TMI Blog2008 (3) TMI 658X X X X Extracts X X X X X X X X Extracts X X X X ..... ing described as Appellant No.2. 4. Sonalben Rameshchandra Desai was married to Jitendra Ajitbhai Patel (son of the appellants) on 4th May, 1992. The couple fell apart. In 1993 a complaint petition was filed by the 3rd respondent against her husband and the appellants alleging commission of an offence under Sections 406 and 114 of the Indian Penal Code. In the said complaint the 3rd respondent accepted that her husband had incurred huge losses in the business in United States. Appellants were granted bail subject to the condition that they would not leave India without prior permission of the Court. Allegedly on the premise that Appellant No.2 requires medical treatment, an application for permission was filed in October 1997 but they left India without obtaining the same from the Court. 5. An application was filed for cancellation of the bail which was rejected by the Metropolitan Magistrate as also by the Sessions Judge. The 3rd respondent filed an application before the High Court being Special Criminal Application NO.1360 of 1997. The said application was allowed by the High Court by its order dated 18th November, 1997 cancelling the bail of the appellants. The learned Me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under ULC Act to examine the aspects as to whether the transaction between the absconder and Respondent No.3 can be said in breach of the condition of Scheme under Section 21 of the ULC Act and he shall also make reference on the aspects to the competent authority under ULC Act as to whether the action of the absconder and subsequently rectification by respondent No.3 to give the possession of the petitioner as tenant can be said in breach of the conditions of the Scheme under Section 21 on the basis of which the premises came to be allotted to the absconder original allottee. Such reference shall be made within a period of two weeks from today and the Mamlatdar shall request the concerned authority to decide the reference within a period of three months from the date of receipt of the reference. In the event it is found by the competent authority under ULC Act that the action of absconder of entering into transaction with respondent No.3 and for handing over the possession to the petitioner as unlawful, the Mamlatdar shall be at liberty to take possession of the premises in question from the petitioner and thereafter he shall further be at liberty to hand over the vacant possessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount which may be payable to her by Jitendra Ajitbhai Patel under any orders in First Appeal No. 2626 of 2004, in any other matrimonial proceedings or in any civil or criminal case between her, her husband and her mother in law. 10. Appellant No.1 made an application to get herself impleaded as a party but her application was dismissed by the High Court on 11.9.2006. On or about 21st November, 2006 the High Court directed the first respondent to pay a sum of ₹ 17 lakhs to respondent No.3 in regard to the auction sale of the property in question. Respondent No.2, Mamlatdar, was also directed to execute the deed of conveyance and register the same in the name of the 1st respondent upon full payment. 11. Appellant and her husband returned to India. They filed an application for cancellation of the said Standing Warrants. By an order dated 27th June, 2006 the said application was allowed directing :- Application is granted and warrant against both the applicant accused are ordered to be cancelled with a fine of ₹ 3,000/- (Rupees three thousand only) each and with condition to submit one new surety of ₹ 10,000/- (Ten thousand) and on executing the bond of su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 of the Hindu Adoption and Maintenance Act. ii) In terms of Section 84 of the Code of Criminal Procedure, keeping in view the fact that her husband had been directed to pay maintenance @ ₹ 10,000/- per month and which having not been paid, respondent No.3 could have prayed for realization of the said amount of maintenance from the sale proceeds of the auction sale. iii) Even an offer was made that one residential property would be transferred in her name, apparently goes to show that the properties are Joint Family Properties. She, having been denied her right of maintenance, could initiate the proceeding before the Metropolitan Magistrate as also before the High Court. iv) The Metropolitan Magistrate committed a serious error in granting bail upon cancellation of Standing Warrants as appellants have breached the conditions for grant of bail. They had, although placed a large number of documents and in particular medical certificates to show that they were ill, there is nothing on record to show that they were bed ridden and not permitted to move out. v) Their near relatives in India would be deemed to have knowledge of the pendency of the said proceeding and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. Sections 3 (b), 18 and 19 of the said Act read as under :- 3. (b) Maintenance includes- (i)in all cases, provision for food, clothing, residence, education and medical attendance and treatment; Section 18 - Maintenance of wife (1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her life time. Sub-section (2) of Section 18 thereof, however, lays down certain exceptions therefor. Sub-section (3) of Section 18 reads :- (3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion. Section 19 - Maintenance of widowed daughter-in-law (1) A Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained after the death of her husband by her father- in-law: Provided and to the extent that she is unable to maintain herself out of her own earnings or other property or, where she has no property of her own, is unable to obtain maintenance- (a) from the estate of her husband or her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt thereof is transferred, the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right or if the transfer is gratuitous; but not against the transferee for consideration and without notice of the right. 24. Section 4 provides for a non obstante clause. In terms of the said provision itself any obligation on the part of in-laws in terms of any text, rule or interpretation of Hindu Law or any custom or usage as part of law before the commencement of the Act, are no longer valid. In view of the non obstante clause contained in Section 4, the provisions of the Act alone are applicable. Sections 18 and 19 prescribe the statutory liabilities in regard to maintenance of wife by her husband and only on his death upon the father-in-law, Mother-in-law, thus, cannot be fastened with any legal liability to maintain her daughter-in-law from her own property or otherwise. 25. In Unnamalai Ammal vs. F.W. Wilson : AIR 1921 Madras 1187 the obligation to maintain wife by a husband has been held to be a personal obligation. This Court in Kirtikant D. Vadodaria vs. State of Gujarat : (1996) 4 SCC 479 has held as under :- 8. We have given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r father or mother. On the facts of the present case, therefore, it has to be held that Appellant 1, who was a destitute widowed daughter of the testator and who was staying with him and was being maintained by him in his lifetime, had nothing to fall back upon so far as her deceased husband's estate was concerned and she had no estate of her own. Consequently, as per Section 19(1)( a ) she could claim maintenance from the estate of her father even during her father's lifetime. This was a pre-existing right of the widowed daughter qua testator's estate in his own lifetime and this right which was tried to be crystallised in the Will in her favour after his demise fell squarely within the provisions of Section 22(2) of the Maintenance Act. 27. The Domestic Violence Act provides for a higher right in favour of a wife. She not only acquires a right to be maintained but also thereunder acquires a right of residence. The right of residence is a higher right. The said right as per the legislation extends to joint properties in which the husband has a share. 28. Interpreting the provisions of the Domestic Violence Act this Court in S.R. Batra vs. Taruna Batra : (2007 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers passed by the High Court which are impugned before us are, thus, wholly unsustainable. They suffer from total non-application of mind. 31. The said orders might have been passed only on consideration that Sonalben is a harassed lady, but the fact that the appellant is also a much harassed lady was lost sight of. She has more sinned than sinning. Appellant and her husband are old. They suffer from various diseases. They have been able to show before the Court that they had to go to the United States of America for obtaining medical treatment. They, we would assume, have violated the conditions of grant of bail but the consequence therefore must be kept confined to the four corners of the statutes. 32. The provisions contained in Section 82 of the Code of Criminal Procedure were put on the statute book for certain purpose. It was enacted to secure the presence of the accused. Once the said purpose is achieved, the attachment shall be withdrawn. Even the property which was attached, should be restored. The provisions of the Code of Criminal Procedure do not warrant sale of the property despite the fact that the absconding accused had surrendered and obtained bail. Once he su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pears to be wholly without any basis. They have been attending the courts. The observation made by the Metropolitan Magistrate that they had not come of their own is unfortunate. Nobody wants to come to court of law and that too as an accused, of his own. 38. The High Court committed a manifest illegality in directing cancellation of bail in so far as it failed to take into consideration that the factors relevant for setting aside an order granting bail and directing cancellation of bail are wholly distinct and different. An application for cancellation of bail must be premised on the factors envisaged under sub- section (2) of Section 439 of the Code of Criminal procedure. The learned Metropolitan Magistrate in passing the order dated 27th June, 2006 while granting bail took into consideration all the relevant factors. He imposed a fine on them. Even the passports had been surrendered. Application for cancellation of bail was filed on a mis-statement that the passports had not been surrendered. Various contentions, as noticed hereinbefore, in regard to purported suffering of the wife appears to have been taken into consideration which were wholly irrelevant. We have noticed her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s governs the judicious exercise of the Court's judicial discretion. [See also Bhagirath Singh s/o. Mahipat Singh Judeja vs. State of Gujarat : [1984] 1 SCR 839 and Jayendra Saraswathi Swamigal vs. State of Tamilnadu : 2005 (2) SCC 13]. 40. We may notice that recently a Bench of this Court considered the consequence of issuance of warrant of arrest at some length in Inder Mohan Goswami and another vs. State of Uttaranchal and others : (2007) 12 SCALE 15. It was held :- 26. Before parting with this appeal, we would like to discuss an issue which is of great public importance, i.e. how and when warrants should be issued by the Court? It has come to our notice that in many cases that bailable and non-bailable warrants are issued casually and mechanically. In the instant case, the court without properly comprehending the nature of controversy involed and without exhausting the available remedies issued non-bailable warrants. The trial court disregard the settled legal position clearly enumerated in the following two cases. It was furthermore observed 51. In complaint cases, at the first instance, the court should direct serving of the summons along with the copy of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate of 7 per cent per annum for two years on the value of land owned by each land-owner. This equitable compensation has been awarded in the special facts of this case and will not be the subject-matter of appeal, if any, under the Act on the amount of compensation. 44. The said case arose out of a proceeding under the Land Acquisition Act which has no relevance to the issues involved in these appeals. 45. On cancellation of bail Mr. Shah has relied upon a decision of this Court in Raghubir Singh vs. State of Biahr: (1986) 4 SCC 481 wherein this Court observed :- 22. The result of our discussion and the case-law is this: An order for release on bail made under the proviso to Section 167(2) is not defeated by lapse of time, the filing of the charge-sheet or by remand to custody under Section 309(2). The order for release on bail may however be cancelled under Section 437(5) or Section 439(2). Generally the grounds for cancellation of bail, broadly, are, interference or attempt to interfere with the due course of administration of justice, or evasion or attempt to evade the course of justice, or abuse of the liberty granted to him. The due administration of justice may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling applications for cancellation of their bail on wholly wrong premise. 49. We may also notice that after the arguments were over, a strange submission was made before us. Learned counsel for respondent No.3 submitted that he may be permitted to withdraw from the case and the 3rd respondent be allowed to argue in person. Such a submission was not expected from a counsel practicing in this Court or form a party, who herself is an Advocate. We deprecate such practice. 50. Having regard to the facts and circumstances of this case we are of the opinion that the interest of justice shall be subserved if the impugned judgments are set aside with the following directions :- i) The property in question shall be released from attachment. ii) The 3rd respondent shall refund the sum of ₹ 1 lakh to the respondent with interest @ 6% per annum. iii) The amount of ₹ 4 lakhs deposited by the 1st respondent shall be refunded to him immediately with interest accrued thereon. iv) The 3rd respondent should be entitled to pursue her remedies against her husband in accordance with law. v) The Learned Magistrate before whom the cases filed by the 3rd respondent are pend ..... X X X X Extracts X X X X X X X X Extracts X X X X
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