Sushila Devi vs State Nct Of Delhi & Anr.
2010 Latest Caselaw 5014 Del

2

             IN THE HIGH COURT OF DELHI: NEW DELHI

+              CRL. M.C. No. 356/2006

%              Judgment delivered on: 1st November, 2010

Sushila Devi                                    ..... Petitioner

                          Through:   Ms. Seema Gulati, Adv

                          Versus

State NCT of Delhi & Anr.                            ... Respondents

                          Through:   Mr. U.L. Watwani, APP & Mr.
                                     Seeraj Bagga, Adv.

Coram:

HON'BLE MR. JUSTICE A.K. PATHAK

       1. Whether the Reporters of local papers              No
          may be allowed to see the judgment?

       2. To be referred to Reporter or not?                 No

       3. Whether the judgment should be                     No
          reported in the Digest?


A.K. PATHAK, J. (Oral)

Crl. M.A. No. 16516/2010

On 15th September, 2010 respondent No. 2 offered to the

petitioner a sum of ` 14 lacs plus the amount lying deposited in

the Court, towards full and final settlement of all her claims i.e.

permanent alimony, istri-dhan, maintenance etc. subject to,

however, her agreeing to obtain a decree of divorce by mutual

consent. On 21st September, 2010 it was brought to the notice

of this Court that this offer was acceptable to the petitioner. It

was agreed that both the parties would withdraw cases which

they had filed against each other. Present case was re-notified

on 8th December, 2010 to enable the parties to take steps in this

direction. On 21st October, 2010 the case was adjourned for

today. In the meantime, respondent No. 2 has preferred this

application. It is stated that their daughter had also filed a case

under Section 20 of the Hindu Adoption & Maintenance Act,

1956 against the respondent No.2 thereby claiming a sum of `

5,35,000/- towards the maintenance and marriage expenses.

By this application respondent No. 2 seeks modification of the

order dated 21st September, 2010 to the effect that the sum of `

14 lacs plus a sum of ` 2 lacs already lying deposited in the

Court shall also include the claim of their daughter. It has been

brought to my notice that daughter of the parties is since

married and living with her husband and children. Counsel for

the petitioner states that petitioner cannot settle the claim of her

daughter, who is major and had been pursuing the legal remedy

available to her independent of the litigation between the

parties. This Court cannot direct any of the parties to settle

their disputes in a particular manner. Offer of respondent No.

2, as contained in this application, is not acceptable to the

petitioner. Accordingly, this application is, dismissed.

Crl. M.C. 356/2006

1. Since settlement arrived at between the parties has failed, I

have heard arguments on merits and by this order present

petition is being disposed.

2. Petitioner is wife of respondent No. 2. She has filed this

petition under Section 482 Cr.P.C. praying therein that the

order dated 24th January, 2005 passed by the Metropolitan

Magistrate, Delhi whereby she has been summoned under

Section 500 IPC, be quashed and petitioner be discharged.

3. Briefly stated, facts of the case are that the petitioner and

respondent No. 2 were married sometime in the year 1972

according to Hindu rites and ceremonies. On account of

matrimonial discord between them, respondent No. 2 filed a

divorce petition in the court of Additional District Judge, Delhi

sometime in the year 1976. Later on, he withdrew the same in

view of the settlement arrived at between the parties. It appears

that their relations remained strained all along, which resulted

in filing of three more divorce petitions by respondent No. 2

against the petitioner. However, from time to time these

petitions were also withdrawn by the respondent No. 2, as the

parties reached an amicable settlement during the pendency of

the said divorce petitions. Lastly, in the year 1998 respondent

No. 2 has again filed a divorce petition against the petitioner,

which is still pending before the Additional District Judge, Delhi.

4. In the said divorce case, an application under Section 24 of

the Hindu Marriage Act 1954 was filed by the petitioner, wherein

maintenance of `1600/- per month was awarded to the

petitioner by the Additional District Judge vide order dated 20th

October, 1998. Respondent No. 2 filed an application under

Section 151 of the Code of Civil Procedure dated 15 th January,

2001 seeking modification of the order of maintenance praying

therein that the maintenance awarded be reduced. Petitioner

filed reply to the said application on 5th February, 2001 wherein

in para 6 she alleged as under:-

"6. That the application moved by the petitioner is

apparently malafide as there is hardly any change in the

circumstances in favour of the petitioner, on the other

hand ever since the order for ad-interim maintenance

has been passed the prices have increased manifold and

it is absolutely impossible for a being to exist in a city

like Delhi with meager amount of ` 1600/- p.m. and on

the other hand, the salary of the petitioner has increased

substantially and at present is not drawing a salary less

than `15,000/- per month, besides the other benefits

and advantages which he gets and derives being in the

Income-tax Office."

5. Respondent No.2 being in Government service was

occupying an official accommodation. Petitioner had also been

living in the same house in spite of the fact that relations

between the husband and wife remained strained and they

continued to litigate in the court. After his retirement,

respondent No. 2 had to vacate this official accommodation.

Apprehending that she would be rendered homeless, petitioner

filed a complaint under the Domestic Violence Act, 2005,

wherein she has been granted `3500/- per month for separate

accommodation.

6. It appears that sometime in the year 1987 petitioner had

approached Crime Against Women Cell alleging cruelty at the

hands of respondent No. 2 but no FIR was registered. Petitioner

also appears to had made certain complaints to the superior

officers of the respondent No. 2 sometime in the year 1980-81

alleging therein that she has been treated with cruelty by him.

However, no action appears to had been taken by the

department of respondent No.2 on these complaints.

7. As late as in the month of July 2002, respondent No. 2 has

filed a complaint against the petitioner praying therein that the

petitioner be summoned, tried and punished under Sections

499/500 IPC read with Sections 177/182/211 IPC. It was

alleged that by filing false complaint with the superior officers of

respondent No.2 she had defamed him in the eyes of his

colleagues and staff. Petitioner also gave an interview on

television on 24th October, 1981 levelling false and baseless

allegations against the petitioner, consequently, reputation of

the respondent No. 2 was lowered in the eyes of his relatives,

friends and colleagues etc. After the police did not register a

case under Sections 406/498-A/34 IPC on the complaint of

petitioner, she got a news item published in the newspaper on

24.11.1987 criticizing the police and respondent no.2, pursuant

whereof, respondent No. 2 was defamed. In her reply to the

application under Section 151 CPC filed by respondent No. 2

also she made defamatory allegations that the respondent no.2

had been deriving certain benefits and advantages being in the

Income Tax Office.

8. After recording pre-summoning evidence, Metropolitan

Magistrate vide order dated 24th January, 2005 summoned the

petitioner under Section 500 IPC, for the following reasons:

"I find sufficient grounds to summon the accused u/s 500 IPC, as the statement stating "being in the Income Tax office" suggests that some hidden meaning is imputed. Simultaneously mark CW1/1 the findings given by officer of the Income Tax office is also relied upon where as the complaint made to income tax officer by wife was filed which also suggest that by these complaints, his position was also lowered down in the eyes of colleagues. Thus accused be summoned u/s 500 IPC, accordingly, on filing PF/RC for 24-5-05."

(emphasis supplied)

9. I do not find the order of the Metropolitan Magistrate in

consonance with the material available on record as also the law

applicable thereto. The order is based on inferences. Nowhere in

her reply, petitioner had suggested that the respondent no. 2 had

been generating extra income by corrupt means. She has simply

averred that respondent no. 2 had been drawing a salary not less

than `15,000/- per month besides the other benefits and

advantages which he derives being in the Income Tax office.

Respondent no. 2 was a Government servant, thus, he would

have been getting certain perks besides his monthly salary in the

shape of telephone allowance, house rent etc. Mere use of words

"besides other benefits and advantages which he gets and derives

being in the Income Tax Office" by itself would not be sufficient to

indicate that petitioner intended to impute that the respondent

no. 2 had been earning money besides his salary, by using illegal

means. Criminal liability cannot be fastened on a person by

drawing inferences from the written or spoken words. Such an

action is called for only if imputations are precise and specific.

Thus, it cannot be said that ingredients of offence under Section

500 IPC were attracted in this case in view of the averments made

in the reply. Similarly, petitioner's complaints made to the higher

officers of respondent no. 2 that he had been treating her with

cruelty would also not be sufficient enough to form a, prima facie,

view that such complaints had been made by the petitioner in

order to demean or lower down his position in the eyes of his

superiors and colleagues. These complaints, moreover, appears

to had been made about a decade prior to filing of the complaint.

10. In the present case, petitioner and respondent no. 2 were

not keeping good relations almost for last three decades. The

facts narrated above also clearly show that respondent no. 2 had

been desperately trying to obtain divorce from the petitioner,

inasmuch as, he had been filing divorce petitions right from 1976

onwards. As many as five divorce petitions had been filed. Lastly,

he has filed a divorce petition in the year 1998 which is still

pending. In this scenario, there is possibility of respondent no. 2

initiating criminal proceedings in order to exert pressure on the

petitioner in the divorce case, more so, when alleged complaints

were filed in the year 1980-81 but no action for defamation was

taken till the year 2002.

11. As is evident that both the parties had been leveling

allegations and counter allegations against each other. As per

the respondent no. 2, it is the petitioner who had been treating

him with cruelty; whereas petitioner alleges cruelty on the part of

respondent no. 2. As per the petitioner, he had even not taken

care of his daughter and did not spend any money on her

marriage. Offspring of the parties, as already mentioned above,

has also filed a petition under the Hindu Adoption & Maintenance

Act, 1956 claiming from the respondent no.2, the expenses

incurred on her marriage besides maintenance. Whether the

petitioner has treated respondent no. 2 with cruelty or it is the

respondent no. 2 who has treated her with cruelty is subject

matter of trial in the divorce case. No finding has yet been

returned in this regard. Thus, it cannot be said that petitioner

had made false and frivolous complaints to the superior officers

of respondent no.2.

12. Judgments Dr. J. Sudarshan Vs. R. Sankaran 1992 CRI

L.J. 2427, M.A. Rumugam Vs. Kittu @ Krishnamoorthy (2009) 1

SCC 101 and Lalmohan Singh Vs. The King AIR (37) 1950

Calcutta 339, reliance whereupon has been placed by the counsel

for respondent no. 2 do not advance his case any further being in

the context of different facts. In M.A. Rumugam's (supra) case, a

plea was taken by the accused that he had acted bonafidely and

in good faith. In this context it was held that the plea taken was

subject matter of trial. In Dr. J. Sudarshan's case (supra),

offending passage was per se defamatory and in this context it

was held that it was open to the respondent to choose to

prosecute the petitioner, irrespective of the pendency or the result

of civil litigation. In Lalmohan Singh's case (supra) also, it was

held that to say something about a person which holds him to

contempt is defamatory.

13. Facts of this case are totally different. Petitioner and

respondent No. 2 are husband and wife. They are at loggerheads

and fighting out litigations in the court for the last three decades.

Respondent No. 2 is desperately trying to obtain divorce from the

petitioner. Fifth round of litigation, in this regard, is pending

between them in the court of Additional District Judge. In this

scenario, it appears that the present complaint has been initiated

by respondent No. 2 in order to exert pressure on the petitioner in

the divorce case and also with an ulterior motive for wreaking

vengeance on the petitioner due to his personal grudge.

14. For the foregoing reasons, impugned order is set aside and

complaint case filed by respondent No. 2 against the petitioner,

pending in the court of Metropolitan Magistrate is quashed.

A.K. PATHAK, J.

NOVEMBER 01, 2010 rb