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WRIT OF HABEAS CORPUS

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

EXTRAORDINARY JURISDICTION

CRIMINAL WRIT PETITION NO. OF

DISTRICT: MUMBAI

____________________ …Petitioner

Vs.

1. Mrs. __________________

2. Mr.

3. State of Maharashtra

4. The Commissioner of Police, Thane

5. The Commissioner of Police, Mumbai …

Respondents

PETITION FOR THE ISSUE OF WRIT OF HABEAS

CORPUS UNDER ARTICLE 226 OF THE

CONSTITUTION OF INDIA
TO,

THE HON’BLE CHIEF JUSTICE AND OTHER

HON’BLE PUISNE JUDGES OF THIS HON’BLE HIGH COURT

OF JUDICATURE AT BOMBAY

HUMBLE PETITION OF THE PETITIONER

MOST RESPECTFULLY SHOWETH:

The petitioner is invoking the extraordinary jurisdiction of this Hon’ble Court

for his son Master ______, whom he has not seen for over eight months and

who has been illegally confined by his wife after she has siphoned off large

sums of money amounting to Rs. …………… through online banking by

changing the account password without his knowledge. That the petitioner

has taken all the measures from filing various police complaints, the custody

case and criminal case in which an enquiry was ordered. However, all efforts

of the petitioner have gone in vain, because she and her parents i.e., the

respondent No.1 and 2 are ignoring all summons from the police and notices

from the Family Court. Although she has been residing with her parents, the

respondent is not responding to the summons, hence the present writ.

Furthermore, the child has not attended school for the last two months.

Hence, the petitioner father is very suspicious and scared for his son’s life.

The brief facts of the case are as follows:


1. That the petitioner and the respondent No. 1 are legally wedded husband

and wife. That one male issue namely Master _________ was born on

______________________ from the said wedlock at Mumbai, whose

custody is with the mother i.e., the respondent No. 1. The respondent No. 2

are the maternal grandparents of the child and parents of the respondent

No.1.

2. That on _________, there was some matrimonial discord between the

petitioner and his wife, the respondent No. 1 herein. Probably because of

the same, she left the matrimonial home along with all her belongings and

the child without informing the petitioner husband. After leaving the

matrimonial home the respondent wife changed the bank password

without intimating the petitioner husband and siphoned an amount of Rs.

_________________ from the bank account, which were kept for the

purpose of the child’s future. Soon thereafter, she changed her address and

details of all the bank accounts to (her) parents’ address. The petitioner

states that their marriage survived for more than eight years during which

there were hardly any issues between them except for her obsession with

the child. In fact, they had jointly visited a psychiatrist over the issue of the

child, but it couldn’t be addressed. She never allowed the father i.e., the

petitioner herein, to be alone with his own child, even at a nearby park.

3. That in this current situation, where she has suddenly left the house with

their son, he does not know where to find her and their son. Her parents

said that she does not stay with them hence, they are not accepting the

notices from the Family Court. The child has also not attended school for

the past two months. The attendance sheet is annexed and marked as an

Annexure “A” herewith.


4. That the petitioner and his family tried to visit and communicate with

respondent No. 2 i.e., her father but received no response. That the only

communication he has received from her is the notice of the Domestic

Violence case filed by her against all the in-laws. That the said case is

pending before the Hon’ble Metropolitan Court at ___________ bearing

No. _______.

5. That the petitioner husband has filed a custody case before the Family

Court, __________, Mumbai bearing Petition No.

_______________________, which is annexed and marked as an

Annexure “B” here. At the time of service of the summons, the petitioner

husband learnt that the respondent wife is not residing at the address

provided in her Domestic Violence case. Neither is she residing with her

parents’ house at __________________, nor are they disclosing where

is she. That the respondent No.1 was last seen in the company of her

parents when she left the matrimonial house on _______________.

Since that day there is no communication from her. She is not responding

to phone calls, SMSs, police officer’s calls and even the Court notice is left

unserved. Now at last, the petitioner herein has taken order from the

Family Court to serve the notice before the Hon’ble ________________

Metropolitan Magistrate Court where the Domestic Violence Case was

filed. Unfortunately, she has not attended The Court for the last two dates

and the Counsel representing her has refused to receive the notice on her

behalf.

6. That the petitioner has also filed a police complaint with ______ Police

Station, on ____________ about the respondent siphoning the money

and leaving home unannounced, with the child.

The__________________ Police station tried contacting her but, she

did not respond. The Closure Report of the present complaint says that she

has refused to come to the police station and inform about her
whereabouts. The Closure Report of the _________ Police station is

annexed and marked as an Annexure “C” herewith.

7. That by now, it is evident that she is hiding herself and is also

confining/detaining their son, who is five years old. She is not allowing the

petitioner father herein to meet him. That all the efforts by him to see his

son have become futile for the past eight months. That she is depriving the

child of father’s love. She is overprotective and obsessed with having

exclusive control of the child and in that, she is harming the child’s future

and a serious note has to be taken of the same and hence, the present writ

is being filed as a last hope because all the other legal remedies have failed

to provide even a glimpse of the child.

8. The petitioner states that he has no idea, where is the child and the worst

he can think is about the safety of his child due to his overprotective and

obsessed mother i.e., his wife. That this alone shall be the ground on which

this Court has to exercise its extraordinary jurisdiction under Article

226 of the Constitution of India to direct the production of the child,

whose whereabouts are not known since the past eight months.

The above wordings are the guidelines for any child’s welfare and the

petitioner relies on the following grounds amongst the others in the light

of above explanation:

GROUNDS

i. That the respondent wife has vanished with the child, on

____________ and the whereabouts of her and their child is still not

known till date. The petitioner husband has not seen the child for the
past more than eight months. All the other alternatives mentioned

above i.e. police complaint, the custody case and criminal case have

failed and hence, the present writ is the last hope of a father to see his

child.

ii. That after disappearing from her matrimonial home, she has siphoned

an amount of Rs. ____________/- (Rs.

___________________________________________ only)

from the bank account which was primarily kept for the child’s future.

Therefore, her intentions may not be good and with the child being in

her control, she may play any foul game. Hence, a father seeks the

strong intervention of this Court, before any untoward incident befalls

the child.

iii. The child is not attending school since a long period of two months.

With no end in sight, this act of respondent No. 1, intended towards the

petitioner, is actually affecting the child’s education and future.

iv. That the Hon’ble Supreme Court in the case of Gaurav Nagpal Vs.

Sumedha Nagpal, AIR 2009 SC 557, which dealt with the child custody

matter also laid down that, the special statutes which governs the rights of the

parents or guardians may be taken into consideration, there is nothing which

can stand in the way of the Court from exercising its parens patria

jurisdiction.

9. That at last, the petitioner is not able to serve to the respondent No.1 any

of the notices/summons and the police have failed to call her to the police

station, and the respondent No.1 has not even been attending her own case
filed under the Domestic Violence Act, puts a big question mark about her

whereabouts and consequently about the child too. The petitioner is totally

broken not seeing his son for more than eight months, and hence knocking

on the doors of this Hon’ble Court.

10. The petitioner states that he has not filed any other petition/writ before

this Hon’ble Court or Hon’ble Supreme Court for the same relief.

11. This Hon’ble Court has jurisdiction to entertain and decide the present

writ as all the facts occurred in the jurisdiction of this Hon’ble Court.

12. The petitioner has no other efficacious or alternative remedy and hence,

the present writ as a last hope to see his son.

PRAYERS:

The petitioner therefore, graciously prays:

a) To issue a Writ of Habeas Corpus directing the respondents to produce

the petitioner's son Master _____________ aged about five years

before this Hon'ble Court from the forceful confinement of the

respondent No.1.

b) To issue order/direction(s) to the respondent Nos. 3 and 4 to make

enquiry about the whereabouts of the child with the respondent No.1

and 2.

c) Pass such other order/relief(s) that may be deemed just, fit and proper

in the interest of justice and equity.

For this act of kindness, the petitioner as in duty bound shall ever pray.
Date:

Place: Mumbai Advocate for the Petitioner

VERIFICATION

I, Mr. _______________________, aged ____ years, the

Petitioner hereinabove residing at

_____________________________________________, the

Petitioner above named do hereby solemnly affirm and state that

whatever stated in paragraphs No. 1 to 14 is true to my own

knowledge, information and belief and I believe the same to be true

and correct.

Solemnly affirmed at Mumbai )

This day of , 20___) Petitioner

Identified by me,

Advocate for the Petitioner


WRIT FOR QUASHING DOMESTIC VIOLENCE PROCEEDINGS

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO. OF 20___

DISTRICT: MUMBAI

In the matter of Article 227 of

Constitution of India

Read with

Section 482 of Criminal Procedure

Code, 1973

And

In the matter of quashing and setting

aside the impugned Domestic Violence

proceedings bearing No.___________


before the Addl. CMM ____Court,

………………………Mumbai.

Mr.___________________

Age: ___years; Occ: …..

______________________ ...Petitioner

 Vs.

1. Mrs. _____________________

Age _____ years, Occ: …

2. State of Maharashtra …Respondents

TO,

THE HON’BLE CHIEF JUSTICE

AND OTHER PUISNE JUDGES

OF THIS HON’BLE COURT

HUMBLE PETITION OF THE PETITIONER

MOST RESPECTFULLY SHOWETH:


1. That one of the main ingredients to be established for claiming benefit

under the provisions of the Domestic Violence Act is that there should

be domestic violence as defined under section 3 of the Act. The writ

jurisdiction of this Hon’ble Court is invoked to quash

the domestic violence case instituted at the behest of the wife, who is a

Canadian citizen and is staying separately, as per her own admission, for

the last 15 years at the time of filing of the Domestic Violence proceedings.

2. Issues in controversy:

(a) Domicile and citizenship of the wife:

The petitioner husband is an Indian citizen who is 73 years old today, and

has been residing separately, away from his wife i.e., respondent No.1

herein, for the last 15 years or more in India. She is a Canadian citizen,

staying there permanently. Previously, as per her own admission in para

No. 5 of the proceedings filed before the Hon’ble Trial Court, she and

petitioner moved to Dubai immediately after marriage. So, their

matrimonial abode was at Dubai and never ever in India. Also, her

passport if asked to produce would clear the air that her visits to India are

only for vacation.

(b) Jurisdiction

That there is not a single incident mentioned in her entire DV application

wherein any incident of domestic violence has taken place in this country,

leave alone in Mumbai. On the contrary, her entire application speaks of

their matrimonial life together at Dubai and thereafter, her relocation to

Canada and the Petitioner’s relocation to India. So, it is her own case that
at no point of time did the couple stay together in India. Hence, there

cannot be any cause of action in India.

(c) Cause of Action

That the first-hand reading of the entire case takes us to the property

dispute between the parties, mentioned in para No.26 of the application.

The Domestic Violence Act is meant to help women from all walks of lives,

whether she is married or unmarried, as long as she is in any kind of

domestic relationship which is abusive. However, the same is misused by

the respondent wife herein for resolving her property dispute after a long

period of 44 years of married life and that too after a separation of 15

years on record, which is apparent from her own application.

3. Facts of the Case:

The petition and respondent got married in the year _____ at

___________________, Mumbai according to Hindu Vedic rites. After

the marriage, the parties went to live in Dubai, where the petitioner was

employed. The petitioner and the respondent were blessed with two

children namely _________ and __________. Thereafter, the

petitioner left his job and started his own business in Dubai in the year

______. In the year _____ the petitioner moved to India whereas the

respondent decided to stay in Canada, where their children were placed.

There the respondent qualified as a Fitness expert and opened a center for

the same. The parties married off their daughter in Mumbai in the year

______. The expenses were borne by the petitioner. In the year______,

the petitioner went to Canada after his mother’s death in California and

handed over to the respondent his deceased mother’s jewellery, which she
had left for her. On _______ the respondent instituted proceedings under

Protection of Women from Domestic Violence Act against the petitioner in

India in Mumbai, which is the subject matter of the present writ. The

petitioner filed a preliminary objection on the maintainability of the DV

proceedings. The Hon’ble Trial Court passed an order dated ________

stating that the maintainability application will be decided upon the

conclusion of the trial. On __________, the _________ Court was on

leave. However, a short date was given and suddenly an ex-party order is

passed on the next date i.e., on ____________ calling upon the

petitioner to produce his financial documents, when the petitioner and his

Counsel was absent though the matter was always kept for evidence

throughout before that. That both these orders are marked & annexed

herewith as and by way of Annexure A & B.

4. The petitioner is challenging the maintainability of the proceeding on the

following grounds:

GROUNDS

A. Because the respondent has not mentioned a single incident of

domestic violence taking place in this country in her entire DV

application.

B. Because the petitioner and the respondent are living in two different

countries with TWO DIFFERENT NATIONALITIES for more than 15

years.

C. Because prima facie there is NO CAUSE OF ACTION.


D. Because till date she has undisturbed possession of their house in

Canada which is a property worth 15 Crores purchased by the

petitioner jointly, in both their names.

E. Although she is a Canadian citizen by domicile, she has not proceeded

legally there, which speaks volumes about the nature of her motive to

harass the petitioner husband herein in India.

5. Law points and judgements:

(a) The law is well-settled, that such fleeting trips to any place cannot

create jurisdiction for matrimonial dispute. To create the

jurisdiction at least she should have been temporary resident of the

place and stayed there till disposal of the case. This was observed

by the Justice Shiv Narayan Dhingara in the case of Sharad

Kumar Pandey Vs. Mamta Pandey of Delhi HC, 2010:

“This temporary residence does not include residence in a lodge or

hostel or an inn or residence at a place only for the purpose of filing

a domestic violence case. This temporary residence must also be a

continuing residence from the date of acquiring residence till the

application under Section 12 is disposed of and it must not be a

fleeting residence, where a woman comes only for the purpose of

contesting the case and otherwise does not reside there.”

(b) Also, in the case of Jayantilal Nagda Vs. State of

Maharashtra & Anr., Bombay High Court (2010), it was

held that when there is a separation of long period i.e., 34 years (in
the instant case i.e. of 15 years), prima facie there cannot be

domestic violence.

(c) In Sejal Ved Vs. State of Maharashtra (2011), the Bombay

High Court has held that when there is no physical relationship or

union of both the spouses for the longer period, the wife cannot file

the proceedings under the Domestic Violence case as the parties no

longer reside together. Hence, there cannot be any kind of domestic

relationship between them which is the mandatory ingredient of a

domestic violence case such as the case in hand, apart from a

shared household.

In view of the above submissions and the relying on the judgements

referred above, it is crystal clear, that the present proceedings are an

abuse of process and needs to be quashed.

6. The petitioners submit that, it is within the inherent powers of this

Hon’ble Court to quash the proceedings under the Domestic Violence Act

numbered, as _________ pending before the ____Court, Mumbai to

secure the ends of justice.

7. This Hon’ble Court has jurisdiction to consider, try, and dispose of the

present petition.

8. The petitioner has no other equally efficacious, alternate remedy available

to him and hence this writ.


9. The petitioner has not filed any other petition either in this Hon’ble Court

or any other High Court or Supreme Court of India, pertaining to the

subject matter of the present petition.

10.The petitioner begs to add, alter, or amend any of the grounds if necessary.

Therefore, the petitioner prays that:

a) This Hon’ble Court be pleased to admit and allow the petition for

quashing the proceedings No. ___________ under Protection of

Women from Domestic Violence Act, 2005 filed before the ____Court

……………………………. Mumbai.

b) Pending admission and final disposal of this petition, this Hon’ble

Court be pleased to stay the proceedings before the ___Court, at

……………………………, Mumbai.

c) Any other relief(s) that may be just, fit and proper.

For this act of kindness, the petitioners as in duty bound shall ever pray.

Date:

Place: Advocate for the Petitioner

VERIFICATION

I, Mr. _______________, aged___ years, the Petitioner residing

at__________________________________________, do hereby
solemnly affirm and state whatever is stated hereinabove is true and correct

to the best of my own knowledge and belief.

Solemnly affirmed at Mumbai )

This day of ,20___) Petitioner

Identified by me,

Advocate for the Petitioner

WRIT FOR QUASHING OF FIR


            IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO.                  OF 20___

DISTRICT: _______

Mr. __________________& Ors.                               ...Petitioners

Vs.  

State of Maharashtra & Anr.       …Respondents

SYNOPSIS

Sr. Date                         Events

No

1. The petitioner No. 1 and the complainant got

married at Mumbai.

2. Marriage reception was organized by the

petitioners at Jaipur where the petitioners

permanently reside.

3. The complainant left back from Jaipur by flight

for Mumbai on air-ticket booked by the

petitioner No. 1 as a regular ritual which is

followed after few days of a new marriage wife to

visit her parents’ home on first festival after

marriage.
4. The petitioners came down to Mumbai from .

Jaipur to take back the complainant. However,

she refused to go citing the reason not liking

Jaipur.

5. The petitioners again had a meeting at Mumbai

with her and her family members, but no

concrete decision was taken in this meeting.

6. The petitioner No. 1 filed for divorce at Jaipur,

which she got transferred to Mumbai by

preferring a Transfer Petition before the Hon’ble

Supreme Court.

7. The complainant instituted proceedings under

Protection of Women from Domestic Violence

Act.

8. A meeting came to be held between the elderly

members of both sides for mutual settlement

which was unsuccessful as the complainant

demanded huge alimony. The petitioners were

kept in dark about the DV proceeding during this

meeting.

9. An FIR was lodged by the complainant against

all the petitioners.

10. Hence, the present Writ petition.

POINTS TO BE URGED:
1. Whether ingredients of Section 498A can be attracted in a case, where the

complainant leaves her matrimonial home voluntarily with no intention to

come back?

2. Whether the delay of almost 2 and half years in lodging an FIR against the

in-laws is an opportunistic weapon used for pressurizing huge financial

settlement?

AUTHORITIES TO BE CITED:

1. Sushil Kumar Sharma Vs. Union of India and others, 2015.

2. Poonam Singh Vs. State & Ors., Delhi HC, 2013.

3. Thulia Kali Vs. State of Tamil Nadu (Criminal Appeal No. 165

of 1971 decided on February 25, 1972) Supreme Court.

 ACTS TO BE REFERRED

1.   The Constitution of India.

2.   The Code of Criminal Procedure, 1973

3.   Indian Penal Code.

Advocate for Petitioners

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO.                  OF 20___

DISTRICT:_____

IN THE MATTER OF ARTICLE 226 OF

CONSTITUTION OF INDIA
AND

IN THE MATTER OF SECTION 482 OF

CODE OF CRIMINAL PROCEDURE,

1973

    

AND

IN THE MATTER OF C.R. No.____ OF

201__under section498A, 406, 323 read

with 34 OF THE INDIAN PENAL CODE

1. Mr. __________________

2. Mr. ____________________

3. Mrs. ___________________

All residents of

__________________ ...Petitioners

Vs.

1. State of Maharashtra               

(Through _______ Police Station

in C.R. No._____ of 20__)       

            
2. Mrs. _____________________ …Respondents

                                                       

TO,

THE HON’BLE CHIEF JUSTICE

AND OTHER PUISNE JUDGES

OF THIS HON’BLE COURT

  THE HUMBLE PETITION OF   THE    

PETITIONERS

MOST RESPECTFULLY SHOWETH:

“If cry of "wolf" is made too often as a prank assistance, then the protection

may not be available when the actual "wolf" appears.”

These words of Justice Arijit Pasayat from the very recent judgement of our

country’s apex Court in Sushil Kumar Sharma Vs. Union of India and

others, (2015), speak a volume about the misuse of the laws related to women,

especially section 498A of Indian Penal Code. It has been termed it as one

kind of legal terrorism. The present one is a peculiar example of the same with

the facts unfolding in synopsis and the present writ herein below.

1. The present writ is for invoking the inherent powers of this Court under

article 226 read with section 482 of Criminal Procedure Code to act ex

debito justitiae to do real and substantial justice and to prevent abuse of

the process of the Court.

Inherent power under section 482  of Cr.P.C. can be exercised:

(i) To give effect to any order under the Code;

(ii) To prevent abuse of the process of Court, and

(iii) To otherwise secure the ends of justice.


2. That in this petition, the petitioners are seeking the quashing of the FIR

(bearing No. _____ of 20___), where they came to be charged under

Section 498A, 406 and 323 read with 34 of the Indian Penal Code. That

this is a classic example, where the wife leaves the matrimonial home with

a flight ticket provided by the husband on ____________, booked 24

days in advance (air ticket booked on ___________), and then alleges

after two and half years, that she was thrown out of the matrimonial home,

for the first time in the present FIR lodged on ___________, which is

the subject matter of the present Writ.

3. The factual matrix leading to the present petition are as under:

That the marriage between the petitioner No.1 and the complainant was

solemnized as per the Hindu Vedic rituals on __________ at Mumbai.

The petitioner Nos. 2 and 3 are the father-in-law and the mother-in-law of

the complainant. The complainant did go to Jaipur to her matrimonial

home but her stay there was only for 40 days. She then returned from

Jaipur to Mumbai without any dispute or any complaint. She returned by

flight in normal course as being newly wedded daughter in law returning

to her parent’s home on first festival. Thereafter, she did not go back to

Jaipur and that led to litigation between the parties i.e., a divorce petition

by the husband, Domestic Violence proceeding by the wife, and ultimately

an FIR after a gap of two and half years against all the in-laws. Further, the

petitioners came all the way to Mumbai from Jaipur and met her three

times. The petitioners were not even informed of the Domestic Violence

proceedings filed by her during their last meeting in the month

of_______.

4. That on ___________, an FIR bearing No. ____ of 20_, was registered

at _______ Police Station for the offences punishable under section

498A, 406, 323 r/w 34 against all the petitioners mentioned hereinabove,
at the instance of the complainant i.e., wife, the respondent No. 2.  The

copy of the FIR is annexed and marked herewith as an Annexure-A. The

relevant para No. 9 and 12 from the FIR is filed as typed copy as the

original page is not legible in reading. That the allegations therein are

about throwing her out of the matrimonial home, whereas the truth is that

she came down to Mumbai from Jaipur as a newly married daughter to her

parent’s home with proper flight ticket provided by the husband very much

in advance i.e., 24 days in advance. This is important proof that her

complaint is prima-facie false. The flight ticket is marked and annexed

herewith as an Annexure-B’.

5. The petitioners pray for quashing of the FIR on the following grounds:

                                          GROUNDS 

A) Because the complaint, which speaks of throwing her out of the

matrimonial home, is prima facie false. The truth is that she came in her

usual way as a newly married woman by a flight from Jaipur to Mumbai,

which was booked well in advance i.e., 24 days by husband.

B) Because there is a delay of two and half years in lodging the FIR.

C) Because the complainant is abusing the process of law by lodging a false

complaint to get the petitioners to agree to her terms of settlement, which

is evident from her huge demand for settlement during the mediator’s

meeting.

D) Because her not returning to her matrimonial home indicates towards her

disliking of Jaipur, which was also their point of discussion in their

WhatsApp chat.
E) The Hon’ble Delhi High Court in the case of Poonam Singh Vs. State &

Ors, (2013), have come across a case where the subject of surrounding

documents other than FIR has to be looked into it. The said relevant para

No.17 is extracted below :

“ Section 498A IPC is coming under criticism as a subject of misuse, it is

important for this Court ought not to look at the FIR in a cursory manner,

but look at it in the context of the conduct of the parties, as is apparent

from the undisputed documents. Thus, it is not just the FIR but the

surrounding documents to be read to go to the root of the controversy and

to see whether the FIR is an afterthought of respondent No.2, only to

harass her in-laws and extort huge financial settlement. After all the

misuse of this provision is harassment. Thus, she has unnecessarily roped-

in the father-in-law and the mother-in-law (petitioners herein), when even

in the FIR; she herself is unable to make out a cogent case against them

except some bald- faced averments.”

F) The Supreme Court in Thulia Kali Vs. State of Tamil Nadu (1972)

stressed the importance of making prompt report to the police regarding

the commission of cognizable offence. It was observed: "Delay in lodging

the first information report quite often results in embellishment, which

is a creature of afterthought. On account of delay, the report not only

gets bereft of the advantage of spontaneity, danger creeps in of the

introduction of a coloured version, an exaggerated account or a

concocted story, as a result of deliberation and consultation. It is

therefore essential, that the delay in lodging of the first information

report should be satisfactorily explained."


6. That the petitioner has not filed any other petition in this Hon’ble Court

or any other Court praying for similar reliefs.  

8. That the FIR is lodged at _______, _____ district where the complainant

resides, which comes within the jurisdiction of this Hon’ble Court, and

therefore it has got jurisdiction to decide the present petition.

9. The petitioner have no other efficacious alternate remedy available to them

and submits that this is a fit case for exercising the inherent jurisdiction of

this Hon’ble Court under Article 226 of the Constitution of India and

under Section 482 of the Code of Criminal Procedure for quashing the FIR.

bearing No. _____of 20__. 

10. The petitioners have paid the requisite Court fees.

11. The petitioners crave leave to add, amend and alter the averments of the

writ petition with the permission of the Hon’ble Court, if required.

12. That no other petition or application for quashing the FIR that is pending

before this Court or any other Court for the same relief sought herein.

PRAY E R S

That this Hon’ble Court may graciously be pleased:

a) To issue a writ, order or direction in the nature of certiorari, thereby

quashing the impugned FIR. No. _____ of 20___;

b) To issue a writ, order or direction in the nature of mandamus

restraining the respondents proceeding further in pursuance to the said

FIR and direct them to close and drop the said proceedings;

(c) For such any other relief/order(s) as this Hon’ble Court may deem fit,

just and proper in the facts and circumstances of the case.

For this act of kindness, the petitioners as in duty bound shall ever pray.
 

Date:       

Place: Mumbai  Advocate for the Petitioners        

            

VERIFICATION

I, Mr. _________________, aged ____ years, the petitioner No. 1 herein

above and also on behalf of the petitioner Nos.  2 and 3 residing at

________________________________, currently at Mumbai,

Maharashtra, for the purpose of filing the present writ petition, do hereby

solemnly affirm and state the facts and content hereinabove mentioned is true

and correct to the best of my own knowledge.

Solemnly affirmed at Mumbai    )

This      day of _________    )                           Petitioner No. 1

                                                                  

Identified by me,

Advocate for the Petitioners

CRIMINAL WRIT FOR STAY ON ARREST


(This writ was preferred when there was no provision for anticipatory

bail in Uttar Pradesh. It was scrapped in the year 1976 and recently re-

introduced after 33 years in the year 2019.)

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD

CRIMINAL WRIT NO. OF 20___

DISTRICT: ______

In the matter of Writ Petition under

Article 226 of the Constitution of India

And

In the matter of quashing the impugned FIR

against the petitioner registered at _______

Police Station bearing Crime No. _______ of

20___

Mr. ____________________________ ...Petitioner

Vs.

1) State of Uttar Pradesh )

(Through the Public Prosecutor) )

Appellate Side, High Court )

____________ )
2) ____________________________ )

( The original complainant) …Respondents

TO,

THE HON’BLE CHIEF JUSTICE AND OTHER HON’BLE PUISNE JUDGES

OF THIS HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

THE HUMBLE WRIT PETITION OF

THE PETITIONER

MOST RESPECTFULLY SHOWETH:

This Hon’ble Court in the year 2014 through Justice Vishnu Chandra Gupta in

Sandeep@Kothari Upadhyay Vs. State of U.P. had put up very

distinctly what a rape case does to a man:

“What amount of agony a person faces after charge of rape cannot be

imagined nor expressed in words. He virtually loses everything in the society.

He suffers a great stroke in his reputation and status in the society and

amongst his family members and friends.

1. The petitioner through the present Writ Petition is

invoking extraordinary jurisdiction of this Court under Article 226 of

the Constitution of India for seeking issuance of

appropriate writ, direction, or order from the protection of false

prosecution instituted with malafide intentions for the purpose of

harassment to him.
2. Petitioner’s Case:

That the present case is nothing but a failed love relationship of

consensual sex (which had started from Facebook) between two married

adults, who had consensual physical relations, as is visible from the

photographs herein marked and annexed as Annexure 1. Now, it has

shaped into hatred which has been cultivated into rape charges by

respondent No.2. That the period of their relationship spreads from

__________________ to _______________. The initial video

chatting led them to develop an intimate relationship. As their

relationship grew deeper, with the respondent No.2 arrived at ……………..

to stay at the Petitioner’s home and, thereafter, had engaged in sexual

relationships at the multiple places, they travelled together.

During the same period, there were bank transactions totalling to

amount of Rs._____________ transferred from the petitioner’s bank

account. Also, there were instances where the woman who is the

respondent has online purchases from Amazon and the bills were paid by

the petitioner. This list includes costly watches, pillows, cell phone etc.,

all of which were delivered to her residential address. The statements

and bills are herein marked and annexed as Annexure 2 and 3.

That suddenly, their relationship went sour, and they did not see eye to

eye with each other. Her vengeful vendetta began with an email of the

complainant to all his seniors of the company, where he was working,

accusing him of rape. She also shared their intimate photographs in

those emails. The email dated ________and pictures are annexed

herewith as Annexure 4.
Unsatisfied by just tainting his reputation with the emails, her vengeance

took shape of a WhatsApp message from a Swami Jee’s cell Number

……………………, claiming that the respondent lady was

his disciple and threatened him to arrive at a “ समझौता ”. The

screenshot of threat message is marked and annexed as Annexure 5. The

Swami Jee in this WhatsApp message also sent a copy of the police

complaint dated __________. Meanwhile, there were two calls from

the police station and an FIR was registered as crime No.____

________ in ___________, Uttar Pradesh. Further, thereafter on

________, there was a media report accusing him of rape charges and

false promises of marriage published in local newspaper. The newspaper

cutting of the same is annexed herewith as Annexure 6. The email sent to

his office colleagues and business heads has blotched his reputation,

which may cost him, his job. That, she has also attached their

photographs in a compromising position with malice and vile intentions

to tarnish and destroy his reputation.

3. That the Respondent herein, is a well-educated and net savvy woman,

and is in possession of few more obscene photographs of the Petitioner

other than the ones. She is threatening to circulate them. The Petitioner

is being blackmailed and threatened that, if he would not marry her then

the respondent would do everything in her capacity to ruin his image in

Society. In this case, the respondent knew since beginning that the

petitioner was a married man with two children, and she still continued

the physical relationship, she herself being mother of one child. It was all

with mutual consent. However, now she is in revenge mode.


4. The respondent is posting offensive messages on Facebook and posting

his compromising pictures with her. She is also asking her friends to

write and share her posts against the petitioner on her timeline. Her only

agenda seems to be to defame him and make him loose his job. She has

also uploaded fabricated screenshots of WhatsApp chat. Aforementioned

Facebook Posts and uploaded Photographs are annexed and marked

herewith as Annexure 7.

5. That the complainant’s act of imputation of rape charges on social

media, email to company officials, newspaper publications, even before

the FIR is lodged is nothing but social defamation of a person with whom

she was having consensual sex for about a period of seven months. This

has resulted in a dent on his reputation forever. That there is admittedly

civil remedy for this, but then the petitioner cannot be punished before

the charges are proved by way of her flashing about their failed

relationship, and calling him rapist on social media and amongst his

office and business colleagues. That he is patient of heart as his right

ventricle is in very weak condition.

GROUNDS

A) Because a married lady, matured, educated (M.A.) and net savvy woman

having a 16 year old daughter, and she was aware of petitioner’s marital

status cannot and should not be allowed to cry rape, when she stayed in

relationship with her own consent at various times and various places

with the petitioner out of her own free will.


B) Because all the available materials of their relationship produced by her

convincingly shows that there was a consensual physical relationship.

C) Because the petitioner and the original complainant (both married) were

in intimate relationship for a period of 7 months i.e., from

____________ to ________in connivance with each other as is

evident from their joint photographs, her shopping bills, her regular

travelling with him etc. Therefore, by any stretch of the imagination it

cannot be held as rape. It was flirtation by both of them for their own

happiness and joy.

D) The Hon’ble Supreme Court in the case of Rajoo Vs. State of

Madhya Pradesh (2008) 15 SCC 133 has observed:

"It cannot be lost sight of that rape causes the greatest distress and

humiliation to the victim, but at the same time a false allegation of rape

can cause equal distress, humiliation and damage to the accused as well.

The accused must also be protected against the possibility of false

implication, particularly where a large number of accused are involved. It

must, further, be borne in mind that the broad principle is that an

injured witness was present at the time when the incident happened and

that ordinarily such a witness would not tell a lie as to the actual

assailants, but there is no presumption or any basis for assuming that the

statement of such a witness is always correct or without any

embellishment or exaggeration."

E) Because there is mental suffering and loss of reputation of the petitioner

due to the conduct of respondent in maligning him on multiple social


media platforms as well as sending defamatory emails to his company

superiors even before charges are put on papers.

F) Because this kind of unscrupulous litigation is required to be nipped in

the bud itself; a married woman gets involved in an affair during the

subsistence of her marriage and conveniently lodges an FIR under the

charges of rape case against her paramour. She saves the honour of her

married life, but destroys the life of a man by slapping rape charges.

G) The Delhi High Court in Harish Kumar Vs. State, 2010 quashed

FIR in a matter of consensual sex observing that the statement makes it

apparent that the prosecutrix was aware that she was not married to

petitioner and marriage between her and petitioner was yet to take place.

She had developed intimacy as she herself was in love with petitioner

and she and the petitioner with consent of each other were enjoying each

other's body and having sexual relationship. Since it is a case of obvious

consent of the prosecutrix, who was aware that no marriage had taken

place and the marriage between parties was yet to take place, no case

either under Section 376 or 493 IPC is made out. 

6. The petitioner has no other equally efficacious alternate remedy

available to him, and therefore, the remedy by way of this writ petition.

7. This Hon’ble Court has jurisdiction to entertain, try, and dispose of the

present petition, as the complaint is lodged at ………., Uttar Pradesh.

8. The petitioner has not filed any other petition before this Hon’ble Court

or any other High Court or Supreme Court of India, pertaining to the

subject matter of the present petition.


9. The petitioner craves leave to add, alter, amend or delete any of the

grounds if necessary.

Therefore, the petitioner prays that this Hon’ble Court may graciously be

pleased to:

a. Issue the writ of certiorari to quash the impugned FIR against the

petitioner registered at _____ Police Station, bearing Crime No.

____ of 20___.

a. Issue writ, order, or direction in the nature of mandamus to stay the

petitioner’s arrest during investigation;

b. Issue writ, order or direction as and by way of ad-interim protection

during the pendency;

c. Issue an order restraining the respondent No.2 from posting

defamatory matters on social media related to the petitioner.

d. Pass such other order/relief(s) which this Hon’ble Court may deem fit,

just, and proper.

For this act of kindness, the petitioner as in duty bound shall ever pray.

Date:

Place: Advocate for the Petitioner

VERIFICATION

I, Mr. _____________________, aged ___ years, the petitioner

hereinabove residing at ____________________________________,

Maharashtra do hereby solemnly affirm and state that whatever is stated


hereinabove in the petition is true and correct to the best of my own

knowledge and belief.

Solemnly affirmed at ……………….. )

This day of , 201___ ) Petitioner

Identified by me,

Advocate for the Petitioner

POINTS TO BE URGED:

a. Whether when two adults (both married) are entering into consensual

sex, and later, if the relationship fails, can the woman cry rape?

b. Whether the act of defaming the petitioner openly at his place of work,

and on social media, before even the Court of Law proves him guilty,

amounts to maligning of reputation, and whether such an attitude of

vengeance and pre-trial punishment is not an injustice to him?

ACTS TO BE REFERRED

Constitution of India.

Indian Penal Code.

Code of Criminal Procedure, 1973.


REPLY TO THE WRIT PETITION

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH ……………….

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. ___________


Mrs. ………………………… …Petitioner

Vs.

Mr. …………………………………… …Respondent

REPLY ON BEHALF OF THE RESPONDENT

HUSBAND

MAY IT PLEASE YOUR HONOUR:

The respondent husband most respectfully states and submits as under:

The present writ is preferred against the interlocutory order of the Hon’ble

Civil Judge, Senior Division, at …………….. It is humbly submitted, that the

said writ is not maintainable as the section 28 of the Hindu Marriage Act bars

any appeal from the interlocutory orders, as well as the section 19 of Family

Courts Act, through a Special Statute which overrides the General laws as an

appeal lie from every judgment or order, not being interlocutory order, of a

Family Court to the High Court both on facts and on law. Further with due

respect, it is prayed that the decision of the trial Court could be interfered

only if the order is perverse or has manifest error in it. At present her total

maintenance amount is Rs. _______________ per month from two legal

proceedings which she has filed i.e., the divorce petition and the case under

the Domestic Violence act.


The respondent herein relies on the following AUTHORITIES:

1. Sunil Hansraj Gupta Vs. Payal Sunil Gupta, 1991 (2) Bom CR

520.

2. Smt. Anusha Vs. K. Shankar Raman, ILR 1998 KAR 2131.

3. Mala Ramesh Pherwani Of Bombay Vs. Ramesh Pherwani,

1991 (93) BLJR 784.

4. Smt. Amishi Milan Honawar Vs. Shri Milin Bhavanishankar,

2005 (4) Bom CR 493.

5. Smt. Anusha Vs. K. Shankar Raman, ILR 1998 KAR 2131.

This Hon’ble Court in the celebrated case of Sunil Hansraj Gupta Vs.

Payal Sunil Gupta (AIR 1991 Bom 423), has held that the appeal against

the interlocutory order is not maintainable.

The Hon’ble Karnataka High Court in Smt. Anusha Vs. K. Shankar

Raman (ILR 1998 KAR 2131) has held, "The remedy under Article 226 of

the Constitution cannot be permitted to be availed of for the purposes of

frustrating the welfare legislation or allowed to be an appeal in disguise”.

Also, the view taken by Hon’ble Bombay High Court in the case of Mala

Ramesh Pherwani Of Bombay Vs. Ramesh Pherwani (1991 (93)

BLJR 784), is that the section 19(1) bars the appeal against any order passed

under section 24 being an interlocutory order.

In Smt. Amishi Milan Honawar Vs. Shri Milin Bhavanishankar

(2005 (4) Bom CR 493), Hon’ble Bombay High Court has re-iterated its
view that the impugned order is an interlocutory order, and therefore, it is not

appealable.

Therefore, the above Writ is not maintainable on the following grounds:

1. That the order being interlocutory is barred for appeal by Section 28 of

Hindu Marriage Act and Section 19 of Family Courts Act.

2. That petitioner herein has an opportunity to appeal against the final

order, and hence, her haste to appeal against interlocutory order cannot

be considered at this stage, when the matter is kept for evidence since

the last few dates.

3. That under the Article 226 (3) is not intended to circumvent the

statutory procedure as done in the present case. The said view is made

very clear in the case of Smt. Anusha Vs. K. Shankar Raman (ILR

1998 KAR 2131) as follow:

"The remedy under Article 226 of the Constitution cannot be permitted

to be availed of for the purposes of frustrating the welfare legislation or

allowed to be an appeal in disguise. The Article is not intended to

circumvent the statutory procedure. Where the petitioner is shown to

have remedy of challenging the final order by way of appeal, the High

Court would normally not exercise its jurisdiction under Article 226 of

the Constitution". It is further held that "If the High Court decides to

interfere with the interim orders passed by the Family Courts, the same

is likely to frustrate the provisions of the Act, which are intended to

achieve a social object as is evident from the statement of object and

reasons and the various provisions noticed herein above. No Writ


Petition is therefore maintainable against the interim orders passed by

the Family Court, unless the same is shown to be in violation of the

conditions noted herein above."

The entire writ is misconceived on the facts as well as law and is not

palatable and digestible. The respondent puts the true facts by replying

para wise to the writ petition as follows:

1. With reference to Para No.1, the respondent states that it is the

information about the interlocutory order passed by the trial Court and

hence no comments are offered thereon.

2. With reference to the Para No. 2, the respondent states that the

petitioner is highly qualified lady being a Master’s in Education with

First Class i.e., M.A., B.Ed. and M.Ed. as mentioned by herself, in

the writ petition itself. Hence, she is not expected to sit idle with such

high qualifications at her disposal.

3. With reference to the Para No. 3, the respondent states that the facts

stated therein are true.

4. With the reference to the Para No. 4, the respondent states that the

petitioner is making frivolous allegations. The respondent professes

Buddhist religion and hence, there is no custom of dowry in their

custom and religion, and he put her to strict proof to prove the same

that he or his family ever demanded anything as dowry.


Further, the respondent’s parents accepted the petitioner wife as their

own daughter. The vague allegations in the petition are made by the

wife to make out ground for the divorce. At the matrimonial home she

used to get up at 12.00 noon. So, she was hardly doing any household

chores. In her entire stay at matrimonial house, she never tried to

mingle with other family members and create homely atmosphere. She

used to always nag the husband on petty issues, such as air-conditioner

not being installed at home. Further she used to taunt her married

sister-in-law about her strained relation with her husband.

5. With the reference to the Para No.5, the respondent states that the

petitioner is lying on oath and repeating the false allegations regarding

dowry again and again for the malafide reasons known to her only.

6. With reference to Para No. 6, the respondent states that the petitioner

is lying on oath. The respondent states that his married sister Mrs.

…………………………….. never interfered in their matrimonial life, but she

actually helped the petitioner a lot during her pregnancy, being a doctor

herself. In fact, it was the petitioner who used to make derogatory

remarks about her sister-in-law’s marital life, which was not going good

at that particular time. The petitioner has twisted the facts to suit her

tall and false claims for getting divorced from the respondent. The true

fact about the issue of abortion of the child is that the petitioner wife

wanted to abort the child due to her miserable thinking, “women

become ugly after the child birth.” It was the respondent’s sister who is

doctor by profession, talked sense into the petitioner about why she

should not abort her first child as it creates problem for future

pregnancy.
7. With reference to Para No. 7, the respondent states that the petitioner

is making baseless allegations and there is no iota of the truth in her

statements. The truth is that after the child’s birth, the respondent and

his aged mother visited her maternal home to see the new born baby.

Even at that time, the petitioner behaved rudely with them. The

expenses of delivery and medicines were borne by the respondent

husband.

8. With reference to Para No. 8, the petitioner has not approached the

Hon’ble Court with clean hands. She has twisted the facts and mended

them in her favour. To put the real facts on record that in both the

mediation i.e., at ……………, before the Hon’ble Judicial Magistrate First

Class, where the case under the Domestic Violence Act is filed, and

before the Hon’ble Civil Judge, Senior Division where divorce petition

is pending, the petitioner wife has refused to come back to the

matrimonial home.

9. Further, the petitioner had lodged false complaint against the

respondent and his family members at various forums and police

stations and lastly at Mahila Cell, at …………... The Mahila Cell Police

also declined to take any action against the respondent, as the

complaint found to be false on the face of it. That now, she has filed two

legal proceeding i.e. one for divorce from which this writ has emerged

and another proceeding under the Domestic Violence Act against the

respondent husband, his mother and sister, which is causing huge

strain to the respondent as he stays about 900 kms away at

……………..in Thane district.


10.With reference to Para No. 11, the respondent states that the petitioner

is lying on oath. As the petitioner left her matrimonial house on her

own free wish and whim, it is crystal clear that nobody compelled her to

do so. On the other hand, the petitioner is harassing the respondent by

filing multiple proceedings for maintenance.

Therefore, it is humbly submitted with due respect that in view of the above

facts as well as the legal submissions, the interference of this Hon’ble Court is

not required in the well-reasoned order of the trial Court and hence, the

present Writ Petition is not maintainable and deserves to be dismissed with

costs.

NAGPUR

DATE: COUNSEL FOR THE RESPONDENT

APPLICATION FOR QUASHING OF CHARGESHEET


IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURIDICTION

CRIMINAL APPLICATION NO. OF 20__

DISTRICT: MUMBAI

Mr. ________________________

Aged ____ years, Occ:

R/o: ________________ ...Petitioner

Vs.

State of Maharashtra

(Through ……….. Police Station) …Respondent

In the matter of Art. 227 of

constitution of India;

And

In the matter of Section 482 of Code of

Criminal Procedure, 1973

And
In the matter of quashing and setting

aside the impugned proceedings and

FIR, bearing No. ………………………….

before the Hon’ble Metropolitan

Magistrate, at …………..Court,Mumbai.

TO,

THE HON’BLE CHIEF JUSTICE AND OTHER HON’BLE PUISNE JUDGES

OF THIS HON’BLE HIGH COURT OF JUDICATURE AT BOMBAY

THE HUMBLE PETITION OF THE PETITIONER

MOST RESPECTFULLY SHOWETH:

1. That through the present petition, the petitioner is seeking for the

quashing of the criminal proceedings bearing No. __________ under

section 3 and 25 of the Indian Arms Act, 1959, pending before the ____

Metropolitan Magistrate Court at _______, Mumbai.

2. The case of the prosecution is as under:

That on ____________, the petitioner was departing from Mumbai, for his

official trip to New York. That during the security check by auto screening by
machine one cartridge was detected in his suitcase. Hence, a L.A.C. came to

be registered. He was arrested and released on bail. The charge-sheet is filed

and the said case is pending before the Hon’ble _____ Metropolitan

Magistrate Court, Mumbai. The copy of the charge sheet is hereto annexed

and marked as “Exhibit A”.

3. The true facts of the case:

That petitioner’s father was a valid arms license holder, since the year 1984.

That in the year 2011, he sold off all the arms and ammunitions. But

unintentionally, one bullet was left in the outer pocket of his suitcase. The

same suitcase was carried by the petitioner, while he was going on his official

tour to New York. That the petitioner had no knowledge of the one cartridge

that was detected at the airport during the security check by the auto

screening machine. Thereafter, he was arrested by airport police and this

criminal proceeding was launched against him.

GROUNDS

A) That the petitioner was not aware of the presence of the cartridge in the

suitcase of his father, which he was carrying along with him on his official

tour to New York. Thus, the main ingredient to constitute the offence under

the Indian Arms Act, “knowledge of the possession of ammunition” is absent.

B) The police reports or any statement is not contemplating that, there

was any mens rea to commit any crime. As it is well settled law that if there is

no mens rea of crime; there cannot be a commission of crime; which is the

case at hand.
C) That no incriminating material was recovered from the petitioner

except one cartridge from the suitcase; which admittedly belonged to his

father, who is 71-year-old man now.

D) Further, the petitioner is a well-educated person and working in a

reputed company and was going on an official tour to New York, where the

ticket of the said tour was also booked by his company.

E) The Hon’ble Supreme Court in the case of Gunwantilal Vs. The

State of Madhya Pradesh, 1972, has held that the possession of a firearm

must be conscious to entail prosecution under the Arms Act.

F) That our own Hon’ble Bombay High Court has discharged the accused

in the absence of the conscious possession of the live cartridge in

Jerusalem (Nurit Toker) Vs State of Maharashtra, 2012.

G) That the Hon’ble Delhi High Court has observed in the case of Sonam

Chaudhary Vs. The State of Delhi NCT, 2016 that mere custody

without the awareness does not amount to any offence under the

Arms Act. It would be fruitful to reproduce the para No.34 in

verbatim here, “considering the fact that the petitioners had left behind

the live cartridge/cartridges in their luggage by mistake and/or inadvertent

oversight, when they started their respective journeys and that the

petitioners were not aware of the presence of the live cartridge/cartridges in

their hand suitcases till the same were detected by the security personnel

during screening of the suitcase at the concerned places, it can be safely

inferred that the said possession does not fall within the ambit of 'conscious

possession'. Admittedly, no firearm or weapon has been recovered from any

of the petitioner, and they have not extended any threat to any person or
police official, hence, no offence under Section 25 of the Act is made out

against any of the petitioner. Therefore, allowing continuance of the criminal

proceedings against them would be an abuse of the process of Court”.

H) That in another case Jaswinder Singh Vs. The State of Delhi

NCT, 2015, which also resembles the present case in hand, the Hon’ble

Delhi High Court had held that the possession must be conscious possession.

I) That the Hon’ble Delhi High Court in Rahul Dhir Vs. The State of

Delhi NCT and ANR, 2015. on similar facts has held, in para No. 11, “This

Court is of the considered opinion that mere recovery of cartridges itself is

insufficient to prove the offence in the absence of any intention.”

J) That the Hon’ble Delhi High Court in Dharmendra Singh Vs. The

State of Delhi NCT, 2016, in para No. 33, “The case of the prosecution is

not that the petitioners were in conscious possession and therefore, on the

basis of mere possession of live cartridge/cartridges, the proceedings cannot

continue qua the petitioners under the Arms Act, 1959.

4. Therefore, conclusively, the core ingredient of knowledge of the possession

of ammunition is absent from the present case. Hence, continuity of the

proceedings would be an exercise in futility as the necessary ingredients to

constitute the offence in question are lacking.

5. Therefore the present application for quashing of the L.A.C. and the

subsequent charge-sheet which, if not done, would cause immense pain and

prejudice to the petitioner and would put the petitioner up to the hardship of

the trial for no fault of his own.


6. The case of the petitioner is squarely covered by the dictum of above-

mentioned judgments. Hence, it is humbly prayed that the entire

proceedings, including the summoning order, charge-sheet, L.A.C. need to be

quashed to meet the fair ends of justice.

7. The petitioner has not filed any other petition in this Hon’ble Court or any

other Court or the Supreme Court of India praying for similar reliefs.

8. That this Hon’ble Court has jurisdiction to try the present petition.

9. The petitioner has no other efficacious alternate remedy available to him

and submits that, this is a fit case for exercise of the inherent powers under

section 482 of the Code of Criminal Procedure for quashing the criminal

proceedings bearing C.C. No. ______________.

10. The petitioner has paid the requisite Court fees.

11. The petitioner craves leave to add, amend, alter the petition in the interest

of justice.

THE PETITIONER THEREFORE PRAYS:

(a) That this Hon’ble Court be pleased to quash the proceeding in C.C. No.

__________ including the summoning order, charge-sheet and L.A.C.

under section 482 of Criminal Procedure Code pending before the Learned

Metropolitan Magistrate _____ Court at _________, Mumbai;


(b) That, this Hon’ble Court be pleased to grant a stay on the proceedings

pending before the Learned Magistrate ______ Metropolitan Magistrate

Court, bearing C.C. No. __________ at Andheri, Mumbai;

(c) For such any other order/relief(s) as this Hon’ble Court may deem fit,

just and proper.

Dated this ____day of , 20___.

Advocate for the Petitioner


APPLICATION FOR MODIFICATION OF ORDER U/S.482 OF

CR.P.C.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO. OF 20

DISTRICT: MUMBAI

In the matter of Section 482 of The

Code of Criminal Procedure, 1973.

AND

In the matter of Section 441 and 445 of

The Code of Criminal Procedure, 1973.

AND

In the matter of furnishing surety of

Rs…………/- in the impugned Criminal Case

bearing No………….. at the instance of the

_______ Police Stn., Mumbai pending before

the Hon’ble _____ Additional Chief

Metropolitan Magistrate Court at, Mumbai.


Smt. ______________

Aged ___ years, Occ: )

Resident of __________________

_____________________

_____________________ ...Petitioner

Vs.

State of Maharashtra

(Through the Public Prosecutor)

_________________________ …Respondent

TO,

THE HON’BLE CHIEF JUSTICE AND OTHER HON’BLE PUISNE JUDGES

OF THIS HON’BLE HIGH COURT OF JUDICATURE AT BOMBAY

THE HUMBLE APPLICATION OF THE

PETITIONER

MOST RESPECTFULLY SHOWETH:

1. That petitioner by this petition is seeking an order requesting for the

reduction and allowing to deposit cash bail under section 445 of the

Criminal Procedure Code instead of huge surety of Rs. 50,000/- with

solvency certificate from the Tehsildar. The petitioner is a single parent

taking care of the child and a working lady. The petitioner’s husband has

lodged this FIR against her for producing his salary details without his

permission before the Hon’ble Family Court, Mumbai. The charges are
under section 66 (C) and 66 (D) of Information Technology Act and

sections 417 and 420 of IPC at _____________________Police

Station, ____________. The petitioner was released on anticipatory bail

by the Hon’ble Fast Track Court No. VIII of ________ city on

23/07/2014. The said order copy of anticipatory bail is annexed, marked,

and produced herewith as an ‘Annexure-A’.

2. The above FIR was later transferred to the _______ Police Station,

Mumbai, who filed charge-sheet against her before the Hon’ble ___

Additional Chief Metropolitan Magistrate Court, at Mumbai. That after

filing of the charge-sheet, she was again granted fresh bail of Rs.50,000/-

with a surety of the like amount. That as any bail amount above

Rs.15,000/- requires the solvency certificate to be produced, and therefore

the present writ is for reduction of the bail amount. This will give relief to

absolve the petitioner from producing the solvency certificate of such a

huge amount. The said application along with the order passed thereon is

marked and annexed as ‘Annexure-B’ herewith.

3. The brief facts of the case:

That the complainant and the petitioner are husband and wife, who got

married in the year ……….. There is one male issue born from the said

wedlock namely Master……………., aged ……… years old, who is in the care

and custody of the petitioner mother. That the petitioner and the

complainant are involved in a matrimonial dispute since the year ………...

The divorce petition of the complainant and the petitioner’s maintenance

petition are pending before the Hon’ble Family Court, _________.


The husband filed the FIR at …………….., when she produced his Income

Tax returns details before the Family Court, showed his true income in the

evidence filed by her in maintenance petition. Later the case was

transferred to _________ Police Stn.,…………………, who now has filed the

charge-sheet against her.

GROUNDS

i. Because this is a case which is arising out of a matrimonial dispute

between the petitioner and her husband, who are also litigants before

the Hon’ble Family Court.

ii. Because the petitioner has never misused the liberty of bail granted by

____________ Court. Further, she has a school going child and a

permanent abode at……………..

iii. Because the section 441 of Criminal Procedure Code speaks about

“sufficient” surety and does not give power to the Court to insist on a

particular surety.

4. The observations of the Hon’ble Supreme Court in Hussainara Khatoon

& Ors. Vs. Home Secretary, State Of Bihar, 1979 in para No.5

about bail and surety are worth noting. It is re-produced hereunder for the

reference of this Hon’ble Court.

“To determine whether the accused has his roots in the community which

would deter him from fleeing, the Court should take into account the

following factors concerning the accused:


a. The length of his residence in the community,

b. His employment status, history, and his financial condition,

c. His family ties and relationships,

d. His reputation, character, and monetary conditions,

e. His prior criminal record including any record of prior release

on recognizance or on bail,

f. The identity of responsible members of the community who would

vouch for his reliability,

g. The nature of the offence charged and the apparent probability of

conviction and the likely sentence in so far as these factors are relevant

to the risk of non-appearance, and

h. Any other factors indicating the ties of the accused to the community or

bearing on the risk of wilful failure to appear.

If the Court is satisfied on a consideration of the relevant factors that the

accused has his ties in the community and there is no substantial risk of

non-appearance, the accused may, as far as possible, be released on his

personal bond.

It is further observed in the above case that:

“But even while releasing the accused on personal bond, it is necessary to

caution the Court that the amount of the bond which, it fixes should not be

based merely on the nature of the charge. The decision as regards the

amount of the bond should be an individualized decision depending on the

individual financial circumstances of the accused and the probability of his

absconding.”
5. That the Bombay High Court in Sajal Kumar Mitra Vs. The State of

Maharashtra, 2011 has observed in para No. 14, while concluding as

under:

“The learned Magistrates, therefore, should consider various provisions in

the Code of Criminal Procedure and wherever possible release the accused

on his furnishing cash bail initially, in appropriate cases.”

6. The petitioner has no other equally efficacious alternate remedy available

to her and therefore the remedy by way of this writ petition.

7. This Hon’ble Court has jurisdiction to entertain, try, and dispose of the

present petition.

8. The petitioner has not filed any other petition either in this Hon’ble Court

or any other High Court or Supreme Court of India, pertaining to the

subject matter of the present petition.

10. The petitioner begs to add, alter, amend, or delete any of the grounds if

necessary.

Therefore, the petitioner prays:

d) That this Hon’ble Court be pleased to reduce the bail amount to Rs.

…….. from Rs. ……….. and absolve the petitioner from producing the

solvency certificate in the case No. ________ pending before the

Hon’ble _____ Additional Chief Metropolitan Magistrate Court, at

…………..
Or

e) An order directing that the petitioner may be released on Cash bail

under section 445 of the Criminal Procedure Code without sureties.

f) That till pending the hearing and final disposal of the present writ

petition, this Hon’ble Court be pleased to stay the execution of

furnishing the bail order dated ……….of the Additional Metropolitan

Magistrate in C.C. No._____________.

g) Pass such other order/relief(s) which this Hon’ble Court may deem fit,

just and proper.

For this act of kindness, the petitioner as in duty bound shall ever pray.

Date:

Place: Advocate for the Petitioner

VERIFICATION

I, Smt. _____________________, the petitioner hereinabove residing

at _____________________________________________, the

petitioner above named, do hereby solemnly affirm and state hereinabove

is true and correct to the best of my own knowledge.


Solemnly affirmed at Mumbai )

This day of , 20___ ) Petitioner

Identified by me,

Advocate for the Petitioner

FAMILY COURT APPEAL (1)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

         CIVIL APPELLATE JURISDICTION

       FAMILY COURT APPEAL NO.       ____


                                                 DISTRICT:

In the matter of section 19 of the Family

Court Acts

And

In the matter of section 39 of Special

Marriage Act

And

In the matter of Appeal against the

Judgment and Decree passed on

_________ by Ld. Judge of Family Court,

_________ while dismissing a divorce

petition bearing No.______________.

       

Mr. ________________ …. Appellant

Versus

Mrs. ___________________ ...Respondent


TO,

THE HON’BLE CHIEF JUSTICE AND OTHER PUISNE JUDGES OF THIS

COURT

APPEAL U/S. 39 OF THE SPECIAL MARRIGAGE ACT

 MOST RESPECTFULLY SHOWETH:

Justice Dalveer Bhandari has very rightly summarized in the

case of Naveen Kohli vs Neelu Kohli, the way family matters are

to be evaluated:

“A too technical and hyper-sensitive approach would be counter-productive

to the institution of the marriage. The Court does not have to deal with the

ideal husbands and ideal wives. The ideal couple or a mere ideal one will

probably have no occasion to go to Matrimonial Court.”

1. ORDER IN CHALLENGE: 

The appellant prefers the present appeal u/s. section 39 of Special

Marriage Act,1954 read with 19 of Family Court Act, 1984 challenging

the judgement and decree order dated __________________ of the

Ld. Judge, Family Court, NASHIK, dismissing his divorce petition, bearing

No. A-__________ of 20_____ under section 27(1) (b) and (d) of

Special Marriage Act, hereto annexed and marked as Annexure ‘A’ and

‘B’ is the certified copy of the said judgement and decree respectively.

2. BRIEF FACTS:
a. The marriage between the appellant and the respondent was

solemnized on __________________ at _______________,

Maharashtra as per the Hindu rituals and the marriage was registered

under Special Marriage Act. The appellant is Hindu and the respondent

is Muslim by birth. There is no issue born from the said wedlock.

b. The respondent had agreed at the time of marriage that, she would

shift to Hyderabad where the appellant was working. However, after

marriage, she refused to do the same. Hence, on

__________________, the appellant husband shifted to Madras,

where she was working.

c. That for the first few years, the relations between them were normal

except little wear and tear of regular married life. However, both shifted

to ______________ as per her suggestion. That she used to consume

contraceptive pills for certainty of not getting pregnant after their every

physical relation. The main issue of conflict between them was about

starting a family, which was always resisted by her. That the respondent

wife was not interested in extension of family though the appellant

pleaded many times that they should plan for children as their age was

very advanced. The clashes on this were so intense that once in such

altercation between them, in fit of anger, she asked the appellant to

leave home. That even after all these restrictions from her, he tried to

make up with her but nothing worked.

d. That in the year ___________, the respondent went to USA for her

job without discussing anything with the appellant. That she informed

him at the last moment after her visa was ready and travel date was

fixed. Later the appellant himself went to USA to join her there. He

made every necessary attempt to live together but she never showed
any feeling. This is evident from her conduct and demeanour which is

proved by the documentary proofs hereto annexed.

e. That in year _________, the respondent wife was neither ready to

stay with him in USA nor she was receptive towards him, whenever he

was in India. That he sent her a legal communication to reunite, which

was also an unsuccessful attempt. This led him to file for divorce, which

was subsequently withdrawn by him when she showed her willingness

to join him on the transfer of one of home which was in the joint name

of theirs. However, even after the home was transferred in her name,

she did not join him. That there are chats, emails which are proof

enough to show that, she was not responding to him at all. Even her

brother could not do much about it, who acted as a mediator between

them.

f. That the appellate husband again after three years of waiting filed a

second divorce petition wherein the respondent did not even file the

evidence, which was enough to prove that she was least bothered about

the outcome of the litigation. She probably wanted the divorce herself,

which can be understood by the casual way of her approach towards the

litigation, which was going to decide her marital status.

g. That in her written statement, she has put wild allegations against him

accusing him of marrying her for the sake of money, which is an

extreme level of cruelty to any spouse. She further mentioned, in a very

harsh manner in her written statement that the procreation of children

and the expansion of family would have brought an axe on her career

growth.
Such defamatory allegation in the pleadings amount to mental cruelty

to the spouse. This was re-iterated by the judgement of the Apex Court

in the case of K. Srinivas Rao Vs. D. A. Deepa (2013). It further

states that for causing cruelty the spouses need not stay under one roof.

The facts in the present case are replica and identical to it.

h. That it can be seen from the above incidents and evaluation of the

entire evidence produced by way of chats, first divorce petition, email,

and her written statement, that the respondent neither wants to join

the matrimonial life with the appellant nor does want to free him from

this wedlock, which has virtually become a deadlock. It seems that her

only motto in life is to make the appellant’s life miserable. This can be

called as an additional cruelty. This point has been missed by the Ld.

Family Court Judge, who could have seen this irretrievable broken

down of marriage and ought to have considered this ground as well

where there is not a remote chance of reunion.

3. INSTANCES OF DESERTION:

ii. That in year ________, the respondent went to USA for her job

without discussing anything with the appellant. That she informed him

at the last moment after her H1 visa was ready and travel date was

fixed. Later the appellant himself went to USA to join her there. He

made every necessary attempt to live together, but she never showed

any inclination towards him, which is evident from the conduct and

demeanour. It shows that the respondent wife is career oriented, as

stated in her written statement, and that the expansion of family would

have brought an axe on her career.

iii. That the respondent wife in year _______ had put a condition that,

only when the appellant transfers the Madras home in her name, would
she think of resuming her co-habitation with the appellant husband.

The appellant did the same. However, she did not join. The said email is

annexed herein as and by way of annexure ‘C’.

iv. That the appellant husband was constantly trying through emails and

WhatsApp chat to re-connect with her but she was not responding to

his calls. That on their 9th anniversary, through email dated

_____________________, he asked her to meet him at airport to

start on positive note. But nothing worked.

4. DOCUMENTS TO PROVE CRUELTY & DESERTION :

i. That all the above incidents taken together constitutes cruelty as it can

be clearly seen that the wife does not have any respect for the husband

and is not ready to compromise on anything which could save the

marriage. The husband wrote many emails, one of which is produced

herein dated _____________________ , to call her back to join

him in USA. That the same is replied by her in very harsh language. The

said mail of respondent is annexed and marked as Annexure ‘C’.

Even after her harsh behaviour, he made an attempt to meet her at

airport on their 9th anniversary. But all went in vain. The said mail of

the appellant about meeting at airport is annexed and marked as

Annexure ‘D’.

ii. The Ld. Judge wrongly mentioned in the judgement, that the husband

has not taken these grounds in the past. The copy of the said divorce

petition is marked and annexed as Annexure ‘E’ herewith showing

that similar grounds were taken in past too.

iii. That the written statement filed by the wife to the present divorce

petition clearly states in para No.17, “Thus expansion of family would

have brought an axe on the service career of the respondent entailing

into spoilage of family” This itself is a proof which re-iterates the


contention of the husband raised in divorce petition of not starting a

family, which is one important aspect of any marriage journey. That to

refuse to bear the child is itself one kind of cruelty in a marriage. The

said written statement is annexed and marked as Annexure ‘F’ herein.

5. Therefore, the order of the Ld. Judge is wrong in law and the same is

challenged on the following grounds amongst others:

GROUNDS

A) Because the respondent is neither interested in joining the matrimonial

life nor in resolving the dispute amicably in a marriage span of 12 years,

where they hardly lived together for one and a half year.

B) Because there is apprehension in the mind of the respondent about the

procreation of the child, which is the basic cause of conflict between the

parties. Thus, a husband cannot be expected to live with a wife who has

no intention to start a family.

C) Because the Ld. Family Court Judge erred in not appreciating the fact

that there is not a single documentary or oral evidence which can show

that the wife was ready to join the matrimonial home, whereas there are

ample documents and incidents on record, where the husband was

ready to get her back.

D) Because the respondent is in the habit of putting conditions for staying

together, which are materialistic, such as transfer of home (which is

already done) is not a sign of matured relationship of marriage in an

advanced age, where both partners are more than 40 years old.
E) Because the Ld. Judge also gave the judgement without considering the

ground taken in the case of Naveen Kohli Vs Neelu Kohli AIR

2006 that, the marriage where there is no co-habitation for more than

a decade and no question of re-union by the parties, is irretrievably

broken down.

F) Because the Ld. Judge failed to apply the guidelines laid down by the

Apex Court in Samar Ghosh Vs Jaya Ghosh, 2007 SCC 511,

“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.”

These guidelines were re-iterated by the Hon’ble Supreme Court in

Gurbux Singh Vs. Harminder Kaur in the year 2010.

G) Because when the parties cannot live in peace, no purpose will be

served in keeping the parties tied by the bond of marital relationship.

This was very recently re-iterated by the Hon’ble Supreme Court in

Sukhendu Das Vs. Rita Mukherjee, 2017 in matters of

unworkable matrimony and beyond salvage.

H) Because there has been a long period of continuous separation, it may

fairly be concluded that the matrimonial bond is beyond repair.

I) Because the Ld. Judge has erred to consider that the wife has not asked

for reunion in the written statement filed by her which clearly shows

that she is also not interested in reunion and hence, it can be seen that

marriage is irretrievably broken down.


6. That from the aforesaid reasoning in almost all the grounds taken

together, it is crystal clear that the judgement and decree passed by the

Ld. Judge of the Hon’ble Family Court ________, is bad in the eyes of the

law as it ignores the Apex Court guidelines in such kind of marriages,

where there is long period of separation and marriage is irretrievably

broken down, and there is no question of re-union.

7. That it would be profitable to refer a view taken in the case of Sukhendu

Das Vs. Rita Mukherjee (2017), wherein the Apex Court says that even

when there is no ground in law, divorce could be granted in such cases as

in hand wherein the marriage is totally unworkable, emotionally dead,

beyond salvage, and has broken down irretrievably.

8. Therefore, the appellant herein prays to grant him decree of divorce for

marriage solemnized on ________ by setting aside the impugned order

passed by the Ld. Family Court at ____________.

9. That this Hon’ble Court be kind to call for the records of the trial Court if

required, and pass any other necessary order/relief(s) which may be

deemed fit, just and proper.

Date: Advocate for the Appellant

Foot Notes

Limitation
1. The Judgment and Decree was passed on ________...... and applied

on ________ . The certified copies of the same were received on

________........ There is no delay in filing the present appeal.

Caveat

2. There is no caveat filed by the respondent as on date of filing the

present appeal.

Jurisdiction

3. The impugned order is passed by the Ld. Judge, Family Court

________, comes under the territorial jurisdiction of this Hon’ble

Court and hence, this Court has jurisdiction to entertain, try and decide

the present appeal.

Court Fee

4. The Appellant has also paid the fixed Court fee of Rs. 100/- as per

Schedule II, section 23 of the Maharashtra Court Fees Act.

Proceedings in Other Court

5. The appellant has not filed any other appeal/petition/application in

respect of the subject matter before this Court/other Court or Hon’ble

Supreme Court of India.

6. The appellant states that there is no adequate alternative and equally

efficacious remedy available before the Appellant except to approach

this Hon’ble Court and hence, this Appeal is filed.


7. The appellant craves leave to refer and rely upon the documents when

produced.

8. The appellant may be allowed to amend, modify, add or remove any of

the grounds as prayed hereinabove.

For this act of kindness, the appellant as in duty bound shall ever pray.

Date:                 

Place:                     Advocate for the Appellant

      

POINTS TO BE URGED

A) Whether the conditional approach of the wife to stay together and

unwilling to procreate even after so many years of marriage is not a cruelty

in the eyes of law?

B) Whether a marriage, which is otherwise emotionally and practically dead

be continued for name-sake?

C) When there is no doubt that the wife is not ready to reunite, is desertion

needed to be proved in black and white on paper?

AUTHORITIES TO BE CITED
1. Naveen Kohli Vs Neelu Kohli, Supreme Court, 2006.

(Irretrievable breaking down of marriage)

2. Samar Ghosh Vs. Jaya Ghosh, Supreme Court, 2007.

Along with

Gurbux Singh Vs. Harminder Kaur, 2010.

(Guidelines on what constitutes mental cruelty)

3. K. Srinivas Rao Vs D.A. Deepa, Supreme Court, 2013.

Along with

Parveen Kumari Vs Ramnish Kumar, Punjab & Haryana HC

2015.

(Defamatory allegations in the pleadings)

5. Sukhendu Das Vs Rita Mukherjee, Supreme Court, 2017.

(No purpose in compelling the parties to live together in an

unworkable matrimony)

Advocate for the Appellant


FAMILY COURT APPEAL (2)

  IN THE HIGH COURT OF JUDICATURE AT BOMBAY

            CIVIL APPELLATE JURISDICTION

       FAMILY COURT APPEAL NO.    _____ OF ____   

                                                 DISTRICT: MUMBAI

Mr. _______________                   …. Appellant

 Vs.
Mrs. ________________                     …. Respondent

                                      

CHALLENGE IN BRIEF:

That the appellant herein is challenging the impugned judgement and decree

passed by the Ld. Family Court dismissing his divorce petition, as the

relations between the parties are beyond repair and the wife in her evidence

has asserted that, she does not want to co-habit with him.

SYNOPSIS

Sr.N Dates Events

o.

1. ……………… As per the Saate-lote custom prevailing

…. in Maharashtra, the marriage between

brother and sister from one family was

arranged with brother and sister of

another family in this matter. Hence, the

appellant herein married with the

respondent and respondent’s brother

married appellant’s sister.

2. …………… The marriage between the parties was

solemnized at …………….

3. …………… After celebrating festival of Makar

Sankranti at respondent’s paternal

home, the couple was returning, but

suddenly halfway through, the


respondent refused to come home.

Somehow the appellant was able to

convince her and brought her home.

However, the next day morning her

brother came to pick her up and dropped

the appellant’s sister.

4. ……………… As both the couples were facing

matrimonial discord, the appellant and

his father approached an NGO where a

mediation was held, and it was decided

that the appellant and the respondent

will stay separately without any

interference by the in-laws.

5. ………………. The treatment of her ovary failed. The

IVF treatment also failed. The hope of a

child being born to them was almost lost

after this incident.

6. ………….. The respondent’s father expired.

Thereafter, she did stay with the

appellant but did not show any interest

in matrimonial life. Ultimately, the

relations between the parties were

strained beyond repair.

7. ………………. The respondent left the matrimonial

home.

8.  …………….. The respondent initiated litigation for

maintenance u/s. 125 of Cr.P.C. wherein


the respondent was granted monthly

maintenance of Rs. ……………../-

9. ……………… That appellant filed petition for divorce.

10. …………….. The respondent filed an application u/s

127 of Cr.P.C. for enhancement of

maintenance.

11. ……………… Appellant’s petition for divorce was

dismissed by the Ld. Judge, Family

Court at Mumbai.

12. ………….. Hence, the present appeal.

  

POINTS TO BE URGED:

Whether a marriage which is otherwise, emotionally and practically, dead be

continued for namesake as a punishment to the petitioner, which was

proposed as per saate-lote custom, which is actually an adjustment in such

kind of marriages?

P.S. As per the saate-lote custom prevailing in Maharashtra, the marriage

between brother and sister from one family is arranged with the sister and

brother of another family respectively.

ACTS TO BE REFERRED

1. Hindu Marriage Act


2. Civil Procedure Code

3. Family Court Act.

4. Any other act with the permission of this Hon’ble Court.

AUTHORITIES TO BE CITED

Sukhendu Das Vs. Rita Mukherjee, Supreme Court, 2017.

(On the point: No purpose in compelling the parties to live together in an

unworkable matrimony)

Advocate for the Appellant   


IN THE HIGH COURT OF JUDICATURE AT BOMBAY

         CIVIL APPELLATE JURISDICTION

       FAMILY COURT APPEAL NO._______ of ____

                                                 DISTRICT: MUMBAI

In the matter of section 19 of the Family

Court Acts

And

In the matter of section 28(1) of Hindu

Marriage Act

And

 
In the matter of Appeal against the

Judgment and Decree passed on

…………………… by Ld. Judge of Family

Court, Mumbai by dismissal of petition No.

………………. for divorce.

       

Mr…………………………………. ….Appellant

Versus

Mrs. …………………………………… ….Respondent

TO,

THE HON’BLE CHIEF JUSTICE AND OTHER PUISNE JUDGES OF THIS

COURT

APPEAL U/S. 28 (1) OF THE HINDU MARRIGAGE ACT

 MOST RESPECTFULLY SHOWETH:

It’s not a lack of love but lack of friendship

that makes unhappy marriage.

- Friedrich Nietzsche
Present appeal is between an elderly couple, who never got along in their

20 years of marital life, and for the last seven years, they have done

nothing except engage in a fierce and unfruitful legal battle with no relief

to either of them.

ORDER IN CHALLENGE: 

The appellant is bringing the present appeal to this Court u/s. section

28(1) of Hindu Marriage Act, 1955 read with section 19 of Family Court

Act, 1984 challenging the judgement and decree order dated ……………..

passed by the Ld. Judge, Family Court, Mumbai, dismissing his divorce

petition, bearing No. ……………….. Of ………….. preferred under section

13(1) (ia) of Hindu Marriage Act. Hereto annexed and marked as

Annexure ‘A’ and ‘B’ is the certified copy of the said judgement and

decree respectively.

BRIEF FACTS:

i. The present marriage existence can be traced to an old custom

prevailing in the State of Maharashtra known as ‘saate-lote,’ wherein

one set of brother and sister marries to another set of brother and

sister. So, at the backdrop, it is more than a relation, an adjustment for

whatever reason, which may be meant for strengthening the relations

between two families and may also be to get rid of dowry system.

However, this adjustment failed in the present case and the

consequences are before this Court. This system of obligation did not go
well with one of the couples i.e., the present one, which is before this

Court.

The appellant and the respondent marriage got solemnized on

……………….. at …………, Maharashtra as per the Hindu rituals. At the

time of their marriage appellant’s sister also got married with

respondent’s brother. There is no issue born from the said wedlock.

j. Since beginning of the marriage, the respondent was reluctant in

residing with the appellant. Mostly, she went to her parent’s house on

some pretext or the other and used to stay there for long periods of

times. She did not attend any family functions with him due to which

he faced embarrassing situations before his relatives in public. On

Makar Sankranati she went to her parents’ house where she was

forced by her brother to accompany the appellant back to their house.

However, on the very next day, she called her brother, asking him to

take her back immediately or else, she would commit suicide. This

created such a dreadful situation between the two families that the

respondent’s brother decided to drop the appellant’s sister (i.e. his wife)

to his (appellant) house and took back his own sister i.e. the respondent

herein.

k. After the above incident, the appellant waited for six months, but the

respondent did not return to the matrimonial house, and her brother

also did not take back his sister for cohabitation. The appellant along

with his brother visited to respondent’s native place to sort out this

issue. However, he was informed that the respondent is not mentally

prepared to cohabit with him. Therefore, they returned empty handed.


l. That this series of the respondent going and coming back to her house

continued. Meanwhile, the appellant’s father had a heart surgery, but

she did not show any emotions of being a good daughter in law. The

stubbornness of her nature can be measured with the simple example

that she did not even visit the hospital.

m. That after the above long separation, legal notices were exchanged.

One such legal communication of ________________, is worth

producing here as annexure -C. This annexure speaks so beautifully

about these two interwoven marital relations of two set of siblings to be

sorted. However, wisdom did not prevail, and this unfortunate event

happened.

n. That thereafter, the Court litigations occurred between the parties

which was started by the respondent by filing of the maintenance

petition u/s. 125 of Cr.P.C. The petitioner too filed divorce petition,

which met with a fate of dismissal, and hence the present appeal.

The appellant brings forth his case with the following grounds amongst

others:

GROUNDS

J) Because the respondent’s constant reluctance and refusal to reside with

the appellant for the last two decades amounts to mental cruelty.

K) Because the respondent had never shown any care towards the

appellant or his family. She did not even go to see the father-in-law,

who was operated for heart surgery.


L) Because the respondent is neither interested in joining the matrimonial

life nor resolving it amicably, which is a matter of record as per the

judgement (para No.17) in challenge before this Hon’ble Court, where

she denied to co-habit with him.

M)Because the Ld. Judge failed to appreciate that the marriage between

the parties is irretrievably broken down, as decided by the Hon’ble

Supreme Court in the case of Naveen Kohli Vs. Neelu Kohli AIR

2006.

N) Because the Ld. Judge failed to apply the guidelines laid down by the

Apex Court in Samar Ghosh Vs. Jaya Ghosh, 2007 SCC 511,

“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.”

These guidelines were re-iterated again by the Hon’ble Supreme Court

in Gurbux Singh Vs. Harminder Kaur in the year 2010.

O) Because when the parties cannot live in peace, no purpose will be

served in keeping the parties tied by the bond of marital relationship.

This was very recently re-iterated by the Hon’ble Supreme Court of

Sukhendu Das Vs. Rita Mukherjee, 2017 in matters of

unworkable matrimony which are beyond repair.

P) Because there has been a long period of continuous separation, it may

fairly be concluded that the matrimonial bond is beyond repair.

10.That from the aforesaid reasoning in almost all the grounds taken together

along with the ratios laid down in various citations, it is crystal clear that
the judgement and decree passed by the Ld. Judge of the Hon’ble Family

Court is bad in law.

11. That it would be profitable to refer to a view taken in the case of

Sukhendu Das Vs, Rita Mukherjee (2017), wherein the Apex Court

says that even when there is no ground in law, divorce could be granted in

such cases as in hand wherein the marriage is beyond repair.

12. Therefore, the appellant herein prays to grant him decree of divorce for

marriage solemnized on ………………… by setting aside the impugned order

passed by the Ld. Family Court at Mumbai.

13. That this Hon’ble Court may kindly call for the records of the Trial Court, if

required, and pass any other necessary order/relief(s) which may be

deemed fit, just, and proper.

Date: Advocate for the Appellant

Foot Notes

Limitation

9. The Judgment and Decree was passed on ……………… and certified copy

was applied on ………………. The certified copies of the same were

received on ………………. The 90 days period of the present appeal gets

over on ………………… as per section 28(4) Hindu Marriage Act. That

thereafter there is a delay of 132 days in filing the present appeal. The

application for condonation of delay is preferred along with the present

appeal separately.
Caveat

10.There is no caveat filed by the respondent as on date of filing the

present appeal.

Jurisdiction

11. The impugned order is passed by the Ld. Judge, Family Court, Mumbai

which comes under the territorial jurisdiction of this Hon’ble Court and

hence, this Court has jurisdiction to entertain try and decide the

present appeal.

Court Fee

12. The appellant has also paid the fixed Court fee of Rs. ____/- as per

Schedule II, Section 23 of the Maharashtra Court Fees Act.

Proceedings in Other Court

13. The appellant has not filed any other appeal or petition or application

in respect of the subject matter before this Court / other Court or

Hon’ble Supreme Court of India.

14. The appellant states that there is no adequate alternate and equally

efficacious remedy available to the appellant except to approach this

Hon’ble Court and hence this appeal is filed.

15. The appellant craves leave to refer and rely upon the documents

produced herewith and any other documents produced in future with

the permission of the Court.

16. The appellant may be allowed to amend, modify, add, or delete any of

the grounds as prayed hereinabove.

For this act of kindness, the appellant as in duty bound shall ever pray.
 

Date:                 

Place:        Advocate for the Appellant

    

PARSI MATRIMONIAL SUIT

IN THE PARSI CHIEF MATRIMONIAL COURT AT MUMBAI

PARSI SUIT No. Of 20____

Mrs. _____________________ …PLAINTIFF

Versus

Mr. ___________________________ …DEFENDANT

And

Mrs.______________________...CO-DEFENDANT
PLAINT FOR DIVORCE U/S. 32 (d) & (dd)

OF THE PARSI MARRIAGE AND DIVORCE

ACT, 1936

THE PLAINTIFF ABOVE NAMED STATE AS FOLLOWS:

“You just didn’t cheat me;

you cheated on us.

You just didn’t break my heart;

you broke our future.”

This is what the plaintiff and her innocent children have echoed since, the

day she got this devastating revelation about the defendant’s affair with co-

defendant. Her love for him was lost forever when he betrayed her trust.

That the plaintiff with painful courage has taken this decision to close this

chapter of her life.

That she does not want her children to grow up with a person, who has no

virtue of a father but only of a man of distrust. The adultery of the defendant

with the co-defendant, who was a neighbour and a common friend to both,

has given the present marriage an un-natural death. Hence, the present

petition.

1. The plaintiff, then a spinster, married to the defendant, then a

bachelor, on ________________ at _____________________,

Mumbai according to the Parsi Zoroastrian rites and customs. That the

Exhibit ‘A’
& ‘B’

maiden name of the plaintiff is Ms.

_________________________. That the plaintiff and defendant

are Zoroastrian by religion and domiciled in the State of Maharashtra.

The marriage certificate and wedding photograph are annexed and

marked herewith, as Exhibit ‘A’ and ‘B’ respectively.

That the co-defendant mentioned in the cause-title is the ladylove of

the defendant, with whom he is having an adulterous relationship,

which is an uncontroverted fact in view of the various proofs placed in

the course of pleadings herein below.

2. That there are two issues born from this wedlock, named as Master

____________, aged __________ years. born on _____, and

Master __________, aged ______ years, born on____________,

who are in the care and custody of the plaintiff.

3. The plaintiff states that the bond of the plaintiff and defendant began

in the year ________, while working together. With the passage of

time, they became very good friends and their relationship took shape

of marriage in the year _________, when their respective parents

blessed them to be together forever.

4. The plaintiff states that during their courtship days the defendant

confessed to her, that he had two relationships in past with Ms.

______ and Ms. ________. He further admitted that he had

physical relations with Ms. _______,for which he came up with

twisted story of him being drugged by Ms. _________. While

describing extent of their affair, the defendant went so far that he even

gave details about their lovemaking episodes that were not required.
The plaintiff was totally heart- broken after hearing this, however the

defendant gave assurance to her that it was his past and he really wants

to take this relationship with her forward in the form of marriage. She

got convinced with his assurance and decided to marry him.

5. The plaintiff states that after their wedding, they started residing at the

defendant’s mother’s house situated at

__________________________________, with her father-in-

law. The defendant’s mother was residing separately, as his parents

were divorced. Shortly after their marriage, it came to the knowledge of

the plaintiff that the defendant did not share an affable relationship,

which every father son duo shares. Hence, there was no peace at home.

The defendant and his father used to get physical and abusive with

each other, which was actually a shocking occurrence for the plaintiff

who came from a home where the family was always bonded in the

thread of love. The plaintiff was tormented as she was not used to such

kind of disturbing environments at home.

6. The plaintiff states that at one point of time, the scuffle between the

defendant and his father was so aggravated, that it took an ugly form in

the middle of the night. That around 2 am the plaintiff had to rush the

defendant to Bombay hospital for an X-ray as the defendant’s toe was

badly hurt in their brawl. After the abovementioned incident, they (the

plaintiff and the defendant) mutually decided to move out of that

house for peace and amity in their lives. They rented a flat in the

beginning and finally bought their own home.

7. The plaintiff states that everything was going well till she conceived for

the first time. That while she was pregnant for four months, the
defendant got friendly with one of their neighbourhood friends. The

plaintiff does not wish to disclose the neighbour’s name as she does not

wish to ruin her family life which currently consists of her husband and

three grown-up children. That she would disclose the neighbour’s

name at the time of evidence, if required, to prove her case.

8. The plaintiff states that on ____________ she gave birth to their

first child. After the birth of the child the plaintiff was expecting

affection and love from the defendant towards her and their new-born

son. Instead, his friendship with the said neighbour blossomed. He

used to buy household items for her during his trips abroad but would

conveniently forget and ignore things plaintiff requested for her and

their child. In fact, the defendant was so obsessed with her that he

would daily wait by window to watch her leave for work and come

back. That the plaintiff also found her photographs saved in the

defendant’s cell phone and when she confronted him about the same,

he tried to cover it up stating that it was just a friendly gesture.

Repeated instances of similar nature deeply saddened the plaintiff as

she began to realize that she was being fooled by the defendant. The

plaintiff shared this with her mother and elder sister, who consoled

and guided her to hold on to her marriage for her child and should

hope that things would get better and this is just a passing phase.

9. However, the plaintiff’s hope was fruitless, as defendants’ attitude

toward her and their son only worsened over the time. The final straw

that broke the camel’s back was when during a neighbourhood

function, where the entire colony had gathered, her neighbour’s

husband passed a filthy comment saying, "you take my wife for tonight

and I will take your kid”. The defendant’s reaction to this was a gale of
laughter. Not even once he considered how insulting this was for his

own wife, who had to deal with his infidelity in their colony. That this

incident proved that their marriage was the talk of the town. After this

incident plaintiff was at end of her endurance. She had no option

except to walk out with their kid to her parent’s home. The defendant

came to his senses after few days and visited the plaintiff at her

parent’s house where, he apologised and pleaded her to come back and

promised to stay faithful in future.

10.That the plaintiff accepted his apology for their child’s sake and

returned with him, but their family life never improved as the

defendant would constantly remain angry without any valid reason.

Often, he would take out his anger on their infant son and beat him up.

The defendant would get so agitated and angry that he would

constantly scream and shout. The most natural thing, like baby’s crying

would set him off. The defendant never showed any affection towards

their first son. As a result, the father and son never bonded as the son

grew up.

11. That the plaintiff had always tried to be dutiful wife and dutiful

daughter in law. That she was the one who took care of her mother-in-

law when she was suffering from cancer and was with her throughout

her hospitalization. That her father-in-law due to divorce with his wife,

i.e. the mother-in-law, was not interested in taking care of her.

12. That after his affair came to an end, the things between them were still

fine even if they were not rosy. They had their second son in the year

_________. They even performed the “Navjote ceremony” of their

elder son in __________________ in perfect harmony and with


mutual understanding. They also took an international holiday in

______________. All was fine till the year_____________.

However, the few years of peace was the calm before the storm of his

infidelity erupted. Yet again, he proved that old habits die hard. Once

again, the defendant’s behaviour towards the plaintiff and their kids

changed drastically. He became disinterested in spending any quality

time with family. He was constantly texting on his phone. Also, on

couple of occasions, when the plaintiff asked whom, he was texting, he

would get agitated and start shouting but refused to reveal the name.

He added security password lock on his phone and used to keep the

phone under his pillow while sleeping. He even used to carry the cell-

phone to the toilet or bathroom and had started treasuring it like his

life. He used to constantly text while eating food as well at the dining

table in front of the children and this was really irritating the plaintiff.

13. That in the month of ___________, he started going down for night

walks post dinner by giving an excuse of his acidity and come back

after 2 to 3 hours. The plaintiff suggested consulting a doctor for his

acidity problem but he refused and said that walks help him whereas

the true story was something else. He used to purposely bump into the

co-defendant. It used to be actually well planned in the name of long

walks. He started befriending her husband too. The co-defendant once

called the plaintiff and asked to go for an outing with kids. The plaintiff

agreed being neighbours. The most surprising part was that the

defendant said that he too would love to join and come along with

them. Throughout the day the plaintiff was uncomfortable as he kept

being around the co-defendant more than the plaintiff and their

children. The defendant even took a picture of hugging the co-

defendant and called the plaintiff only to join later as a second thought,
which was very embarrassing for her. That day by day, the intimacy

between the defendant and the co-defendant started growing. One

night while they got into an argument relating to his increasing

closeness to the co-defendant, he told the plaintiff that he did not have

feelings for her anymore and there is someone else in his life. That his

words were actually resonating his behaviour because he was not

keeping any kind of physical relation with her since he had become

overly friendly with the co-defendant. The plaintiff was devastated,

disgusted and deeply shocked. That his call logs always used to show

that he was in continuous touch with her.

Further, the defendant husband has become so fearless and unashamed

that the entire colony residents’ watchmen, sweepers, maids etc. have seen

him with the co-defendant in common areas of the building. That he also

used to take her car for servicing. That he was so shameless that he dared

to the extent of telling their cooking maid at home that once he manages to

get the plaintiff out of his life and his new lady (co-defendant) comes to

stay in this house, he would increase her salary.

That the matter came to the point, where he threatened her about custody

of their children and to bring a Court order to throw her out of the house.

He went to the extent of threatening her by saying that he would sell off

the house and she would not even know. The plaintiff finally asked him to

call his father as she felt that he would explain and bestow some wisdom

on him. However, this also did not help, and the situation went out of her

hands. Hence, the plaintiff has lost all hope of reconciliation in this matter

and knows well that the defendant has gone too far with his adulterous

relationship with the co-defendant that the plaintiff cannot take it

anymore.
14. That one day the defendant’s phone was continuously ringing and when

the plaintiff saw his phone, she saw various messages from co-defendant

and to her astonishment, she found some objectionable photographs and

WhatsApp chat of the defendant and co-defendant. Thereafter, she kept a

tab on his phone, and she was able to get few pictures and chats, which are

very indecent. The photographs clearly establish that, he was having deep

physical relationship with her since long. That the plaintiff is producing

only few of these pictures, screenshots of chats, which are marked and

annexed herewith as Exhibit ‘C’ collectively. That she would produce more

of these, if required, at the time of hearing and evidence to prove the illicit

relationship of the defendant with co-defendant. These messages

defendant clearly reveals their infidelity and sexual life.

15. That the defendant’s behaviour further worsened towards the plaintiff and

their sons to the extent that she and their elder son were thrown out of

house on ………… in middle of night. Thus, she had to ask for police

interference to enter their own home. That on that critical night, he truly

scared the plaintiff and the children. That after dinner, the defendant

asked elder son to brush his teeth. The child innocently said that he would

do it after his younger brother’s turn. On hearing this answer from the

child, the defendant got furious and started screaming at the child. The

next weird thing the defendant did was throwing his son’s toys in the

dustbin. He further told the kid “If you act smart, I will remove you from

the school and give you a broom. You have to clean house as punishment

since you don’t obey me.” Shockingly, the defendant displaying no

patience, proceeded to beat the elder child. The plaintiff could not take this

anymore and she started arguing him for a reason why he was being so

cruel to the child. The defendant, in a fit of anger, physically dragged the
child by his arms out of the home. The plaintiff went outside to bring the

child back inside, to which the defendant yelled at her “ You also get out”,

twisted her arm and banged her on the grill door. Fortunately, the plaintiff

was able to cushion her fall with her hand, and she saved herself from head

injury. He then physically pushed her out too. The son was not even

wearing slippers and in that condition, they went to the police station. The

plaintiff got hurt on both of her hands and the son in his armpits and

upper arm. The younger son (3 years old) was in the house, petrified and

crying but the defendant didn’t let the plaintiff and the elder son get inside

the house.

16. That the plaintiff, without any option left to enter their home, was forced

to seek police interference as she and their elder son were in night wear

and younger son aged ______ years was inside the home. The police co-

operated with the plaintiff, and seeing the injuries sent them to hospital

for checkup. The doctor on call sent the son and the plaintiff for X-rays to

rule out a fracture. This incident of physical assault and throwing them out

is an evident threat to the lives of the plaintiff and the kids. The

government hospital medical papers annexed herein, as Exhibit ‘D’

collectively along with the N.C. complaint recorded in the midnight clearly

establishes the physical violence meted out by the defendant in the

midnight.

17. That after the police episode, instead of feeling guilty, the defendant has

taken offence to the incident being reported to the police. That he keeps

reminding the elder son of police station incident. This is the height of

inhumanity and cruelty inflicted by a father on his own minor child.


18.Thereafter on …………., the plaintiff’s parents’ marriage anniversary, the

defendant fought with the plaintiff and took the younger kid to the co-

defendant son’s birthday party instead of her parent’s celebration. This led

to more bitterness between them. So, the plaintiff’s sister and brother-in-

law met the defendant to discuss and sort out things between them.

Instead of sorting things, the defendant said that he is looking for a new

house and that he wants to divorce her. This was shocking to them but

they could do nothing about it.

19. That during all these hard times on economic front too, he was making the

plaintiff life difficult. That except children’s education, he was not co-

operating in any kind of financial support to her. That he insisted on

buying household groceries himself so that he does not have to give any

money in the plaintiff’s hand. He kept no money in her hands even for

emergency knowing well that the plaintiff has to take care of two children,

when goes off to work.

20. That his vindictive conduct, his infidelity since the inception, his

inhuman and insensitive acts, all pooled together have created a situation

wherein the continuation of the marriage would be a self-inflicted cruelty

by the plaintiff, on herself and her children. That she has decided not to

take anymore harassment from him. She is also very clear in her mind

that she cannot be expected to raise her two children with this kind of

father, who has no moral values in his life in his forties too. That she has

tolerated him watching pornographic films throughout her marriage in

bedroom. She ignored it thinking the same was within four walls of the

home. However, now she knows the reasons for his sexual perversion

which is abnormal and unacceptable for a normal wife and mother of the
two grown up children. Hence, this painful decision of contesting for

divorce was taken by her for a marriage which is otherwise has taken a

shape of meaningless ritual which she was following till now.

It is important to note here, that the defendant wanted mutual divorce.

However, when it came to financial settlement of giving the current house

to her, he has backed out. However, his infidelity is still going on with the

co-defendant, but behind curtains as he is now extra secretive knowing

well after the two family-meetings that the plaintiff has proofs of his

adulterous relationship with the co-defendant.

21. That the defendant works with ……………….as a ………………………and earns

approximately 1.5 lakhs per month excluding other perks and incentives.

Further, there are investments by him in the form of shares, mutual funds,

LICs and there is regular income from dividends, interest from the

investments and fixed deposits in banks. That he owns a car and also, he

has been bequeathed half of a house located at …………………. which

belonged to his deceased mother, valued about

Rs._________________. That his father was a government employee

and receives good pension for his living. Hence, there is no dependent on

him.

22. Hence, she is requesting this Hon’ble Court that the defendant be

ordered to pay Rs. _____________________ for herself and her two

minor sons as permanent alimony, keeping in mind her need for residence

in future in the metro city of Mumbai. The residence and maintenance of

the wife is the legal duty of the husband as very recently re-iterated by the

Hon’ble Supreme Court in Raj Talreja Vs. Kavita Talreja, 2017.


23.Therefore, having regards to all the annexure annexed herein, the conduct

of the defendant and co-defendant constitutes sufficient evidence in this

case. That the co-defendant herein is the main cause for wrecking this

marriage of the plaintiff and hence, she needs to compensate the plaintiff

for her ill acts and the plaintiff therefore prays that, this Hon’ble Court

directs her to pay for damages of Rs. ______________ as and by way of

damages. That the co-defendant is very high-profile businesswoman and

her earning is very handsome. The Bombay High Court way back in the

year 1927 in the case of Premchand Hira Vs. Bai Galal, awarded

damages from the co-defendant, while dissolving the marriage on the

ground of adultery.

24. There is no collusion of whatever nature between the plaintiff and the

defendant and the co-defendant or either of them in respect of the suit.

25.The plaintiff has neither condoned the act or omission of the defendant

and co-defendant as set out in the present suit nor she has connived at or

been accessory to the said act or omission.

26. That there is no other proceeding pending between the parties in any

Court.

27.That the marriage of the parties took place at Mumbai and they are

residing at Mumbai. The co-defendant impleaded herein too is the resident

of Mumbai. Therefore, this Hon’ble Court has jurisdiction to entertain, try

and decide the present petition.


28. The list of annexures is annexed to the plaint.

29. That the plaintiff states that there is no unnecessary or improper delay

in instituting the present suit as the acts of the defendant and co-

defendant were continuing till the filing of the present petition. The

plaintiff humbly prays for a decree of divorce u/s. 32 (d) & (dd) of the Parsi

Marriage and Divorce Act, 1936.

30. That the plaintiff being a lady, is exempted from the payment of the

Court fees. That in case of any damages granted to her by the Hon’ble

Court, she undertakes to pay the Court fees thereon.

PRAYERS

The plaintiff therefore humbly prays to this Hon’ble Court to be pleased to:

a. Grant a decree of divorce dissolving the marriage solemnized on

___________between the plaintiff and the defendant by passing a

decree of divorce u/s. 32 (d) &(dd) of the Parsi Marriage and Divorce

Act, 1936;

b. Ad-interim relief by way of interim maintenance of

Rs.________________ against the defendant per month during the

pendency of the present suit.

c. Award a permanent alimony of Rs. _______________ after

evaluating the status, high profile job of the defendant and his assets as
mentioned in the plaint and considering her need for onetime alimony

u/s. 40 of the Parsi Marriage and Divorce Act, 1936.

d. An order awarding damages from the co-defendant for

Rs.______________.

e. For such other reliefs as the nature and circumstances of the case may

require.

Plaint drawn by:

(Advocate for Plaintiff) (PLAINTIFF)

VERIFICATION

I, Mrs. ______________________________________, the Parsi

Zoroastrian, the Indian Inhabitant, the plaintiff above named, do hereby

solemnly declare that what is stated in paragraphs 1 to____is true and

correct to my own knowledge and what is stated in paragraphs ____ to ___

is based on legal submission and I believe the same to be true and correct.

Solemnly declare at Mumbai )

Dated this day of_____, _______ ) (PLAINTIFF)

Before me,
Advocate for the Plaintiff

ANTICIPATORY BAIL APPLICATION (1)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

ANTICIPATORY BAIL APPLICATION NO. OF 2022

DISTRICT : MUMBAI

Mr. _______________ ….Applicant/Original Accused

Vs.
State of Maharashtra …Respondent/ Complainant

CHALLENGE IN BRIEF:

Whether the continuous consensual physical relations between the

parties for 10 years, can be termed Rape?

SYNOPSIS

Sr. Date Events

Nos.

1. The parties got introduced to each other

through a common friend.

2. They roamed at various place on many

weekends together as friends with full

transparency of applicant’s status being

married from day one.

3. The differences and misunderstanding grew

between them over trivial fights.

4. The respondent filed DV Proceeding against

appellant.

5. The respondent also lodged an FIR against

applicant.

6. The applicant moved before the Hon’ble

Session Court for Anticipatory Bail, which

was rejected.

7. Therefore, the present Anticipatory Bail


Application.

POINT TO BE URGED:

1. Whether there is an inordinate delay of 10 years in filing the FIR ?

2. Whether the continuous sexual relations for such a long period can be
called consensual?

AUTHORITIES TO BE CITED:

1. XYZ vs. Varun Hiremath, Supreme Court, 2021

2. Varun Hiremath vs State Of NCT, Delhi HC, 2021

3. Madhav Krishna Vasave v. State of Maharashtra, Bom HC, 2021

4. Suraj Krushna Machhi vs State Of Maharashtra, Bom HC,2019

5. Kunal Mandaliya vs State of Maharashtra, Bom HC, 2016

6. Shashibhushana K vs The State Of Karnataka, Karnataka HC, (2021)

ACTS TO BE REFERRED:
1. The Constitution of India

2. The Code of Criminal Procedure, 1973

3. Indian Penal Code, 1860

(ANITA BAFNA )

ADVOCATE FOR APPLICANT


IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

ANTICIPATORY BAIL APPLICATION NO. OF 2022

DISTRICT :

In the matter of Section 438 of Criminal

Procedure Code, 1973 arising out of FIR vide

C. R. No. _____, registered with

________ Police Station at …………,

Mumbai

Charges u/s. 376(2) (n), 313, 323, 504, 506

& 506(2) of IPC

Mr. _____________

Aged:____ years ;Occ: _________

Residing at _________

________________
__________________ … Applicant/ Original Accused

Vs.

State of Maharashtra

(Through Senior Inspector of Police

_______ Police Station, Mumbai.) …Respondent/Complainant

TO,

THE CHIEF JUSTICE

AND OTHER PUISNE JUDGES

OF THIS HON’BLE COURT

HUMBLE APPLICATION FOR ANTICIPATORY

BAIL UNDER SECTION 438 OF THE CRIMINAL

PROCEDURE CODE, 1973

MOST RESPECTFULLY SHOWETH:

The Applicant above named most humbly submits as under:

“If a Man and Woman are in a room and man makes a request
And woman complies, do we need to say anything more.”

This was observed by the Hon’ble Supreme Court while upholding

the judgement of the Delhi High Court granting anticipatory bail

in Varun Hiremath Vs. State of NCT, 2021.

1. That the applicant is invoking the jurisdiction of this Court u/s. 438 of

Criminal Procedure Code for challenging the order of the Learned

Session Judge Court, Mumbai which rejected his anticipatory bail

application in C.R. No. ______ of _______ lodged at the

_________ Police Station_______________ u/s. 376(2) (n),

313, 323, 504, 506 & 506(2) of Indian Penal Code.

The Copy of the FIR and impugned order of rejecting the anticipatory

bail of the Learned Session Judge is annexed herewith as and by way

of Annexure ‘A’ & ‘B’.

2. FACTS of the case:

The applicant and the complainant were in relationship since, the

year 2010. That they have taken many foreign pleasure trips together.

As per her own version in the FIR, she was aware about his marital
status. She has alleged that she has aborted her pregnancy in the year

2012 with the help of pills provided by him. That in the year 2019,

they clashed on some minor issue while watching IPL match at

_______, and since then are not on talking-meeting terms.

3. OTHER PROCEEDINGS BETWEEN THE PARTIES:

That in ____________, she filed the Domestic Violence

Proceedings before the Hon’ble Magistrate Court at _______,

Mumbai bearing No. __________. The same is challenged by him

u/s.29 of the Domestic Violence case before the Hon’ble

__________ Court, where she has appeared and filed her reply.

4. That the applicant is preferring the present anticipatory bail on the

following grounds amongst the others :

GROUNDS FOR BAIL

a) There is an inordinate delay of 10 years in filing the FIR.

b)That the love and sexual relationship between the applicant and the

complainant was in a consensual and voluntary relationship since

beginning.
c) In catena of judgements, this Court has held that consensual sex is

not a rape. (The authorities are cited hereinbelow.)

5. AUTHORITIES RELIED ON:

(A) The Hon’ble Supreme Court very recently held in the case of XYZ

Vs. Varun Hiremath, 2021 that, when a man and woman are in

room, man makes a request and woman complies, then no need to

say anything more. The Court dismissed the complainant’s special

leave petition for cancellation of anticipatory bail and re-iterated

the order of Delhi High Court of granting bail to the applicant.

(B) The Hon’ble Karnataka High Court has held in

Shashibhushana K. Vs The State Of Karnataka, 2021 that

when both adults having continuous consensual sex, it cannot be

considered as Rape.

(C ) The Bombay High Court in the case of Kunal Mandaliya Vs

State of Maharashtra, 2016, held that consensual sex is

not a rape. “This cannot be rape,” said Justice Mridula

Bhatkar, while granting the man anticipatory bail. “You [the

complainant] can say no. You are educated and a major; you have

the right to say no… I grant bail in such matters because it is not

rape.”
The relevant part of para No.6 is extracted for kind perusal of the

Hon’ble Court:

“Perused all the document presented here. After going through the

FIR, it is apparent that the petitioner and the victim were in love

with each other nearly for four years and thereafter, they decided to

marry. During this period, they had sexual intercourse on a number

of occasions at various places and lodges. It is a fact that there was a

promise by the petitioner to marry the complainant. However, it

cannot be said in any manner that the promise to marry was a

condition precedent for giving a free consent for sex before

marriage. The prosecutrix at the time of filing the complaint was 30

years old and was nearly 25 to 26 years old when the first incident

of sexual intercourse took place. Thus, she was aware of the

consequences of keeping sexual relations with a man and she was

also aware that there may be differences between two persons and

they may find each other not compatible. The girl was highly

educated and also 25 years old. Therefore, the consent cannot be

said to have been obtained by fraud. I also rely on the order dated

12.03.2014 of this Court passed in criminal ABA No. 27 of 2014

wherein a similar issue with identical facts was dealt with and it was

held that under such circumstances, it is a conscious decision to

keep sexual relation with a man and thus, to have physical

relationship is a matter of choice of both the adult persons, it can

hardly be said that the consent was obtained fraudulently.

Therefore, there is no material against the accused to charge him


under section 376 of Indian Penal Code. however, there are other

allegations of intimidation, cheating, causing hurt and beating.”

(D) The Bombay High Court very recently granted anticipatory bail in

Madhav Krishna Vasave Vs. State of Maharashtra, Bom

HC, 2021, where the facts were identical. Here both complainant

and accused both served as police constable. The accused was

married person and he was having physical relations with the

complainant for a period of three years. The Court granted

anticipatory bail to the accused considering that prima facie the

case suggests that love and sexual relationship between the

applicant and the complainant was consensual and voluntary since

beginning.

( E) The Bombay High Court in similar type of case of Suraj

Krushna Machhi Vs The State Of Maharashtra ( 2019), it

was observed that when the relations were consensual since the

year 2016 and subsequently the marriage did not happen, the

accused was granted anticipatory bail considering that the nature of

allegations did not require custodial interrogation.

6. That in view of the above submissions and the authorities cited, the

custodial interrogation of the applicant is not required and hence, the

present anticipatory bail application.

7. That the applicant has not preferred any other bail/anticipatory bail

application before this Hon’ble Court or any other Court in India.


8. The applicant is ready to co-operate with the police authorities and

abide with any conditions imposed on him.

9. That the complaint is lodged at the ……………….. Police Station,

Mumbai which comes under the jurisdiction of this Hon’ble Court and

therefore this Hon’ble Court can decide the present application.

10.The applicant craves leave to alter /amend/delete modify what has

been stated in the foregoing paras with the prior permission of this

Hon’ble Court.

PRAYERS

Therefore, the applicant prays that the Hon’ble Court may graciously be

pleased to :

(A) Grant anticipatory bail in C.R. No. _______________registered

at _________Police Station To pass an order of granting

Anticipatory bail on such terms and condition as this Hon’ble Court

may deem fit, just and proper.


(B) To give protection from arrest in the form of interim relief during

the pendency of the present proceeding.

(C) Such other and further relief/order(s) as the facts and

circumstances of the case may require.

For the above acts of KINDNESS the applicant shall HUMBLY ever pray
as in duty bound.

Date: Advocate for the Applicant

VERIFICATION

I, _______________, the Applicant abovenamed, residing at

___________________________________, do solemnly state

and declare on solemn affirmation that, whatever stated herein above is

true and correct to the best of my knowledge and belief and I believe the

same to be true.

Solemnly affirmed at Mumbai

This day of _________, 20___ APPLICANT


Identified & explained by me,

Advocate for the Applicant

      

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