyse the same and give his own independent assessment of the statement of witnesses recorded by the SIT and submit his comments thereon. For doing that, he was also permitted to interact with any of the witnesses, who had been examined by the SIT including the police officials, as he may deem fit. In this two-month period, the Amicus Curiae had interacted with all concerned, as he desired including with Ms. Teesta Setalvad. This direction was in the nature of permitting the Amicus Curiae to do appraisal of the actions of the investigator (SIT) appointed by this Court. This was an extra effort not only expected from the Amicus Curiae, but also for reassuring the Court that each allegation in the complaint dated 8.6.2006 is dealt with appropriately in the report submitted by the SIT. The learned Amicus Curiae, after analysing the entire material including the reports, then submitted his report on 25.7.2011. (v) After the report was submitted by Amicus Curiae on 25.7.2011, the SIT submitted its further report after investigation including to deal with the observations of the Amicus Curiae on every aspect noted in his report. This further report of the SIT was placed before this Court on 12.9.2011. This Court being satisfied with the fact that investigation had been completed by the SIT under its supervision, following the decision in Bhagwant Singh vs. Commissioner of Police & Anr., (1985) 2 SCC 537 (paras 4 and 5), as well as, Vineet Narain & Ors. vs. Union of India & Anr., (1996) 2 SCC 199, Union of India & Ors. vs. Sushil Kumar Modi & Ors., (1998) 8 SCC 661, M.C. Mehta (Taj Corridor Scam) vs. Union of India & Ors., (2007) 1 SCC 110 and Narmada Bai vs. State of Gujarat & Ors., (2011) 5 SCC 79, proceeded to pass the following order on 12.9.2011[26]: – ‘.. 8. The learned amicus curiae has now submitted his final report dated 25-7-2011. In light of the above conspectus and the report of the learned amicus curiae, the question for determination is the future course of action in the matter. 9. We are of the opinion that bearing in mind the scheme of Chapter XII of the Code, once the investigation has been conducted and completed by SIT, in terms of the orders passed by this Court from time to time, there is no course available in law, save and except to forward the final report under Section 173(2) of the Code to the court empowered to take cognizance of the offence alleged. As observed by a three-Judge Bench of this Court in M.C. Mehta (Taj Corridor Scam) v. Union of India, (2007) 1 SCC 110, in cases monitored by this Court, it is concerned with ensuring proper and honest performance of its duty by the investigating agency and not with the merits of the accusations in investigation, which are to be determined at the trial on the filing of the charge-sheet in the competent court, according to the ordinary procedure prescribed by law. 10. Accordingly, we direct the Chairman, SIT to forward a final report, along with the entire material collected by SIT, to the court which had taken cognizance of Crime Report No. 67 of 2002, as required under Section 173(2) of the Code. Before submission of its report, it will be open to SIT to obtain from the amicus curiae copies of his reports submitted to this Court. The said court will deal with the matter in accordance with law relating to the trial of the accused, named in the report/charge-sheet, including matters falling within the ambit and scope of Section 173(8) of the Code. 11. However, at this juncture, we deem it necessary to emphasise that if for any stated reason SIT opines in its report, to be submitted in terms of this order, that there is no sufficient evidence or reasonable grounds for proceeding against any person named in the complaint dated 8-6-2006, before taking a final decision on such ‘closure’ report, the court shall issue notice to the complainant and make available to her copies of the statements of the witnesses, other related documents and the investigation report strictly in accordance with law as enunciated by this Court in Bhagwant Singh v. Commr. of Police, (1985) 2 SCC 537. For the sake of ready reference, we may note that in the said decision, it has been held that in a case where the Magistrate to whom a report is forwarded under Section 173(2)(i) of the Code, decides not to take cognizance of the offence and to drop the proceedings or takes a view that there is no sufficient ground for proceeding against some of the persons mentioned in the FIR, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report. 12. Having so directed, the next question is whether this Court should continue to monitor the case any further. The legal position on the point is made clear by this Court in Union of India v. Sushil Kumar Modi, (1998) 8 SCC 661, wherein, relying on the decision in Vineet Narain v. Union of India, (1996) 2 SCC 199, a Bench of three learned Judges had observed thus (Sushil Kumar Modi case, (1998) 8 SCC 661: ‘6. … that once a charge-sheet is filed in the competent court after completion of the investigation, the process of monitoring by this Court for the purpose of making CBI and other investigative agencies concerned perform their function of investigating into the offences concerned comes to an end; and thereafter it is only the court in which the charge-sheet is filed which is to deal with all matters relating to the trial of the accused, including matters falling within the scope of Section 173(8) of the Code of Criminal Procedure. We make this observation only to reiterate this clear position in law so that no doubts in any quarter may survive.’ 13. In M.C. Mehta v. Union of India, (2008) 1 SCC 407, a question arose as to whether after the submission of the final report by CBI in the Court of Special Judge, pursuant to this Court’s directions, this Court should examine the legality and validity of CBI’s action in seeking a sanction under Section 197 of the Code for the prosecution of some of the persons named in the final report. Dismissing the application moved by the learned amicus curiae seeking directions in this behalf, a three-Judge Bench, of which one of us (D.K. Jain, J.) was a member, observed thus: ‘9. … The jurisdiction of the court to issue a writ of continuous mandamus is only to see that proper investigation is carried out. Once the court satisfies itself that a proper investigation has been carried out, it would not venture to take over the functions of the Magistrate or pass any order which would interfere with his judicial functions. Constitutional scheme of this country envisages dispute resolution mechanism by an independent and impartial tribunal. No authority, save and except a superior court in the hierarchy of judiciary, can issue any direction which otherwise takes away the discretionary jurisdiction of any court of law. Once a final report has been filed in terms of sub-section (1) of Section 173 of the Code of Criminal Procedure, it is the Magistrate and Magistrate alone who can take appropriate decision in the matter one way or the other. If he errs while passing a judicial order, the same may be a subject-matter of appeal or judicial review. There may be a possibility of the prosecuting agencies not approaching the higher forum against an order passed by the learned Magistrate, but the same by itself would not confer a jurisdiction on this Court to step in.’ 14. Recently, similar views have been echoed by this Court in Narmada Bai v. State of Gujarat, (2011) 5 SCC 79. In that case, dealing with the question of further monitoring in a case upon submission of a report by CBI to this Court, on the conclusion of the investigation, referring to the earlier decisions in Vineet Narain, (1996) 2 SCC 199, Sushil Kumar Modi, (1998) 8 SCC 661 and M.C. Mehta (Taj Corridor Scam), (2007) 1 SCC 110, speaking for the Bench, one of us, (P. Sathasivam, J.) has observed as under: (Narmada Bai case, (2011) 5 SCC 79: ‘ 70. The above decisions make it clear that though this Court is competent to entrust the investigation to any independent agency, once the investigating agency complete their function of investigating into the offences, it is the court in which the charge-sheet is filed which is to deal with all matters relating to the trial of the accused including matters falling within the scope of Section 173(8) of the Code. Thus, generally, this Court may not require further monitoring of the case/investigation. However, we make it clear that if any of the parties including CBI require any further direction, they are free to approach this Court by way of an application.’ 15. Deferentially concurring with the dictum of this Court in the aforenoted decisions, we are of the opinion that in the instant case we have reached a stage where the process of monitoring of the case must come to an end. It would neither be desirable nor advisable to retain further seisin over this case. We dispose of this appeal accordingly. (emphasis supplied) [26] (2011) 12 SCC 302 – Jakia Naseem Ahesan & Anr. vs. State of Gujarat & Ors. (w) As per the direction given by this Court, the SIT presented its final report on 8.2.2012 before the concerned Metropolitan Magistrate, who had taken cognizance of Gulberg Society case being CR No. 67/2002. (x) It appears that the appellant corresponded with the SIT, as well as, the Magistrate for supplying certain documents. The Magistrate vide order dated 10.4.2012, directed supply of partial documents and on 16.5.2012, he rejected the request for granting rest of the documents including enquiry report, further investigation report and statements enclosed therewith. (y) This led to filing of SLP(Crl.) No. 8989/2012. This petition was finally allowed on 7.2.2013 being converted into Criminal Appeal No. 273/2013. The order reads thus: – ‘ORDER Heard all the parties concerned including Mr. Raju Ramachandran, learned Amicus Curiae. Leave granted. The complainant is the appellant. She filed an application before the Metropolitan Magistrate claiming supply of all the documents filed along with the closure report dated 07.10.2012 by the SIT. Before considering the claim of the appellant, it is relevant to refer to the earlier order of this Court dated 12th September, 2011 made in Criminal Appeal No. 1765 of 2011. After going into various aspects, this Court issued the following directions to the SIT: ‘Accordingly, we direct the Chairman, SIT to forward a final report, along with the entire material collected by SIT, to the court which had taken cognizance of Crime Report No. 67 of 2002, as required under Section 173(2) of the Code. Before submission of its report, it will be open to SIT to obtain from the Amicus Curies copies of his reports submitted to this Court. The said Court will deal with the matter in accordance with law relating to the trial of the accused, named in the report/charge-sheet, including matters falling within the ambit and scope of Section 173(8) of the Code. However, at this juncture, we deem it necessary to emphasise that if for any stated reason the SIT opines in its report, to be submitted in terms of this order, that there is no sufficient evidence or reasonable grounds for proceeding against any person named in the complaint, dated 8-6-2006, before taking a final decision on such ‘closure’ report, the Court shall issue notice to the complainant and make available to her copies of the (1) statements of the witnesses, (2) related documents and (3) investigation report strictly in accordance with law as enunciated by this Court in Bhagwant Singh v. Commr. of Police & Anr. [(1985) 2 SCC 537. For the sake of ready reference, we may note that in the said decision, it has been held that in a case where the Magistrate to whom a report is forwarded under Section 173(2)(i) of the Code, decides not to take cognizance of the offence and to drop the proceedings or takes a view that there is no sufficient ground for proceeding against some of the persons mentioned in the FIR, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report.’ Pursuant to the above direction, the SIT submitted a final report to the Court concerned. Before the said Court, the appellant/complainant made an application for supply of all the materials filed before the said Court. According to the appellant, pursuant to the directions of the Magistrate though she was supplied certain materials, still the SIT has not provided all the required documents. Not satisfied with the order of the learned Magistrate, the appellant has filed this appeal. We have heard learned counsel appearing for the appellant, State as well as the learned Amicus Curiae. On going into the earlier direction of this Court as well as the impugned order passed by the Magistrate, we issue the following directions. The appellant is entitled to have copies of the report dated May 12, 2010 in two volumes, excluding the Chairman’s comments forwarded to this Court. The appellant is also entitled to have copies of reports dated November 17, 2010 and April 24, 2011 filed under Section 173(8) of the Criminal Procedure Code, 1973. Since the statements recorded contain signature, it is clarified that if the signed statements are supplied, the same shall be treated as statements made under Section 161 of the Code of Criminal Procedure, 1973. It is further clarified that the statements recorded in the inquiry shall only be used in the proceedings relating to the complaint dated June 8, 2006 filed by the appellant and shall not be used for any other purpose or in connection with any other case. We also clarify that the present order is confined to the facts and circumstances of the complaint dated 8th June, 2006 and shall not be treated as a precedent, in any other case. The appellant is granted eight weeks’ time for filing the protest petition from the date she gets the required copies as mentioned above. In view of the above conclusion and direction, the impugned orders of the learned Magistrate dated 16.07.2012 and 27.11.2012 are set aside to the extent mentioned above. The appeal is disposed of in the above terms.’ (emphasis supplied) This order, besides issuing directions, as prayed regarding furnishing of documents, also clarified the position that the statements recorded by the SIT pursuant to the investigation undertaken after 27.4.2009 in respect of the allegations in complaint dated 8.6.2006, be treated as statements of witnesses under Section 161 of the Code, which, however, cannot be used for any other purpose including the trial of Gulberg Society case being CR No. 67/2002. (z) Only after getting all the material accompanying the report, appellant – Zakia Ahsan Jafri proceeded to file a protest petition on 15.4.2013 before the Metropolitan Magistrate. The Magistrate, after considering the protest petition and the final report of the SIT dated 8.2.2012, by a speaking order dated 26.12.2013, rejected the protest petition filed by appellant and accepted the final (closure) report filed by the SIT and passed consequential order. (aa) Against this decision, appellant carried the matter before the High Court by way of the stated criminal revision application, which came to be disposed of vide impugned judgment and order dated 5.10.2017, with liberty to appellant to agitate the issue of further investigation upon availability of new material/information. Against the said decision, the present appeal from special leave has been filed. (bb) To complete the narration of relevant facts, we may also advert to the order passed by this court on 13.4.2017 in W.P.(Crl.) No. 109/2003, commending the efforts of the SIT as well, while relieving the Chairman of the SIT from his responsibility. The said order reads thus: – ‘ORDER 1. While placing on record our appreciation for the services rendered to this Court by the learned Amicus Curiae, we are immensely satisfied with the manner in which the proceedings had been conducted in all the trials, resulting in the conclusion of all but one trial. 2. Learned Amicus Curiae has made a request on behalf of Shri R.K. Raghavan, the Chairman of the Special Investigation Team (SIT), seeking to withdraw from the SIT hereinafter, on account of his ill health. We appreciate the request made, and release him from his responsibility as the Chairman of the SIT. 3. A similar request has been made for the release of Shri K. Venkatesham. The instant request is based on the fact, that Shri K. Venkatesham has since been appointed as Commissioner of Police, Nagpur, and therefore, his onerous responsibility leaves him limited time to deal with other issues. For the reasons brought to our notice, we hereby 1 relieve Shri K. Venkatesham from the duties vested in him as a member of the SIT. 4. In the above view of the matter, we would request the remaining member of the SIT, namely, Shri A.K. Malhotra, to continue to discharge the responsibility hereto before entrusted to the SIT, himself. Shri A.K. Malhotra shall furnish quarterly reports to this Court. 5. Post for hearing in the last week of July, 2017.’ SUBMISSIONS OF THE APPELLANT 6. (a) The thrust of the argument was broadly two pronged. The first being the SIT has jumped to the conclusion that no offence is made out against the persons named in the complaint/protest petition despite material and statements collated by it during investigation indicating to the contrary. Additionally, the failure of the SIT to investigate into crucial allegations/material referred to in the protest petition. (b) The second is about the failure of the Metropolitan Magistrate in exercising the powers vested in him including to take cognizance of the offence and in not directing further investigation by the SIT in respect of certain matters. Even the High Court has committed the same fatal error. Reliance is placed on Vishnu Kumar Tiwari vs. State of Uttar Pradesh & Anr., (2019) 8 SCC 27 (paras 7, 17, 27, 28, 32, 33 and 42), to buttress these points. As held in Abhinandan Jha & Ors. vs. Dinesh Mishra, AIR 1968 SC 117 = 1967 (3) SCR 668 (at page 678) (para 15 and 21), there is no obligation on the Magistrate to accept the final report. It is open to the Magistrate to take cognizance if he is so satisfied by invoking powers under Section 190(1)(c) of the Code including to direct further investigation. (c) The appellant in the protest petition had articulated broad grounds on which final SIT report was being opposed. The same read thus: – ’31. The Petitioner submits that the Closure Report needs to be rejected and the Protest Petition allowed on the following grounds, which are in addition to the reasons and grounds set out elsewhere in this Petition: a) The Documents and annexures as submitted by the SIT along with the closure report make out a clear case for taking cognizance against all the accused; b) Without prejudice to the above, the SIT while investigating, has not examined all the necessary witnesses or called for all the necessary documents as set out in the Petition. In view of this the Investigation is defective and incomplete. Further investigation therefore needs to be ordered to arrive at the whole truth; c) Without prejudice to the above, the SIT’s analysis of the statements of witnesses and other documents is hopelessly biased, inaccurate, and suffers from total non application of mind. d) SIT has taken great pains to disbelieve and discredit any witnesses who have spoken against the Accused No.1 or for that matter against any accused. Besides, the witnesses who were favouring Accused were not confroned with relevant documents and statements. e) SIT was required to ascertain whether there is any substance to proceed against the accused persons and once it comes to the conclusion that such substance exists it should have proceeded to file a Charge Sheet. Such substance exists against all the accused. There are witnesses and documents to cast reasonable doubt against the conduct of all the accused and pointing towards their culpability. For instance, the statements of senior officers like RB Sreekumar, Rahul Sharma, Sanjiv Bhatt as well as the Tehelka tapes (validated by the Sessions Court) are enough to file a charge sheet/ take cognizance. Instead of doing this, the SIT has acted like a super court dissecting every bit of evidence, turning and twisting it, ignoring relevant material and accepting uncorroborated irrelevant material to somehow whitewash this entire exercise. Worse the SIT has deliberately and manifestly ignored the huge voluminous evidence that is available on record. SIT has acted beyond its jurisdiction as an Investigating Agency. In fact this Hon’ble Court ought to disregard the SIT Report altogether and look at the gathered evidence independently to arrive at the conclusion that cognizance ought to be taken. f) Apart from anything it needs to be verified whether the Closure Report is based on a collective application of mind by SIT as a whole or not. Large number of documents/ statements are in Gujarati. Admittedly they have not been translated. Majority of the SIT members cannot read Gujarati. In order to decide the weight to be attributed to each of the statements/ document it was necessary that the SIT, as a collective applied its mind to these documents. In the absence of any translations it is not clear as to how the SIT has come to the conclusions it has arrived at. g) The Petitioner submits that against each of the accused there is sufficient material to take cognizance of offences of conspiracy and abetment, subversion of public justice, destruction and suppression of evidence, of rioting, theft, robbery, murder, attempt to commit murder, etc. Besides, against many of the accused Charge Sheets should have also been filed for hate speech. h) SIT should have considered that once a public servant is held to be negligent in performing his duties, and if any criminal offence has taken place, he ought to be automatically charged with abetment. This is so because the definition of abetment includes acts as well as omissions. SIT has come to the conclusion that Accused Nos – 33 then Joint Commissioner of Police MK Tandon and then DCP Zone IV PB Gandia, were negligent in their duties: Having arrived at this conclusion, SIT had no option but to charge them with the criminal offence of abetment at least as the negligence did result in offences being committed or not being prevented. i) SIT should have held that the statements and the documents which have been gathered make out a clear case of conspiracy against all including Accused No. 1. j) The Petitioner submits that as has been held by various courts a conspiracy is usually hatched in secrecy and very rarely there is direct evidence of this. The offence can only be proved largely from inference drawn from acts or illegal omissions committed by the conspirators. Even at the time of trial, there need not be proof of express agreement. The agreement can be proved by necessary implication. Besides, it is not necessary that all the conspirators participate in all the offences resulting from the conspiracy though they would be liable for each one of them. k) In the present case direct evidence exists in terms of Sanjiv Bhatt ‘s testimony about at least one part of the conspiracy being hatched at the meeting held on 27.2.2002. Once this evidence is available it is for the trial court to decide what weight to attribute to it. It is not for the Investigating Agency to dissect this evidence with a view to discredit the same. l) In any event, without prejudice to whether Mr. Modi made the statement attributed to him in the meeting on 27.2.2002 the fact that the meeting took place is not disputed. One has to therefore to look at the subsequent and prior events to decide as to what could have transpired at this meeting. It is obvious that as the event reflect a conspiracy was hatched at this meeting to allow the people to vent their anger (justified or otherwise, instigated or otherwise, organized or otherwise) and not to intervene when offences are committed. In addition the forces were encouraged to abet this ire and to assist the people in venting it and at times to participate in it. Anyone who tried to maintain law and order was penalized. The conspiracy was very clear and played out over the next few days. m) The Petitioner further submits that the offences of conspiracy and abetment along with the responsibilities of public servants have, independently or together introduced the concept of command responsibility under our criminal law. Therefore any public servant shall be criminally responsible for crimes committed by forces or officers under his or her effective authority and control, as a result of his failure to exercise control (preventive or punitive) over these crimes. This would include the Chief Minister/ Home Minister, other Ministers, police and bureaucratic top brass. This is more so since in the present case they knew or owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes. It is further because the said public servants failed to take all necessary and reasonable steps to prevent or repress their commission or to submit the matter to the competent authority for investigation or prosecution. n) The Chief Minister/ Home Minister was directly in charge of law and order in the State. Under his aegis crimes were committed. No steps were taken to curb these crimes. Just to give an example, preventive arrests were essential once the Bandh call was made. These are required for prevent commission of offence. No such arrests were made making the Home Minister downwards all responsible for crimes having been committed for failure to carry out preventive arrests. Besides, if instructions were given to make preventive arrests and they were not carried out then failure to take steps against the officers for not having done preventive arrests itself will amount to failure to discharge duties as a public servant and abetment. o) SIT has misdirected itself in looking at the allegations and events in a piecemeal manner rather that a holistic manner. What was needed to be done was to look at events prior to 27.2.2002, on 27.2.2002 and subsequent to 27.2.2002 to see if a common thread emerges. If this was done an obvious and apparent link between all these events and conduct of the accused comes out which would be sufficient to charge them with conspiracy and abetment, apart from other offences. p) We further submit that offences under S.153 A and B have been made out against accused who were charged with the same in our complaint and the SIT ought to have filed Charge Sheets in respect of the same.’ (d) Besides the aforesaid points, in the course of arguments and in the written submissions, it has been urged as follows: – (1) It is urged that Article 21 of the Constitution not only guarantees protection of law to all, but it also includes corresponding obligation on the State to fairly investigate the criminal cases and prosecute the persons involved in commission of such crime as per the law. The provisions in the form of the Code is the procedure established by law within the meaning of Article 21. In the present case, the SIT failed to investigate into crucial matters in the spirit of mandate of Section 156 of the Code and it is also failure of the Magistrate in exercise of powers to the fullest extent predicated in Section 173 read with Section 190, in particular, sub-Section (1)(b) of the Code. Even the High Court fell foul of the same error while dealing with the revision application of the appellant. (2) The complaint dated 8.6.2006 was only a piece of information. The stand taken by the SIT that allegations beyond complaint cannot be looked at, is legally untenable. If such a plea is countenanced, it would result in equating with, or limit the enquiry as in the case of scrutiny of a plaint in a civil suit, wherein the plaintiff is bound by the averments/contents of the complaint. The order passed by this Court directing the SIT to ‘look into’ the complaint, in no way constricted the jurisdiction of the Magistrate to direct scrutiny of allegations, which come to the fore, consequent to filing of protest petition. (3) The fact that appellant – Zakia Ahsan Jafri was relegated by this Court to file protest petition if the situation so warranted, was not to curtail the powers of the Magistrate including to direct further investigation. In fact, the order of this Court indicates that it was open to the Magistrate to exercise all powers vested in him for dealing with the issues that may arise upon presentation of final SIT report and protest petition by appellant – Zakia Ahsan Jafri. (4) It is significant to note that the complaint dated 8.6.2006 referred to matters not limited to events unfolding in and around the Gulberg Society crime, but also about the series of activities and actions pointing towards the instructions being issued from the highest authority bordering on conspiracy and abetment. The order of this Court dated 7.2.2013 reinforces the stand taken by the appellant that the Magistrate had ample power to issue directions to SIT for further investigation into the relevant matters including referred to in the protest petition. Reliance was placed on Abhinandan Jha[29] and Popular Muthiah vs. State represented by Inspector of Police, (2006) 7 SCC 296 (paras 21 and 54). [29] supra at footnote No. 28 (5) It is urged that it was the duty of the Magistrate to issue process and only after recording the evidence of the concerned witnesses, a conclusion could be reached about the truthfulness of the version and the piece of evidence in support of the accusation. Reliance was placed on State of Gujarat vs. Afroz Mohammed Hasanfatta, (2019) 20 SCC 539 (paras 16, 17, 22 and 39). (6) According to the appellant, following issues have not been dealt with by the Magistrate and the Gujarat High Court: (i) Provocative behaviour was followed up by mass mobilisations and hate speech on 27.2.2002 as part of the wider conspiracy. As early as 12:30 p.m. on 27.2.2002, a State Intelligence Bureau[32] officer communicated to the headquarters that there were reports that some dead bodies of Godhra victims would be brought to Kalupur Station in Ahmedabad and incidents will occur in Ahmedabad city and preventive action had to be taken. Home Department at Gandhinagar received more than eight messages intimating about the Godhra incident, the VHP call for a bandh and about violence taking place in Valsad and other places. [32] for short, ‘SIB’ (ii) Detailed documentary evidence from the SIT investigation papers pieced together meticulously in the protest petition reveals that SIB Messages had noted systematic and violent mobilisations all over the State on 27.2.2002 within minutes of the Godhra tragedy. Despite these warnings, neither the Home Department nor the law-and-order machinery made preventive arrests or protected innocent lives. Kar Sevaks with saffron scarves continued shouting anti-Muslim slogans after incident; more VHP workers gathered at spot and even after curfew had been declared at 10 a.m. Even after deployment of SRP and Railway police reinforcements, attempts to burn Muslim shops was taking place at Godhra. Since the investigation of the Godhra incident was by the Railway Police, it was their responsibility to deal with dead bodies. (iii) By about 1.00 p.m. in the afternoon violent and murderous attacks at Vadodara and Anand had taken place and by the evening the same had spread far and wide across the state. (iv) VHP Press Release carried exaggerated accounts of the Godhra incident. By the evening and late night of 27.2.2002, SIB messages from Godhra to Bhavnagar, Mehsana to Viramgam (far flung districts of Gujarat) recorded aggressive mobilization and provocative speeches being made exhorting the mob/citizens to attack Muslims. (v) An analysis of phone call records officially procured by former IPS officer – Mr. Rahul Sharma and presented to the Nanavati-Shah Commission, had been made and evidence of elected representatives talking to some of the offenders/accused etc. was presented to the SIT. The following aspects were not substantively investigated. For example: (1) The mobile phone records show that Mr. Bhatt, named in the Zakia Jafri Complaint dated 8.6.2006, was in touch with doctors from outside the Godhra city, after which post mortems of the Godhra victims were carried out in the open in the Railway Yard. (2) The mobile phone records also had illustrative details of the phone call records of then Additional Commissioner of Police – Mr. Shivanand Jha. That has not been investigated. (3) Similarly, the mobile phone call records of Mr. Dinesh Togadia etc. of the VHP and other functionaries, had been mentioned but remained uninvestigated. (4) The mobile phone call records dated 27.2.2002 of Dr. Praveen Togadia, International General Secretary, VHP, similarly remained to be investigated. (5) Ahmedabad city recorded 14 Incidents of targeted Violence even as the VHP and its members continued making incendiary and inflammatory speeches. (6) The Gujarat Police Manual and Booklet to Prevent Communal Violence (specific to Gujarat) lay down meticulous SOPs (Standard Operating Procedures) – that were not followed at all in the wake of the Gujarat tragedy. (7) Despite the SIT papers containing documentary evidence of such more instances of attacks and aggression including hate speech, the SIT concealed these in its final report and deliberately avoided recording of any conclusion therein. (e) The SIT has clearly failed to take into account the material appended to the complaint dated 8.6.2006, such as report titled ‘Crimes and Humanity’ published in 2002 by the Concerned Citizens Tribunal[33], headed by former Judges of this Court and affidavits filed by the officials of the State before the Nanavati-Shah Commission. The narrative discernible from this material has not been examined by the SIT in its proper perspective despite suggestive of strong case for investigation into a systemic and widespread conspiracy of subversion and inaction by law enforcement, bureaucracy and elected representatives entailing in systemic outbreak and spread of targeted violence across the State. Even the NHRC had to step in to force the State to take corrective measures and ensure justice to the riot victim survivors. [33] for short, ‘CCT’ (f) It was urged that the SIT was expected to follow the procedure prescribed by law while dealing with the materials/statements collated during investigation and more particularly, relied upon by the appellant. As a matter of fact, the SIT failed to investigate into the crucial aspects referred to in the protest petition. It is submitted that the rationale for protest petition has been expounded in Abhinandan Jha[34] and Bhagwant Singh vs. Commissioner of Police & Anr.[35] It is not only open to the informant to file protest petition, but also to any injured person on all aspects concerning the complicity of concerned persons in the commission of alleged crime. That is what was perceived by this Court while disposing of the special leave petition filed by the appellant in the earlier round, vide judgment and order dated 12.9.2011[36]. The real intent and purpose of the direction issued by this Court in the earlier round has been whittled down by the SIT, as well as, by the Courts in not examining all aspects raised by the appellant by way of protest petition. [34] supra at footnote No. 28 [35] supra at footnote No. 21 [36] supra at footnote No. 26 (g) In support of this grievance, emphasis is placed on the nature of enquiry done by the SIT in respect of Tehelka Sting Operation, and in not examining the crucial witnesses. The contents of sting operation were clearly indicative of the genesis of communal violence, which transformed lava erupting from a volcano, destroying the fertile ground. The SIT had glossed over crucial materials, such as statement of Dhawal Jayantilal Patel, the then VHP District Convener, Sabarkantha and Anil Patel, VHP Vibhag Pramukh, Sabarkantha on the specious plea of the efficacy of the extra judicial confession of another person. Reliance is placed on the decision of this Court in H.N. Rishbund & Anr. vs. State of Delhi, AIR 1955 SC 196 = 1955 1 SCR 1150 (at pages 1155-1157) and Gura Singh vs. State of Rajasthan, (2001) 2 SCC 205 (para 6). (h) The Courts (Magistrate/High Court) have failed to deal with the allegations pertaining to sting operation indicative of build-up before the incident and support of the high authority. Allegations against Mr. Anil Patel were not investigated nor was he arrested, despite the extra judicial confession on record to indicate his complicity. No question has been put to him regarding Tehelka Tape and its contents. Similarly, the Magistrate has erred by going into the veracity/truthfulness or otherwise of the material on record. That could be done only at the stage of trial. The limited role of the Magistrate at this stage is to prima facie examine the material on record to find out the case of reasonable suspicion to take cognizance of the crime against the named offenders, as held in S.K. Sinha, Chief Enforcement Officer vs. Videocon International Ltd. & Ors., (2008) 2 SCC 492 (para 22). (i) It is further urged that in the interests of justice, as the detailed protest petition alongwith exhaustive documentary evidence was presented, the Magistrate ought to have taken it as a complaint and directed further investigation in respect of issues raised therein. In the protest petition, the complainant has dealt with whole series of events and supporting documents and not a single or stray document from the investigation record, and relying on the totality of the circumstances, the allegation regarding larger criminal conspiracy has been set forth. It is her case that the incident of violence across the State of Gujarat after Godhra incident on 27.2.2002, was encouraged and condoned and overtly supported by the State Government owing to their actions and omissions on the part of the State constituting criminal conspiracy. The actors in the said criminal conspiracy were broadly in four groups. To wit, political establishment, bureaucra…

Posted on 18th May 2022 by rajatbindal5gmailcom — Leave a comment

Domestic Violence – Actual living with accused, at the time of commission of crime, is not required

SUPREME COURT OF INDIA

DIVISON BENCH

PRABHA TYAGI — Appellant

Vs.

KAMLESH DEVI — Respondent

( Before : M.R. Shah and B.V. Nagarathna, JJ. )

Criminal Appeal No. 511 of 2022

Decided on : 12-05-2022

A. Protection of Women from Domestic Violence Act, 2005 – Enforcement of right to live in a shared household – It is held that it is not mandatory for the aggrieved person, when she is related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family, to actually reside with those persons against whom the allegations have been levelled at the time of commission of domestic violence. If a woman has the right to reside in the shared household under Section 17 of the D.V. Act and such a woman becomes an aggrieved person or victim of domestic violence, she can seek reliefs under the provisions of D.V. Act including enforcement of her right to live in a shared household.

B. Protection of Women from Domestic Violence Act, 2005 – Section 12 – Application under section 12 of D.V. Act – If an aggrieved person is not in a domestic relationship with the respondent in a shared household at the time of filing of an application under Section 12 of the D.V. Act but has at any point of time lived so or had the right to live and has been subjected to domestic violence or is later subjected to domestic violence on account of the domestic relationship, is entitled to file an application under Section 12 of the D.V. Act.

Counsel for Appearing Parties

Mr. Gaurav Agrawal, Advocate, (A.C.), Dr. Vinod Kumar Tewari, Advocate, Mr. Shailja Kant Dubey, Advocate, Ms. Priyanka Dubey, Advocate, Mr. Vivek Tiwari, Advocate, for the Appellant; Mr. K. K. Srivastava, Advocate, Mr. Kumar Rajeev, Advocate, Mr. S. K. Verma, Advocate, for the Respondent.

Cases Referred

A. Vidya Sagar vs. State of Andhra Pradesh – [2014 SCC Online Hyd 715]
Abhiram Gogoi vs. Rashmi Rekha Gogoi – [(2011) 4 Gauhati Law Reports 276]
Ajay Kumar vs. Lata alias Sharuti and Others – [(2019) 15 SCC 352]
D. Velu Samy v. D. Patchaiammal – [(2010) 10 SCC 469]
Dattatraya Govind Mahajan and Others Vs. The State of Maharashtra and another – [AIR 1977 SC 915]
Harbhajan Singh vs. Press Council of India – (AIR 2002 SC 1351)
Indra Sarma v. V.K.V. Sarma – [(2013) 15 SCC 755]
Ishverlal Thakorelal Almaula vs. Motibhai Nagjibhai – [AIR 1966 SC 459]
Jeet Singh and Ors. v. State ofU.P. and Ors. (1993) 1 SCC 325
Juveria Abdul Majid Patni vs. Atiflqbal Mansoori and Another – [(2014) 10 SCC 736]
Kaviraj Pandit Durga Dutt Sharma vs. Navaratna Pharmaceutical Laboratories – [AIR 1965 SC 980]
Kedarnath Jute Manufacturing Co. Ltd. Vs . The Commercial Tax Officer and Others, [AIR 1966 SC 12]
Krishna Bhattacharjee vs. Sarathi Choudhury and Another – [(2016) 2 SCC 705]
M. Pentiah vs. Muddala Veeramallappa – [AIR 1961 SC 1107]
Md. Basit vs. State of Assam and Others – [(2012) 1 Gauhati Law Reports 747]
Nayanakumar vs. State of Karnataka – [ILR 2009 Kar 4295]
Rahul Soorma vs. State of Himachal Pradesh – [(2012) SCC Online HP 2574]
Rakesh Choudhary vs. Vandana Choudhary -[2019 SCC Online J&K 512]
Rama Singh vs. Maya Singh-[(2012) 4 MPLJ 612]
Rashmi Kumar vs. Mahesh Kumar Bhada – [(1997) 2 SCC 397]
Ravi Dutta vs. Kiran Dutta and Another – [2018 (2014) DLT 61]
Ravi Kumar Bajpai vs. Renu Awasthi Bajpai – [ILR (2016) MP 302]
S. Sundaram Pillai, etc, vs. V.R. Pattabiraman -[AIR 1985 SC 582]
S.R. Batra vs. Taruna Batra – [(2007) 3 SCC 169]
Saraswathy vs. Babu -[(2014) 3 SCC 712]
Satish Chander Ahuja vs. Sneha Ahuja – [(2021) 1 SCC 414]
Shambhu Prasad Singh vs. Manjari -[190 (2012) DLT 647]
Smt. Bharati Naik vs. Shri Ravi Ramnath Halarnkar and Another – [2010 SCC Online Bom 243]
Superintendent & Remembrancer of Legal Affairs to Govt. of West Bengal vs. Abani Maity – [AIR 1979 SC 1029]
Suraj Sharma vs. Bharti Sharma – [2016 SCC Online Chh 1825]
V.D. Bhanot vs. Savita Bhanot – [(2012) 3 SCC 183]
Vandhana vs. T. Srikanth and Krishnamachari – [2007 SCC Online Mad 553]
Vijay Maruti Gaikwad vs. Savita Vijay Gaikward – [2018 (1) HLR 295]

JUDGMENT

Nagarathna, J. – The aggrieved person, being the appellant herein, who had filed Miscellaneous Case No. 78 of 2007 on the file of the Court of Special Judicial Magistrate-1, Dehradun, has assailed judgment dated 23^rd July, 2019 passed by the High Court of Uttarakhand at Nainital, in Criminal Revision No. 186 of 2014, by which the judgment dated 11^th July, 2014 passed by the Vth Additional Sessions Judge, Dehradun, in Criminal Appeal No. 53 of 2011 setting aside the order passed by the Special Judicial Magistrate-I, was sustained.

2. For the sake of convenience, the parties herein shall be referred to in terms of their rank and status before the Trial Court.

Factual Background:

3. According to the aggrieved person, her marriage with Kuldeep Tyagi (since deceased) son of late Vishnudutt Tyagi was solemnized on 18^th June, 2005 at Haridwar District, Uttarakhand as per Hindu rites and rituals and in connection with the marriage, the family members of the aggrieved person had given dowry to the family of her deceased husband and Stridhana to the aggrieved person. For the period immediately following the wedding, the aggrieved person was residing at the ancestral home of the respondents along with her mother-in-law-respondent no. 1, two brothers-in-law, wife of her husband’s elder brother and six sisters-in-law. Thereafter, the aggrieved person began living with her husband and the respondents in village Jhabreda. That Kuldeep Tyagi, husband of the aggrieved person died on 15^th July, 2005 in a car accident and after the Terhanvi ceremony of her husband, the aggrieved person was constrained to reside initially at Delhi, at her father’s house. That immediately prior to the death of her husband, the aggrieved person had conceived a child.

4. That on 30^th March, 2006 the aggrieved person gave birth to a daughter and owing to the misbehavior and torture meted out to her by her matrimonial family after her husband’s death, she moved to Dehradun, Uttarakhand with her daughter, where she began working as a teacher to support herself and her child. That the Stridhana given to her at the time of her wedding was never allowed to be enjoyed by her and even following her exit from her matrimonial home, the Stridhana was being used by her in-laws, respondent nos. 1 to 6. That the aggrieved person had sent a legal notice dated 22^nd November, 2006, requesting them to return the articles of Stridhana, however, there was no response to the same.

5. That the father of the aggrieved person had gifted her a Maruti (Alto) car, at the time of her wedding and the same was registered in the name of her deceased husband. Owing to the accident that her husband had met with, resulting in his death, the said car had also been damaged. That the aggrieved person’s mother-in-law had submitted an application before the insurance company, National Insurance Company which was processing the claim for damage caused to the car, stating therein that she was the mother of the deceased and was the only legal heir of the deceased and therefore any compensation may be made in her favour.

6. That there exists a land in village Jhabreda to which the deceased husband of the aggrieved person had right and title. That respondent no. 1- mother-in-law, on being instigated by the other respondents objected to the recording of the aggrieved persons’ name in the revenue records of the said property. Respondent no. 1 objected by stating that the child borne by aggrieved person was not Kuldeep Tyagi’s daughter. Owing to such objection, the Court of Tehsildar passed an order of status quo with respect to the said property.

7. That the respondents, on several occasions threatened the aggrieved person that she would face dire consequences if she ever attempted to claim any right over her husband’s property. That the respondents, having no sympathy towards the aggrieved person who had, while pregnant, lost her husband in a fatal accident, tortured her mentally by denying that her child was the daughter of Kuldeep Tyagi.

8. With the aforesaid averments, the aggrieved person approached the Court of the Special Judicial Magistrate under Section 12 and sought protection orders, residence orders and compensation orders to be passed under various provisions of the Protection of Women from Domestic Violence Act, 2005 (for short, the ‘D.V. Act’). Further, prayers were also made for monetary reliefs under Section 22 of the D.V. Act.

9. In response to the aforesaid application filed by the aggrieved person, the respondents filed a joint written statement to the effect that the marriage of the aggrieved person with Kuldeep Tyagi was solemnized at a simple ceremony in Haridwar, on 18^th June, 2005. That no dowry or articles of Stridhana were handed over to the respondents at the time of the ceremony, therefore, the question of returning the same to the aggrieved person by the respondents would not arise. That the aggrieved person could not have conceived a child through the deceased in a span of twenty-eight days from the date of the marriage and as such a claim was not only false but unnatural.

10. That the respondents had, in no way, tortured the aggrieved person. That her statement to the effect that she was residing in the ancestral home of her husband, during the period immediately following her wedding, was untrue as she only stayed with the respondents for one night after her marriage.

11. As regards the Maruti (Alto) car, it was stated that the same was not a part of the Stridhana given in favour of the aggrieved person, but was purchased by Kuldeep Tyagi, after borrowing money for this purpose from respondent no. 1.

That the aggrieved person had, by presenting false facts had got her name entered as the legal heir of Kuldeep Tyagi in relation to a land owned by him. That in the said application dated 31^stMarch, 2006, she had stated that Kuldeep Tyagi had no issue or heirs. That an order of status quo was obtained by respondent no. 1 by presenting the correct facts before the Tehsildar.

It was averred that the respondents had not committed any acts of domestic violence. In that background, the respondents prayed before the Trial Court that the application filed by the aggrieved person-victim be dismissed.

12. The Special Judicial Magistrate- I, Dehradun, by judgment dated 12^th May, 2011 partly allowed the application filed by the aggrieved person and directed the respondents to pay Rs. 10,000/ -as monetary compensation for insulting and maligning the aggrieved person. The articles of Stridhana mentioned in the list enclosed with the application, except the Maruti (Alto) Car, were to be made available to the aggrieved person at her Dehradun residence. It was also directed that the respondents shall not obstruct the aggrieved person and her daughter from enjoying the property of late Kuldeep Tyagi.

The salient findings of the Trial Court are as under:

i) As regards the contention of the respondents to the effect that it was unnatural that the aggrieved person was impregnated within twenty-eight days was unnatural, the Trial Court observed that there was an absolute possibility of such fact. In holding so, the Trial Court relied on the submission of the respondents to the effect that the aggrieved person left their ancestral home on 20^th June, 2005 to live independently with her husband. In light of the said submission, the Trial Court noted that the aggrieved person lived with her husband till the day of his death and therefore there was nothing unnatural about her pregnancy and therefore, the contention of the respondents that the daughter was not Kuldeep Tyagi’s, was baseless.

ii) That no adverse inference could be drawn from the fact that the aggrieved person had wrongly stated in the application filed before the Tehsildar to the effect that Kuldeep Tyagi had no heirs other than the aggrieved person, as she had no knowledge of such statement.

iii) That allegation pertaining to the paternity of the aggrieved person’s daughter was likely to have caused emotional harm to her, thereby also affecting her profession as a teacher. In that light, it was observed the aggrieved person was a victim of domestic violence under Section 1 (d) (iii) of the D.V. Act. A symbolic amount of Rs. 10,000/- was awarded to compensate the victim for emotional loss suffered.

iv) That the victim left her matrimonial home thirteen days after her husband died, owing to repeated taunts and abuses by the respondents. That no cross examination was conducted by the respondents to controvert this fact. Therefore, it was established that the victim did not leave her matrimonial home of her own will, but because of conduct of the respondents.

v) That the aggrieved person had not re-married, following the death of Kuldeep Tyagi. Therefore, she continued to remain the daughter-in-law of the respondents’ family and had rights over the property of her deceased husband. Relief was granted under Section 19 of the D.V. Act, for independent residence with liberty to visit her husband’s house since there was no evidence to show that the matrimonial home of the victim was in the sole ownership of the mother-in-law of the victim. That she would be entitled to enjoy the same facilities as enjoyed by her deceased husband during his lifetime. The respondents were restrained from disturbing the rights of the victim to her husband’s property. However, it was clarified that the Judicial Magistrate had no jurisdiction to pass any orders in relation to getting the name of the victim entered in the revenue records.

vi) That no evidence was put forth by the respondents which would establish that no Stridhana was given at the time of the marriage. Therefore, all articles of Stridhana as listed in the list annexed with the application filed before the Magistrate, were directed to be returned to the victim.

13. Being aggrieved, respondent no. 1, mother-in-law of the aggrieved person, preferred Criminal Appeal No. 53 of 2011 before the Vth Additional Sessions Judge, Dehradun. By judgment dated 11^th July, 2014, the First Appellate Court set aside the judgment of the Trial Court, dated 12^th May, 2011.

The relevant findings of the First Appellate Court are encapsulated as under:

i) That the aggrieved person never lived in the shared household belonging to the respondents, situated in Jhabreda, but lived in Roorkee with her husband. That the aggrieved person maintained a house in Roorkee and used to travel daily to Jhabreda for work, but never shared a household with the respondents.

ii) Given that the aggrieved person never lived in Jhabreda with the respondents, it was improbable that her family had delivered the articles of Stridhana to the respondents in Jhabreda. That the possession of Stridhana was not vested with the respondents. Therefore, no question would arise as to the respondents disturbing or using the Stridhana, which in fact, was never in their possession.

iii) That the aggrieved person had not led any evidence to establish that following the death of her husband, she had lived in Jhabreda with the respondents for thirteen days. That she continued to live at Roorkee even after the death of her husband. That in the absence of any evidence to demonstrate that the aggrieved person ever lived with the respondents, no case was made out for domestic violence on the part of the respondents. That the aggrieved person was not entitled to any relief in terms of a residence order, till such time as she is allotted a specific share following legal partition of the property held in joint ownership of her deceased husband and the respondents.

iv) That in the absence of any evidence as to the delivery of Stridhana to the respondents, no orders could be passed for restoration of possession of Stridhana articles in favour of the aggrieved person.

14. Aggrieved by the judgment of the First Appellate Court, the aggrieved person preferred a criminal revision petition before the High Court of Uttarakhand at Dehradun. By judgment dated 23^rdJuly, 2019, the criminal revision petition was dismissed and the judgment of the Vth Additional Sessions Judge, Dehradun was sustained.

The following findings were recorded by the High Court in the impugned judgment:

i) That as per the provisions of Section 12 (1) of the D.V. Act, a Domestic Incident Report is required to be mandatorily filed by a Protection Officer or a service provider before the Magistrate and the Magistrate may take cognizance of an offence under the D.V. Act on the basis of such report. That in the present case, the aggrieved person had only filed an application alleging domestic violence and since the same was not accompanied by a report, the conditions of Section 12 (1) of the D.V. Act were not satisfied.

ii) That in order to establish that the respondents had committed violence as contemplated under the D.V. Act, it is required that the aggrieved person was sharing a household with the respondents and there was a domestic relationship between the parties. That the aggrieved person was residing separately from the respondents from the day of her marriage. That there was no domestic relationship between the aggrieved person and the respondents, therefore, no relief could be granted under the provisions of the D.V. Act.

iii) That it could not be accepted that all articles of Stridhana which were purchased in Roorkee as per the bills presented in this regard, were delivered to the respondents in Jhabreda.

The aggrieved appellant has approached this Court challenging the judgments of the First Appellate Court and the High Court.

Submissions:

15. We have heard Shri Gaurav Agrawal, learned arnicas curiae on behalf of the appellant-aggrieved person and Shri K.K. Srivastava, learned counsel appearing on behalf of the respondent. We have perused the material on record.

16. The submissions of Shri Gaurav Agrawal, learned amicus curiae, are as under:

(i) At the outset, he contended that the High Court and the First Appellate Court had erred in setting aside the judgment of the Court of the Special Judicial Magistrate-1, Dehradun, dated 12^th May, 2011 on the primary ground that aggrieved person was not sharing a household with the respondents and there was no domestic relationship between the parties and therefore, no relief could be granted under the provisions of the D.V. Act. Elaborating on the said contention, learned arnicas curiae for the appellant-aggrieved person referred to Sections 2 (f) and 2 (s) of the D.V. Act to contend that an aggrieved person has to be in a ‘domestic relationship’ as defined under the D.V. Act in order to attract the provisions of the D.V. Act. If such a person is living, or has at any point of time lived together in a ‘shared household’ with the persons against whom allegations of domestic violence have been made, the provisions of the D.V. Act would apply. That in the present case, the aggrieved person, had, following the death of her husband on 15^th July, 2005, resided in the family home of the respondents at Ulheda and resided there for a period of thirteen days. That such residence could not continue owing to the conduct of the respondents who subjected the aggrieved person to mental abuse, causing her to leave the shared household. That attempts made by the aggrieved person to re-enter the shared household were obstructed by the respondents. Having regard to the short span of her marital life owing to the death of her husband and the fact that she was denied entry and residence at the shared household following her husband’s death, the length of the period during which household was shared by the parties, ought not be a consideration having the effect of denying the protection of the D.V. Act to the aggrieved person.

(ii) It was next contended that the death of the aggrieved person’s husband would not result in cessation of the domestic relationship. That the appellant-aggrieved person would continue to be related to the respondents by virtue of her marriage. That the only factor disabling the aggrieved person from continuing in a domestic relationship with the respondents was the conduct of the respondents. Nevertheless, she would be eligible to claim protection under the D.V. Act because the definition of ‘domestic relationship’ as provided under Section 2 (s) of the D.V. Act which includes not only a relationship between two people who presently live together in a shared household, but also extends to persons who have, at any point of time lived together in a shared household. That the short period, following the death of her husband, during which the aggrieved person shared a household with the respondents would qualify as a period during which the aggrieved person and the respondents were in a ‘domestic relationship’.

(iii) It was submitted that it is not mandatory for the aggrieved person to reside, at the point of time when commission of violence, with those persons against whom the allegations of violence have been levelled. In this context, reference was made to the decision of this Court in Satish Chander Ahuja vs. Sneha Ahuja – [(2021) 1 SCC 414] wherein the phrase lives or at any stage has lived’, as appearing in Section 2 (s) of the D.V. Act was interpreted to mean such household which the aggrieved person shared with the respondents, at the time of filing the application under the D.V. Act or a household which the aggrieved person had been excluded from in the recent past. In light of the said decision, it was urged that it is not necessary that the respondents must have been living with the aggrieved person at the time when the alleged acts of domestic violence were perpetuated as there is no statutory requirement to this effect. That subject to the caveat that an aggrieved person, has, at some point, shared a household with the persons who have allegedly committed acts of domestic violence, then any act of domestic violence committed by such persons during the period in which the parties were living in the shared household, or even subsequent to such period, would entitle the aggrieved person to approach a competent Court under Section 12 of the D.V. Act.

(iv) It was urged that the provisions of the D.V. Act must be interpreted in a manner, so as to, ensure that the protection granted to women under the D.V. Act is made available to them in the widest amplitude. That restricting the scope of domestic violence cases, only to matters wherein domestic violence was committed against the aggrieved person, while she was residing at the shared household, would not sufficiently achieve the objects of the enactment.

(v) Learned arnicas curiae, Shri Gaurav Agrawal, next contended that the High Court had erred in holding that a Domestic Incident Report is required to be mandatorily filed by a Protection Officer before the Magistrate and it is only on the basis of such report that the Magistrate may take cognizance of the commission of domestic violence. Learned arnicas cariae for the appellant-aggrieved person referred to Rule 5 of the Protection of Women from Domestic Violence Rules, 2006 (for short, the ‘D.V. Rules’) which requires a Protection Officer to prepare a Domestic Incident Report on receiving a complaint of domestic violence and submit the same to the Magistrate and forward copies of the Report to a police officer in charge of the police station having jurisdiction over the area were the alleged acts of domestic violence have taken place, and to the service providers in the area. Having regard to the said Rule, it was contended that the requirement to prepare a Domestic Incident Report arises only in cases where a complaint has been made by an aggrieved person, to a Protection Officer. That a Magistrate who entertains an application submitted under Section 12 of the D.V. Act, is not required by any statutory provision, to call for a Domestic Incident Report. That an application under Section 12, may be disposed of even without requiring a Domestic Incident Report to be submitted. That the only requirement of Section 12, is that, in the event that a complaint is made to a Protection Officer and such officer has submitted a report, the Magistrate shall consider the same. That in cases where a complaint is not made by a Protection Officer, there arises no reason to specifically call for and consider a Domestic Incident Report.

(vi) In this context, reference was made to Section 12 of the D.V. Act which enables an aggrieved person or a Protection Officer to make an application before the Magistrate seeking reliefs under the D.V. Act. It was submitted that in cases where an aggrieved person independently makes an application before the Magistrate, there would be no requirement on the part of the Magistrate to consider or call for a Domestic Incident Report. However, in cases where the application has been made by a Protection Officer, the same shall be mandatorily accompanied by a Domestic Incident Report and when such report is submitted, the Magistrate is required to consider the same.

(vii) It was submitted that the statutory intention could not be to the effect that the Magistrate shall not entertain proceedings or grant relief under Sections 18 to 20 and Section 22 of the D.V. Act in the absence of the Domestic Incident Report. That such an interpretation would defeat the purposes of the D.V. Act as it would act as a bar against the Magistrate to pass orders in the absence of the report.

(viii) It was contended that the High Court and the First Appellate Court had failed to view the matter in the true and correct perspective, having regard to the purpose of enactment of the D.V. Act. In the above backdrop, it was prayed that the judgments of the High Court and the First Appellate Court may be set aside and the judgment of the Trial Court may be restored.

17. Per contra, learned counsel for the respondent supported the impugned judgments of the High Court and the First Appellate Court and contended that the said judgments are justified and hence, do not call for interference by this Court by submitting as under :

(i) It was denied that the aggrieved person was in a domestic relationship with the respondents. It was submitted that the aggrieved person, following her marriage with Kuldeep Tyagi, was residing with him in Roorkee District, Haridwar and not with the respondents, in Jhabreda. That her place of residence, had been recorded as Roorkee, in the application filed under the D.V. Act before the Magistrate, as well as in the application submitted before the revenue authorities for mutation of her name in the revenue records pertaining to the property belonging to her deceased husband. That even following the death of Kuldeep Tyagi, the aggrieved person did not reside with the respondents. That the aggrieved person was working as a teacher and there was no evidence led to establish that she had taken leave from her job and resided in Jhabreda for thirteen days following the death of her husband.

It was contended that in view of the said facts, it could not be held that a ‘domestic relationship’ subsisted between the parties, on the basis of which relief could be claimed under the D.V. Act. That based on the very nomenclature of the D.V. Act, any violence alleged under the D.V. Act must always be in relation to a ‘domestic relationship’ and therefore, subsistence of a domestic relationship would be a precondition to invoke Section 12 of the D.V. Act and grant reliefs contemplated under Section 18 to 20 and Section 22 of the D.V. Act.

(ii) It was submitted that the facts, as narrated by the aggrieved person in the application made before the Magistrate are inaccurate and provide a fabricated version of events.

(iii) It was next contended that the aggrieved person had failed to prove that her family had delivered possession of articles of Stridhana to the respondents. That the receipts of the articles purchased, would show that the articles were purchased in Roorkee and therefore, it would be rather improbable that the same were delivered to the respondents at their residence in Jhabreda. It was therefore urged that no assumption could be made that the Stridhana stood in the custody of the in-laws of the aggrieved person.

(iv) It was further urged that in the absence of a Domestic Incident Report, the Magistrate could not have taken cognizance of the matter. That Section 12 (1) casts a mandatory duty on the Magistrate to consider the Domestic Incident Report submitted under the D.V. Act for initiation of proceedings, and it is only after consideration of the same that the substantive provisions of the Sections 18 to 20 and Section 22 of the D.V. Act may be applied to extend benefit of the same to an aggrieved person. In support of this contention, Shri K.K. Srivastava referred to the language of Section 12 (1) to contend that the phrase used in the proviso is ‘shall take into consideration any Domestic Incident Report’ thereby suggesting that the requirement to consider a Domestic Incident Report is a mandatory one, irrespective of whether or not a complainant was made before the Protection Officer prior to filing an application before the Magistrate. That non-consideration of the Domestic Incident Report would strike at the very root of the matter and such irregularity would render the decision of the Magistrate, a nullity.

(v) It was lastly submitted that proceedings under the D.V. Act were ill-motivated, misconceived and were initiated with the sole intention to harass the respondents and more specifically, respondent no. 1, being the mother-in-law of the aggrieved person, aged over 80 years. That the High Court and First Appellate Court rightly set aside the decision of the Magistrate and held that no relief could be granted to the aggrieved person under the D.V. Act. That the judgments of the High Court and First Appellate Court are based on a true and correct appreciation of the law, as applicable to the facts of the present case and the same may not be interfered with by this Court.

18. Learned counsel for the respective parties have relied upon certain judgments of this Court and various High Courts in support of their submissions. The same shall be referred to later.

Points for Consideration:

19. The submissions of the learned amicus curiae /counsel for the respective sides were on the following points for consideration which were raised vide order dated 11^th February, 2022:

“(i) Whether the consideration of Domestic Incident Report is mandatory before initiating the proceedings under D.V. Act, in order to invoke substantive provisions of Sections 18 to 20 and 22 of the said Act?

(ii) Whether it is mandatory for the aggrieved person to reside with those persons against whom the allegations have been levelled at the point of commission of violence?

(iii) Whether there should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed?”

Legal Framework:

20. For an easy and immediate reference, the following provisions of the Protection of Women from D.V. Act are extracted as under:

“2. Definitions.-In this Act, unless the context otherwise requires,-

(a) ‘aggrieved person’ means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;

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(e) ‘domestic incident report’ means a report made in the prescribed form on receipt of a complaint of domestic violence from an aggrieved person;

(f) ‘domestic relationship’ means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;

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(s) ‘shared household’ means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a house hold whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.”

“3. Definition of domestic violence.-For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it-

(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person. Explanation I.-For the purposes of this section,-

(i) ‘physical abuse’ means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;

(ii) ‘sexual abuse’ includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;

(iii) Verbal and emotional abuse’ includes-

(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and

(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested;

(iv) ‘economic abuse’ includes-

(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, Stridhana, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared house hold and maintenance;

(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her Stridhana or any other property jointly or separately held by the aggrieved person; and

(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.

Explanation II.-For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes ‘domestic violence’ under this section, the overall facts and circumstances of the case shall be taken into consideration.”

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“12. Application to Magistrate-(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act:

Provided that before passing any order on such application, the Magistrate shall take into consideration any Domestic Incident Report received by him from the Protection Officer or the service provider.

(2) The relief sought for under Sub-Section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent:

Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off.

(3) Every application under Sub-Section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto.

(4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the court.

(5) The Magistrate shall Endeavour to dispose of every application made under Sub-Section (1) within a period of sixty days from the date of its first hearing.”

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“17. Right to reside in a shared household.-

(1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.

(2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.”

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“23. Power to grant interim and ex parte orders.-(1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper.

(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent.”

21. Before proceeding further, it would be useful to refer to the following relevant judgments of this Court wherein this Court has interpreted various provisions of the D.V. Act :

a) In Juveria Abdul Majid Patni vs. Atiflqbal Mansoori and Another – [(2014) 10 SCC 736], this Court while interpreting the definition of aggrieved person under Section 2(a) of the D.V. Act held that apart from the woman who is in a domestic relationship, any woman who has been in a domestic relationship with the respondent, if alleged to have been subjected to any act of domestic violence by the respondent comes within the meaning of aggrieved person. Further, Section 2(f) of the D.V. Act states that a person aggrieved (widow herein) who, at any point of time has lived together with the husband in a shared household is covered by the meaning of domestic relationship. Also, Section 2(s) of the D.V. Act states that if the person aggrieved at any stage has lived in a domestic relationship with the respondent in a house, can claim a right in a shared household.

After analysing the relevant provisions of the D.V. Act, this Court while referring to V.D. Bhanot vs. Savita Bhanot – [(2012) 3 SCC 183], held that the conduct of the parties even prior to coming into force of the D.V. Act could be taken into consideration while passing an order under Sections 18, 19 and 20 thereof. The wife who had shared a household in the past but was no longer residing with her husband can file a petition under section 12 if subjected to domestic violence. It was further observed that where an act of domestic violence is once committed, then a subsequent decree of divorce will not absolve the liability of the respondent from the offence committed or to deny the benefit to which the aggrieved person is entitled to.

b) In the case of Krishna Bhattacharjee vs. Sarathi Choudhury and Another – [(2016) 2 SCC 705], this Court held that a claim for recovery of Stridhana, two years after a decree of judicial separation is maintainable. The Court held that judicial separation does not change the status of a wife as an aggrieved person under Section 2 (a) read with Section 12 of the D.V. Act and does not end the domestic relationship under Section 2(f) of the D.V. Act. It was further held that a judicial separation was a mere suspension of husband-wife relationship and not a complete severance of relationship as in the case of a divorce. Moreover, an application filed under section 12 of the D.V. Act by the wife is not barred by any limitation.

In the said case, this Court referred to Saraswathy vs. Babu -[(2014) 3 SCC 712].

Further, Dipak Misra J. (as His Lordship then was) while speaking for the Two-Judge Bench held that the definition of domestic relationship under Section 2 (f) of the D.V. Act is very wide and protection under the said provision would be given to a wife even if she is judicially separated, by observing thus :

“18. The core issue that is requisite to be addressed is whether the Appellant has ceased to be an ‘aggrieved person’ because of the decree of judicial separation. Once the decree of divorce is passed, the status of the parties becomes different, but that is not so when there is a decree for judicial separation. A three-Judge Bench in Jeet Singh and Ors. v. State ofU.P. and Ors. (1993) 1 SCC 325 though in a different context, adverted to the concept of judicial separation and ruled that the judicial separation creates rights and obligations. A decree or an order for judicial separation permits the parties to live apart. There would be no obligation for either party to cohabit with the other. Mutual rights and obligations arising out of a marriage are suspended. The decree however, does not sever or dissolve the marriage. It affords an opportunity for reconciliation and adjustment. Though judicial separation after a certain period may become a ground for divorce, it is not necessary and the parties are not bound to have recourse to that remedy and the parties can live keeping their status as wife and husband till their lifetime.”

While referring to the case of Rashmi Kumar vs. Mahesh Kumar Bhada – [(1997) 2 SCC 397], this Court held that Stridhana property is the exclusive property of the wife on proof that she entrusted the property or dominion over the Stridhana property to her husband or any other member of the family. There is no need to establish further any special agreement to prove that the property was given to the husband or other member of the family.

While considering the issue of limitation and/or ‘continuing offence’/ ‘continuing cause of action’, this Court held:

“32. Regard being had to the aforesaid statement of law, we have to see whether retention of Stridhana by the husband or any other family members is a continuing offence or not. There can be no dispute that wife can file a suit for realization of the Stridhana but it does not debar her to lodge a criminal complaint for criminal breach of trust……….The concept of ‘continuing offence’ gets attracted from the date of deprivation of Stridhana, for neither the husband nor any other family members can have any right over the Stridhana and they remain the custodians. For the purpose of the 2005 Act, she can submit an application to the Protection Officer for one or more of the reliefs under the 2005 Act.”

c) We could also allude to the exposition of this Court in Ajay Kumar vs. Lata alias Sharuti and Others – [(2019) 15 SCC 352], wherein the husband of the respondent therein had died, and maintenance was claimed from the brother of the deceased husband. The Court held that at a prima facie stage, a case for grant of maintenance was made out since the respondent and her deceased husband resided in the same house and the appellant therein (brother of deceased person) also resided in the same household.

d) Further in Satish Chander Ahuja vs. Sneha Ahuja -[(2021) 1 SCC 414], a Three-Judge Bench of this Court, wherein one of us (Shah, J.) was a member, considered the expressions lives or have at any point of time lived’ appearing in Section 2 (s) of the D.V. Act. This Court while considering the correctness of the law laid down in S.R. Batra vs. Taruna Batra – [(2007) 3 SCC 169], concluded that the said case had not correctly interpreted Section 2(s) of the D.V. Act and that the said judgment does not lay down a correct law and observed as under :

“66………..The expression ‘at any stage has lived’ occurs in Section 2(s) after the words ‘where the person aggrieved lives’. The use of the expression ‘at any stage has lived’ immediately after words ‘person aggrieved lives’ has been used for object different to what has been apprehended by this Court in paragraph 26. The expression ‘at any stage has lived’ has been used to protect the women from denying the benefit of right to live in a shared household on the ground that on the date when application is filed, she was excluded from possession of the house or temporarily absent. The use of the expression ‘at any stage has lived’ is for the above purpose and not with the object that wherever the aggrieved person has lived with the relatives of husband, all such houses shall become shared household, which is not the legislative intent. The shared household is contemplated to be the household, which is a dwelling place of aggrieved person in present time………………

67……………..The entire Scheme of the Act is to provide immediate relief to the aggrieved person with respect to the shared household where the aggrieved person lives or has lived. As observed above, the use of the expression ‘at any stage has lived’ was only with intent of not denying the protection to aggrieved person merely on the ground that aggrieved person is not living as on the date of the application or as on the date when Magistrate concerned passes an order under Section 19. The apprehension expressed by this Court in paragraph 26 in S.R. Batra v. Taruna Batra (supra), thus, was not true apprehension and it is correct that in event such interpretation is accepted, it will lead to chaos and that was never the legislative intent. We, thus, are of the considered opinion that shared household referred to in Section 2(s) is the shared household of aggrieved person where she was living at the time when application was filed or in the recent past had been excluded from the use or she is temporarily absent.

68. The words ‘lives or at any stage has lived in a domestic relationship’ have to be given its normal and purposeful meaning. The living of woman in a household has to refer to a living which has some permanency. Mere fleeting or casual living at different places shall not make a shared household. The intention of the parties and the nature of living including the nature of household have to be looked into to find out as to whether the parties intended to treat the premises as shared household or not. As noted above, Act 2005 was enacted to give a higher right in favour of woman. The Act, 2005 has been enacted to provide for more effective protection of the rights of the woman who are victims of violence of any kind occurring within the family. The Act has to be interpreted in a manner to effectuate the very purpose and object of the Act. Section 2(s) read with Sections 17 and 19 of Act, 2005 grants an entitlement in favour of the woman of the right of residence under the shared household irrespective of her having any legal interest in the same or not.

69………….The definition of shared household as noticed in Section 2(s) does not indicate that a shared household shall be one which belongs to or taken on rent by the husband. We have noticed the definition of ‘Respondent’ under the Act. The Respondent in a proceeding under Domestic Violence Act can be any relative of the husband. In the event, the shared household belongs to any relative of the husband with whom in a domestic relationship the woman has lived, the conditions mentioned in Section 2(s) are satisfied and the said house will become a shared household.”

Analysis:

22. Section 12 of the D.V. Act states that an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under the D.V. Act. The proviso, however, states that before passing any order on such an application, the Magistrate shall take into consideration any Domestic Incident Report received by him from the Protection Officer or the service provider. The expression ‘aggrieved person’ as defined under Section 2 (a) means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent. Domestic relationship as defined in Section 2(f), means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. Domestic violence has the same meaning as assigned to it in Section 3.

23. The expression ‘shared household’ in relation to the definition of domestic relationship as per the definition in Section 2(s) means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household. The definition of shared household is thus an inclusive one.

24. Section 17 speaks of right to reside in a shared household while Section 19 deals with residence orders which could be passed by a Magistrate while disposing of an application under Sub-Section (1) of Section 12, on being satisfied that domestic violence has taken place in a shared household. Thus, while Section 19 deals with residence orders, the right to reside in a shared household is dealt with in Section 17 of the D.V. Act. Sub-Section (1) of Section 17, which begins with a non-obstante clause states that notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same. Sub-Section (2) states that an aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.

25. While Section 19 deals with a multitude of directions or orders which may be passed against the respondent vis-a-vis the shared household in favour of an aggrieved person, Section 17 confers a right on every woman in a domestic relationship to reside in the shared household irrespective of whether she has any right, title or beneficial interest in the same. This right to reside in a shared household which is conferred on every woman in a domestic relationship is a vital and significant right. It is an affirmation of the right of every woman in a domestic relationship to reside in a shared household. Sub-Section (2) of Section 17 protects an aggrieved person from being evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law. The distinction between Sub-Section (1) and Sub-Section (2) of Section 17 is also to be noted. While Sub-Section (2) deals with an aggrieved person which is defined in Section 2(a) of the D.V. Act in the context of domestic violence, Sub-Section (1) of Section 17 is a right conferred on every woman in a domestic relationship irrespective of whether she is an aggrieved person or not. In other words, every woman in a domestic relationship has a right to reside in the shared household even in the absence of any act of domestic violence by the respondent.

26. It is necessary to appreciate the importance and significance of the right of every woman in a domestic relationship to reside in a shared household. As already noted, the expression ‘shared household’ is expansively defined in Section 2(s) of the D.V. Act but the expression contained in Section 17 namely, ‘every woman in a domestic relationship shall have the right to reside in the shared household irrespective whether she has any right, title or beneficial interest in same’, requires an expansive interpretation. In this context, Harbhajan Singh vs. Press Council of India -(AIR 2002 SC 1351) could be relied upon wherein, Cross on “Statutory Interpretation” (Third Edition, 1995) has been relied upon as follows:-

“Thus, an ‘ordinary meaning’ or ‘grammatical meaning’ does not imply that the Judge attributes a meaning to the words of a statute independently of their context or of the purpose of the statute, but rather that he adopts a meaning which is appropriate in relation to the immediately obvious and unresearched context and purpose in and for which they are used.”

27. While the object and purpose of the D.V. Act is to protect a woman from domestic violence, the salutary object of Sub-Section (1) of Section 17 is to confer a right on every woman in a domestic relationship to have the right to reside in a shared household. Hence, the said provision commences with a non-obstante clause.

28. For a better understanding of the said right, it would also be useful to relate it to the societal and familial context in India.

29. As already noted, a domestic relationship means a relationship between two persons who live or have at any point of time, lived together in a shared household. The relationship may be by (i) consanguinity, (ii) marriage or, (iii) through a relationship in the nature of a marriage, (iv) adoption or (v) are family members living together as a joint family. The expression ‘domestic relationship’ is a comprehensive one. Hence, every woman in a domestic relationship in whatever manner the said relationship may be founded as stated above has a right to reside in a shared household, whether or not she has any right, title or beneficial interest in the same. Thus, a daughter, sister, wife, mother, grand-mother or great grand-mother, daughter-in-law, mother-in-law or any woman having a relationship in the nature of marriage, an adopted daughter or any member of joint family has the right to reside in a shared household.

30. Further, though, the expression ‘shared household’ is defined in the context of a household where the person aggrieved lives or has lived in a domestic relationship either singly or along with respondent, in the context of Sub-Section (1) of Section 17, the said expression cannot be restricted only to a household where a person aggrieved resides or at any stage, resided in a domestic relationship. In other words, a woman in a domestic relationship who is not aggrieved, in the sense that who has not been subjected to an act of domestic violence by the respondent, has a right to reside in a shared household. Thus, a mother, daughter, sister, wife, mother-in-law and daughter-in-law or such other categories of women in a domestic relationship have the right to reside in a shared household de hors a right, title or beneficial interest in the same.

Therefore, the right of residence of the aforesaid categories of women and such other categories of women in a domestic relationship is guaranteed under Sub-Section (1) of Section 17 and she cannot be evicted, excluded or thrown out from such a household even in the absence of there being any form of domestic violence. By contrast, Sub-Section (2) of section 17 deals with a narrower right in as much as an aggrieved person who is inevitably a woman and who is subjected to domestic violence shall not be evicted or excluded from the shared household or any part of it by the respondent except in accordance with the procedure established by law. Thus, the expression ‘right to reside in a shared household’ has to be given an expansive interpretation, in respect of the aforesaid categories of women including a mother-in-law of a daughter-in-law and other categories of women referred to above who have the right to reside in a shared household.

31. Further, the expression ‘the right to reside in a shared household’ cannot be restricted to actual residence. In other words, even in the absence of actual residence in the shared household, a woman in a domestic relationship can enforce her right to reside therein. The aforesaid interpretation can be explained by way of an illustration. If a woman gets married then she acquires the right to reside in the household of her husband which then becomes a shared household within the meaning of the D.V. Act. In India, it is a societal norm for a woman, on her marriage to reside with her husband, unless due to professional, occupational or job commitments, or for other genuine reasons, the husband and wife decide to reside at different locations. Even in a case where the woman in a domestic relationship is residing elsewhere on account of a reasonable cause, she has the right to reside in a shared household. Also a woman who is, or has been, in a domestic relationship has the right to reside not only in the house of her husband, if it is located in another place which is also a shared household but also in the shared household which may be in a different location in which the family of her husband resides.

32. If a woman in a domestic relationship seeks to enforce her right to reside in a shared household, irrespective of whether she has resided therein at all or not, then the said right can be enforced under Sub-Section (1) of Section 17 of the D.V. Act. If her right to reside in a shared household is resisted or restrained by the respondent(s) then she becomes an aggrieved person and she cannot be evicted, if she has already been living in the shared household or excluded from the same or any part of it if she is not actually residing therein. In other words, the expression ‘right to reside in the shared household’ is not restricted to only actual residence, as, irrespective of actual residence, a woman in a domestic relationship can enforce her right to reside in the shared household. Thus, a woman cannot be excluded from the shared household even if she has not actually resided therein that is why the expression ‘shall not be evicted or excluded from the shared household’ has been intentionally used in Sub-Section (2) of Section 17. This means if a woman in a domestic relationship is an aggrieved person and she is actually residing in the shared household, she cannot be evicted except in accordance with the procedure established by law. Similarly, a woman in a domestic relationship who is an aggrieved person cannot be excluded from her right to reside in the shared household except in accordance with the procedure established by law. Therefore, the expression ‘right to reside in the shared household’ would include not only actual residence but also constructive residence in the shared household i.e., right to reside therein which cannot be excluded vis-a-vis an aggrieved person except in accordance with the procedure established by law. If a woman is sought to be evicted or excluded from the shared household she would be an aggrieved person in which event Sub-Section (2) of Section 17 would apply.

33. In support of this interpretation, another example may be noted. A woman on getting married, along with her husband may proceed overseas on account of professional or job commitments. Such a woman may not have had an opportunity of residing in the shared household after her marriage. If, for any reason, such a woman becomes an aggrieved person and is forced to return from overseas then she has the right to reside in the shared household of her husband irrespective of whether her husband (respondent) or the aggrieved person (wife) has any right, title or beneficial interest in the shared household. In such circumstances, parents-in-law of the woman who has returned from overseas and who is an aggrieved person cannot exclude her from the shared household or any part of it except in accordance with the procedure established by law.

Another situation is a case where, immediately after marriage, the wife actually resided in the shared household while her husband proceeded overseas. When such a woman is subjected to domestic violence, she cannot be evicted from the shared household except in accordance with the procedure established by law.

34. There may also be cases where soon after marriage, the husband goes to another city owing to a job commitment and his wife remains in her parental home and nevertheless is a victim of domestic violence. She has the right to remain in her parental home as she would be in a domestic relationship by consanguinity. Also in cases where a woman remains in her parental home soon after marriage and is subjected to domestic violence and is therefore an aggrieved person, she also has the right to reside in the shared household of her husband which could be the household of her in-laws. Further, if her husband resides in another location then an aggrieved person has the right to reside with her husband in the location in which he resides which would then become the shared household or reside with his parents, as the case may be, in a different location. There could be a multitude and a variety of situations and circumstances in which a woman in a domestic relationship can enforce her right to reside in a shared household irrespective of whether she has the right, title or beneficial interest in the same. Also, such a right could be enforced by every woman in a domestic relationship irrespective of whether she is an aggrieved person or not.

35. In the Indian societal context, the right of a woman to reside in the shared household is of unique importance. The reasons for the same are not far to see. In India, most women are not educated nor are they earning; neither do they have financial independence so as to live singly. She may be dependent for residence in a domestic relationship not only for emotional support but for the aforesaid reasons. The said relationship may be by consanguinity, marriage or through a relationship in the nature of marriage, adoption or is a part of or is living together in a joint family. A majority of women in India do not have independent income or financial capacity and are totally dependent vis-a-vis their residence on their male or other female relations who may have a domestic relationship with her.

36. In our view, the D.V. Act is a piece of Civil Code which is applicable to every woman in India irrespective of her religious affiliation and/or social background for a more effective protection of her rights guaranteed under the Constitution and in order to protect women victims of domestic violence occurring in a domestic relationship. Therefore, the expression ‘joint family’ cannot mean as understood in Hindu Law. Thus, the expression ‘family members living together as a joint family’, means the members living jointly as a family. In such an interpretation, even a girl child/ children who is/are cared for as foster children also have a right to live in a shared household and are conferred with the right under Sub-Section (1) of Section 17 of the D.V. Act. When such a girl child or woman becomes an aggrieved person, the protection of Sub-Section (2) of Section 17 comes into play.

37. In order to give an expansive interpretation to the expression ‘every woman in a domestic relationship shall have the right to reside in shared household’, certain examples by way of illustrations have been discussed above. However, those illustrations are not exhaustive and there could be several situations and circumstances and every woman in a domestic relationship can enforce her right to reside in a shared household irrespective of whether she has any right, title or beneficial interest in the same and the said right could be enforced by any woman under the said provision as an independent right in addition to the orders that could be passed under Section 19 of the D.V. Act; also an aggrieved woman who has the right to reside in the shared household is protected by Sub-Section (2) of the Section 17 of the D.V. Act.

38. In the case of Smt. Bharati Naik vs. Shri Ravi Ramnath Halarnkar and Another – [2010 SCC Online Bom 243], the High Court of Bombay at Goa held that the words lias been’ and ‘have lived’ appearing in the definition of ‘aggrieved person’ and ‘respondent’ in the D.V. Act are plain and clear. The Court held that the aforesaid words take in their sweep even a past relationship. The words have been purposefully used to show the past relationship or experience between the concerned parties. It was further observed that the said D.V. Act has been enacted to protect a woman from domestic violence and there cannot be any fetter which can come in the way by interpreting the provisions in a manner to mean that unless the domestic relationship continues on the date of the application, the provisions of the D.V. Act cannot be invoked.

39. In a judgment of the High Court of Madras in Vandhana vs. T. Srikanth and Krishnamachari – [2007 SCC Online Mad 553], authored by Ramasubramanian, J., it was held that Sections 2(f), 2(s) and 17 of the D.V. Act ought to be given the widest interpretation possible. The Court, after observing various instances and situations, held that many a woman may not even enter into the matrimonial home immediately after marriage. Therefore, it was concluded that a healthy and correct interpretation to Sections 2(f) and 2(s) of the D.V. Act would be that the words ‘live’ or ‘have at any point of time lived’ would include in its purview ‘the right to live’ as interpreted above. It would be useful to quote from the said judgment as under: –

“20. In a society like ours, there are very many situations, in which a woman may not enter into her matrimonial home immediately after marriage. A couple leaving for honeymoon immediately after the marriage and whose relationship gets strained even during honeymoon, resulting in the wife returning to her parental home straight away, may not stand the test of the definition of domestic relationship under Section 2(f) of the Act, if it is strictly construed. A woman in such a case, may not live or at any point of time lived either singly or together with the husband in the ‘shared household’, despite a legally valid marriage followed even by its consummation. It is not uncommon in our society, for a woman in marriage to be sent to her parental home even before consummation of marriage, on account of certain traditional beliefs, say for example, the intervention of the month of Aadi. If such a woman is held to be not entitled to the benefit of Section 17 of the Act, on account of a strict interpretation to Section 2(f) of the Act that she did not either live or at any point of time lived together in the shared household, such a woman will be left remediless despite a valid marriage. One can think of innumerable instances of the same aforesaid nature, where the woman might not live at the time of institution of the proceedings or might not have lived together with the husband even for a single day in the shared household. A narrow interpretation to Sections 2(f), 2(s) and 17 of the Act, would leave many a woman in distress, without a remedy. Therefore, in my considered view a healthy and correct interpretation to Sections 2(f) and 2(s) would be that the words ‘live’ or ‘have at any point of time lived’ would include within their purview ‘the right to live’. In other words, it is not necessary for a woman to establish her physical act of living in the shared household, either at the time of institution of the proceedings or as a thing of the past. If there is a relationship which has legal sanction, a woman in that relationship gets a right to live in the shared household. Therefore, she would be entitled to protection under Section 17 of the Act, even if she did not live in the shared household at the time of institution of the proceedings or had never lived in the shared household at any point of time in the past. Her right to protection under Section 17 of the Act, co-exists with her right to live in the shared household and it does not depend upon whether she had marked her physical presence in the shared household or not. A marriage which is valid and subsisting on the relevant date, automatically confers a right upon the wife to live in the shared household as an equal partner in the joint venture of running a family. If she has a right to live in the shared household, on account of a valid and subsisting marriage, she is definitely in ‘domestic relationship’ within the meaning of Section 2(f) of the Act and her bodily presence or absence from the shared household cannot belittle her relationship as anything other than a domestic relationship. Therefore, irrespective of the fact whether the applicant/plaintiff in this case ever lived in the house of the first respondent/first defendant after 7.2.2007 or not, her marriage to the first respondent/first defendant on 7.2.2007 has conferred a right upon her to live in the shared household. Therefore, the question as to whether the applicant/plaintiff ever lived in the shared household at any point of time during the period from 7.2.2007 to 13.6.2007 or not, is of little significance.”

40. Bearing in mind the aforesaid discussion, question no. 2, namely, ‘whether it is mandatory for the aggrieved person to reside with those persons against whom the allegations have been levelled is accordingly answered. It is held that it is not mandatory for the aggrieved person to have actually lived or resided with those persons against whom the allegations have been levelled at the time of seeking relief. If a woman has the right to reside in a shared household, she can accordingly enforce her right under Section 17(1) of the D.V. Act. If a woman becomes an aggrieved person or victim of domestic violence, she can seek relief under the provisions of the D.V. Act including her right to live or reside in the shared household under Section 17 read with Section 19 of the D.V. Act.

41. Hence, the appellant herein had the right to live in a shared household i.e., her matrimonial home and being a victim of domestic violence could enforce her right to live or reside in the shared household under the provisions of the D.V. Act and to seek any other appropriate relief provided under the D.V. Act. This is irrespective of whether she actually lived in the shared household.

42. This takes us to the next question raised for consideration being ‘whether there should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed. As already noted, the expression ‘domestic relationship’ is an expansive one and means the relationship between two persons who live or have at any point of time lived together in a shared household when they are related by (i) consanguinity; (ii) marriage; (iii) through a relationship in the nature of marriage; (iv) adoption; (v) are family members living together as a joint family. The expressions ‘consanguinity’, ‘marriage’ and ‘adoption’ do not require elaboration as they are well understood concepts both in common law as well as in the respective personal law applicable to the parties. However, it is relevant to note the expression ‘marriage’ also encompasses a relationship in the nature of marriage. Secondly, the expression ‘adoption’ also takes into consideration family members living together as a joint family. The aforesaid aspects require elaboration.

It would be useful to refer to the following judgments of this Court which have been taken into consideration relationship in the nature of marriage :

(a) In D. Velu Samy v. D. Patchaiammal – [(2010) 10 SCC 469], this Court discussed the concept of “relationship in the nature of marriage” in the context of the DV Act, and it was held to be akin to a common law marriage. It was held that the parties must have lived together in a ‘shared household’ as defined in Section 2(s) of the DV Act. It was opined that not all live-in relationships would amount to a relationship in the nature of marriage to get the benefit of D.V. Act, but only to such relationships, which qualify as common law marriages. The requirements prescribed under law in order for a relationship to be recognized as a common law marriage were adumbrated as follows:

(i) The couple must hold themselves out to society as being akin to spouses;

(ii) They must be of legal age to marry;

(iii) They must be otherwise qualified to enter into a legal marriage;

(iv) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

(b) In Indra Sarma v. V.K.V. Sarma – [(2013) 15 SCC 755], the question as to whether disruption of a live-in relationship by failure to maintain a woman involved in such a relationship amounted to “domestic violence” within the meaning of Section 3 of the D.V. Act, was considered. It was held that entering into a marriage either under the Hindu Marriage Act or Special Marriage Act or any other personal law applicable to the parties, is entering into a relationship of public significance, since marriage, being a social institution, many rights and liabilities flow out of that relationship. Thus, the concept of marriage gives rise to civil rights. This Court referred to the following guidelines, which would determine whether a relationship between persons was in the nature of marriage, to ultimately hold that the DV Act had been enacted to cover a couple who had a relationship in the nature of marriage, so as to provide a remedy in Civil Law for protection of women in relationships, which are in the nature of marriage as per paragraph 56 which is extracted as under :

“56. We may, on the basis of above discussion cull out some guidelines for testing under what circumstances, a live-in relationship will fall within the expression “relationship in the nature of marriage” under Section 2(f) of the D.V. Act. The guidelines, of course, are not exhaustive, but will definitely give some insight to such relationship :

56.1. Duration of period of relationship. – Section 2(f) of the D.V. Act has used the expression “at any point of time”, which means a reasonable period of time to maintain and continue a relationship which may vary from case to case, depending upon the fact situation.

56.2. Shared household.- The expression has been defined under Section 2(s) of the D.V. Act and, hence, needs no further elaboration.

56.3. Pooling of resources and financial arrangements- Supporting each other, or any one of them, financially, sharing bank accounts, acquiring immovable properties in joint names or in the name of the woman, long-term investments in business, shares in separate and joint names, so as to have a long-standing relationship, may be a guiding factor.

56.4. Domestic arrangements.- Entrusting the responsibility, especially on the woman to run the home, do the household activities like cleaning, cooking, maintaining or upkeeping the house, etc., is an indication of a relationship in the nature of marriage.

56.5. Sexual relationship.- Marriage-like relationship refers to sexual relationship, not just for pleasure, but for emotional and intimate relationship, for procreation of children, so as to give emotional support, companionship and also material affection, caring, etc.

56.6. Children.- Having children is a strong indication of a relationship in the nature of marriage. The parties, therefore, intend to have a long-standing relationship. Sharing the responsibility for bringing up and supporting them is also a strong indication.

56.7. Socialisation in public- Holding out to the public and socialising with friends, relations and others, as if they are husband and wife is a strong circumstance to hold the relationship is in the nature of marriage.

56.8. Intention and conduct of the parties-Common intention of the parties as to what their relationship is to be and to involve, and as to their respective roles and responsibilities, primarily determines the nature of that relationship.”

43. Further, the expression ‘family members living together as a joint family’ is not relatable only to relationship through consanguinity, marriage or adoption. As observed above, the expression ‘joint family’ does not mean a joint family as understood in Hindu Law. It would mean persons living together jointly as a family. It would include not only family members living together when they are related by consanguinity, marriage or adoption but also those persons who are living together or jointly as a joint family such as foster children who live with other members who are related by consanguinity, marriage or by adoption. Therefore, when any woman is in a domestic relationship as discussed above, is subjected to any act of domestic violence and becomes an aggrieved person, she is entitled to avail the remedies under the D.V. Act.

The further question is, whether, such a domestic relationship should be subsisting between the aggrieved person and the respondent against whom relief is claimed at the time of claiming the relief. Before answering the same, it would be useful to analyse the relationships noted in the D.V. Act as under:

(a) Any relationship by consanguinity is a lifelong relationship.

(b) Marriage is also a lifelong relationship unless a separation by a decree of divorce is ordered by a competent authority of law.

(i) If there is judicial separation ordered by a court of law, that does not put an end to marriage and hence the domestic relationship continues between the spouses even though they may not be actually living together,

(ii) In the event of a divorce, marriage would be no longer be subsisting, but if a woman (wife) is subjected to any domestic violence either during marriage or even subsequent to a divorce decree being passed but relatable to the period of domestic relationship, the provisions of this D.V. Act would come to the rescue of such a divorced woman also.

(iii) That is why, the expression ‘domestic relationship’ has been defined in an expansive manner to mean a relationship between two persons who live or have at any point of time lived together in a shared household when they are related by marriage. We have also interpreted the word live’ or lived’ in the context of right to reside in Sub-Section (1) of Section 17. The right to live in the shared household, even when the domestic relationship may have been severed for instance when a woman has been widowed owing to the death of her husband, entitles her to have remedies under the D.V. Act.

(iv) Therefore, even when the marital ties cease and there is no subsisting domestic relationship between the aggrieved woman and the respondent against whom relief is claimed but the acts of domestic violence are related to the period of domestic relationship, even in such circumstances, the aggrieved woman who was subjected to domestic violence has remedies under the D.V. Act.

(c) Even in the case of relationship in the nature of marriage, during which period the woman suffered domestic violence and is thus an aggrieved person can seek remedies subsequent to the cessation of the relationship, the only pre-condition is that the allegation of domestic violence must relate to the period of the subsistence of relationship in the nature of marriage.

(d) In the same way, when a girl child is fostered by family members living together as a joint family as interpreted above and lives or at any point of time has lived together in a shared household or has the right to reside in the shared household being a member living together as a joint family and has been ousted in any way or has been a victim of domestic violence has remedies under the D.V. Act.

In our view, the question raised about a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed must be interpreted in a broad and expansive way, so as to encompass not only a subsisting domestic relationship in presentia but also a past domestic relationship. Therefore, the Parliament has intentionally used the expression ‘domestic relationship’ to mean a relationship between two persons who not only live together in the shared household but also between two persons who ‘have at any point of time lived together in a shared household.

44. Applying the aforesaid discussion to the facts of the case at hand, the appellant was married to the respondent’s son Kuldeep Tyagi on 18^th June, 2005 and shortly thereafter, on 15^th July, 2005, he died in a car accident. According to the appellant, the respondent and her family members started harassing the appellant and forced her to leave the matrimonial home. She started working as a teacher at Dehradun in order to support herself. That Stridhana was given at the time of her wedding and that was used by the respondent and her family and the legal notice dated 22^nd November, 2006 demanding return of the articles of Stridhana did not receive any response from the respondent and her family. Even though as on the date of filing of the application before the Magistrate under Section 12 of the D.V. Act the appellant was not actually living in the shared household; she nevertheless lived in a domestic relationship with her husband and further had the right to reside in a shared household as a daughter-in-law. The appellant-aggrieved person had to leave the shared household on account of harassment and mental torture given to her by respondent – mother-in-law and her family. She had to leave the same and fend for herself. Thus, as an aggrieved person, the appellant could not have been excluded from the shared household as there was no valid reason to do so. As the appellant had a right to reside in the shared household as she was in a domestic relationship with her husband till he died in the accident and had lived together with him therefore she also had a right to reside in the shared household despite the death of her husband in a road accident. The aggrieved person continued to have a subsisting domestic relationship owing to her marriage and she being the daughter-in-law had the right to reside in the shared household.

45. This takes us to the first question which has been raised by us namely, ‘whether the consideration of domestic incident report is mandatory before initiating the proceedings under the D. V. Act in order to invoke substantive provisions of Sections 18 to 20 and 22 of the said D.V. Act?.

46. Clause (e) of Section 2 defines a Domestic Incident Report to be a report made in the prescribed form on receipt of a complaint of domestic violence from an aggrieved person. As noted from Section 12, an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person including the service provider vide Sub-Section (1) of Section 10 of the D.V. Act, may present an application to the Magistrate seeking one or more reliefs under the D.V. Act. Proviso to Sub-Section (1) of Section 12 states that before passing any order on such an application, the Magistrate shall take into consideration any Domestic Incident Report received by him from the Protection Officer or the service provider. Protection Officer as defined in Clause (n) of Section 2, means an officer appointed by the State Government under Sub-Section (1) of Section 8. Sub-Section (2) of Section 8 states that the Protection Officers shall, as far as possible, be women and shall possess such qualifications and experience as may be prescribed.

47. On a conjoint reading of the aforesaid provisions, it is clear that an aggrieved person on her own or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under the D.V. Act but the proviso states that when a Domestic Incident Reported is received by the Magistrate from the Protection Officer or the service provider, in such a case, the same shall be taken into consideration. Therefore, when an aggrieved person files an application by herself or with the assistance of an advocate and not with the assistance of the Protection Officer or a service provider, in such a case, the role of the Protection Officer or a service provider is not envisaged. Obviously, there would be no Domestic Incident Report received by a Magistrate from the Protection Officer or a service provider. Can it be said that in the absence of a Domestic Incident Report, the Magistrate cannot pass any order under the D.V. Act particularly when an application is filed before the Magistrate by the aggrieved person by herself or through a legal counsel? In our view, that is not the intention of the proviso. Although, the expression ‘shall’ is used in the proviso, it is restricted to only those cases where a Protection Officer files any Domestic Incident Report or, as the case may be, the service provider files such a report. When a Domestic Incident Report is filed by a Protection Officer or a service provider, in such a case the Magistrate has to take into consideration the said report received by him. But if such a report has not been filed on behalf of the aggrieved person then he is not bound to consider any such report. Therefore, the expression ‘shall’ has to be read in the context of a Domestic Incident Report received by a Magistrate from the Protection Officer or the service provider as the case may be in which case, it is mandatory for the Magistrate to consider the report. But, if no such report is received by the Magistrate then the Magistrate is naturally not to consider any such Domestic Incident Report before passing any order on the application. As already noted, this could be in a case where an aggrieved person herself approaches the Magistrate or the services of an advocate is engaged to present an application seeking one or more reliefs under the D.V. Act or for a valid acceptable cause/reason a Domestic Incident Report has not been filed by a Protection Officer or a service provider, as the case may be.

48. We are, therefore, of the view that the High Court was not right in holding that the application filed by the appellant herein was not accompanied by a Domestic Incident Report and therefore under the proviso to Sub-Section (1) of Section 12 of the D.V. Act, the Magistrate had no authority to issue orders and directions in favour of the appellant.

(i) Following are the judgments where the High Courts have held that the Domestic Incident Report is not a sine qua non for entertaining or deciding the application under Section 12 of the D.V. Act by the learned Magistrate.

a) In Nayanakumar vs. State of Karnataka – [ILR 2009 Kar 4295], the High Court of Karnataka (Kalaburagi Bench) while dealing with Section 12 of the D.V. Act, held that in case a Domestic Incident Report is received by the Magistrate either from the Protection Officer or from the Service Provider, then it becomes obligatory on the part of the Magistrate to take note of the said Domestic Incident Report before passing an order on the application filed by the aggrieved party. It was further clarified that the scheme of the D.V. Act makes it clear that it is left to the choice of the aggrieved person to go before the service provider or the Protection Officer or to approach the Magistrate under Section 12 of the D.V. Act.

b) In Abhiram Gogoi vs. Rashmi Rekha Gogoi – [(2011) 4 Gauhati Law Reports 276], the Gauhati High Court held that Section 9(l)(b) of the D.V. Act makes it clear that it is the duty of the Protection Officer to make a Domestic Incident Report to the Magistrate upon receipt of a complaint of domestic violence and forward copies thereof to the police officer-in-charge of the police station within the local limits of whose jurisdiction domestic violence is alleged to have been committed and to the service providers in that area.

c) In the case of Md. Basit vs. State of Assam and Others – [(2012) 1 Gauhati Law Reports 747], the Gauhati High Court differed with the view taken by the Madhya Pradesh and Jharkhand High Courts and held that Section 12 only contemplates as to who can file a complaint under Section 12 of the D.V. Act, what relief may be sought for, what the contents of the complaint must be and how the complaint ought to be examined. That if the complaint conforms to the said pre-conditions, the same may be taken cognizance of. The High Court noted that an application under Section 12(1) of the D.V. Act may be filed either by an aggrieved person herself, or by a Protection Officer. The Court went on to hold that the provision does not require a Magistrate to specifically call for a Domestic Incident Report. That it would only be mandatory to consider such report, if the same had been filed by the Protection Officer before the Magistrate. The Gauhati High Court differed with the view taken by the Madhya Pradesh and Jharkhand High Courts, to the extent that the latter Courts observed that the Magistrate would not be obligated to consider the Domestic Incident Report even if the same was filed by the Protection Officer.

d) Delving on the same issue, the High Court of Himachal Pradesh in Rahul Soorma vs. State of Himachal Pradesh – [(2012) SCC Online HP 2574], held that the purpose of the D.V. Act is to give immediate relief to the aggrieved person; therefore, it was wrong to suggest that the Magistrate has no jurisdiction to take cognizance of the application under Section 12 of the D.V. Act before the receipt of a Domestic Incident Report by the Protection Officer or the service provider.

e) Further, the High Court of Andhra Pradesh in A. Vidya Sagar vs. State of Andhra Pradesh – [2014 SCC Online Hyd 715], rejected the contention of the petitioner therein that a domestic violence case can be instituted and taken cognizance of on the basis of the Domestic Incident Report only and not otherwise.

f) In its judgment in the case of Ravi Kumar Bajpai vs. Renu Awasthi Bajpai – [ILR (2016) MP 302], the High Court of Madhya Pradesh speaking through J.K. Maheshwari, J., while discussing on the legislative intent of the D.V. Act, held that if the legislative intent was to call for a report from the Protection Officer as a precondition by the Magistrate to act upon a complaint of aggrieved person, then it would have expressed that intention emphasizing the words in the main section. The High Court relied on various judgments pertaining to the interpretation of a provision and proviso thereof.

g) The Division Bench of the High Court of Delhi in Shambhu Prasad Singh vs. Manjari -[190 (2012) DLT 647] speaking through Ravindra Bhat, J. dealt with the conflicting views of the two Single Judges on the question whether a Magistrate can act straightaway on the complaint made by an aggrieved person under the D.V. Act. It was held that Section 12(1) of the D.V. Act does not mandate that an application seeking relief under the said D.V. Act must be accompanied with a Domestic Incident Report or even that it should be moved by a Protection Officer. So also, Rule 6 which stipulates the form and manner of making an application to a Magistrate does not require that the Domestic Incident Report must accompany an application for relief under Section 12.

It was further held that an obligation to submit a Domestic Incident Report is imposed only on the Protection Officers under Section 9 of the D.V. Act and upon the service providers under Section 10 of the D.V. Act and the learned Magistrate ‘shall’ take into consideration, the Domestic Incident Report if it is filed and not otherwise.

h) In Rakesh Choudhary vs. Vandana Choudhary -[2019 SCC Online J&K 512], the High Court of Jammu and Kashmir rejected the argument of the petitioner therein that the report of the Protection Officer is sine qua non for issuing process in a petition under Section 12 of the D.V. Act. The Court held that the proviso to Section 12(1) of the D.V. Act only stipulates that the learned Magistrate shall take into consideration the Domestic Incident Report filed by the Protection Officer or the Service Provider, but it does not stipulate that a report ‘shall be called for’ before any relief could be granted.

i) Further, the High Court of Bombay at Aurangabad Bench, while dealing with a criminal writ petition in the case of Vijay Maruti Gaikwad vs. Savita Vijay Gaikward – [2018 (1) HLR 295], observed that if the matter is before the Court and the wife preferred not to approach the Protection Officer, the Court is not bound to call the report of Protection Officer.

j) Lastly, in the case of Suraj Sharma vs. Bharti Sharma – [2016 SCC Online Chh 1825], the High Court of Chhattisgarh while expressing its view on Section 12 of the D.V. Act also held that the Domestic Incident Report shall not be conclusive material for making any order.

49. On the contrary, the following judgments of High Courts have observed that the Proviso to Section 12 is mandatory and an order passed by the learned Magistrate on an application under Section 12 of the D.V. Act, without having a report of the Protection Officer is liable to be quashed.

a) In Rama Singh vs. Maya Singh – [(2012) 4 MPLJ 612][1], the High Court of Madhya Pradesh, in the facts and circumstances of the said case, while quashing the petition under Section 482 of the Code of Criminal Procedure, 1973, held that the impugned order therein was passed without taking into consideration, the report prepared by the Protection Officer and proviso to Section 12 of the D.V. Act was ignored. The Court went on to hold that the proviso ordinarily carves out an exception from the general rule enacted in the main provision. The Court emphasized that the word ‘any’ in the proviso would mean one or more out of several and includes all. Therefore, even an interlocutory order directing issuance of notice would not be excluded from the rigour of the proviso.

[1] This judgment was explained in later decision of Ravi Kumar Bajpai (supra).

b) In the case of Ravi Dutta vs. Kiran Dutta and Another -[208 (2014) DLT 61][2], the High Court of Delhi reiterated that non-consideration of Domestic Incident Report by the Trial Court while deciding an application under Section 12 of the D.V. Act violates the mandate of the said provision and therefore the order passed by the Trial Court was held to be unsustainable.

[2] This judgment did not consider the earlier judgment in Shambhu Prasad Singh (supra) passed by the Delhi High Court itself.

On an analysis of the aforesaid judgments from various High Courts, we find that the High Courts of Andhra Pradesh, Bombay, Delhi, Gauhati, Himachal Pradesh, Jammu & Kashmir, Karnataka, and Madhya Pradesh, are right in holding that if Domestic Incident Report has been received by the Magistrate either from the Protection Officer or the service provider then it becomes obligatory on the part of the Magistrate to take note of the said report before passing an order on the application filed by the aggrieved party, but if no complaint or application of domestic violence is received by the Magistrate from the Protection Officer or the service provider, the question of considering such a report does not arise at all. As already discussed, the D.V. Act does not make it mandatory for an aggrieved person to make an application before a Magistrate only through the Protection Officer or a service provider. An aggrieved person can directly make an application to the jurisdictional Magistrate by herself or by engaging the services of an Advocate. In such a case, the filing of a Domestic Incident Report by a Protection Officer or service provider does not arise. In such circumstances, it cannot be held that the Magistrate is not empowered to make any order interim or final, under the provisions of the D.V. Act, granting reliefs to the aggrieved persons. The Magistrate can take cognizance of the complaint or application filed by the aggrieved person and issue notice to the respondent under Section 12 of the D.V. Act even in the absence of Domestic Incident Report under Rule 5. Thus, the Magistrate has jurisdiction to take cognizance of the complaint under Section 12 of the D.V. Act in the absence of a Domestic Incident Report under Rule 5 when the complaint is not filed on behalf of the aggrieved person through a Protection Officer or service provider. Such a purposeful interpretation has to be given bearing in mind the fact that the immediate relief would have to be given to an aggrieved person and hence the proviso cannot be interpreted in a manner which would be contrary to the object of the D.V. Act which renders Section 12 bereft of its object and purpose.

50. In this context, it would be useful to adumbrate on the principles that govern the interpretation to be given to proviso in the context of main provision.

(a) The normal function of a proviso is to except something out of the provision or to qualify something enacted therein which, but for the proviso, would be within the purview of the provision. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule. In other words, a proviso qualifies the generality of the main enactment by providing an exception and taking out as it were, from the main enactment, a portion which, but for the proviso would fall within the main provision. Further, a proviso cannot be construed as nullifying the provision or as taking away completely a right conferred by the enactment.

(b) In this regard, learned Author, Justice G.P. Singh, in “Principles of Statutory Interpretation”, 15^th Edition, has enunciated certain rules collated from judicial precedents. Firstly, a proviso is not to be construed as excluding or adding something by implication i.e., when on a fair construction, the principal provision is clear, a proviso cannot expand or limit it. Secondly, a proviso has to be construed in relation to which it is appended i.e., normally, a proviso does not travel beyond the provision to which it is a proviso. A proviso carves out an exception to the main provision to which it has been enacted as a proviso and to no other. However, if a proviso in a statute does not form part of a section but is itself enacted as a separate section, then it becomes necessary to determine as to which section the proviso is enacted as an exception or qualification.

Sometimes, a proviso is used as a guide to construction of the main section. Thirdly, when there are two possible construction of words to be found in the section, the proviso could be looked into to interpret the main section. However, when the main provision is clear, it cannot be watered down by the proviso. Thus, where the main section is not clear, the proviso can be looked into to ascertain the meaning and scope of the main provision.

(c) According to Justice G.P. Singh, the learned author, the proviso should not be so construed as to make it redundant. In certain cases, “the legislative device of the exclusion is adopted only to exclude a part from the whole, which, but for the exclusion, continues to be a part of it”, and words of exclusion are presumed to have some meaning and are not readily recognized as mere surplusage. As a corollary, it is stated that a proviso must be so construed that the main enactment and the proviso should not become redundant or otiose. This is particularly so, where the object of a proviso sometimes is only by way of abundant caution, particularly when the operative words of the enactment are abundantly clear. In other words, the purpose of a proviso in such a case is to remove any doubt. There are also instances where a proviso is in the nature of an independent enactment and not merely, an exception or qualifying what has been stated before. In other words, if the substantive enactment is worded in the form of a proviso, it would be an independent legislative provision concerning different set of circumstances than what is worded before or what is stated before. Sometimes, a proviso is to make a distinction of special cases from the general enactment and to provide it specially.

(d) At this stage, the construction or interpretation of a proviso could be discussed as gathered from various judgments of this Court.

(i) In Ishverlal Thakorelal Almaula vs. Motibhai Nagjibhai – [AIR 1966 SC 459], while dealing with the Bombay Tenancy and Agricultural Lands Act, 1948, this Court held, that a proper function of a proviso is to except or qualify something enacted in the substantive clause, which but for the proviso, would be within that clause.

(ii) In Kaviraj Pandit Durga Dutt Sharma vs. Navaratna Pharmaceutical Laboratories – [AIR 1965 SC 980], while considering the proviso to Section 6 of Trade Marks Act, 1940, it was observed that it would not be a reasonable construction for any statute, if a proviso which in terms purports to create an exception and seeks to confer certain special rights on a particular class of cases included in it should be held to be otiose and to have achieved nothing.

(iii) In Kedarnath Jute Manufacturing Co. Ltd. Vs . The Commercial Tax Officer and Others, [AIR 1966 SC 12], it was observed that “the effect of an excepting or qualifying proviso, according to the ordinary rules of construction, is to except out of the preceding portion of the enactment or to qualify something enacted therein, which, but for the proviso, would be within it”. [See “Craies” on Statute Law – 6th Edition – P. 217]. In this case, the Court was considering Section 5(2) (a) (ii) of Bengal Finance Sales Tax Act, 1941 and Rule 27-A of Bengal Sales Tax Rules.

(iv) In Dattatraya Govind Mahajan and Others Vs. The State of Maharashtra and another – [AIR 1977 SC 915], a Constitution Bench of the Apex Court, while considering the amendment made to Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, in the context of Article 3 IB of the Constitution and the second proviso thereto, reiterated what was stated in Ishverlal’s case, (supra).

(v) In S. Sundaram Pillai, etc, vs. V.R. Pattabiraman -[AIR 1985 SC 582], while dealing with the scope of a proviso and explanation to sub – section (2) of Section 10 of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, this Court held that a proviso may have three separate functions. Normally, a proviso is meant to be an exception to something within the main enactment or qualifying some thing enacted therein which, but for the proviso, would be within the purview of the enactment. In other words, a proviso cannot be torn apart from the main enactment, nor can it be used to nullify or set at naught the real object of the main enactment. Sometimes, a proviso may exceptionally have the effect of a substantive enactment.

(e) After referring to several legal treatises and judgments, this Court held in the above judgment as under:-

“43. We need not multiply authorities after authorities on this point because the legal position seems to be clearly and manifestly well established. To sum up, a proviso may serve four different purposes:

(1) qualifying or excepting certain provisions from the main enactment;

(2) it may entirely change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable;

(3) it may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself; and

(4) it may be used merely to act as an optional addenda to the enactment with the sole object of explaining the real intendment of the statutory provision.”

(f) The approach to the construction and interpretation of a proviso is enunciated in the following cases. (i) In M. Pentiah vs. Muddala Veeramallappa – [AIR 1961 SC 1107], it was observed that while interpreting a section or a proviso, if the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, one should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result.

(ii) In Superintendent & Remembrancer of Legal Affairs to Govt. of West Bengal vs. Abani Maity – [AIR 1979 SC 1029], this Court observed that the statute is not to be interpreted merely from the lexicographer’s angle. The Court must give effect to the will and in-built policy of the Legislature as discernible from the object and scheme of the enactment and the language employed therein. The words in a statute often take their meaning in the context of a statute as a whole. They are, therefore, not to be construed in isolation.

51. In the instant case, when the proviso is read in the context of the main provision which begins with the words ‘an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under the D.V. Act’ would clearly indicate that the aggrieved person can by herself or through her advocate approach the Magistrate for seeking any of the reliefs under the D.V. Act. In such an event, the filing of a Domestic Incident Report does not arise. The use of the expression ‘shall’ in the proviso has to be read contextually i.e., the Magistrate is obliged to take into consideration any Domestic Incident Report received by him when the same has been filed from the Protection Officer or the service provider in a case where the application is made to the Magistrate on behalf of the aggrieved person through a Protection Officer or a service provider. If the intention of the Parliament had been that filing of the Report by the Protection Officer is a condition precedent for the Magistrate to act upon the complaint filed by an aggrieved person even when she files it by herself or through her advocate then it would have been so expressed. But a conjoint reading of Sub-Section (1) of Section 12 with the proviso does not indicate such an intention. Thus, the plenitude of power under Section 12 of the D.V. Act is accordingly interpreted and pre-requisite for issuing notice to the respondent on an application filed by the aggrieved person without the assistance of a Protection Officer or service provider and thus there being an absence of Domestic Incident Report, does not arise. If a contrary interpretation is to be given then the opening words of Sub-Section (1) of Section 12 would be rendered otiose and it would be incumbent for every aggrieved person to first approach a Protection Officer or a service provider, as the case may be, and get a Domestic Incident Report prepared and thereafter to approach the Magistrate for reliefs under the D.V. Act, which is not the intention of the Parliament. Hence, in our view, the judgments of the Madhya Pradesh High Court in Rama Singh vs. Maya Singh-[(2012) 4 MPLJ 612] and the Delhi High Court in Ravi Dutta vs. Kiran Dutta and Another – [2018 (2014) DLT 61], do not lay down the correct law and are hereby overruled while we affirm all other judgments referred to supra which are in consonance with the line of interpretation made above.

52. In view of the above discussion, the three questions raised in this appeal are answered as under:

“(i) Whether the consideration of Domestic Incidence Report is mandatory before initiating the proceedings under Domestic Violence Act, 2005 in order to invoke substantive provisions of Sections 18 to 20 and 22 of the said Act?”

It is held that Section 12 does not make it mandatory for a Magistrate to consider a Domestic Incident Report filed by a Protection Officer or service provider before passing any order under the D.V. Act. It is clarified that even in the absence of a Domestic Incident Report, a Magistrate is empowered to pass both ex parte or interim as well as a final order under the provisions of the D.V. Act.

“(ii) Whether it is mandatory for the aggrieved person to reside with those persons against whom the allegations have been levied at the point of commission of violence?”

It is held that it is not mandatory for the aggrieved person, when she is related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family, to actually reside with those persons against whom the allegations have been levelled at the time of commission of domestic violence. If a woman has the right to reside in the shared household under Section 17 of the D.V. Act and such a woman becomes an aggrieved person or victim of domestic violence, she can seek reliefs under the provisions of D.V. Act including enforcement of her right to live in a shared household.

“(iii) Whether there should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed?”

It is held that there should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed vis-à-vis allegation of domestic violence. However, it is not necessary that at the time of filing of an application by an aggrieved person, the domestic relationship should be subsisting. In other words, even if an aggrieved person is not in a domestic relationship with the respondent in a shared household at the time of filing of an application under Section 12 of the D.V. Act but has at any point of time lived so or had the right to live and has been subjected to domestic violence or is later subjected to domestic violence on account of the domestic relationship, is entitled to file an application under Section 12 of the D.V. Act.

53. Consequently, the judgment dated 23^rd July, 2019 passed by the High Court of Uttarakhand in Criminal Revision No. 186 of 2014 as well as the judgment dated 11^th July, 2014 passed by the Vth Additional Sessions Judge, Dehradun in Criminal Appeal No. 53 of 2011 are set aside and the order passed by the Special Judicial Magistrate-I in Miscellaneous Case No. 78 of 2007, Dehradun is affirmed.

54. The appeal is allowed in the aforesaid terms.

55. Parties to bear their respective costs.

56. Before parting with this case, we express our appreciation to the valuable services rendered by Shri Gaurav Agarwal, learned arnicas curiae, who has painstakingly researched all the relevant judgments on the questions raised in this case arising from various High Courts and has made his submission schematically with particular reference to the facts of the case and all relevant provisions of the D.V. Act.

Posted on 18th May 2022 by rajatbindal5gmailcom — Leave a comment

Electricity Act, 2003 – Sections 2, 2(8), 9 and 24(2) – A person who has established a captive generating plant for carrying the electricity to the destination of his own use – allowed.

SUPREME COURT OF INDIA

DIVISON BENCH

CHHATTISGARH STATE POWER DISTRIBUTION COMPANY LIMITED — Appellant

Vs.

CHHATTISGARH STATE ELECTRICITY REGULATORY COMMISSION AND ANOTHER — Respondent

( Before : L. Nageswara Rao and B.R. Gavai, JJ. )

Civil Appeal Nos. 2578-2579 of 2008 with Civil Appeal Nos. 2941-2942 of 2008 and Civil Appeal No. 2868 of 2008

Decided on : 12-05-2022

Electricity Act, 2003 – Sections 2, 2(8), 9 and 24(2) – A person who has established a captive generating plant for carrying the electricity to the destination of his own use – Held, A combined reading of Section 9 and Clause (8) of Section 2 of the said Act would reveal that a person is entitled to construct, maintain or operate a captive generating plant – Such a plant should be primarily for his own use – Clause (8) of Section 2 of the said Act would further show that it includes a power plant set up by any cooperative society or association of persons for generating electricity – Requirement is that it should be primarily for the use of the members of such cooperative society or association – Definition of “person” is wide enough to include any company or body corporate or association or body of individuals, whether incorporated or not, or artificial juridical person – It is thus clear that a person, to get benefit under Section 9 of the said Act, could be an individual or a body corporate or association or body of individuals, whether incorporated or not – It could thus be seen that even an association of corporate bodies can establish a captive power plant – Only requirement would be that the said plant must be established primarily for their own use – Fourth proviso to subsection (2) of Section 42 of the said Act would also reveal that surcharge would not be leviable in case open access is provided to a person who has established a captive generating plant for carrying the electricity to the destination of his own use.

Counsel for Appearing Parties

Mr. Nikhil Nayyar, Sr. Advocate, Mr. Apoorv Kurup, Advocate, for the Appellant; Mr. Naveen R. Nath, Sr. Advocate, Mr. Manish Paliwal, Advocate, Mr. Vikas Kumar, Advocate, Mr. Nikhil Shama, Advocate, Mr. Anirudha Bhat, Advocate, Ms. Swapna Seshadari, Advocate, Mr. Pramod Dayal, Advocate, for the Respondent.

Cases Referred

Administrator, Municipal Corporation, Bilaspur v. Dattatraya Dahankar, Advocate and Another, (1992) 1 SCC 361
Ahmedabad Municipal Corporation and Another v. Nilaybhai R. Thakore and Another, (1999) 8 SCC 139
Maharashtra State Electricity Distribution Company Limited v. JSW Steel Limited and Others, (2022) 2 SCC 742
S. Gopal Reddy v. State of A.P., (1996) 4 SCC 596

JUDGMENT

B.R. Gavai, J. – These appeals challenge the judgment dated 6^thDecember 2007 passed by the Appellate Tribunal for Electricity (hereinafter referred to as the “APTEL”), thereby dismissing the appeals filed by the present appellant.

2. The facts in brief giving rise to the present appeals are as under:

M/s Shri Bajrang Power and Ispat Ltd. (hereinafter referred to as “SBPIL”) has established a Captive Generation Plant. M/s Shri Bajrang Metallics and Power Ltd. (hereinafter referred to as “SBMPL”) is a sister concern of SBPIL. SBPIL submitted a petition to the Chhattisgarh State Electricity Regulatory Commission (hereinafter referred to as “the Commission”) for providing open access and wheeling of power through the transmission system of the appellant for captive use by SBMPL. The petition of the SBPIL was for permission to wheel 19 lakh units, corresponding to 13 MW, to SBMPL. It was stated in the said petition that SBMPL holds 27.6% of the equity shares of SBPIL and that more than 51% of the electricity generated by the captive power plant would be consumed by them. It was submitted that the generating capacity of the captive generation plant set up by SBPIL would be 103.68 MU per annum. It was further submitted that out of the said 103.68 MU per annum power generated, 13.22 MU per annum would be utilized in its sponge iron plant. It was further submitted that 54 MU per annum would be supplied to SBMPL through the appellant grid and the balance would be sold to the appellant.

3. The said petition came to be resisted by the appellant. It was contended by the appellant that SBPIL holds more than 72% of the shares of the company. However, its consumption would be limited only to 14.16% (13.22 MU), whereas the consumption of SBMPL holding 26.67% shares, would be 57.87% (54 MU). It was submitted that this was not proportionate to the ownership of the power plant.

4. The Commission, vide its order dated 14^th October 2005, rejected the contention of the appellant and held that SBPIL was entitled to supply electricity to its sister concern SBMPL and the same would qualify to be treated as ‘own consumption’ within the ambit of Section 9 read with Section 2(8) of the Electricity Act, 2003 (hereinafter referred to as “the said Act”) and Rule 3 of the Electricity Rules, 2005 (hereinafter referred to as “the said Rules”). While allowing the said petition, the Commission imposed the following conditions:

(i) “The consumption of electricity by the captive users shall not be less than 51% over a financial year, and in case it is not so it would be treated as ‘supply of electricity by agenerating company’ in terms of provision of rule 3(2) of the Rules.

(ii) The CSEB is entitled to charge for wheeling of electricity and levy other charges as per their present rates which shall be subject to revision as per the provisions in regulations on the charges for open access to be notified by the Commission shortly.

(iii) The company may enter into necessary agreement with the CSEB for the sale of balance power under the present terms and conditions of the CSEB, is subject to revision as per the directions of the Commission from time to time.”

5. Being aggrieved thereby, the appellant preferred appeals before the APTEL. The said appeals came to be dismissed by the APTEL vide impugned judgment dated 6^thDecember 2007. Being aggrieved thereby, the present appeals.

6. We have heard Shri Nikhil Nayyar, learned Senior Counsel appearing on behalf of the appellant and Shri Naveen R. Nath, learned Senior Counsel and Smt. Swapna Seshadari, learned counsel appearing on behalf of the respondents.

7. Shri Nayyar submitted that the order passed by the Commission and the impugned judgment passed by theAPTEL are contrary to the plain language used in Rule 3 of the said Rules. He submitted that SBMPL is a sister concern of SBPIL which has established the captive power plant. It is submitted that unless SBPIL consumes 51% of the aggregate electricity generated by it, it will not be entitled to get the benefit under Section 9 of the said Act. He submitted that in sub-rule (1) of Rule 3 of the said Rules, the words used are “Captive Generating Plant”. He submitted that upon a plain and literal interpretation of Rule 3 of the said Rules, it will be abundantly clear that unless the sister concern establishes captive generating plant utilization of 51% of the electricity generated, it will not be entitled to get benefit under Section 9 of the said Act.

8. Shri Nath submitted that the Commission, as well as the APTEL, has rightly construed the provisions of the said Act and the said Rules. He submitted, that this Court, in the case of Maharashtra State Electricity Distribution Company Limited v. JSW Steel Limited and Others, (2022) 2 SCC 742, has held that no permission is required from the Commission for supply of electricity for its own use. He further submitted that this Court has also held that insofar as captive users are concerned, they are not liable to pay the additional surcharge under Section 42(4) of the said Act.

9. Smt. Seshadari, learned counsel appearing on behalf of the Commission submitted that if the arguments advanced on behalf of the appellant are accepted, the same would be contrary to the provisions of the said Act. She, therefore, submitted that the order passed by the Commission and the impugned judgment passed by the APTEL warrant no interference.

10. For appreciating the rival contentions, it will be apposite to refer to Clauses (8) and (49) of Section 2 as well as Section 9 and sub-sections (1) and (2) of Section 42 of the said Act, which read thus:

“2. Definitions.-

(8) “Captive generating plant” means a power plant set up by any person to generate electricity primarily for his own use and includes a power plant set up by any cooperative society or association of persons for generating electricity primarily for use of members of such cooperative society or association;(49) “person” shall include any company or body corporate or association or body of individuals, whether incorporated or not, or artificial juridical person;

9. Captive generation.-(1) Notwithstanding anything contained in this Act, a person may construct, maintain or operate a captive generating plant and dedicated transmission lines:

Provided that the supply of electricity from the captive generating plant through the grid shall be regulated in the same manner as the generating station of a generating company:

Provided further that no licence shall be required under this Act for supply of electricity generated from a captive generating plan to any licensee in accordance with the provisions of this Act and the rules and regulations made thereunder and to any consumer subject to the regulations made under sub-section (2) of Section 42.

(2) Every person, who has constructed a captive generating plant and maintains and operates such plant, shall have the right to open access for the purposes of carrying electricity from his captive generating plant to the destination of his use:

Provided that such open access shall be subject to availability of adequate transmission facility and such availability of transmission facility shall be determined by the Central Transmission Utility or the State Transmission Utility, as the case may be:

Provided further that any dispute regarding the availability of transmission facility shall be adjudicated upon by the Appropriate Commission.

42. Duties of distribution licensee and open access.-(1) It shall be the duty of a distribution licensee to develop and maintain an efficient, coordinated and economical distribution system in his area of supply and to supply electricity in accordance with the provisions contained in this Act.

(2) The State Commission shall introduce open access in such phases and subject to such conditions, (including the cross subsidies, and other operational constraints) as may be specified within one year of the appointed date by it and in specifying the extent of open access in successive phases and in determining the charges for wheeling, it shall have due regard to all relevant factors including such cross-subsidies, and other operational constraints:

Provided that such open access shall be allowed on payment of a surcharge in addition to the charges for wheeling as may be determined by the State Commission:

Provided further that such surcharge shall be utilised to meet the requirements of current level of cross-subsidy within the area of supply of the distribution licensee:

Provided also that such surcharge and cross-subsidies shall be progressively reduced in the manner as may be specified by the State Commission:

Provided also that such surcharge shall not be leviable in case open access is provided to a person who has established a captive generating plant for carrying the electricity to the destination of his own use:

Provided also that the State Commission shall, not later than five years from the date of commencement of the Electricity (Amendment) Act, 2003, by regulations, provide such open access to all consumers who require a supply of electricity where the maximum power to be made available at any time exceeds one megawatt.

..”

11. It could thus be seen that in view of Section 9 of the said Act, any person may construct, maintain or operate a captive generating plant and dedicated transmission lines. The first proviso to Section 9 of the said Act provides that the supply of electricity from the captive generating plant through the grid shall be regulated in the same manner as the generating station of the generating company. The second proviso to Section 9 of the said Act provides that no licence shall be required under the said Act for supply of electricity generated from a captive generating plant to any licensee in accordance with the provisions of the said Act and the rules and regulations made thereunder and to any consumer, subject to the regulations made under subsection (2) of Section 42 of the said Act. Sub-section (2) of Section 9 of the said Act provides that every person, who has constructed a captive generating plant and maintains and operates such plant, shall have the right to open access for the purposes of carrying electricity from his captive generating plant to the destination of his use. The first proviso to sub-section (2) of Section 9 of the said Act provides that such open access shall be subject to availability of adequate transmission facility and such availability of transmission facility shall be determined by the Central Transmission Utility or the State Transmission Utility, as the case may be. The second proviso to sub-section (2) of Section 9 of the said Act provides that if there is any dispute regarding the availability of transmission facility, it shall be adjudicated upon by the Appropriate Commission.

12. Clause (8) of Section 2 of the said Act defines “Captive generating plant”. It states that “Captive generating plant” means a power plant set up by any person to generate electricity primarily for his own use and includes a power plant set up by any co-operative society or association of persons for generating electricity primarily for use of members of such co-operative society or association.

13. Clause (49) of Section 2 of the said Act defines “person”. It states that “person” shall include any company or body corporate or association or body of individuals, whether incorporated or not, or artificial juridical person.

14. A combined reading of Section 9 and Clause (8) of Section 2 of the said Act would reveal that a person is entitled to construct, maintain or operate a captive generating plant. Such a plant should be primarily for his own use. Clause (8) of Section 2 of the said Act would further show that it includes a power plant set up by any cooperative society or association of persons for generating electricity. The requirement is that it should be primarily for the use of the members of such co-operative society or association.

15. The definition of “person” is wide enough to include any company or body corporate or association or body of individuals, whether incorporated or not, or artificial juridical person.

16. It is thus clear that a person, to get benefit under Section 9 of the said Act, could be an individual or a body corporate or association or body of individuals, whether incorporated or not. It could thus be seen that even an association of corporate bodies can establish a captive power plant. The only requirement would be that the said plant must be established primarily for their own use. The fourth proviso to sub-section (2) of Section 42 of the said Act would also reveal that surcharge would not be leviable in case open access is provided to a person who has established a captive generating plant for carrying the electricity to the destination of his own use.

17. Therefore, the question that would arise is as to whether the open access for transmitting electricity from SBPIL to SBMPL would be for own use or not.

18. We find that Rule 3 of the said Rules would clarify the position, which reads thus:

“3. Requirements of Captive Generating Plant.-

(1) No power plant shall qualify as a ‘captive generating plant’ under Section 9 read with clause

(8) of Section 2 of the Act unless-

(a) in case of a power plant-

(i) not less than twenty-six per cent of the ownership is held by the captive user(s), and

(ii) not less than fifty-one per cent of the aggregate electricity generated in such plant, determined on an annual basis, is consumed for the captive use:

Provided that in case of power plant set up by registered cooperative society, the conditions mentioned under paragraphs at (i) and (ii) above shall be satisfied collectively by the members of the co-operative society:

Provided further that in case of association of persons, the captive user(s) shall hold not less than twenty-six per cent of the ownership of the plant in aggregate and such captive user(s) shall consume not less than fifty-one per cent of the electricity generated, determined on an annual basis, in proportion to their shares in ownership of the power plant within a variation not exceeding ten per cent;

(b) in case of a generating station owned by a company formed as special purpose vehicle for such generating station, a unit or units of such generating station identified for captive use and not the entire generating station satisfy(ies) the conditions contained in paragraphs (i) and (ii) of sub-clause (a) above including-

Explanation.-(1) The electricity required to be consumed by captive users shall be determined with reference to such generating unit or units in aggregate identified for captive use and not with reference to generating station as a whole; and

(2) The equity shares to be held by the captive user(s) in the generating station shall not be less than twenty-six per cent of the proportionate of the equity of the company related to the generating unit or units identified as the captive generating plant.”

19. The provisions made in Rule 3 of the said Rules are clear. Sub-rule (1) of Rule 3 of the said Rules provides that no power plant shall qualify as a “Captive Generating Plant” under Section 9 read with Clause (8) of Section 2 of the said Act unless the conditions stated therein are fulfilled. The first requirement is that not less than 26% of the ownership is held by the captive user(s). The second requirement is that not less than 51% of the aggregate electricity generated in such plant, determined on an annual basis, is consumed for the captive use. The second proviso to Rule 3(1)(a)(ii) of the said Rules provides that in case of association of persons, the captive user(s) shall hold not less than 26% of the ownership of the plant in aggregate and such captive user(s) shall consume not less than 51% of the electricity generated, determined on an annual basis, in proportion to their shares in ownership of the power plant within a variation not exceeding 10%.

20. Admittedly, SBMPL holds 27.6% equity shares in SBPIL. As such, the requirement of not less than 26% of shares is fulfilled by SBMPL. As already discussed hereinabove, even an association of corporate bodies can establish a power plant. Since SBMPL holds 27.6% of the ownership, the use of electricity by it would be for captive use under the provisions of the said Act. The other requirement would be that the consumption of SBIPL and SBMPL together should not be less than 51% of the power generated. Admittedly, the joint consumption by SBIPL and SBMPL is more than 51%. As such, both the conditions as provided under Rule 3 of the said Rules are satisfied.

21. We find that it will also be appropriate to refer to the National Electricity Policy, 2005 (hereinafter referred to as “the said Policy”) as notified by the Government of India, in exercise of its powers under Section 3 of the said Act, on 12^thFebruary 2005. Clauses 5.2.24 to 5.2.26 deal with the “Captive Generation”, which read thus:

“Captive Generation

5.2.24 The liberal provision in the Electricity Act, 2003 with respect to setting up of captive power plant has been made with a view to not only securing reliable, quality and cost-effective power but also to facilitate creation of employment opportunities through speedy and efficient growth of industry.

5.2.25 The provision relating to captive power plants to be set up by group of consumers is primarily aimed at enabling small and medium industries or other consumers that may not individually be in a position to set up plant of optimal size in a cost-effective manner. It needs to be noted that efficient expansion of small and medium industries across the country would lead to creation of enormous employment opportunities.

5.2.26 A large number of captive and standby generating stations in India have surplus capacity that could be supplied to the grid continuously or during certain time periods.

These plants offer a sizeable and potentially competitive capacity that could be harnessed for meeting demand for power. Under the Act, captive generators have access to licensees and would get access to consumers who are allowed open access. Grind inter-connections for captive generators shall be facilitated as per Section 30 of the Act. This should be done on priority basis to enable captive generation to become available as distributed generation along the grid. Towards this end, non-conventional energy sources including co-generation could also play a role. Appropriate commercial arrangements would need to be instituted between licensees and the captive generators for harnessing of spare capacity energy from captive power plants. The appropriate Regulatory Commission shall exercise regulatory oversight on such commercial arrangements between captive generators and licensees and determine tariffs when a licensee is the off-taker of power from captive plant.” [emphasis supplied]

22. It could thus be seen that the provision with respect to establishing captive power plant has been made with a view to not only securing reliable, quality and cost-effective power but also to facilitate creation of employment opportunities through speedy and efficient growth of industry. The said Policy further states that the provision relating to captive power plants to be set up by a group of consumers has been made primarily for enabling small and medium industries or other consumers that may not individually be in a position to set up plant of optimal size, in a cost-effective manner. It also states that the efficient expansion of small and medium industries across the country would lead to creation of enormous employment opportunities. Clause 5.2.26 of the said Policy further states that the captive and standby generating stations in India have surplus capacity that could be supplied to the grid continuously or during certain time periods.

23. The said Policy is issued under Section 3 of the said Act and as such, has a statutory flavour. In any case, the said Policy is in tune with the provisions as contained in Section 9 and Clause (8) of Section 2 of the said Act. A liberal provision has been made in Section 9 of the said Act so as to promote establishment of captive power plants.

24. It is a settled position of law that the interpretation which advances the object and purpose of the Act, has to be preferred. A reliance in this respect can be placed on the

judgments of this Court in the cases of Administrator, Municipal Corporation, Bilaspur v. Dattatraya Dahankar, Advocate and Another, (1992) 1 SCC 361, S. Gopal Reddy v. State of A.P., (1996) 4 SCC 596 and Ahmedabad Municipal Corporation and Another v. Nilaybhai R. Thakore and Another, (1999) 8 SCC 139.

25. We are, therefore, of the considered view that no case is made out for interfering with the order dated 14^thOctober 2005 passed by the Commission and the impugned judgment dated 6^th December 2007 passed by the APTEL.

26. In the result, the present appeals are found without merit and as such, are dismissed.

27. Pending application(s), if any, shall stand disposed of in the above terms. No order as to costs.

Posted on 5th May 2022 by rajatbindal5gmailcom — Leave a comment

Hindu Marriage Act, 1955 – Section 13(1)(ia) – Relief of Judicial Separation, instead of the relief of divorce granted Family Court – Challenged – Powers of the Family Court to change the nature of the relief sought is absent.

DELHI HIGH COURT

DIVISION BENCH

VINAY KHURANA AND OTHERS — Appellant

Vs.

SHWETA KHURANA AND OTHERS — Respondent

( Before : Vipin Sanghi and Jasmeet Singh, JJ. )

Mat. App.(F.C.) 213 of 2018 & Cm Appl. 3289 of 2021 and Mat. App.(F.C.) 231 of 2018

Decided on : 18-02-2022

Hindu Marriage Act, 1955 – Section 10, Section 13(1)(ia)
Indian Evidence Act, 1872 – Section 65B

Hindu Marriage Act, 1955 – Section 13(1)(ia) – Relief of Judicial Separation, instead of the relief of divorce granted Family Court – Challenged – Powers of the Family Court to change the nature of the relief sought is absent. The Family Court cannot be heard to tell the petitioner before it, what is “good” for him/her. It may render its advice to the parties when the matter is pending before it, but when it comes to adjudication, the Family Court is bound to bear in mind the relief sought by the petitioner. If the petitioner has established the grounds for seeking the relief as sought, he/she should be granted the same. If not, he/she should be denied the relief sought. Conversely, the Family Court cannot grant a relief, the statutory grounds for seeking which, are not established, merely because it feels that that would be “good” for the parties – In the present case, the parties lived together only for 3 years, and have been living separately for more than 12 years now. The period of separation has left the relationship between the parties beyond repair – The adamance of the respondent to refuse to cohabitate with the appellant over the last 12 years shows us that there is nothing remaining in this marriage, for either party – Family Court erred in not granting the decree of divorce to the appellant and, instead, granting a decree of Judicial Separation to the appellant – Decree of divorce granted.

Counsel for Appearing Parties

Appellant-in-person, for the Appellant; Mr. Naman Joshi, Mr. Guneet Sidhu, Advocate, for the Respondent.

Cases Referred

Dastane vs. Dastane AIR 1975 SC 1534
Mangayakarasi v. M. Yuvaraj (2020) 3 SCC 786
Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558
Rayala M. Bhuvaneswari v. Nagaphanende Rayala AIR 2008 AP 98
Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511
Sheenu Mahendru v. Sangeeta, (2019) SCC Online Utt 376

JUDGMENT

1. MAT. APP. (F.C.) 213/2018 has been filed by the appellant-husband Vinay Khurana (hereinafter referred to as “appellant”) challenging the judgment dated 02.07.2018 passed by the Family Court, Shahdara District, wherein the Family Court has granted a relief of Judicial Separation, instead of the relief of divorce-as had been sought by the appellant.

2. On the other hand, MAT. APP. (F.C.) 231/2018 has been filed by the respondent-wife – Shweta Khurana (hereinafter referred to as “respondent”) challenging the findings returned by the Family Court, Shahdara District against the respondent in the said judgment.

3. The admitted facts are as under:

(a) The marriage of the parties took place on 14.04.2006 according to the Hindu rites and ceremonies. One girl child was born out of the wedlock on 23.09.2007, who is in the custody of the respondent.

(b) The appellant filed the petition for divorce on 13.07.2012, on the ground of cruelty under section 13(1)(ia) of the Hindu Marriage Act.

(c) The parties have been staying separately since 29.05.2009. There are conflicting statements placed before us as to the reasons why the appellant and the respondent have been staying separately since 29.05.2009. The appellant has levelled various allegations against the respondent, for ignoring him and his family members; giving importance to her own family while avoiding to perform her matrimonial obligations; excessively talking on the phone with her family members at odd hours of the night; showing a non-cooperative and disrespectful attitude towards the appellant and his parents. The appellant further alleged that the respondent constantly threatened him and his family members to desert them, and implicate them in false cases, amongst others.

(d) The respondent in her written statement, as well as her appeal, has denied all the allegations and rather blamed the appellant for committing physical and mental cruelty on the respondent for bringing less dowry. The respondent has stated that it was the appellant, who had thrown her out of the matrimonial house on 29.05.2009, after giving her beatings, and thereafter, he never made any efforts to bring her back. The respondent has stated that she has always been ready and willing to go back to the house of the appellant, and it is the appellant who is spoiling their matrimonial life.

(e) On 19.08.13 the Family Court granted Rs. 10,000/- per month to the respondent and the minor child as an interim maintenance.

4. On 03.08.2013, the Family Court framed the following issues:

(a) Whether the respondent has, after solemnization of marriage, treated the petitioner with cruelty? OPP;

(b) Relief.

5. In order to prove the case, the appellant has examined himself as PW-2, and his father Shri Om Prakash Khurana as PW-5. The appellant also examined Shri Khairati Lal, (Uncle of the appellant) as PW-1, Shri Rakesh Bawa, (Brother-in-law of the appellant) as PW-3, Shri Anurag Pahuja, (close friend of the appellant) as PW-4, and Smt. Mamta Mehra, (close friend of the appellant) as PW-6 – who had contacted respondent and had gone to her house on different occasions to make her understand and bring her back to the matrimonial home. On the other hand, the respondent examined herself as RW-1 and her brother Lucky, as RW-2.

6. After discussing the entire evidence on record, the Family Court in the impugned judgment has held as under:

“However, from the evidence led it is clear that that it was the respondent who left the matrimonial home without any sufficient reasons. In fact, she wanted to live with the petitioner in a separate house but not in the joint family. She always wanted the petitioner to separate himself from his parents and after taking share in the joint family, purchase separate property. Petitioner always wanted to live with the respondent but it was also not possible for him to ignore his parents. Petitioner had made various efforts for the compromise and to bring her back the respondent to this house but the adamant attitude of family member of the respondent created hurdles. Respondent was under full control and emotional pressure of her father and brother who were the real instrumental in damaging the matrimonial relations of the parties and they did not want to get the matter settled for their own ulterior motive so that respondent remain in their house and take care of them and other younger unmarried sisters. The act and conduct of the respondent amounted to desertion of the petitioner as well as cruelty upon him. However, I am of the view that if the respondent comes out of pressure of her father and brother, then the parties still can live together because petitioner always wanted that respondent should come back to him and even lastly in the court on 2-4-2018 he agreed to take her from the court room itself. I still feel that good sense can prevail over the respondent in future and she can remove pressure of her brother and father from her mind and can join the company of the petitioner at least for the welfare and sake of the child without insisting to live in a separate house after going against the wishes of her brother and father. Even if the act, conduct and behaviour of the respondent amounts to desertion and cruelty committed upon the petitioner but she was doing the same under pressure of her family members against whom she cannot revolt and apparently she has lost her own thinking power to determine what is wrong and what is right. Respondent is in fact doing what is asked by her family members without applying her own mind. Counsel for the respondent rightly relied upon the case law Dastane vs. Dastane AIR 1975 SC 1534 to show that in the present situation it is not a fit case where divorce should not be granted but instead relief of judicial separation can be given. This issue is accordingly decided against the respondent and in favour of the petitioner “. (emphasis supplied)

7. While holding that the respondent-wife was guilty of matrimonial misconduct, the Family Court was of the opinion that respondent, in fact, was doing what was asked by her family members, without applying her independent mind. The Family Court, thus, after relying on Dastane (supra), came to the conclusion that while the grounds of cruelty and desertion were attracted and fully proved, it was not a fit case where divorce should be granted and, instead, granted judicial separation. In addition, the respondent was advised to think again, independently, without any pressure of her family members, in order to settle and re-establish her matrimonial home.

8. The appellant has assailed this judgment, primarily, on the following grounds:

(a) The Family Court has found both desertion and cruelty in favour of the appellant and against the respondent, but has committed an illegality by not granting the decree of divorce in favour of the appellant, when that was the relief sought in the petition. The appellant had the option to choose one, or the other relief i.e. judicial separation, or divorce. Since the appellant had chosen the relief of divorce, the same could not have been substituted by the Family Court, on its own, as they are both qualitatively different reliefs, having completely different ramifications in law and different consequences for the future lives of the parties.

(b) The parties have been living separately since 2009 – for a period of more than 12 years now, and hence the bond and the golden thread of matrimony between them has been severely destroyed beyond repair. In these circumstances, the decree of divorce should have been passed by the Family Court.

(c) The marriage between the parties is dead emotionally and practically, and there is no chance of the parties reuniting and cohabitating together, and thus the continuance of such a marriage would, in itself, amount to cruelty to both the parties.

9. On the other hand, the learned counsel for the respondent has argued that the normal friction and discord of a matrimonial relationship has been construed as cruelty by the Family Court. None of the instances mentioned in the divorce petition, and proved on record, can be said to be instances constitute cruelty. At best, they are instances of normal wear and tear and disharmony in a matrimonial relationship. Learned counsel for the respondent has further submitted that the audio recording of the conversation between the appellant and the respondent, without the consent of respondent, is an illegality, for which he relied upon Rayala M. Bhuvaneswari v. Nagaphanende Rayala AIR 2008 AP 98. He submitted that the appellant interacted with the respondent with the premeditated intention of divorce, and for the said purpose made recordings of the conversation between him and the respondent, post-separation of the parties. Learned counsel for the respondent has further submitted that the conversations between the appellant and the respondent could not be relied upon in the absence of an affidavit under Section 65B of the Indian Evidence Act, 1872. Lastly, learned counsel for the respondent has submitted that all the witnesses, namely, Shri Khairati Lal/PW-1, Shri Rakesh Bawa/PW-3, Shri Anurag Pahuja/PW-4, Smt. Mamta Mehra/PW-6 & Shri Om Prakash/PW-5 are not credible, and that their testimony cannot be relied upon.

10. We have heard the learned counsel for the parties and have perused the findings of the Family Court.

11. We may first consider the issue whether finding of cruelty returned by the Family Court, against the respondent-wife calls for interference.

12. In MAT APP (F.C) 231/2018, and in the Written Statement in HMA 165/2018 before the Family Court – as well as the evidence by way of affidavit, the respondent has stated that the instances cited by the appellant can be said to be normal wear and tear of the marriage, and do not amount to cruelty. What is relevant, for our adjudication is that the respondent has categorically stated in her affidavit of evidence that “she was subjected to physical and mental cruelty on account of bringing less dowry”. Her brother RW-2 has also in his affidavit by way of evidence stated that “respondent was turned out of her matrimonial home by the petitioner and his family members on 29.05.2009 due to the non-fulfillment of dowry demands”. However, the affidavits of evidence of both respondent and her brother are totally silent on the date, time, and place of demand of dowry, or what were the demands. The respondent and her family members have never lodged any complaint to the police, or to any authority in this regard. Thus, her version that she was thrown out of her matrimonial home, or that the members of the appellant’s family tried to take her life – in respect whereof there was no complaint or evidence, is difficult for us to accept. In fact, RW-2 has stated that the appellant and his family members had given beatings to the respondent several times for the lack of dowry. Pertinently, respondent No.2, in his cross-examination has stated that no such demand was made in his presence, nor any demand was fulfilled by his family, and no beatings of the respondent-by the appellant or his family members, took place in his presence.

13. At one stage, the respondent put suggestions to the witnesses of the appellant, trying to show that the appellant had demanded a car as dowry, but since no such averment was made in the Written Statement, the suggestion, itself, was irrelevant. Even otherwise, the respondent did not disclose any articles demanded, which were fulfilled, or which were left unfulfilled. Hence, the allegations of demand of dowry by the appellant or his family members do not inspire any confidence, and remain unsubstantiated.

14. The Supreme Court in Mangayakarasi v. M. Yuvaraj (2020) 3 SCC 786 has held as follows:

“14. It cannot be in doubt that in an appropriate case the unsubstantiated allegation of dowry demand or such other allegation has been made and the husband and his family members are exposed to criminal litigation and ultimately if it is found that such allegation is unwarranted and without basis and if that act of the wife itself forms the basis for the husband to allege that mental cruelty has been inflicted on him, certainly, in such circumstance, if a petition for dissolution of marriage is filed on that ground and evidence is tendered before the original court to allege mental cruelty it could well be appreciated for the purpose of dissolving the marriage on that ground….”

15. In Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511, the Supreme Court has held as follows:

“No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of ‘mental cruelty’. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.

(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.

(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.

(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.

(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty.

(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.

(xi) If a husband submits himself for an operation of sterilisation without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.

(xiv) When there has been a long period of continuous separation, it may be fairly concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of the marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties, it may lead to mental cruelty “

16. Learned counsel for the respondent also argued that there are no specific instances of cruelty, and that the instances relied upon by the appellant, are instances of “friction”. The term ‘mental cruelty’ is a broad term, and there can be no particular set parameter to determine it. As held in Samar Ghosh v Jaya Ghosh (supra), there is no straitjacket formula for determining cruelty. Thus, the conduct of the parties – as established, would need examination to arrive at the conclusion, whether the same tantamount to cruelty.

17. On the aspect of cruelty, the Family Court has returned the following findings:

“However, from the evidence led it is clear that that it was the respondent who left the matrimonial home without any sufficient reasons, In fact, she wanted to live with the petitioner in a separate house but not in the joint family. She always wanted the petitioner to separate himself from his parents and after taking share in the joint family, purchase separate property. Petitioner always wanted to live with the respondent, but it was also not possible for him to ignore his parents. Petitioner had made various efforts for the compromise and to bring back the respondent to his house but the adamant attitude of family members of the respondent created hurdles Respondent was under full control and emotional pressure of her father and brother who were the real instrumental in damaging the matrimonial relations of the parties and they did not want to get the matter settled for their own ulterior motive so that respondent remain in their house and take care of them and other younger unmarried sisters. The act and conduct of the respondent amounted to desertion of the petitioner as well as cruelty upon him. “

18. As regards the respondent leaving the matrimonial home, the Family Court has observed that:

“Not only this court but also another court of MM tried to get the matter compromised between the parties on various occasions but most of the times, it was the respondent who showed disinterest in going back to matrimonial home. Order sheet dated 15-9-2015 of this case shows that once it was agreed upon between the parties that respondent shall search for a separate house and inform the petitioner about it and thereafter after finalization of the said house, parties will live together. However, no steps were taken by the respondent in this regard. Again order sheet dated 5-3-2018 point out that respondent was not ready to talk for any settlement and wanted to contest the case. One maintenance case between the parties was once pending in Mahila Court and order Ex. RWl/P-2 dated i4-3-2012 shows that it was the respondent who did not wish to go to the mediation centre for settlement.

The action of the petitioner to raise query from the respondent why she had gone to her parent’s house and coming late at about 10 p.m. cannot be held as improper especially when she had gone there one day before also. RW-2 in his cross examination denied giving of beatings by the petitioner to respondent in his presence which is contrary to the allegations made in his affidavit, It is not explained how and in which manner beatings were given and to what an extent. Whether the physical assault was of such nature that respondent was compelled to leave the house is also not explained. There is no medical to show that any physical assault was committed. Hence, the manner of leaving the, matrimonial house by the respondent as alleged by her cannot be accepted as correct. There is no ground to disbelieve the petitioner that she left the house her own merely on the ground of making query about the reasons of going to her parent’s house. The action on the part of the respondent amounts to desertion.

There is no hesitation to say that father and brother of the respondent were the main instrumental in damaging the relationship of the petitioner and respondent. They for their own convenience and benefit were unnecessary stopping the respondent to go back to her matrimonial home and were pressurizing or influencing her to desert the petitioner. Apparently, respondent fully understood the tricks of her family members as per admitted telephonic conversation taken place with the petitioner but due to their influence or emotional pressure was hesitating to join the company of the petitioner. Her conduct shown even during the pending proceedings not to live with the petitioner or even to settle the matter also point out that she was intentionally deserting the petitioner. Even respondent admittedly had not sent any reply to the legal notice Ex. PW2/5 sent by petitioner or anything in writing to show her willingness to join matrimonial house………………”

19. It is also an admitted case that the appellant and the respondent separated on 29.05.2009. It is further admitted, that the father of the respondent used to be abusive towards the appellant, as a result of which appellant was constrained to file a civil suit against the father of the respondent. The matter was compromised on 13.09.2011, and the father of the respondent had made a statement as under:

“I shall not interfere in the matrimonial life of my daughter and I further undertake that I shall not hurl abuses to the plaintiff and I shall not make any telephonic call to the Plaintiff (Petitioner herein) and the Plaintiff should also not visit my house without my permission and shall also not make a telephonic call to me. “

20. As per this statement, it was the father of the respondent, who forbade the appellant from coming to his house or making any calls. The onus, therefore, shifted on the respondent to show her intent, and the effort that she made to re-join company of the appellant. There is no evidence on record to show any effort made by the respondent to rejoin the company of the appellant. After 29.05.2009, no petition under Section 9 of the Hindu Marriage Act, 1955 -for Restitution of Conjugal Rights, was filed by the respondent. In fact, the appellant has led the evidence of Shri Khairati Lal/PW-1, Shri Rakesh Bawa/PW-3, Shri Anurag Pahuja/PW-4, Shrimati Mamta Mehra/PW-6 & Shri Om Prakash/PW-5, who all gave evidence to the effect that they have tried to get the respondent back to her matrimonial home and, despite their best efforts, they could not succeed.

21. Shri Khairati Lal/PW-1, by way of his evidence affidavit stated as under:

“4. That deponent says that the brother of the respondent namely Lucky Malhotra came and flatly refused to send the respondent with the deponent/at her matrimonial home. Then on persuasion of the deponent, Shweta herself came there and the deponent with folded hands requested her to come back at her matrimonial home and asked her if any type of difficulty, she is facing in coming back, then the respondent bluntly refused-to come back to her matrimonial home.”

22. Shri Rakesh Bawa/PW-3, by way of his evidence affidavit also stated:

“2. That deponent says that or. 29/05/2005, the deponent had talk with the father of the respondent and requested him not to ruin the matrimonial life of the petitioner and the respondent, but the father of the respondent didn’t talk in good manner, then in the evening he went at his home and again cleared about the position of both the parties. The deponent asked Shweta/respondent that whether he has any problem from the petitioner, but she replied that he has no problem from the petitioner rather, he praised about the behaviour of the petitioner, but the father of the respondent remarked that “MAIN APNI LADKI ,K0 GHAR PAR RAKHONGA AUR YE MERE GHAR KA KAAM KAREGI, MAIN APNI PROPERTY ISKE NAAM KAR DOONGA A UR YE AARAM SE RAHEGI, BUT I WILL SEND HER BACK TO HER MATRIMONIAL HOME ONLY IF VINAY WILL GIVE HIS SHARE IN PROPERTY IN THE HANDS OF SHWETA” and started abusing the deponent in filthy language and asserted that it will make no difference, if his daughter remains with him for the years together.

6. Father of Shweta had never met Vinay in my presence. It is wrong to suggest that even today Shweta is ready to live with Vinay. (Vol. The kind of language used by her brother and father on 29.06.2009 showed that they were not interested to sent her to her matrimonial home;). It is wrong to suggest that after 29.09.2009 I had called her father asking him to settle the dispute by divorcing both the parties after negotiating settlement amount and during negotiations her brother. Lucky will not sit. It is wrong to suggest that her father had told me that I should try patch up both the spouses and persuade them to live together. (Vol. Her father had told me to stay out of all this). “

23. Shri Anurag Pahuja/PW-4, also deposed:

“3. That in march 2010 deponent persuaded to the respondent to rejoined her matrimonial home then the respondent replied that petitioner/Vinay is a very good person and his no problem from Vinay but till his parent in laws did not full, fill her condition she will not rejoined her matrimonial home.

4. That deponent put his all efforts to convince respondent that she should not spoil her matrimonial home, but she flatly refused to come back -rather, threatened to take legal action against the petitioner and his parents and asked the deponent that he is 10th person from petitioner’s side who has trying to conveyance her to come back at her matrimonial home.”

24. Smt. Mamta Mehra/PW-6 also deposed :

“I came to know about the dispute between the (parties first time on 29.05.2009.I along with my husband had gone to the house of the respondent after 5-6 days of 29.05.2009 to “find out the reasons of separation. (Again said: Had gone to the house of the petitioner and not of the respondent). We had not gone to the house of the respondent as I had called her 3-4 times on phone but she disconnected die phone every time. “

25. Shri Om Prakash/PW-5, father of the appellant also has stated as under:

“10. That on 5.06.2009 deponent along with Sh. Khairati Lal Batra and his wife Neelam went to the parental home of the respondent to bring her back to the matrimonial home, but the respondent made a call to her father and informed him that the deponent along with his relatives have reached their home and she asked-her father to come immediately. After receiving the call, the respondent’s father; went to the residence of. Sh. Rakesh Bawa and then, wife of Mr. Bawa – Lalita Baw telephonically informed the deponent that father of respondent has come to their home and deponent should leave the parental home of respondent with their relatives. Mrs. Lalita Bawa further informed that if they won’t leave the parental home of the respondent, they will face the consequences as all of them have visited the parental house of respondent without any intimation. Then in-front of deponent Mr. Khairati Lal persuaded the respondent to come back at her matrimonial home but she bluntly refused for the same and her brother Lucky Malhotra said that he will get his sister remarried but will not send her back to her matrimonial home. He misbehaved with the deponent and other people along with him.”

26. All the appellant’s witnesses made efforts to repair the matrimonial bond of the parties. They endeavoured to help the parties to live together and solve their differences, and there is no reason to disbelieve their statements, or assume them to be untrustworthy. They are not “interested witnesses”, whose testimony should be discarded. They have been cross-examined, and nothing has come out from their cross-examination, to throw any doubt about their credibility. Their evidence is also corroborated by documentary evidence viz. the statement made by the respondent’s own father in the appellant’s suit, on 13.09.2011, and the lack of intent to resume cohabitation exhibited by the respondent.

27. The respondent’s attitude, reluctance and obstinacy to join the appellant in the matrimonial home, despite his, his relatives and friends’ effort to bring her back – also amount to cruelty. The respondent-wife seemingly left her matrimonial home for no reason; levelled various false and serious allegations against the appellant and her in-laws, and; refused to cohabitate or compromise with appellant. Such indifference on the part of the respondent would have caused substantial anguish and agony to the appellant. The appellant did not get married to the respondent to lead a bachelor’s life. He got married in the hope, and with the expectation, of leading a happy and fulfilling married life. The respondent, by not joining him, has denied him conjugal satisfaction. He has been denied the companionship that he would have been legitimately and rightfully hoping to experience with the respondent.

28. Further, despite the decree of judicial separation, the respondent-wife never even attempted to re-join the company of her husband, even temporarily. The respondent-wife – in the impugned judgment, was asked to give her marriage another chance, and think independently of her family members. However, there has been no positive move on the part of the respondent.

29. The appellant husband did all that he could, to cohabitate with his wife. However, the respondent-wife refused to cohabitate with him, and made false allegations of dowry demand without any proof whatsoever, and left the matrimonial home without any reason and refused to return after that. Thus, it is evident to us, that she perpetrated mental cruelty upon the appellant, and that nothing remains in this marriage.

30. We may now turn to the legality of the relief granted by the Family Court of judicial separation to the appellant, instead of a decree of divorce.

31. Under the scheme of the Hindu Marriage Act, 1955 the ambit and the scope of Judicial Separation and Divorce is qualitatively different. Judicial separation is a completely different relief that the aggrieved spouse may seek against the other, under Section 10 of the Hindu Marriage Act, which reads as under:

“10. Judicial separation.[(1) Either party to a marriage, whether solemnised before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.]

(2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so. ” (emphasis supplied)

32. Thus, the aggrieved spouse may, instead of seeking the relief of divorce, seek a decree of judicial separation on the same grounds on which he/she may seek divorce. The law gives an option to the aggrieved spouse/petitioner to seek either of the two reliefs. While judicial separation does not end the matrimonial relationship and the marriage is preserved – after a declaration is made establishing the matrimonial misconduct by the other spouse, and it entitles the aggrieved spouse/petitioner to deny conjugal relationships to the other spouse/respondent, a decree of Divorce puts an end to the jural relationship of marriage between the parties, thus liberating them from their marital bond. Whereas a decree of judicial separation can be rescinded by the same court; a decree of divorce can be reversed only by a judicial order: either in review, or in appeal. If it is passed ex parte, it may be recalled on an application being made for that purpose.

33. Thus, when a decree of judicial separation is passed, the aggrieved spouse is no longer bound to cohabitate with the other, even though, the matrimonial bond continues to subsist. The parties cannot remarry during the period of judicial separation, since the status of marriage subsists. On the other hand, the parties cease to remain husband and wife, once a decree of divorce is granted, and the parties are free to remarry once the statutory period of appeal expires, and there is no restraint order passed by a competent court against remarriage.

34. Judicial separation and divorce are completely different reliefs-granted on the same grounds-as contained in Section 13 (1), and in the case of a wife, also on any of the grounds specified in sub-Section (2) of Section 13 of the Hindu Marriage Act, 1955.

35. The Supreme Court in Hirachand Srinivas Managaonkar v Sunanda (2001) 4 SCC 125 explained the concept of judicial separation as follows :

“16. In this connection another question that arises for consideration is the meaning and import of section 10(2) of the Act in which it is laid down that where a decree for judicial separation has been passed it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so. The question is whether applying this statutory provision to the case in hand can it be said that the appellant was relieved of the duty to cohabit with the respondent since the decree for judicial separation has been passed on the application filed by the latter. On a fair reading of the sub-section(2) it is clear that the provision applies to the petitioner on whose application the decree for judicial separation has been passed. Even assuming that the provision extends to both petitioner as well as the respondent it does not vest any absolute right in the petitioner or the respondent not to make any attempt for cohabitation with the other party after the decree for judicial separation has been passed. As the provision clearly provides the decree for judicial separation is not final in the sense that it is irreversible; power is vested in the Court to rescind the decree if it considers it just and reasonable to do so on an application by either party. The effect of the decree is that certain mutual rights and obligations arising from the marriage are as it were suspended and the rights and duties prescribed in the decree are substituted there for. The decree for judicial separation does not sever or dissolve the marriage tie which continues to subsist. It affords an opportunity to the spouse for reconciliation and re-adjustment. The decree may fall by a conciliation of the parties in which case the rights of respective parties which float from the marriage and were suspended are restored. Therefore, the impression that section 10(2) vests a right in the petitioner to get the decree of divorce notwithstanding the fact that he has not made any attempt for cohabitation with the respondent and has even acted in a manner to thwart any move for cohabitation does not flow from a reasonable interpretation of the statutory provisions. At the cost of repetition, it may be stated here that the object and purpose of the Act is to maintain the marital relationship between the spouses and not to encourage snapping of such relationship.” (emphasis supplied)

36. The Family Court in the impugned judgment observed:

“However, I am of the view that if the respondent comes out of pressure of her father and brother, then the parties still can live together because petitioner always wanted that respondent should come back to him and even lastly in the court on 2-4-2018 he agreed to take her from the court room itself. I still feel that good sense can prevail over the respondent in future and she can remove pressure of her brother and father from her mind and can join the company of the petitioner, at least for the welfare and sake of the child without insisting to live in a separate house after going against the wishes of her brother and father. Even if the act, conduct and behaviour of the respondent amounts to desertion and cruelty committed upon the petitioner but she was doing the same under pressure of her family members against whom she cannot revolt………

(8) ISSUE NO. 2 (RELIEF) :- In view of the above discussion, though the case is fully proved by the petitioner and the divorce grounds of cruelty and desertion are attracted but in the present facts and circumstances, while allowing this petition, I am granting the petitioner relief of judicial separation instead of divorce and giving advice to the respondent to think again independently without feeling any pressure of her family members in order to settle and reestablish her matrimonial home. ” (emphasis supplied)

37. The approach of the Family Court in ordering judicial separation, instead of Divorce is faulty, to our mind. What the Family Court failed to appreciate is that, firstly, it is for the petitioner- who approaches the Family Court, to decide whether he/she wishes to obtain the relief of divorce, or of judicial separation. It is not for the Court to decide to substitute the relief sought by the petitioner – from divorce to judicial separation, or vice versa. If the petitioner is able to establish the ground to seek one or the other of these reliefs, the Family Court cannot decide for the petitioner, that it is better for him/her, or the other/respondent spouse, to accept the relief that he/ she has not sought in his/ her petition. The two reliefs of Divorce or Judicial Separation are not-in that sense, larger or lesser reliefs, respectively. To test the approach of the Family Court, one may ask:-if the Family Court was of the view that the respondent-wife may come out of the influence of her family, could the Family Court have granted a decree of restitution of conjugal rights under Section 9 of the Hindu Marriage Act, even though the same was never prayed for by the appellant? In our view, the Family Court could not have done it, for the simple reason, that the petitioner before it had not sought that relief. The powers of the Family Court to change the nature of the relief sought is absent. The Family Court cannot be heard to tell the petitioner before it, what is “good” for him/her. It may render its advice to the parties when the matter is pending before it, but when it comes to adjudication, the Family Court is bound to bear in mind the relief sought by the petitioner. If the petitioner has established the grounds for seeking the relief as sought, he/she should be granted the same. If not, he/she should be denied the relief sought. Conversely, the Family Court cannot grant a relief, the statutory grounds for seeking which, are not established, merely because it feels that that would be “good” for the parties.

38. Now, we may look at the relief granted in the present case on the appellant’s Divorce Petition. Instead of granting a decree of Divorce-even though the ground there for was held established, the appellant was granted Judicial Separation, in the hope that the respondent will rejoin the appellant’s company. The grant of the said relief is a contradiction in itself. On the one hand, the Family Court expects the respondent to come out of the influence of her brother and father, and resume cohabitation with the appellant, but, on the other hand, fails to appreciate that the respondent cannot seek to resume cohabitation with the appellant, when the decree of Judicial Separation is operating against her, unless the appellant consents. So far as the appellant is concerned, he had expressed his intention to end the relationship, not only by filing the Divorce Petition, but also by filing the present appeal. The Family Court was swayed by the appellant’s statement that he was willing to resume cohabitation with the respondent when the matter was being heard by the Family Court. But the respondent did not respond positively, and the appellant never prayed to the Family Court to amend his prayer to seek a decree of Judicial Separation. The Family Court should have realised, that if the respondent has been unable to come out of the influence of her family members for the last 13 years, there is very little likelihood of her doing so in the near future. Moreover, the appellant could not have been asked to keep waiting, and to put his life on hold, in the hope that the respondent would change her ways – after 13 long years, and show her willingness to resume cohabitation with the appellant. The judgment of the Family Court is seemingly based more on optimism and hope, rather than the actual factual matrix of the case.

39. The judgment of Dastane (supra) relied upon by the Family Court is clearly distinguishable, as in Dastane (supra) the petition was filed seeking annulment of marriage; alternatively for divorce, or, for Judicial Separation. The annulment was sought on the ground of fraud, the divorce was sought on the ground of unsoundness of mind, and judicial separation on the basis of cruelty. On the other hand, the appellant had only sought to relief of divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955.

40. As regards the ground raised by the appellant that the Family Court has no power to modify an issue on its own, we find that the said argument is misconceived. There were two issues framed, as enumerated above. On the first issue, there is a clear finding of the respondent being guilty of cruelty. However, on the 2nd issue, i.e. the relief to be granted, the Family Court has decided to grant Judicial Separation, instead of divorce. We are of the view for the reasons stated above, and in facts of present case, the relief of Divorce could not have been denied to the appellant, once the ground of cruelty under Section 13(1) (ia) was held to have been established.

41. We must also take note of the fact that the parties have been living separately for over 12 years now, and the marriage has completely broken down.

42. The Supreme Court in Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558 has observed:

“72. Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties.

73. A law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the fault theory, guilt has to be proved; divorce courts are presented with concrete instances of human behaviour as they bring the institution of marriage into disrepute.

74. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of the fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period continuous separation, it may be fairly surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.

87. The High Court ought to have visualised that preservation of such a marriage is totally unworkable which has ceased tobe effective and would be a greater source of misery for the parties.

88. The High Court ought to have considered that a human problem can be properly resolved by adopting a human approach. In the instant case, not to grant a decree of divorce would be disastrous for the parties. Otherwise, there may be a ray of hope for the parties that after a passage of time (after obtaining a decree of divorce) the parties may psychologically and emotionally settle down and start a new chapter in life.”

43. This court has held in the judgment MAT APP (F.C) 75/2020 titled ‘Rahul Kesarwani v. Sunita Bhuyan’ that:

“24. It has also been observed by the Supreme Court and other Courts that no straitjacket formula can be applied to cases of cruelty in matrimonial dispute. In Samar Ghosh (supra) it was observed that there can be no fixed parameter in determining cruelty. In most of the cases, cruelty is inflicted by one party and felt by another in a variety of circumstances. What may constitute cruelty in one matter may not constitute cruelty in another. Each case and relationship must be viewed separately and its own totality.

25. The matrimonial disputes between a husband and a wife cannot be expected to, and are incapable of following strict parameters of evidence. In cases where there are allegations of cruelty – specially mental cruelty such as Dowry Demand, violent abusive behaviour, starving the spouse of affection, resources and emotional support, there can be no set parameters that the court can follow. Matrimonial issues are generally confined to the bedroom and the matrimonial home, away from public eye and gaze. A lot of times these cases do not have any independent or impartial witnesses. The doctrine of preponderance of probabilities has to be applied while evaluating the evidence, and the court must decide the matter based on the overall picture that emerges from the undisputed and uncontroverted facts and circumstances, and those established by documentary or other evidence.

26. In the case of Sheenu Mahendru v. Sangeeta, (2019) SCC Online Utt 376 the Court observed:

“The burden lies upon the respondent to establish the charge of cruelty. The question is as to what is the standard of proof to be applied in order to judge whether the burden has been discharged or not. The rule which governs matrimonial cases is, that a fact could be established, if it is proved by a preponderance of probabilities. Proof beyond a reasonable doubt is a proof of a higher standard, which generally governs criminal trials or trials involving inquiry into issues of a quasi- criminal nature. Such proof beyond a reasonable doubt could not be imported in matters of pure civil nature especially matrimonial matters. “

44. In the present case, the parties lived together only for 3 years, and have been living separately for more than 12 years now. The period of separation has left the relationship between the parties beyond repair. The adamance of the respondent to refuse to cohabitate with the appellant over the last 12 years shows us that there is nothing remaining in this marriage, for either party.

45. On a proper consideration of the facts and circumstances of this case, we are thus of the view that the Family Court erred in not granting the decree of divorce to the appellant and, instead, granting a decree of Judicial Separation to the appellant. We, accordingly, set aside the impugned judgement passed by the Family Court in so far as it grants a decree of Judicial Separation to the appellant-husband. Further, we find the respondent guilty of cruelty under Section 13 (1)(ia) of the Hindu Marriage Act, 1955.

46. In this view of this matter, we allow the appeal of the appellant-husband i.e. MAT. APP. (F.C.) 213/2018 and grant a decree of divorce between the appellant and the respondent. Their marriage stands dissolved forthwith. The appeal preferred by the respondent-wife i.e. MAT. APP. (F.C.) 231/2018 is dismissed.

47. As regards the alimony claim of the respondent, and maintenance for the 14-year old daughter, the respondent is free to avail of the legal remedies, and nothing said hereinabove shall be construed as an expression on the merits of such a claim. Parties are left to bear their own costs.

Posted on 4th May 2022 by rajatbindal5gmailcom — Leave a comment

Service Law – Recovery of increments after passage of ten years of retirement on the ground that the said increments were granted on account of an error – If the excess amount was not paid on account of any misrepresentation or fraud of the employee or if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order which is subsequently found to be erroneous, such excess payment of emoluments or allowances are not recoverable

SUPREME COURT OF INDIA

DIVISION BENCH

THOMAS DANIEL — Appellant

Vs.

STATE OF KERALA AND OTHERS — Respondent

( Before : S. Abdul Nazeer and Vikram Nath, JJ. )

Civil Appeal No. 7115 of 2010

Decided on : 02-05-2022

Service Law – Recovery of increments after passage of ten years of retirement on the ground that the said increments were granted on account of an error – If the excess amount was not paid on account of any misrepresentation or fraud of the employee or if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order which is subsequently found to be erroneous, such excess payment of emoluments or allowances are not recoverable – An attempt to recover the increments after passage of ten years of his retirement is unjustified.

Cases Referred

Col. B.J. Akkara (Retd.) v. Government of India and Others, (2006) 11 SCC 709
Sahib Ram v. State of Haryana [1995 Supp (1) SCC 18 : 1995 SCC (L&S) 248]
Shyam Babu Vermav. Union of India [(1994) 2 SCC 521 : 1994 SCC (L&S) 683 : (1994) 27 ATC 121]
State of Punjab and Others v. Rafiq Masih (White Washer) and Others, (2015) 4 SCC 334
Syed Abdul Qadir and Others v. State of Bihar and Others, (2009) 3 SCC 475
Union of India v. M. Bhaskar [(1996) 4 SCC 416 : 1996 SCC (L&S) 967]
V. Gangaram v. Regional Jt. Director [(1997) 6 SCC 139 : 1997 SCC (L&S) 1652]

JUDGMENT

S. Abdul Nazeer, J. – This appeal raises an issue as to whether increments granted to the appellant, while he was in service, can be recovered from him almost 10 years after his retirement on the ground that the said increments were granted on account of an error?

2. The brief facts of the case, in nutshell, are as under:

In the year 1966, the appellant herein joined services as a High School Assistant/Teacher at Craven High School, Kollam which is an aided school. During his tenure, he availed leave without allowance starting from 20.10.1972 to 31.03.1973 and again from 02.07.1973 to 28.03.1974, for pursuing post-graduation i.e., M.Sc. (Chemistry) Course. Thereafter on 1.06.1989, the appellant was promoted as Headmaster of the school and he was granted senior grade promotion and his pay scale was revised accordingly.

3. In the year 1997, a notice dated 09.10.1997 accompanied with an audit report of the respondent no. 5- Account General of Kerala was served on the appellant by the respondent no. 4- District Educational Officer, Kollam with an objection that the period of leave obtained by the appellant for undergoing higher education should not be included while determining his total qualifying service. Therefore, the pay and subsequent increments granted to the appellant should be recovered from him. Meanwhile, the appellant had retired from service on 31.03.1999 and since then he was neither paid pensionary benefits nor death-cum-retirement gratuity (D.C.R.G.). The appellant filed various representations but he received no response.

4. Ultimately on 25.05.2000, the appellant challenged the proposal to initiate recovery proceedings against him by way of filing a complaint before the Public Redressal Complaint Cell, Chief Minister of Kerala, for recovering the increments granted to the appellant during the year 1989 and 1991. The respondent herein-State of Kerala rejected the said complaint by order dated 26.06.2000 stating that post-graduation degree-M.Sc. (Chemistry) was not useful as per the Rule 91A Part I of the Kerala Service Rules in any manner to the public service, therefore, leave without allowance cannot be counted for service benefits. In the meantime, on an application filed by the appellant under Rule 116, Part III of the Kerala Service Rules, the respondent no. 3-Deputy Director Education, Kollam on 6.10.2000 sanctioned the release of 90% of the D.C.R.G. amount after withholding 10% of the said amount and subsequently on 15.01.2001 the amount was released to the appellant.

5. Being aggrieved, the appellant filed a writ petition before the High Court. During the pendency of the writ petition, the remaining amount of D.C.R.G was also released to the appellant. However, the respondent- State of Kerala in their counter affidavit took a stand that the period during which the appellant was on leave without allowance for undertaking post-graduation cannot be counted for the purpose of grant of increments and, therefore, the demand for recovery made by them was justified. The learned Single Judge vide order dated 05.01.2006 upheld the reasoning given by the State of Kerala and dismissed the writ petition holding that the mistake committed by the department concerned while granting the service benefits can be rectified subsequently by way of proposed recovery to be effected from appellant’s D.C.R.G. amount. There against, the appellant filed a writ appeal before the High Court. The Division Bench of the High Court vide impugned order dated 02.03.2009 dismissed the appeal, affirming the order of the learned Single Judge.

6. Learned counsel for the appellant would contend that the excess payment made to the appellant was not on account of any misrepresentation or fraud on his part. The excess payment was made due to a mistake in interpreting the Kerala Service Rules. It is further submitted that the appellant has retired on 31.03.1999.

The appellant had to undergo a bypass surgery and he is in huge debts. After repeated request, D.C.R.G. benefit was released in his favour. He prays for setting aside the impugned judgment and also the order dated 26.06.2000 passed by the Public Redressal Complaint Cell, Chief Minister of Kerala.

7. On the other hand, learned counsel appearing for the respondents-State of Kerala has supported the impugned judgment of the High Court.

8 We have carefully considered the submission made at the Bar by learned counsel for the parties and perused the materials placed on the record.

9. This Court in a catena of decisions has consistently held that if the excess amount was not paid on account of any misrepresentation or fraud of the employee or if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order which is subsequently found to be erroneous, such excess payment of emoluments or allowances are not recoverable. This relief against the recovery is granted not because of any right of the employees but in equity, exercising judicial discretion to provide relief to the employees from the hardship that will be caused if the recovery is ordered. This Court has further held that if in a given case, it is proved that an employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, the courts may on the facts and circumstances of any particular case order for recovery of amount paid in excess.

10. In Sahib Ram v. State of Haryana and Others, 1995 Supp (1) SCC 18 this Court restrained recovery of payment which was given under the upgraded pay scale on account of wrong construction of relevant order by the authority concerned, without any misrepresentation on part of the employees. It was held thus :

“5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation, the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs.”

11. In Col. B.J. Akkara (Retd.) v. Government of India and Others, (2006) 11 SCC 709 this Court considered an identical question as under:

“27. The last question to be considered is whether relief should be granted against the recovery of the excess payments made on account of the wrong interpretation/understanding of the circular dated 7-6-1999. This Court has consistently granted relief against recovery of excess wrong payment of emoluments/allowances from an employee, if the following conditions are fulfilled (vide Sahib Ram v. State of Haryana [1995 Supp (1) SCC 18 : 1995 SCC (L&S) 248], Shyam Babu Vermav. Union of India [(1994) 2 SCC 521 : 1994 SCC (L&S) 683 : (1994) 27 ATC 121] , Union of India v. M. Bhaskar [(1996) 4 SCC 416 : 1996 SCC (L&S) 967] and V. Gangaram v. Regional Jt. Director [(1997) 6 SCC 139 : 1997 SCC (L&S) 1652]):

(a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee.

(b) Such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.

28. Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery.

29. On the same principle, pensioners can also seek a direction that wrong payments should not be recovered, as pensioners are in a more disadvantageous position when compared to in-service employees. Any attempt to recover excess wrong payment would cause undue hardship to them. The petitioners are not guilty of any misrepresentation or fraud in regard to the excess payment. NPA was added to minimum pay, for purposes of stepping up, due to a wrong understanding by the implementing departments. We are therefore of the view that the respondents shall not recover any excess payments made towards pension in pursuance of the circular dated 7-6-1999 till the issue of the clarificatory circular dated 11-9-2001. Insofar as any excess payment made after the circular dated 11-9-2001, obviously the Union of India will be entitled to recover the excess as the validity of the said circular has been upheld and as pensioners have been put on notice in regard to the wrong calculations earlier made.”

12. In Syed Abdul Qadir and Others v. State of Bihar and Others, (2009) 3 SCC 475 excess payment was sought to be recovered which was made to the appellants-teachers on account of mistake and wrong interpretation of prevailing Bihar Nationalised Secondary School (Service Conditions) Rules, 1983. The appellants therein contended that even if it were to be held that the appellants were not entitled to the benefit of additional increment on promotion, the excess amount should not be recovered from them, it having been paid without any misrepresentation or fraud on their part. The Court held that the appellants cannot be held responsible in such a situation and recovery of the excess payment should not be ordered, especially when the employee has subsequently retired. The court observed that in general parlance, recovery is prohibited by courts where there exists no misrepresentation or fraud on the part of the employee and when the excess payment has been made by applying a wrong interpretation/ understanding of a Rule or Order. It was held thus:

“59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter-affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made.”

13. In State of Punjab and Others v. Rafiq Masih (White Washer) and Others, (2015) 4 SCC 334 wherein this court examined the validity of an order passed by the State to recover the monetary gains wrongly extended to the beneficiary employees in excess of their entitlements without any fault or misrepresentation at the behest of the recipient. This Court considered situations of hardship caused to an employee, if recovery is directed to reimburse the employer and disallowed the same, exempting the beneficiary employees from such recovery. It was held thus:

“8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the Preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the employee concerned. If the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee’s right would outbalance, and therefore eclipse, the right of the employer to recover.

xxx xxx xxx

18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).

(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

(v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer’s right to recover.”

14. Coming to the facts of the present case, it is not contended before us that on account of the misrepresentation or fraud played by the appellant, the excess amounts have been paid. The appellant has retired on 31.03.1999. In fact, the case of the respondents is that excess payment was made due to a mistake in interpreting Kerala Service Rules which was subsequently pointed out by the Accountant General.

15. Having regard to the above, we are of the view that an attempt to recover the said increments after passage of ten years of his retirement is unjustified.

16. In the result, the appeal succeeds and is accordingly allowed. The Judgment and order of the Division Bench dated 02.03.2009 and also of the learned Single Judge of the High Court dated 05.01.2006 impugned herein, and the order dated 26.06.2000 passed by the Public Redressal Complaint Cell of the Chief Minister of Kerala and the recovery Notice dated 09.10.1997 are hereby set aside. There shall be no order as to costs.

Posted on 27th April 2022 by rajatbindal5gmailcom — Leave a comment

Teacher is entitled to get the benefits of enhanced age of superannuation of 65 years at par with his counterpart teachers serving in Government Colleges and Universities

SUPREME COURT OF INDIA

DIVISION BENCH

DR. JACOB THUDIPARA — Appellant

Vs.

THE STATE OF MADHYA PRADESH AND OTHERS — Respondent

( Before : M. R. Shah and B.V. Nagarathna, JJ. )

Civil Appeal No. 2974 of 2022

Decided on : 21-04-2022

Service Law – Teacher is entitled to get the benefits of enhanced age of superannuation of 65 years at par with his counterpart teachers serving in Government Colleges and Universities – Teacher shall be entitled to all consequential and monetary benefits including the arrears of salaries and allowances for the intervening period, as if he would have been retired at the age of 65 years.

Counsel for Appearing Parties

Mr. L.C. Patne, Advocate, Mr. Raghav Pandey, Advocate and Mrs. Rekha Pandey, Advocate, for the Appellant; Mrs. Mrinal Elker Mazumdar, Advocate and Ms. Priyanka Das, Advocate, for the Respondent.

Cases Referred

Dr. R.S. Sohane vs. State of M.P. & others, (2019) 16 SCC 796

JUDGMENT

M. R. Shah, J. – Feeling aggrieved and dissatisfied with the impugned judgment and order dated 09.05.2017 passed by the Division Bench of the High Court of Madhya Pradesh, Principal Seat at Jabalpur in Writ Appeal No. 667/2016, by which the High Court has dismissed the said appeal, original writ petitioner – appellant herein has preferred the present appeal.

2. The appellant herein was serving as a teacher. The dispute arose with respect to the age of superannuation/retirement, namely, whether, the appellant-teacher is entitled to get the benefits of enhanced age of superannuating of 65 years at par with his counterpart teachers serving in Government Colleges and Universities.

2.1 The appellant was serving in 100% government aided private educational institution. At the relevant time, the Full Bench of the High Court of Madhya Pradesh in the case of Dr. S.C. Jain Vs. State of Madhya Pradesh and others (W.A. No. 950/2015) took the view that the teachers serving in the aided private educational institutions are not entitled to get the benefit of enhanced age of superannuation of 65 years. The appellant and others filed Writ Appeals before the High Court which came to be dismissed, relying upon the case of Dr. S.C. Jain (supra). However, subsequently the decision of the Full Bench of the High Court in the case of Dr. S.C. Jain (supra) has been set aside by this Court vide judgment and order dated 07.05.2019 in C.A. No. 4675-4676 of 2019 in the case of Dr. R.S. Sohane vs. State of M.P. & others, (2019) 16 SCC 796, and it is held that the teachers like the appellant are entitled to get the benefit of enhanced age of superannuation of 65 years. The parties to the aforesaid appeals filed M.A. Nos. 1838-1839 of 2019 with I.A. No. 119950 of 2019 before this Court claiming the payment of outstanding salaries for the intervening period. This Court disposed of the aforesaid interlocutory application and clarified that they can approach the High Court for redressal of their grievances with regard to the payment of outstanding salaries of intervening period. As observed hereinabove, the appeal preferred by the appellant before the High Court has been dismissed by the Division Bench of the High Court relying upon the decision of Full Court in the case of Dr. S.C. Jain (supra), which has subsequently been set aside by this Court. Therefore, it is the case on behalf of the appellant that he shall be entitled to continue up to enhanced age of superannuation i.e., 65 years and shall be entitled to all the monetary benefits as if, he would have been continued up to the age of 65 years.

2.2 Learned counsel appearing on behalf of the appellant has heavily relied upon the subsequent decision of the Division Bench of the High Court dated 29.11.2019 passed in Writ Appeal No. 1857/2019 filed by a similarly situated teacher of a government aided private college by which the Division Bench of the High Court has condoned 1227 days of delay in filing intra-court appeal and has held him entitled for superannuation with all consequential and monetary benefits including arrears of salaries and allowances of the intervening period, by following the law laid down by this Court in the case of Dr. R.S. Sohane (supra).

2.3 Learned counsel appearing on behalf of the appellant has also relied upon the common judgment and order dated 07.09.2021 passed by the Division Bench of the High Court in Writ Appeal No. 378/2018 and other allied appeals, by which, after the review applications were allowed, the aforesaid writ appeals were restored to the file and the Division Bench of the High Court has directed the State to pay all the consequential and monetary benefits to all similarly situated teachers and assistant professors for the intervening period between 62 years and 65 years of age. It is submitted that all similarly situated teachers are therefore, paid all consequential and monetary benefits for the period between 62 years and 65 years of age, as if they would have been continued up to 65 years of age.

3. Mrs. Mrinal Gopal Elker, learned counsel appearing on behalf of the respondent- State, as such, is not in a position to dispute the aforesaid factual aspects. However, she has tried to distinguish the facts by submitting that when this Court passed an order earlier to pay the salaries to them after they had completed the age of 62 years, all of them were directed to be taken on duty by way of an interim order and actually they worked up to the age of 65 years. In the present case, the appellant did not work and therefore on the principle of ‘no work no pay’, he is not entitled to any monetary benefits for the intervening period, between 62 years and 65 years of age.

4. Having heard learned counsel appearing on behalf of the respective parties and considering the various orders passed by the High Court, by which in similar facts and situation and not accepting the submission on behalf of the State that on the principle of ‘no work no pay’ the teachers are not entitled to any monetary benefits for the intervening period between 62 years and 65 years of age, we are of the opinion that appellant shall be entitled to all consequential and monetary benefits including the arrears of salaries and allowances for the intervening period, as if he would have been retired at the age of 65 years. The appellant being similarly situated teacher cannot be singled out. Even in the case of Writ Appeal No. 378/2018 and other allied writ appeals, it was submitted by the State that on the principle of ‘no work no pay’ such teachers are not entitled to any monetary benefits. However, the High Court vide detailed judgment and order has negated such a plea and defence and has observed that as the teachers were prevented from serving up to the age of 65 years though they were entitled to, as held by this Court in the case of Dr. R.S. Sohane (supra), they cannot be denied the monetary benefits for the intervening period. It is reported that the said judgment and order passed by the Division Bench of the High Court has been implemented by the State after the Special Leave Petition against the said judgment and order has been dismissed by this Court.

5. In view of the above discussion and for the reasons stated above, the present appeal succeeds. The impugned judgment and order passed by the Division Bench of the High Court in W.A. No. 667/2016 is hereby quashed and set aside, which was passed relying upon the decision of Full Bench of High Court in W.A. No. 950/2015, which has been subsequently set aside by this Court in the case of Dr. R.S. Sohane (supra). It is held that the appellant herein is entitled to the benefit of enhanced age of superannuation i.e., 65 years. He shall be entitled to all the consequential and monetary benefits including arrears of salaries and etc., as if, he would have been continued up to the age of 65 years. The arrears etc., shall be paid to the appellant within a period of six weeks’ from today. However, considering the fact that there was a huge delay in preferring the appeal, which has been condoned by this Court, the appellant shall not be entitled to any interest on the arrears for the period between 09.05.2017 till the filing of the present appeal.

6. The present appeal is accordingly allowed. In the facts and circumstances of the case, there shall be no order as to costs.

Posted on 26th April 2022 by rajatbindal5gmailcom — Leave a comment

A medical practitioner is not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another

SUPREME COURT OF INDIA

DIVISION BENCH

DR. (MRS.) CHANDA RANI AKHOURI AND OTHERS — Appellant

Vs.

DR. M.A. METHUSETHUPATHI AND OTHERS — Respondent

( Before : Ajay Rastogi and Abhay S. Oka, JJ. )

Civil Appeal No(s). 6507 of 2009

Decided on : 20-04-2022

Medical Negligence – Merely because doctors could not save the patient, that could not be considered to be a case of post operative medical negligence – A medical practitioner is not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another – In the practice of medicine, there could be varying approaches of treatment – There could be a genuine difference of opinion – However, while adopting a course of treatment, the duty cast upon the medical practitioner is that he must ensure that the medical protocol being followed by him is to the best of his skill and with competence at his command. At the given time, medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field – Commission has not committed any manifest error in arriving to a conclusion that in post operative medical negligence or follow up care, there was no negligence being committed by the respondents which may be a foundation for entertaining the complaint filed by the appellants – Judgment of the Commission does not call for any interference by this Court.

Counsel for Appearing Parties

Mr. M.S. Ganesh, Sr.Advocate, K.Seshachary, Advocate, Mr. Siddharth Vasudev, Advocate, Ms. Gayatri Gulati, Advocate, Mr. T. V. S. Raghavendra Sreyas, Advocate, for the Appellant; Ms. Nalini Chidambaram, Sr. Advocate, Mr. A. Nair, Advocate, Mr. Vikas Mehta, Advocate, Mr. Vipin Nair, Advocate, Mr. P. B. Suresh, Advocate, Mr. Arindam Ghosh, Advocate, Mr. Anshuman Bahadur, Advocate, Mr. Karthik Jayashankar, Advocate, Mr. Prakash Baghel, Advocate, Mr. K. K. Mani, Advocate, Ms. T.Archana, Advocate, for the Respondent.

Cases Referred

Dr. Harish Kumar Khurana v. Joginder Singh and Others, (2021) 10 SCC 291
Jacob Mathew v. State of Punjab and Another, (2005) 6 SCC 1
Kusum Sharma and Others v. Batra Hospital and Medical Research Centre and Others, (2010) 3 SCC 480

JUDGMENT

Rastogi, J. – The sad demise of husband of appellant no.l after his long illness on 3^rd February, 1996 has resulted in initiation of the legal proceedings at the instance of appellant no. 1 along with her children on a bona fide belief that the cause of death of her late husband was post operative medical negligence and follow-up care.

2. The National Consumer Disputes Redressal Commission (hereinafter “the Commission”), after appreciating the material on record, including the evidence led by the parties, arrived to a conclusion that it was not a case of post operative medical negligence as being alleged by the appellants and dismissed the complaint by the judgment impugned dated 21^st July, 2009 which is the subject matter of appeal filed at the instance of the appellants under Section 23 of the Consumer Protection Act, 1986.

3. In order to appreciate the issue involved in the instant appeal, it may be necessary to cull out the facts relevant for the purpose. Complainant no.l, the widow and complainant nos. 2 and 3, the minor children of deceased Naveen Kant, jointly filed a complaint, inter alia, alleging that in the first instance in April, 1990, Naveen Kant developed hypertension and was under the treatment of Dr. P.D. Gulati, Nephrologist, but when no positive changes had come forward, Dr. Gulati advised him for renal transplantation and since then, Naveen Kant was under regular dialysis at the hospital in Delhi under the supervision of Dr. Gulati. When some of his well-wishers informed him about a reputed Nephrologist, Dr. M.A. Muthusethupathi, OP No.l who is performing kidney transplant surgery at Madras and after going through the entire medical record and seeking opinion of OP No.l and after completion of all legal formalities as being contemplated under the provisions of the Transplantation of Human Organs and Tissues Act, 1994 (hereinafter “the Act 1994”) and taking into consideration the fact that dialysis twice a week may not have been possible for longevity and for better life span of the patient Naveen Kant, the family took a decision to undergo for kidney transplantation and on the advice of OP No. 1, the patient Naveen Kant was admitted to OP No.6 (Aswini Soundra Nursing Home), which is registered under the Act 1994 and a kidney transplant surgery was successfully performed on 12^th November, 1995 by a team of 12 experts headed by OP Nos. 1, 2 and 5, who are admittedly well qualified and experts with wide knowledge and experience in their respective fields and after the medical condition of Naveen Kant was reviewed by OP No. 1, he was discharged from OP No.6 hospital on 24^th November, 1995. It may be relevant to note that the doctors who had conducted kidney transplant of the patient have conducted more than 900-1000 renal transplants with good results, but there are cases where patient died even after successful kidney transplant for various reasons which cannot be even under the control of the doctors.

4. It reveals from the record that despite all post operative medical treatment and follow up care of the patient under the supervision of medical experts, still the destiny could not save him and he finally died on 3^rd February, 1996.

5. The complaint of the appellants was that while Naveen Kant was discharged from OP No.6 hospital on 24^th November, 1995, he was asked to attend as an outdoor patient for dressing of the wound at the place of incision, but his complaint throughout was that while he was in ICU, he had a pain in his left forearm where intravenous drugs were injected and at the given time, he was assured that the pain would subside in due course of time and as and when OP No. 1 came for review, it was the consistent complaint of Naveen Kant of pain in the left forearm since he was operated and the day he was discharged on 24^th November, 1995 and within a short period of 7 days on 30^thNovember, 1995, OP No.l noticed the onset of cellulitis in Naveen Kant’s left forearm and there was a recurrence of abscess at other points, but still the doctors did not take it seriously and conducted investigations into the cause of pain and later on 16^th December, 1995, Naveen Kant developed severe headache coupled with loss of proper vision in the right eye and also started vomiting. OP No.l pointed out these problems to the doctor dialysis in-charge of OP No.6 hospital, who used to administer necessary I.V. injections and do the dressing.

6. However, on 21^st December, 1995, on the advice of OP No.l, Naveen Kant was again admitted to OP No.4 hospital and he was administered anti convulsion injection. Although attended by OP Nos.l, 3 and 5, headache, fever and pus in his left forearm still persisted. OP No.5 made a long incision in the left forearm to drain off the pus, but because OP No.l was unavailable on 30^th December, 1995, OP No.2 was called upon to take care of the patient.

7. Later, more complications crept in and because of complications, there developed abscess in pancreas and liver and the X-ray showed some abnormal developments in the lung and that later converted into Septicemia. Ultimately, the required potency of antibiotics administered or the quality of these antibiotics also failed to respond. He was later moved to ICU on instructions of OP No.3 and in the morning of 31^st January, 1996, OP No.l also visited Naveen Kant, who was at that time in unconscious stage, even after that, his condition continuously deteriorated and the fact is that no one attended to the complaint made by Naveen Kant and finally he could not be saved and left for heavenly abode on 3^rd February, 1996. This, according to the appellants was the cause of post-operative negligence and follow up care on the part of the doctors and the nursing staff of the hospital who had not provided proper medical care to Naveen Kant and attributed negligence on the part of the treating doctors and the hospital and claimed special damages/ general damages for a total sum of Rs. 95,16,174.33/-.

8. The respondents contested the complaint by filing reply affidavits, wherein it was stated that respondent No.l who was a treating doctor(OP No.l) is a Senior Nephrologist who did M.D. (General Medicines) at Stanley Medical College in 1968 and after doing his D.M. in 1977 from PGI Chandigarh, he exclusively worked and performed kidney transplantation in Government hospitals and also disclosed his professional skill which he has developed, particularly in the field of kidney transplantation and so also, the other doctors, OP No.2 Dr. S. Shivakumar and OP No.5 Dr. P.S. Venkateswaran were also the expert doctors in performing kidney transplantation and have a rich professional experience and as regards OP No.6 hospital, where kidney transplantation was performed, it was duly registered hospital under the Act, 1994 and is a fully equipped hospital for transplantation and patient Naveen Kant after successful surgery of the kidney transplantation and after 12 days in ICU with all medical protocols followed and taking into consideration his overall health, discharged on 24^th November, 1995.

9. It is further stated that the hospital records for the period 10^thNovember to 24^th November, 1995, the sequence of events relating to the immediate post Transplantation Surgery period revealed that the surgery was successfully performed on 12^th November, 1995 and later on 13^th November, 1995, the patient developed low grade fever for a few hours in the morning and there was no other evidence of any bacterial infection and Injection Reflin was administered to him and after all tests were undertaken on 14^th November, 1995, and taking into consideration the positive response of the patient, he was discharged on 24^th November, 1995 and till the date of discharge, the patient was subjected to periodical and routine visits by the Specialist Surgeons, Nephrologists and was under a constant medical observation. The medical observation of the patient as seen from the case sheet is extracted hereunder:

“Afebre – No Fever.

Lungs clear

CVS SI S2 – Normal Sound (Cardio Vascular System)

Abdomen – Soft-Mild distention.

NAD – Nothing abnormal detected.

No Oedema – No swelling throughout the body.”

10. On 17^th November 1995, the Urinary catherer tip grew klebsiella on culture for which Ciprofloracin was started. On 24^th November, 1995, the patient was discharged after remaining under post operative care for 12 days. Although complaints are made by the patient of its own kind, but he was always attended and taken care of and when the patient was called upon to continue to attend as an outdoor patient, all medical assistance possible at the command of the respondents was extended to him. It is unfortunate that the patient could not be saved despite the best medical assistance being extended to him by the experts of the field.

11. On behalf of the complainant, evidence was led by Mrs. Vimla Akhori, relative of appellant no.l, Dr.(Mrs.) Minii Rani Datta, sister of appellant no. 1, Col. Dr. Ashok Chopra, MBBS General Surgery and Dr.(Mrs.) Sophia Ahmed, as medical experts who are undisputedly not the Nephrologists. So far as the first two witnesses (relatives of appellant no. 1) are concerned, they have just narrated the statement of fact which was narrated to them by the appellants being their relative and both the witnesses Dr. Ashok Chopra and Dr. Sophia Ahmed was neither expert of kidney transplantation nor a qualified Nephrologist.

12. So far as the so-called expert evidence adduced by the appellants before the Commission is concerned, Dr. Ashok Chopra, who was a Consultant Surgeon in the BSES Global Hospital at Andheri (West), Mumbai, admittedly passed out his MBBS examination in the year 1974 and only performed general surgery during his tenure in the Army and later left the Army and served as Surgeon in Bareilly and later became a Surgeon in BSES Hospital, Andheri (West), Mumbai, although stated in his affidavit obviously based on the case sheet of the patient that the respondents have not taken post operative care of the patient and have failed to control and treat infection that has manifested itself in the form of persistent pain in the left forearm of the patient at the place where a needle had been inserted for injection of drugs in the OCU of OP No. 6. Timely and adequate medical intervention was absent in post operative medical treatment to the patient and also opinion was expressed by him regarding the drugs administered to the patient and also stated about the time the patient was discharged after 12 days of his surgery and rehospitalization of the patient in OP No.4 hospital on 21^st December, 1995 which was not a registered hospital under the Act, 1994 and the patient should have been admitted in OP No. 6 hospital which was registered where the kidney transplantation was performed and on this account, OP No.l has failed to perform his duty towards the patient by allowing him to be lodged in an unregistered hospital i.e. OP No.4. Although it has been admitted by him that the operation was successful, but because of the lackadaisical attitude and post operative care not being properly administered to the patient, it created abscess and went into septicemia, which could easily have been retrieved out of the dangerous infection leading to multi organ failure and in this way has expressed his opinion that there was a post operative negligence on the part of the respondents.

13. The second expert witness appeared on behalf of the appellants was Dr. Sophia Ahmed. She took MBBS from Patna Medical College and later did internship in Internal Medicines at Queens Hospital, Central New York and remained as a resident in Neurology at University Hospitals and Clinics at USA for almost three years and has a Fellowship in Clinical Neurophysiology and Epilepsy. With no expert knowledge of the subject based on the medical reports made a statement of a medical negligence being performed by the respondents and expressed her opinion that in the post transplant phase, patient manifested clear symptoms of infection while in the ICU and the patient was not recovered adequately for nosocomial infection and his manifest problems and indicators were not addressed by the attending doctors with seriousness and urgency and at critical junctures, the retained nephrologist displayed complete lack of professional concern for the patient and this according to her was a post operative medical negligence being committed by the respondents and only because of their lackadaisical attitude, they lost their patient.

14. On the other hand, the respondents who indeed were themselves qualified Nephrologists and experts in the field of kidney transplant operations and this fact is not disputed by the appellants as well in support thereof have produced two expert witnesses, Dr. S. Sundar and Dr. Arun Kumar, who are qualified Nephrologists.

15. Dr. S. Sundar, Director and Chief Nephrologist of Karnataka Nephrology and Transplant Institute, Bangalore stated that out of his long experience in having performed more than thousand kidney transplantation surgeries in the past 22 years and based on the evidence of literature relating to kidney transplantation, increase in total count (leucocytes) is a common phenomenon in most of the renal transplant recipients, who have been administrated Corticosteroids. Sometimes, rise in total counts does not per se mean infection but there is no reason to conclude that the patient ought not to have been discharged after 12^th day of surgery. It is also stated that leucocyte count will not rise in the post transplant period in absence of any infection that only proves lack of experience and medical knowledge of renal transplant. The witness has further stated that on 30^th November 1995, when the patient was diagnosed cellulitis/abscess, injection Reflin was administered by OP No.l which was the best medicine for cellulitis and it is a common practice to use this drug in such a situation. It was further stated by him that medical science is not an exact science like mathematics and in medical science experience of doctor treating the patient is important. It has been further averred by him that most transplant patients having fever are treated with drugs like Amikacin and Ciprofloxacin to cover a broader spectrum of organisms in the absence of definitive evidence of organism causing fever. It has been further stated by him that in the field of kidney transplantation and Nephrology, it is very difficult to diagnose and manage any infection in a Kidney Transplant patient and the reasons are many. These are:

(a) Cultures of body fluids (blood, urine, pus, etc.) are often negative.

(b) Even if an organism is isolated, it is not always possible to be certain that the particular organism is the actual cause of fever.

(c) Many of the antibiotics have deleterious effects on the transplanted kidney, thereby necessitating great care in drug selection and dosage.

(d) Un-related donor transplantation need more immune-suppression for the kidney to survive and therefore is more prone to infection.

16. Dr. Arun Kumar, who was also produced on behalf of the respondents, was also a Professor of Surgery, Head of the Department of Surgery, Coimbatore Medical College, Tamil Nadu also stated in his affidavit that he has been a kidney transplant surgeon since 1986 and has performed over 1140 renal transplantations. In clinical practice, positive findings, if any, are always noted in the case records and after going through the record history of the patient, it was stated by him that he did not find any evidence of infection at the time of discharge of the patient from OP No. 6.

17. The Commission, after taking into consideration the pleadings so also the evidence on record arrived to a conclusion that the patient Naveen Kant was under the hands of the expert team of doctors and possible medical care at the command of the doctors was fully administered to him and after being discharged from the hospital on 24^th November, 1995, still thereafter he was continued to be under treatment and merely because the expert team of doctors could not save him after his prolonged illness and he died on 3^rd February, 1996 that in itself could not be considered to be a case of post operative medical negligence and in consequence thereto dismissed the complaint filed at the instance of the appellants under judgment impugned dated 21^st July, 2009.

18. It is not disputed by counsel for the appellants that the kidney transplantation of the patient on 12^th November, 1995 was successful and they had complained but the complaint is only in reference to post operational medical negligence as the respondents have failed to discharge their statutory duty of care and medical protocols subsumed thereunder, including follow up care and that according to the appellants is a medical negligence on the part of the respondents in extending treatment to the patient Naveen Kant and being the case of post operative negligence, they have lost their patient on 3^rd February, 1996.

19. Counsel for the appellants further submitted that the patient was consistently complaining after he being successfully operated on 12^th November, 1995 and shifted to the ICU for pain in the left forearm where intravenous drugs were injected to him and when the patient was attended by OP No. l for review, he reiterated his complaint of pain in the left forearm and still he was discharged from the hospital on 24^th November, 1995. Later, the patient noticed the onset of cellulitis and recurrence of abscess being at other points, still the doctors have not taken his complaint seriously and conducted investigations into the cause of pain and later he developed severe headache, coupled with loss of proper vision in the right eye and started vomiting. These facts can be supported by the prescription chart of the patient and that was the reason for which the patient was again admitted in the hospital of OP No. 4 on 21^stDecember, 1995 and fever and pus in his left forearm still persisted. At that stage, OP No. 5 made a long incision in the left forearm to drain out the pus, but since OP No. 1 was not available, his condition deteriorated and finally left for heavenly abode on 3^rd February, 1996 and this fact has been established from the evidence placed on record of the complainant and other witnesses including the two doctors, who as an expert appeared and recorded a deposition in support of kind of post operative medical negligence committed by the respondents. The Commission, according to the counsel, although noticed these facts but has not at all appreciated the evidence on record and thus, after reproduction of the facts adduced by the parties, dismissed the complaint in a cavalier manner under the impugned judgment dated 21^st July, 2009, which needs to be revisited by this Court at least to examine as to whether it was a case of post operative medical negligence, the reason for which appellant no. 1 has lost her husband.

20. Per contra, counsel for the respondents, while supporting the findings recorded by the Commission under the impugned judgment, submits that it is not the case of the appellants that there was any slackness on the part of the team of the doctors while the patient was being operated/underwent kidney transplant on 12^th November, 1995 which was admittedly successfully performed by the qualified team of doctors headed by OP No. l and OP No. 5 and thereafter the patient was shifted to ICU for post operative treatment and even thereafter he was completely under medical supervision and got discharged on 24^th November, 1995 with further instructions that he should remain as an outdoor patient until the doctors advise him to leave the city and the reason was that as an outdoor patient, dressing of wounds at the place of incision is always to be taken proper care.

So far as the complaint of pain in the left forearm is concerned, these are some complaints which the patients normally make but it is always taken care of and the time heals complaints of the patient, but still all medical assistance which was possible under the command of the qualified doctors was extended to him. It is true that unfortunately, appellant no. l has lost her husband but this all is destiny.

21. The doctors can provide their best medical assistance available at their command but merely because they could not save the patient, that could not be considered to be a case of post operative medical negligence despite the fact that medical protocol administered by them was duly supported by the two medical experts of the field who appeared on behalf of the respondents, Dr. S. Sundar and Dr. Arun Kumar, and nothing elicits from the cross-examination made by the appellants. In the given circumstances, the findings which has been returned by the Commission needs no further interference by this Court.

22. We have heard learned counsel for both the parties and with their assistance perused the material placed on record. In order to appreciate the opinion of the Commission, it will be apposite to take note of the legal principles which would apply in the case of medical negligence.

23. In the case of medical negligence, this Court in Jacob Mathew v. State of Punjab and Another, (2005) 6 SCC 1 dealt with the law of medical negligence in respect of professionals professing some special skills. Thus, any individual approaching such a skilled person would have a reasonable expectation under the duty of care and caution but there could be no assurance of the result. No doctor would assure a full recovery in every case. At the relevant time, only assurance given by implication is that he possessed the requisite skills in the branch of the profession and while undertaking the performance of his task, he would exercise his skills to the best of his ability and with reasonable competence. Thus, the liability would only come if (a) either a person (doctor) did not possess the requisite skills which he professed to have possessed; or (b) he did not exercise with reasonable competence in given case the skill which he did possess. It was held to be necessary for every professional to possess the highest level of expertise in that branch in which he practices. It was held that simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of the medical professional. This Court held as under:

“48. We sum up our conclusions as under:

(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: “duty”, “breach” and “resulting damage”.

(2) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.

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(4) The test for determining medical negligence as laid down in Bolam case [(1957) 2 All ER 118 (QBD), WLR at p. 586] holds good in its applicability in India,

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(8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law, specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.”

24. The term “negligence” has been defined in Halsbury Laws of England (Fourth Edition) para 34 and as settled in Kusum Sharma and Others v. Batra Hospital and Medical Research Centre and Others, (2010) 3 SCC 480 as under:

“45. According to Halsbury’s Laws of England, 4th Edn., Vol. 26 pp. 17-18, the definition of negligence is as under:

“22. Negligence.-Duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient.”

25. In para 89 of the judgment in Kusum Sharma (supra), the tests of medical negligence while deciding whether the medical professional is guilty of medical negligence, varied tested principles have to be kept in view, this Court held as under:

“89. On scrutiny of the leading cases of medical negligence both in our country and other countries specially the United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well-known principles must be kept in view:

I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.

II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.

III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.

IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.

VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.

VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.

VIII. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck.

IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension.

X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurising the medical professionals/hospitals, particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.

XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.”

26. In a recent judgment in Dr. Harish Kumar Khurana v. Joginder Singh and Others, (2021) 10 SCC 291, this Court held that the hospital and doctors are required to exercise sufficient care in treating the patients in all circumstances. However, in an unfortunate case death may occur. It will be necessary that sufficient material on medical evidence should be available before the adjudicating authority to arrive at a conclusion that the death is due to medical negligence. Even death of a patient cannot, on the face of it, be considered to be medical negligence.

27. It clearly emerges from the exposition of law that a medical practitioner is not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. In the practice of medicine, there could be varying approaches of treatment. There could be a genuine difference of opinion. However, while adopting a course of treatment, the duty cast upon the medical practitioner is that he must ensure that the medical protocol being followed by him is to the best of his skill and with competence at his command. At the given time, medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

28. The term “negligence” has no defined boundaries and if any medical negligence is there, whether it is pre or post-operative medical care or in the follow-up care, at any point of time by the treating doctors or anyone else, it is always open to be considered by the Courts/Commission taking note of the exposition of law laid down by this Court of which a detailed reference has been made and each case has to be examined on its own merits in accordance with law.

29. Adverting to the facts of the instant case, the treating doctors, OP Nos. 1, 2 and 5 all are academically sound and experts in the field of kidney transplantation. Respondent nos. l, 2 and 5 had disclosed their qualifications of which a detailed discussion is not required and their medical expertise in the field of nephrology and surgery in kidney transplantation has not been doubted by the appellants. It is also not the case of the appellants that the patient was not medically treated by the well-qualified doctors at the time when kidney transplant surgery was undertaken on 12^th November, 1995 by the team of doctors including OP Nos. l, 2 and 5 in the OP No. 6 hospital which is a registered hospital under the Act 1994.

30. Complaints have been made with regard to the post-operative assistance / follow up care, but from the deposition of two witnesses which has come on record, there was a complaint made by the patient of pain in his left forearm while he was being discharged on 24^thNovember, 1995 after remaining in ICU for 12 days, but he was called upon to continue as outdoor patient and on all the later occasions, even as per the case sheet of the patient, doctors have treated the patient to the best of their medical knowledge and administered the best medical care which was possible. Although the complaint of the patient which remained persistent could not be ruled out despite medically approved drugs being administered to him and if the patient could not be finally saved, that in itself could not be considered to be a case of post operative medical negligence, as is being tried to be projected by the appellants on the basis of the material placed on record.

31. The doctors are expected to take reasonable care, but no professional can assure that the patient will come back home after overcoming the crisis. At the same time, no evidence has come on record at the behest of the appellants which, in any manner, could demonstrate that it was a case of post-operative medical negligence or follow up care on the part of treating doctors and both the doctors who have recorded their statements on behalf of the appellants, Dr. Ashok Chopra and Dr. Sophia Ahmed, are not expert doctors in the field of kidney transplantation. Merely because they are doctors by profession, what is being expressed by both of them in the affidavits filed before the Commission would not be considered to be an opinion of experts.

32. On the contrary, the two experts who have deposed on behalf of the respondents, Dr. S. Sundar and Dr. Arun Kumar are admittedly experts of the field. At the same time, the respondents – OP Nos. l, 2 and 5 are indeed expert doctors and qualified Nephrologists and this fact has been admitted by the appellants that the patient was under treatment of the best medical professionals and qualified Nephrologists, but those treating doctors could not save the patient Naveen Kant, that in itself could not be considered to be a case of post operative medical negligence which was the main grievance of the appellants before the Commission.

33. After going through the findings which have been returned by the Commission in the order impugned, we see no reason to differ with the view expressed by the Commission keeping in mind the tests enunciated above. Taking note of the fact that treating doctors, OP Nos. l, 2 and 5 are medical experts in the field of nephrology and so far as OP No. 6 hospital where the patient was admitted for transplantation was duly registered under the Act, 1994 and all post operative medical care protocol available at the command of the respondents was administered to the patient, still his physical condition deteriorated and finally he could not be saved, which is really unfortunate, but there cannot be a legal recourse to what is being acceptable to the destiny.

34. In our opinion, the Commission has not committed any manifest error in arriving to a conclusion that in post operative medical negligence or follow up care, there was no negligence being committed by the respondents which may be a foundation for entertaining the complaint filed by the appellants. In consequence thereof, the judgment of the Commission does not call for any interference by this Court.

35. Counsel for the appellants submitted that the nursing home/hospital where the patient was admitted for post-operative care, was not registered under the provisions of the Act 1994. With the assistance of the counsel for the parties, we have gone through the Scheme of the Act 1994 and the Rules made thereunder. The hospitals where the procedure of transplantation is undertaken are to be registered in terms of Section 14 of the Act 1994, but for postoperative care, particularly after the patient being discharged from the hospital where the procedure of transplantation has taken place, we have not come across any provision under the Act, 1994 where such hospitals are required to be registered under the Act 1994.

36. Before parting, we would like to observe that when the matter was finally heard and concluded, appellant no. 1 was present in Court and we made a request as to whether she is still interested to get the final judicial verdict on the issue which has been raised at her instance at one stage by instituting a complaint before the Commission. The appellant made a very candid statement before the Court that she wants now to sum up the matter and what she has lost is, in no manner, recoverable and compensation even if awarded by this Court is not going to be of any solace to her at this point of time. We realize the pain of losing her husband and the trauma she has suffered, but that cannot translate into a legal remedy.

37. Accordingly, we do not find any fault in the reasoning of the Commission, as a result, the appeal is without substance and deserves to be dismissed.

38. The appeal is accordingly dismissed. No costs.

39. All pending application(s) shall stand disposed of.