A hearing that took place in Hon’ble Bombay High Court on October 24, 2018 in the matter of Dr. Santosh Shetty vs. Mrs. Ameeta Santosh Shetty wherein, Adv. Nilesh Ojha has prayed to the Special Bench constituted to hear this matter, that directions be given to all the Courts to be strictly followed, in the matters regarding Domestic Violence, 498 A etc. which are grossly abused by some women to harass their husbands and in-laws by making false statements and thereby misleading the courts. Adv. Nilesh Ojha also suggested to include provision for punishment for such presiding officers who fail to adhere to the directions issued.
During the final hearing on 24/10/2018 the following directions were sought by Adv. Nilesh Ojha
- Direction to all Courts and police for prosecution of wives who file false cases, false affidavits in cases under Maintenance, Domestic Violence Act and 498-A.
- Similar action be taken against the husband if his submission is found to be false.
- Statistic shows that around 15 husbands are committing suicide per hour. Something needs to be done urgently to avert such tragedies.
The final hearing in the most awaited case wherein it is sought that directions be given to all Courts to make it mandatory to apply the provisions of Sec.340 of Cr.P.C. for conducting enquiry into a false affidavit filed by the wife in a sections191,192,193,199,200,211,465,466,471,474 etc. of Indian Penal Code, 1860 and also action under Contempt of Courts Act, 1971, is completed today. After hearing Adv. Nilesh C.Ojha, Counsel for petitioner, the special constituted Bench of Justice A.S. Oka and Smt. Justice Anuja Prabhudesai, on 24th October 2018 reserved the matter for order, which is likely to be pronounced soon.
Adv. Nilesh C. Ojha pointed out that ‘On one hand women are claiming as equals and seeking right to equality and on the other hand, they are taking shelter under the laws where she is protected as being weaker sex such as 498-A, 376, 354, 509 etc. of the Indian Penal Code, maintenance under Section.125 of the Criminal Procedure Code, Domestic Violence Act etc.
Apart from the above contrast, the wives/women are using the judicial process and safeguards to harass their husband and in-laws. Ironically they are also harassing other women in the family i.e. mother in laws, sister, sister in law etc.
The victim husbands, without any protection from legal process are being harassed and tortured by the police and even by some Judges like done by the Trial Judge in Dr.Shetty’s case.
The Ld. Trial Judge in the present case granted maintenance by ignoring Income Tax Returns of the husband and selectively relying on the submission of the wife on a false affidavit.
The version set out by wife is that that her husband i.e. Dr.Santosh Shetty is a partner in TATA Hospital and Orbit Hospital, and based on this submission she claimed that she is entitled for maintenance of Rs.6,00,000/- per month.
Advocate Nilesh C. Ojha sought orders calling for investigation by exercising powers under section 340 of the Criminal Procedure Code and submitted that based on the inquiry report it can be decided whether the maintenance granted earlier of Rs.60,000/- per month should be withdrawn or enhanced further. If her submission on oath is found to be false, then, apart from cancelling the order of maintenance, she should be committed to custody as per Sec.340(1)(d) of Cr.P.C. and further prosecution be ordered by directing Registrar Judicial of this Court to register a case against wife before such Magistrate having jurisdiction to try such cases. Additionally, action be taken under Contempt of Courts Act, 1981 for perjury.
Mr.Ojha further submitted that, apart from the present case there are several husbands who are victims of misuse of judicial process, many families are ruined because of unjustified support and protection to such undeserving wives. As per statistics, around 15 married men in India commit suicide every hour. The husband is someone’s son, someone’s brother, someone’s father.
Just because he is perceived to be stronger as compared to a woman (so called weaker sex) it doesn’t mean that he has a heart of stone or has no emotions, no self respect, no feelings. Atleast he has to be treated as a human being (Mard ko bhi dard hota hai) (मर्द को भी दर्द होता है). Article 14 of the Constitution of India mandates equal Protection of law for everyone. It should be followed in letter and spirit.
Mr. Ojha further stated that he did not mean to say that every husband is right or every wife is wrong but his only concern was that no innocent should be penalized and no guilty should be allowed to eat the fruit of illegality and certainly should not be allowed to go scot-free but must face prosecution.
The legislature in its wisdom has made provisions of section 340 in the Criminal Procedure Code and also the Full Bench of Hon’ble Supreme Court in Maria Margarida’s Case (2012) 5 SCC 370 has ruled that ‘any trial is a discovery of truth and truth is the only guiding star for any Court’ and Judge is not expected to sit as a mute spectator or hearing machine or to act as a post office. Judge should take active part by exercising power under section 30 of Civil Procedure Code by putting questions, summoning witnesses etc. to find out the truth.
Similar powers are conferred to the Court under Section 165 of the Indian Evidence Act, 1872 and under section 311 of the Criminal Procedure Code, 1973. But unfortunately, judges are not following the said guidelines because there is no fear in their minds of punitive action for wilful negligence in performing their duties. Hence Mr. Ojha prayed to the Court to issue guidelines for mandatory use of Section 340 of Criminal Procedure code by presiding officers of the Court and in case of failing to do so, action be taken against such erring presiding officers under Contempt and also under section 218, 219 etc. of the Indian Penal Code for failing to perform their duty to find out the truth.
Division Bench of Bombay High Court in State Of Maharashtra vs.Kamlakar Nandram Bhavsar 2002 ALL MR (Cri.) 2640 had taken action against Magistrate, Public Prosecutor, Investigation Officer and Advocate for the accused, by exercising power under section 344 of the Criminal Procedure Code.
Mr. Ojha also prayed for giving directions to all Courts in Maharashtra as done by the Hon’ble Delhi High Court in H.S. Bedi’s case 2015 SCC OnLineDel 9524 and in KusumSharma Vs. Mahider Kumar Sharma 2017SCC OnLine Del 12534
At this juncture, Justice Shri. Oka asked Mr. Ojha ;
“Whether judgment of Delhi High Court is binding on us?”
Adv. Ojha responded;
“ As per Supreme Court in Pradeep Mehta’s Case in (2008) 14 SCC 283
It has persuasive value and if this court wants to take contrary view or dissent then you are bound to explain why you are disagreeing with the view taken by the Hon’ble Delhi High Court. Para 24 of theSupreme Court judgment rules as under;
“…PRECEDENT – View taken by other High Court though not binding but, have persuasive value – Another High Court would be within its right to differ with the view taken by the other High Courts, but, in all fairness, the High Court should record its dissent with reasons therefor. Thus, the judgment of the other High Court, though not binding, have persuasive value which should be taken note of and dissented from by recording its own reasons. (Para 24) ”
Justice Shri. Oak further asked ;
“ The Judgment in Kusum Sharma’s Case in Para 28 had observed that the 340 Application in family court cases be decided at the end of the Trial”
Adv. Ojha replied to this question as;
“That point is not correct law. It is well settled that section 340 of the Criminal Procedure Code should be decided first.The correct view is taken by the Hon’ble Bombay High Court in Union of India Vs. Haresh Milani’s Case 2018 SCC online 2080. Where relying on various judgments of Hon’ble Supreme Court and Hon’ble Allahabad High Court, Syednazim Hussain vs The Additional Principle Judge Family Court & Another 2003 SCC OnLine ALL 2358, it is ruled that first the enquiry under section 340 of Cr. P.C. has to be conducted and based on the said enquiry report, if the claim of a person is found to be false then such case/ Claim/ Petition should be thrown out at any stage.
The Constitution Bench of the Hon’ble Supreme Court in Iqbal Singh Marwah & Anr. Vs Meenakshi Marwah & Anr.(2005) 4 SCC 370, has ruled that the 340 should be decided first and till that time civil proceedings be stayed.
Justice Shri. Oak asked ;
“Mr.Ojha First look at the conduct of your client, who had not paid earlier arrears of the maintenance and still he is blaming his wife How you can justify it.”
Adv. Ojha Replied;
“The basic order of maintenance is based on the false submission of wife which itself is null and void and today she is asking for enhancement of maintenance from 60,000/- to 6 lacs per month by saying that her husband is a partner in TATA Hospital and Orbit Hospital etc. So let us call the enquiry report from any agency and if it is found that my client is at fault, then the Court may prosecute him and if the wife is found to be false and lying, then she should be prosecuted.
The law is clear in this regard as has been ruled by the Supreme Court in many cases and followed by this Hon’ble Court in Haresh Milani’s Case 2018 SCConline 2080.
What is the harm in directing an inquiry?
“Whether it is mandatory in every matter to conduct inquiry under section 340 of Criminal Procedure Code ?”
Adv. Nilesh C. Ojha:
“Yes, it is mandatory as per Full Bench of Hon’ble Supreme Court in Maria Margarida’s case (2012) 5 SCC 370, which ruled that it is mandatory duty of every judge to try to discover the truth.
- In the administration of justice, judges and lawyers play equal roles. Like judges, lawyers also must ensure that truth triumphs in the administration of justice.
- Truth is the foundation of justice. It must be the endeavour of all the judicial officers and judges to ascertain truth in every matter and no stone should be left unturned in achieving this object. Courts must give greater emphasis on the veracity of pleadings and documents in order to ascertain the truth.
42.In civil cases, adherence to Section 30 CPC would also help in ascertaining the truth. It seems that this provision which ought to be frequently used is rarely pressed in service by our judicial officers and judges.
43.”Satyameva Jayate” (Literally: “Truth Stands Invincible”) is a mantra from the ancient scripture Mundaka Upanishad.
Upon independence of India, it was adopted as the national motto of India. It is inscribed in Devanagari script at the base of the national emblem. The meaning of full mantra is as follows:
“Truth alone triumphs; not falsehood. Through truth the divine path is spread out by which the sages whose desires have been completely fulfilled, reach where that supreme treasure of Truth resides.”
- In Chandra Shashi v. Anil Kumar Verma(1995) 1 SCC 421 to enable the Courts to ward off unjustified interference in their working, those who indulge in immoral acts like perjury, pre-variation and motivated falsehoods have to be appropriately dealt with, without which it would not be possible for any Court to administer justice in the true sense and to the satisfaction of those who approach it in the hope that truth would ultimately prevail. People would have faith in Courts when they would find that truth alone triumphs in Courts.
- Truth has been foundation of other judicial systems, such as, the United States of America, the United Kingdom and other countries.
- The obligation to pursue truth has been carried to extremes. Thus, in United States v. J.Lee Havens 446 U.S.620, 100 St.Ct.1912, it was held that the government may use illegally obtained evidence to impeach a defendant’s fraudulent statements during cross-examination for the purpose of seeking justice, for the purpose of “arriving at the truth, which is a fundamental goal of our legal system”.
Secondly, in Perumal Vs. Janaki (2014) 5 SCC 377, Hon’ble Supreme Court made it mandatory. Hon’ble Supreme Court had passed strictures against a High Court Judge for not directing an inquiry under section 340 of Cr.P.C. in a case of false charge of rape. Hon’ble Supreme Court relying on the Constitution Bench’s Judgment in Iqbal Singh Marwah’s case (2005) 4 SCC 370, had ruled that, “Court cannot draw any interpretation which makes the victim of crime remediless, so if High Court do not pass order directing inquiry then my client will be remedy less and it will be against law laid down by Supreme Court.
Supreme Court in Para 22 of Perumal Vs Janki Case had criticized the High Court Judge saying that, the High Court Judge had put his common sense in cold storage, by not ordering inquiry in an application under section 340 of Cr.P.C and also observed that the absolute power corrupts meaning thereby that the High Court which is having Constitutional Authority acted with corrupt motive to dismiss the proceedings under section 340 of Cr.P.C.”
That Dawood Ibrahim will never come to the Court saying that he is falsely implicated in the case. The person who comes to the Court and asks for inquiry is primarily a person whose case is based on strong foundation and inquiry will bring the truth to the surface.
That as per the statistics of a survey conducted after passing directions in Arnesh Kumar’s case, it was found that the cases reduced to 1,10,378 in the year 2016 as compared to 1,22,877 in the year 2014.
This shows that if some checks and balances are in place, then frivolous cases will be reduced and the wastage of time and money from public funds will be saved. The time of Court which is wasted in undeserving cases can be utilized in deciding the genuine cases and this in turn would reduce the pendency of the cases in courts.
One of my friends, a High Court Judge, was amongst the group of High Court Judges visiting England. When they visited Court in London there was no Judge present. Surprisingly they asked the staff there the reason for judge not being present in the Court. The concerned officer replied that there is no case for hearing and hence there wasn’t any judge present. When any case would come up, we will call up judge over phone and request him to come to the Court.
Judges from India were surprised. They realised that due to strict provisions to punish those guilty of providing false and misleading submissions, there were hardly any cases lined up for hearing in the Court. That also implied that even their society will not respect a person lying in Court.
Here when any litigant and advocate lies, then inaction on the part of the Court would encourage the dishonest litigant “Evil tolerated is evil propagated” and also “ A stitch in time will saves nine”
Justice Oak further asked:
“Why directions with contempt are needed ?
Adv. Nilesh Ojha responded :-
“I have gone through the judgement passed by Justice G.S. Patel in Heena Dharia’s case 2016 SCC OnLineBom 9859
There is a reference about a case of your Honour Justice A.S.Oak when he was working as an Advocate. Adv A.S. Oak gave a citation to the Court, which was against his client. You performed your duty as an officer of the Court. But many advocates may not adopt such foot-prints. SO if they are having fear of being prosecuted under Contempt then only the chances of playing fraud upon the court be minimized.
Supreme Court in Indirect Tax Practitioners Association Vs. R.K.Jain (2010) 8 SCC 281 had observed as under;
Para 27. …………
18……..It has been well said that if judges decay, the contempt power will not save them and so the other side of the coin is that judges, like Caesar’s wife, must be above suspicion, per Krishna Iyer, J. in Baradakanta Mishra v. Registrar of Orissa High Court. It has to be admitted frankly and fairly that there has been erosion of faith in the dignity of the court and in the majesty of law and that has been caused not so much by the scandalising remarks made by politicians or ministers but the inability of the courts of law to deliver quick and substantial justice to the needy. Many today suffer from remediless evils which courts of justice are incompetent to deal with. Justice cries in silence for long, far too long. The procedural wrangle is eroding the faith in our justice system. It is a criticism which the judges and lawyers must make about themselves.(Para 27)
I being an advocate, being an officer of the Court and being a responsible citizen of this Country performing my duty as enshrined under Article 51–(A) (h) of the Constitution of India.
Now I expect this Hon’ble Court which is the highest Constitutional Court in the State to take note of it and pass the direction as needed.
Supreme Court Maria Margarida’s case (2012) 5 SCC 370,Praduman Bhist 2017 (4) Crimes 283 (SC), & Delhi High Court In H.S.Bedi Vs. National Highway Authority of India 2016(I) AD DELHI 661referred to a book“ Justice, Court and delays” written by Dr.Arun Mohan
This Hon’ble Court may take aid of that.
I have myself drafted a “FAIR AND FAST JUSTICE BILL 2016” of which Hon’ble Prime-Minister of India has taken a note of and has forwarded the same to the Law Commission of India.
Hon’ble Court may take points /recommendations from it .
In the case of Re: M.P. Dwivedi case AIR 1996 SC 2299, Hon’ble Supreme Court punished police officer and Judge for not protecting the rights of a person. Supreme Court observed that when ignorance of law is no excuse for a common man, then a Judge certainly cannot take a defence that he did not know the law.
In a recent judgment Hon’ble Supreme Court in Authorized Officer, State bank Of Travancore&Ors Vs. Mathew K.C(2018) 3 SCC 85 it is ruled that the Court has to apply correct law even if it is not raised by the party.
So only when a Trial Court Judge has a fear of punishment, for not applying the correct law, the rights of husband and wife shall be protected as mandated by the Constitution of India.
This will reinforce the faith and respect of a common man in the judicial system and therefore, in the interest of justice, appropriate guidelines be issued.
Before issuing guidelines, the Court if thinks it fit, may appoint an Amicus Curiae or seek inputs from NGO’s like Vaastav Foundation, Men’s Right Society and also from NGOs working for women.”
The argument was hereby concluded by Adv. Nilesh Ojha. The Hon’ble Bench has reserved the order.
Adv. Nilesh Ojha was assisted by following Advocates:
- Vijay Kurle
- Parthasarathy Sarkar
- Iswarlal Agrawal
- Tanveer Nizam
- Shashikala Chauhan
- Shweta Doshi
- Tanvi Kambli
- Jay Shah
- Reena Rana
- Madhuri Gamre