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Discussion > Family Law > Others > 406 IPC & Stridhan claim in Divorce Suit   Unanswered Threads Post New Topic

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Vishal Indurkhya


Professional
[ Scorecard : 62]
Posted On 12 April 2011 at 11:50 Report Abuse

IMP - I believe, below is a more common problem, so would like to request the experienced fellows, to kindly revert back with their brainstorming ideas.
 
---
 
Dear Sir,
 
Requesting your expert advice on the following matter please -
 
Case Brief - Wife first filed a false case u/s 498-A of IPC against husband & his parents. Among the other sections of IPC added in the FIR, includes 406 (Criminal Breach of Trust). Wife present a list of articles allegedly demanded by husband as dowry in due consideration of marriage. The case is ongoing currently.
 
In due course of time, the wife filed a separate case of Divorce u/s 13 of HMA in the Family Court, on ground of Cruelty, keeping base of the same allegations, which she already used in 498A case.
 
Along with this case of Divorce she also filed the same list of articles, which she is claiming as her Stridhan (& is in supposedly still in husband's custody), and thereby in her divorce suit prayer, she is requesting the court to order the husband, for the returning of all her articles as per the already filed list.
 
My View - I would like to oppose the basic foundation of this stand, as since prima facie when one case of recovery of the same articles, between the same parties, is already pending in the adjoining Criminal Court, thus since the matter is sub-judice (i.e. still contesting in competitive court of law) as of now, thus in parallel course, filing another case in the equivalent different court, between the same parties, seeking the same relief, is barred by law. I intend to rely on Section 10 of Code of Civil Procedure, read with Doctrine of Lis Pendens.
 
Can you kindly enlighten me, that do we have any precedence of any kind on the above way, or any decided / leading case citations, wherein the Same Court has granted relief to husband / nullify the stand of wife (who is approaching different courts parellaly for the ditto same concerns).
 
P.S. - Ofcourse, the illegal list is not made as per the provisions of Rule 2 of The Dowry Prohibition (Maintenance of Lists of Presents to the Bride and Bridegroom) Rules, 1985. Thereby, the list stands null and void and can not form the part of “Dowry” as defined in Section 2 of the Dowry Prohibition Act, 1961.
 
My details are given below. Pl. feel free to call / let me know if I could be of any help anytime from my end.
 
Awaiting your guidance to proceed further,
 
Vishal Indurkhya
C/o Dr. Raja's Diagnostics
1104, Andherdeo
Jabalpur - 482 002
Madhya Pradesh, INDIA
Phone - 0761 - 2652487
Mobile - [0] 94252-13300
E-mail - vishalindu@gmail.com
 
*************************************************************


Tajobsindia


Senior Partner
[ Scorecard : 18814]
Posted On 12 April 2011 at 13:14 Report Abuse

@ Vishal,


Though bar reading wise your que. Sounds academicaly interesting but before common Law it may not stand the test.

Reasoning:
The major problem you will face is that this civil suit file dby your madam is before Family Court which is established under Family Court Act, 1984. Refer to
S. 7 (1a) Explanation (c) and I quote from The Act

S. 7  (1a) Explanation (c) :

a suit or proceeding between parties to a marriage with respect to the property of the parties or of either of them”.

Having said so now remember when a Special Act is enacted as Central Act all preceeding Acts are over ruled means Special Act superseads earlier Acts. HMA under which she has raised the activity is a baby before this Family Court Act as HMA was enacted in 1955 and Family Court Act in 1984 so Family Court Act read with its Rules will prevail.


Hence, the property entrustment and now recovery (not literal meaning but similar meaning hereto) issue she raised before the Family Court passes the first test i.e. can  she can raise it in civil forum or not. For the simiple reason Family Court Act have power to give opinion on property issues of either or both spouse to a Marriage dispute suit. I hope the first leg is clear to you.



Having said in favor of Ladies all above you can still raise the issue on below parameters justoplaxing the S. 406 IPC in next door court already in lis pendens.



Now in deciding whether to grant the motion, the Family Court must consider each and every points below which you shall raise (which in laymans point of view is nothing but simple points under preliminary objections to her this move):

  • The location of potential witnesses. The defendant must make a full and candid showing, naming the potential witnesses for the defense, specifying their location, specifying what their testimony may be and how crucial it is for the defense, and setting forth how exactly they may be inconvenienced by having to testify in the court chosen by plaintiff.

  • The location of relevant evidence and records. The defendant must identify the records; explain who is in charge of the records; address necessity, language, and translation problems; address the volume of such records; address the law governing these records; and rule out the existence of duplicate records in the jurisdiction chosen by the plaintiff. The mere fact that records need to be translated is not sufficient grounds to invoke FNC (see below explanation of FNC).

  • Possible undue hardship for the defendant. The defendant must explain what the hardship is and how material the costs are. If there are costs involved, they need to be spelled out. If there is a difficulty in getting witnesses out of a foreign court and into the original court, this needs to be revealed to the court. The defendant must explain why the use of letters rogatory or other judicial reciprocity tools are not sufficient and cannot replace actual transfer of the case. The standard that the defendant must meet is “overwhelming hardship” if they are required to litigate in the forum’s State and or forum Jurisdiction.

  • Availability of adequate alternative forums for the plaintiff. Remember merely pointing out that the plaintiff could have sued somewhere else is not sufficient to succeed on an FNC motion.

  • The expeditious use of judicial resources. In practice, this is just boilerplate language that comes along with the application. However, sometimes the court chosen by the plaintiff may be logistically or administratively unfit or illequipped for the case; for example, a case may involve a large number of torts. Here Family Court established under Family Court Act are though equipped to handle such demands (see S. 406 IPC is what other than demand raised effeciously using IPC Jurisdiction and now under civil Jurisdiction same is raised)

  • The choice of law applicable to the dispute. If all other factors weigh in favor of keeping the case in the jurisdiction where it was filed, then the court may choose between application of local law (lex fori) or relevant law. Here relevant Law is S. 406 IPC Jurisdiction already used !


    However, the mere fact that S. 406 IPC r/w S. 498a IPC criminal Court law may apply to the event, circumstances, accident, or occurrence is not a strong reason to dismiss the case on FNC grounds.

  • Questions of public policy. In analyzing the factors, the subject matter of the complaint may touch on a sensitive issue that is important to the laws of either the original jurisdiction (Magistrate Court she has already placed on material records such demands seekign efficious remedy thereof remember this) or the alternative forum (Family Court s she is using as alternate remedy basing on principles that no litigant shall remain remedyless J ). Those public policy issues must be pinpointed, analyzed and briefed in a way that makes it clear why this issue overrides the other factors. What are the public Policy issues you shall raise; List of stridhan as per Rules is one, seocnd is already raked the issue in efficious remedy platform etal….



BTW each underline words needs to be plead by you.


Now for clarity I am stating what is FNC as is referred above? -


Forum non conveniens
(Latin for "forum not agreeing") (FNC) is a (mostly) common law legal doctrine whereby courts may refuse to take jurisdiction over matters where there is a more appropriate forum available to the parties (plead which is more appropriate forum for her). As a doctrine of the conflict of laws, forum non conveniens applies between courts in different countries and between courts in different jurisdictions in the same country also (this is the most tricky notion under Law as per my view and if I see that no litigant must remain remedyless then it also makes sense but alas this is bl**dy family matters between two spouse and rightly the legislatures wisdom is always directed based on public policy and what it is other than social scenarios evolving into codifying a Law for general public other than nothing in hand i.e. makign a female remedyless which in turn creates more and more welfare States in already energy deficit nations is my firm view!). There are catena of doctrine to this effect as practiced in English Jurisprudence to American to Canadian Law and even EU Law and it is other matter that a whole new chapter may open up if you dig deep probably the Principal Judge may be overwhelmed if you produce such doctrines and decisions but I am leaving all that as the problem with your que. Here are that you though click thumps up on various writers subsequent posts but do not care to respond as to what you understood by these shared gyan pravachans so I will not like to invest my time more on such queries where it is one side gyan showcausing.



But, a concern often raised in applications of the doctrine is forum shopping, or picking a court merely to gain an advantage in the proceeding. This concern is balanced against the public policy (Family Court Acts was enacted on public policy anf catena of RS / LS debates on subject before Legislatures are available in parliament of India website) of deferring to a plaintiff's choice of venue in claims where there may be more than one appropriate jurisdiction. The underlying principles, such as basing respect given to foreign courts on reciprocal respect or comity, also apply in civil law systems in the form of the legal doctrine of lis alibi pendens.



Further since I raked in S.
7 (1a) Explanation (c) Family Court Act, 1984 this particular Rule  embodies a 'rule of feeding the estoppel' and enacts that a person who makes a representation shall not be heard to allege the contrary as against a person who acts thereupon and it is immaterial whether the transferor acts bona fide or fraudulently in making the representation. [Re.: Jumma Masjid, Mercara v. Kodimaniandra Deviah, AIR 1962 SC 847]

 



Also in order to get the benefit of the said provision, the conditions which must be satisfied are:


(1) the contract of transfer was made by a person who was competent to contract; and


(2) the contract would be subsisting at the time when a claim for recovery of the property is made.



Your case falls under condition (2) which she (bare reading of filing such application is what I mean) which is to say she is able to satisfy by mere laying her claim of property (stridhan) before Family Court.



You see at the end of this tunnel vision how disadvantageous the various 2 dozen plus Family Laws of land places any Indian husband into unless swift compromise happens thereto that also it forces Indian husband to compromise at the end and ladies here says Laws favor husband I say stop this bullsh*t!

However, the provisions would have no application if the transfer was invalid as being forbidden by law or contrary to public policy, as envisaged under S. 23 of the Indian Contract Act. Thus, no estoppel can be pleaded contrary to the provisions of a statute. The 'rule of feeding the estoppel' shall apply in absence thereof.


Coming to precedent I have personally seen PJ in Delhi’s Family Court allowing such motion and husband was forced to cough up the articles, it is other matter that they were second hand as neither the lady could zip out a List as per Rules nor husband could show on material records that all articles were taken back by her on the eve of her desertion which is normally what happens in marital life as either party donot know that one day they will end up under such circumstances. I am taking of metro wife not rural wife’s case here. But then this precedent may not help your cause of action as it is from a lower court and moreover it is not a fit case for you. So create precedent yourself.  


Anyhow if you can digest some and or all the above gyan then nothing like it otherwise simple and sweet all the best afterall it is your case not mine
J  



Total thanks : 1 times

Parth Chandra


none
[ Scorecard : 940]
Posted On 12 April 2011 at 16:44 Report Abuse

Below judgement might be useful to you.

---------------------------------------------------------------------------------------------------------------------------------------

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: 22nd September, 2010

Date of Order: September 27, 2010

+CRL. R.P. No. 633 of 2010, CRL. M.A. NO. 15451/2010 %

27.09.2010

RENU MITTAL ... Petitioner Through: Mr Shiv Charan Garg with Mr.

Imran Kha, Advs.

Versus

ANIL MITTAL & ORS. ... Respondents Through: Mr O.P. Saxena, Addl. PP for the

State.

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment?

2. To be referred to the reporter or not?

3. Whether judgment should be reported in Digest? JUDGMENT

1. This Revision Petition has been filed by the petitioner against an order dated 20th May, 2010 whereby learned Additional Sessions Judge (ASJ) dismissed an appeal filed by the petitioner against the order of learned Metropolitan Magistrate (MM) partly allowing the application under Protection of Women from Domestic Violence Act, 2006 ('Domestic Violence Act' for short) and partly rejecting the application under Domestic Violence Act.

CRL. R.P. 633 OF 2010 Page 1 of 4

2. The petitioner had married the respondent in the year 2006 and a dispute arose between her and her husband soon after the marriage and in the year 2007 itself the petitioner filed a petition under Section 125 of Code of Criminal Procedure (Cr. P.C.) against the respondent for grant of maintenance. Learned MM awarded a maintenance of ` 6,000/- p.m. The petitioner also filed an FIR u/s 498A/406 IPC against respondent and thereafter filed an application under Section 12 of Domestic Violence Act seeking therein, apart from maintenance, compensation under various heads of ` 1.00 lakh, ` 2.00 lakh, ` 3.00 lakh and ` 5.00 lakh. She had also asked for rights of residence. The learned MM after considering the averments made by both the parties, observed that Section 12(2) of the Domestic Violence Act provides that compensation can be claimed by the parties for the injuries under civil suit as well. The petitioner had made astronomical claims for compensation without specifying grounds for different compensations in her petition. At one place the claim was of ` 1.00 lakh, at another place for ` 2.00 lakh, at third place for ` 3.00 lakh and at fourth place for ` 5.00 lakh. In support of these claims no documents etc. were filed. She also claimed Istridhan and dowry, while she had already preferred a criminal case under Section 498-A/406 of IPC against the respondent and issue of dowry demand or non return of any article was pending before the competent Court and that Court was to decide if any Istridhan/ dowry article was still with the respondent. The Court CRL. R.P. 633 OF 2010 Page 2 of 4 therefore allowed the application of the petitioner only partly to the extent of re-confirming the maintenance of ` 6,000/- p.m. and as awarded to her by the learned MM under Section 125 of Cr. P.C. dismissing the rest of the claim. Learned ASJ after going through the entire material upheld the order of MM.

3. The revision petitioner has argued that learned ASJ did not fix maintenance after considering the evidence of the parties and fixed the maintenance on the basis of order passed by the Court of MM under Section 125 of Cr. P.C.

4. It must be considered that for granting maintenance, a party can either approach the Court of MM under Domestic Violence Act soon after commission of Domestic Violence or under Section 125 Cr. P.C. claiming maintenance. The Jurisdiction for granting maintenance under Section 125 Cr. P.C. and Domestic Violence Act is parallel jurisdiction and if maintenance has been granted under Section 125 Cr. P.C. after taking into account the entire material placed before the Court and recording evidence, it is not necessary that another MM under Domestic Violence Act should again adjudicate the issue of maintenance. The law does not warrant that two parallel courts should adjudicate same issue separately. If adjudication has already been done by a Court of MM under Section 125 Cr. P.C., re-adjudication of the issue of maintenance cannot be done by a Court of MM under Domestic Violence Act. I, therefore, CRL. R.P. 633 OF 2010 Page 3 of 4 consider that learned MM was right in allowing maintenance only to the tune of ` 6,000/- p.m.

6. So far as other reliefs are concerned, the learned MM and ASJ had given liberty to the petitioner to approach the Civil Court and prove that she had suffered loss and was entitled for compensation. I find no ground to interfere with this order of learned ASJ as the order is not without jurisdiction. I also find force in the reasoning given by learned ASJ that since the matter regarding dowry articles and Istridhan was pending before another court, it was rightly not gone into by MM as it would not have been appropriate for the Court of MM under Domestic Violence Act to initiate simultaneous adjudication in respect of Istridhan and dowry articles, when another court was seized with the matter.

7. I, therefore, find no force in this petition. The petition is dismissed.

SEPTEMBER 27, 2010 SHIV NARAYAN DHINGRA, J. acm

CRL. R.P. 633 OF 2010 Page 4 of 4

 



Total thanks : 2 times

Hitender Gaur


Self Employed
[ Scorecard : 153]
Posted On 13 April 2011 at 12:00 Report Abuse

Can one file FIR against Brother in Law, Sister and Mother Father u/s. 406, As per case filed by the then wife u/s. 498A, 406 all of these forced him for dowery, after giving the Divorce (Settelement Amount paid to him by husband in court at the time of  divorce ), but all the Stri Dhan (furniture, jwelery etc.) which was under the control of husband, stolen by Siter, her husband with the concern of mother and father of person. Can he file FIR agsint them u/s. 406.


Sarvesh Kumar Sharma Advocate


Advocacy
[ Scorecard : 13946]
Posted On 13 April 2011 at 20:40 Report Abuse

good judgement!

by


 

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