Archive for the 'SN Dhingra' Category

Justice Dhingra Explains The Guidelines Used To Determine Child Custody

Here is what Justice Dhingra says while determining an interim child custody case:

“The principles of law in relation to the custody of a minor child are well settled. It is trite that while determining the question as to which parent the care and control of a child should be committed, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. Indubitably the provisions of law pertaining to the custody of child contained in either the Guardians and Wards Act, 1980 (Section 17) or the Hindu Minority and guardianship Act, 1956 (Section 13) also hold out the welfare of the child are predominant consideration. In fact, no statute on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor. The question of welfare of the minor child has again to be considered in the background of the relevant facts and circumstances. Each case has to be decided on its own facts and other decided cases can hardly serve as binding precedents insofar as the factual aspects of the case are concerned. It is, no doubt, true that father is presumed by the statutes to be better suited to look after the welfare of the child, being normally the working member and   head of the family, yet in each case the Court has to see primarily to the welfare of the child in determining the question of his or her custody. Better financial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sold determining factor for the custody of the child. It is here that a heavy duty is cast on the Court to exercise its judicial discretion judiciously in the background of all the relevant facts and circumstances, bearing in mind the welfare of the child as the paramount consideration.”

Here is the judgment: J Dhingra: CM(M) No. 752/2000 Ram Murti Chopra and Anr. v. Nagesh Tyagi

More information can be had from here:

INTERPARENTAL CHILD CUSTODY DISPUTES – THE INDIAN EXPERIENCE

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Justice Dhingra Explains Section 24 Of The HMA – 2008

Justice Dhingra explains Section 24 of the HMA in a judgment. Section 24/HMA reads as follows:

24. Maintenance pendente lite and expenses of proceedings.- Where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay the petitioner the expenses of the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the Court to be reasonable””

Here is the excerpt:

5. From the perusal of Section 24, it is abundantly clear that the object and intent of this Section is to enable the husband or the wife, as the case may be, who has no independent source of income for his or her support and necessary expense of proceedings under the Act to obtain maintenance expenses pendent lite so that the proceedings may be continued without any hardships on his or her part. The benefits granted under this Section are only temporary in nature and there are other provisions of law where a wife, who is not able to maintain herself, can claim maintenance/permanent alimony from the husband e.g. Section 25 of HMA or under provisions of Hindu Adoption and Maintenance Act. The provisions of this Section are not meant for equivalising the income of wife with that of husband but are meant to see that where divorce or other proceedings are filed, either of the party should not suffer because of paucity of source of income and the Court should pass an order even during the pendency of such a petition, for maintenance and litigation expenses. Where a wife has no income or is without any support for maintaining herself, the Court has to pass an order considering the income and living status of the husband. However, where the wife and her husband both are earning and both are having good salary, merely because there is some salary difference, an order is not required to be passed under Section 24 of HMA.

Here is this all important judgment: Justice Dhingra Explains Section 24 Of The HMA

IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: August 18, 2008
Date of Order: September 18,2008
CM(M) 949/2008
18.09.2008
Manish Kumar …Petitioner
Through: Mr. Rakesh Tiku with Mr. Abhinav Bajaj, Advocate
Versus
Mrs. Pratibha…Respondent
Through: Mr. Sanjeev Sindhwani and Ms. Ekta Kalra, Advocates
JUSTICE SHIV NARAYAN DHINGRA


1. Whether reporters of local papers may be allowed to see the judgment?Yes.
2. To be referred to the reporter or not? Yes.
3. Whether judgment should be reported in Digest? Yes.
JUDGMENT:
1. By this petition under Article 227 of the Constitution of India, the petitioner has assailed an order 25th July 2008 passed by learned trial court whereby the learned ADJ awarded a maintenance of Rs.7,500/- per month to the respondent wife under Section 24 of the Hindu Marriage Act (HMA).
2. There is no dispute about the fact that both husband and wife were gainfully employed. Wife claimed that her monthly salary was Rs.28,500 whereas her husband was having monthly salary of Rs.90,000/- per month. She claimed a maintenance of Rs.30,000/- per month.
3. Both husband and wife were working in private companies and their salary statements and other record was placed before the trial court. The trial court found that the take-home salary of wife was Rs.41,900/- and that of the husband was Rs.75,761/- per month respectively. Finding that the salary of the husband was more than the salary of the wife, the trial court granted maintenance of Rs.7,500/- to the wife.
4. I consider that while awarding maintenance to the wife, the trial court has lost sight of the basic ingredients of Section 24. Section 24 of HMA reads as follows:
“24. Maintenance pendente lite and expenses of proceedings.- Where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay the petitioner the expenses of the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the Court to be reasonable”
5. From the perusal of Section 24, it is abundantly clear that the object and intent of this Section is to enable the husband or the wife, as the case may be, who has no independent source of income for his or her support and necessary expense of proceedings under the
Act to obtain maintenance expenses pendent lite so that the proceedings may be continued without any hardships on his or her part. The benefits granted under this Section are only temporary in nature and there are other provisions of law where a wife, who is not able to maintain herself, can claim maintenance/permanent alimony from the husband e.g. Section 25 of HMA or under provisions of Hindu Adoption and Maintenance Act. The provisions of this Section are not meant for equivalising the income of wife with that of husband but are meant to see that where divorce or other proceedings are filed, either of the party should not suffer because of paucity of source of income and the Court should pass an order even during the pendency of such a petition, for maintenance and litigation expenses. Where a wife has no income or is without any support for maintaining herself, the Court has to pass an order considering the income and living status of the husband. However, where the wife and her husband both are earning and both are having good salary, merely because there is some salary difference, an order is not required to be passed under Section 24 of HMA.
6. In the instant case, it is nowhere pleaded by the wife in her application under Section 24 that the income being earned by her was not sufficient for her maintenance. Her contention in the application was that the petitioner was liable to bring her to the same status and station as if she was living with him in the matrimonial home. In my view, this is not the intent and purpose of Section 24. The purpose and intent of 24 is quite different as stated above.
7. The salary slips of the wife has been placed on record which show that she was having salary in the range of around Rs.50,000/- per month. Her statement of salary account from February 2007 to January 2008 shows that she had a take-home salary during this year of Rs.6,80,188/-. The average monthly salary was thus Rs.56,682/-. This salary was after deduction of tax, employees provident fund, PF contribution etc. Her gross salary inclusive of tax, provident fund etc was around Rs.80,000/- per month. A person who is earning this much of salary can very well maintain herself with such a standard which may be envy of many and under no stretch of imagination it can be said that the income earned by her was not enough to maintain her. There was no other liability on her. There is no offspring from this wedlock.
8. In view of my foregoing discussion, I consider that the trial court has wrongly allowed maintenance to the respondent wife. The petition is allowed and the impugned order dated 25th July 2008, granting maintenance of Rs.7500/- per month to the wife, is hereby set aside. However, the petitioner would be liable to pay the litigation expenses, as ordered by the trial court. No order as to costs.
September 18, 2008
SHIV NARAYAN DHINGRA J.

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Delhi Police Commissioner: No 498A Arrests W/O Permission Of DCP

Folks,

if you remember, YS (Yudhbir Singh) Dadwal was appointed as the commissioner of Police, Delhi, amid a controversy.

Here is a photograph of former Delhi Police Commissioner, YS Dadwal:

I wondered who YS Dadwal was, but had stated that this establishment needs capable officers in key posts in order to continue their ventures without the distractions of issues with Law and Order etc. I was right about this and what came as a pleasant surprise to me is that, after the assumption of office, Commissioner Dadwal publicly stated that he wouldn’t allow the police to be used as instruments of revenge, especially in 498A cases.

This enlightened officer has followed up on his words with actions and has issued standing orders to the effect that no one is to be arrested in 498A cases without the permission of the DCP.

Here is the order in pdf format:

Delhi Police Comm YS Dadwal: No 498A Arrests Without Approval Of DCP (pdf)

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Here is another order from the Delhi police enforcing Justice Dhingra’s Smt Neera Singh Judgment:

What is the impact of Commissioner Dadwal’s order ? In Delhi, this order:

  • Eliminates the need for Anticipatory bail
  • Ensures the 498A can no longer be used to jail entire families and extort money.
  • Eliminates the police as a factor in this extortion racket.
  • Takes away the power to arrest from the morons who infest the Indian criminal justice system. These morons range from the goons in uniform to corrupt lower court magistrates.
  • The lawyers will see a huge source of revenue dry up in the form of the elimination for the need for Anticipatory bail and defense in 498A cases.
  • The Delhi courts will see a drop in the number of cases getting into the filthy sewer known as the Indian Criminal Justice System.
  • The number of final reports filed in Delhi will go up. Read this to know what a final report is: The 498A Final Report Of Film Actor Prashanth
  • Commissioner Dadwal can now focus the energies of the Delhi police force on real issues, such as rapes, traficking of women, terrorist attacks and real crimes, instead of allowing goons in uniform to capture middle aged women and grandmothers in their home in the early morning or the start of the weekend, all in the name of “protecting women”.

This order is in line with the order issued by the AP Police Commissioner, MV Krishna Rao, in 2002. You can read about that order here:

Hyderabad Police: No Arrest In 498A Cases Without Permission Of DCP – 2002

All these orders are based on the Supreme Court Judgment of Joginder Kumar Vs State of UP. You can read about the importance and the rationale behind this judgment here:

Habeas Corpus, Magna Carta And Joginder Kumar Vs State Of UP

That brings me back to Justice Shiv Narain Dhingra, who undoubtedly ranks amongst the greatest judges of India. He wrote (Crl. Appeal No. 696/2004, 01.Nov.2007):

“In all these cases in the name of investigation, except recording statement of complainant and her few relatives nothing is done by police. The police do not verify any circumstantial evidence nor collect any other evidence about the claims made by the complainant. No evidence about giving of dowry or resources of the complainant’s family claiming spending of huge amounts is collected by the police. This all is resulting into gross misuse of the provisions of law.”

You can download this judgment from here:

Justice Dhingra (Crl. Appeal No. 696/2004, 01.Nov.2007)

It is this excerpt that Commissioner Dadwal quotes in his order.

Personally, I feel a sense of satisfaction as I had quoted the same excerpt in the last chapter of The Guide To Surviving IPC 498A.

This is it. For all you folks from Delhi, this signals the end of the extortion racket known as section 498A. For the rest of you in this country, use this to nail the cops who showed up/show up at your door to effect an illegal arrest. We have turned the corner in this fight against this extortion racket known as 498A and against the practitioners of pussy politics, aka, The Feminazis of India.

Update: Aug/16/08

This order has been reinforced:

The Justice Kailash Gambhir (Delhi HC) Guidelines On 498A Cases

Next steps:

  • Use this to pressure other states to issue similar standing orders for the police to comply with the Joginder Kumar Vs UP judgment.
  • Set a target date to eliminate 498A as an extortion racket and make it bailable and non-compoundable across the country.
  • File compensation for illegal detention against police officers who violated the Joginder Kumar arrest guidelines. If 20 people per state do this, this will break the budgets of the states for law and order and cause the scum in uniform to think twice before entering our homes to terrorize our families to extort large sums of money under the pretext of women protection laws.
  • Prepare to force an amendment to the DV Act to sanitize it and make it gender neural and implementable. This will be the next evil to overcome and give Indira Jaising more reasons to moan about 🙂.

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Justice Dhingra Explains Double Jeopardy-Sept 2007

This is not related to 498A, but of late, these brides from hell have been attempting to pursue their hapless hubbies to the ends of the earth by abusing the process of criminal justice. This judgment explains double jeopardy.

Here is the judgment:  Justice Dhingra Explains Double Jeopardy (21.9.2007)

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Justice Dhingra Orders A CBI Inquiry Into The Conduct Of Some Corrupt Delhi Cops

Here is the news coverage. This judgment has a significant importance to me as the cops and the bastard of a magistrate pulled a similar stunt with my family.

High Court directs CBI to inquire into Delhi Police conduct Monday, February 25, 2008 :

Taking exception to the manner in which the Delhi police is handling petty cases and pushing the innocent behind bars, Delhi High Courthas directed the Central CBI to inquire into the conduct of the police in this matter. Justice S N Dhingra directed the Delhi Government to pay a compensation of Rs 25,000 each to two people who were confined illegally in police custody, for petty offences just because the police official wanted to settle scores with them. The incident related to one Sanjeev Kumar Singh and his friend, who were picked up by the Delhi police on February 4, 2007, at Samaypur Badali police station. They were apprehended by the police under Section 107/151, CrPC on the charge of abusing, threatening and quarrelling with each other. They were produced before ACP J S Vaid, who was working as Special Executive Magistrate (SEM) on February 4. The SEM sent them to Judicial Custody (JC) till February 17. Though they were asked to furnish a surety of Rs 5000 each, the record showed that the bail bond was accepted by furnishing a surety of Rs 15000 from each. In his petition, Sanjeev Kumar had alleged that the police officials had not only incorporated these sections to illegally detain and harass them, but have also encroached upon their fundamental right. They were friends but the police wanted to settle scores with them and booked them illegally. Justice Dhingra observed the case showed high-handedness of the police and the SEM concerned. The petitioner was kept in illegal confinement because of the SEM’s illegal action of not accepting the bail bond on the same day. The court directed the CBI to investigate the matter and submit its report to the Metropilitan Magistrate concerned within 120 days.

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Justice Dhingra: Police Do Not Investigate In 498A Cases (Crl.Apl No. 696/2004)

News Flash

This judgment of Justice Dhingra led to the standing order from Delhi Police Commissioner YS Dadwal, prohibiting the arrests in 498A cases without the permission of the DCP (Jun/21/2008).

You can read about this here:  Delhi Police Commissioner: No 498A Arrests W/O Permission Of DCP

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Publication: Times Of India Delhi;
Date:Nov 2, 2007;
Section:Times City;
Page Number:5
HC: Wife can’t use failed marriage to harass in-laws
Abhinav Garg | TNN

New Delhi: Dismayed by the increasing misuse of anti-dowry laws, the Delhi high court has observed that failed marriages are ‘‘not a crime’’ and berated the tendency by women to see souring of matrimony as valid ground to get even with the husband and in-laws or to extract money.
‘‘A failed marriage is not a crime. However, provisions of section 498-A (cruelty by in-laws or husband) are being used to convert failed marriages into a crime and people are using this as a tool to extract as much monetary benefit as possible,’’ Justice S N Dhingra said on Thursday while acquitting the husband, in laws and ‘jethani’ of a woman who had alleged that they poured kerosene on her and set her on fire due to her inability to get dowry or secure an employment for her husband.
‘‘It must be acknowledged that marriages do fail and there is a mismatch not only in an arranged union but even in love marriages, which is discovered during the continuation of married life,’’ the judge remarked as it turned out that the harassment charge was slapped by the wife because she was unhappy with her husband’s unemployment and a life of penury.

Excerpts:

  • ” It is her own case that a container of 05 litres of kerosene oil was poured on her. 05 litres of kerosene oil is an enormous quantity of oil and if this quantity is poured on a person and fire is lit, he/she will immediately turn into a fire ball. Presuming that the complainant had extinguished the fire immediately by pouring a bucket full of water on herself and by tearing her clothes, in that case the unburnt kerosene oil would remain on clothes and she would have been profusely smelling of kerosene oil. Not only her clothes but her entire body would have been drenched with kerosene oil and her clothes would have been drenched with kerosene oil and water. It is not her case that when she was removed to hospital her clothes were changed or she was washed off and bathed, rather her allegations are that she was continuously beaten for two hours before having been removed to the hospital and she kept lying there for two hours in kerosene oil and water. It cannot be believed that on seeing a patient in such a condition, doctor would have closed his eyes and would not record the condition in the MLC. “
  • “Her husband was not a criminal neither it is alleged that he had any criminal background. A poor man who was starving for his survival and had to work as a labour from morning till evening for livelihood, could not have given threats to kill his own son and father-in-law. This story of threat seems to have been developed later on by the complainant in consultation with father. “
  • “The Courts must be very cautious during trials of such offences. In all these cases in the name of investigation, except recording statement of complainant and her few relatives nothing is done by police. The police does not verify any circumstantial evidence nor collect any other evidence about the claims made by the complainant. No evidence about giving of dowry or resources of the complainant’s family claiming spending of huge amounts is collected by the police. This all is resulting into gross misuse of the provisions of law.”
  • “From the entire documents and the testimony of the witnesses I come to the conclusion that it is an unfortunate case where the complainant by making false statement implicated the entire family in offenses of under Section 307 and 498 A IPC. The Trial Court was not cautious enough to even look to admitted documents on record before convicting the family on mere statement of an estranged wife. Trial Courts should guard themselves from being swayed by emotions. They should consider entire circumstances and should carefully analyze the entire evidence. Poverty should not be allowed to become a crime. Neither failed marriage be permitted to be a crime.”

Here is the judgment: Delhi HC: Wife Can’t Use Failed Marriage To Harass In-Laws

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Justice Dhingra Ensures The Jailing Of A Corrupt Female CAW Cell Officer-2007

Justice Dhingra in action again.

This time he denies the appeal of convicted, corrupt CAW cell SI. This judgment more than reinforces my assertion that 498A and all this crap about protecting women is just a smokescreen to make money of the misery of citizens.

Here is an excerpt:

“The evidence shows that she was posted out on 28th September, 1999 and the bribe was accepted on 1st October, 1999. There is no evidence that complainant was aware of her posting out from the department. Moreover, if she was posted out on 28th October, 1999 she had no business to be there in CAW Cell. Her presence there itself shows that she had come to the office of CAW Cell only for the purpose of obtaining bribe. Even if she was not working as investigating officer, she took advantage of ignorance of the complainant that she was no more investigating officer and still accepted the bribe. I, therefore, consider that in such a case where police official, and those who are responsible for proper running of criminal justice system , indulge into the corruption, the Court should take serious view. Considering all facts I do not find it a fit case where the sentence of the appellant be suspended. The application is hereby dismissed. Nothing observed herein shall prejudice the decision of appeal on merits”

Here is the judgment:

Justice Dhingra Ensures The Jailing Of A Corrupt CAW Cell Officer-2007

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Some Interesting Stats On Arrests Of Women

In 1930, the British govt arrested 17,000 women for their involvement in the Dandi Yatra (Salt March). During 1937 to 1947 (10 Years), they arrested 5,000 women involved in the freedom struggle. From 2004 to 2006, the govt of India arrested 90,000 women of all ages under 498A. On the average, 27,000 women per year are being arrested under this flawed law. These are stats from the NCRB.

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Disclaimer:

The family of the writer was tortured by the Indian Police in an attempt to extort over a $100,000 by holding them in custody for over a week. The police, in cahoots with the magistrate and the PP, did this due to the ridiculous allegations made in a 498A case by his embittered ex-wife. She filed the case years after he and his family had last seen her. Thousands of 498A cases are filed each year in India by women seeking to wreak vengeance on their husbands and in-laws. Enormous sums are extorted from intimidated families implicated in these cases by corrupt Indian police officers and elements of the Indian judiciary. The author and his family haven't bribed any public official nor have they given in to the extortion. This blog aims to raise awareness of due process in India. The content of this blog constitutes, opinions, observations, and publicly available documents. The intent is not to slander or defame anyone or any institution and is the manifestation of the author's right to freedom of expression – with all the protections this right guarantees.

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