WHEN FIR UNDER SECTION 498-A OF IPC COULD BE QUASHED

 

When FIR under SECTION 498-A OF IPC could be quashed

 

Recently the Supreme Court has laid down criteria for quashing  the F.I.R u/s 498-A of Indian Penal Code. The Supreme Court in a matter bearing no. 2024 INSC 369 and captioned as Achin Gupta Vs State of Haryana, have, comprehensively, dealt with the aspect.  is significant to note that ever since, the section 498-A of IPC is brought in the statute book i.e in 1984, its rampant misuse is reported. This is not to say, that the section was ill conceived. In fact, it served its purpose s well, but the aspect of misuse of it is also rampant and that is the cause of concern, over the years. Periodically, the Supreme Court has laid guidelines, still, some improvement is always craved for. The Supreme Court has, given the sanctity of marriage, have amply dealt with in several cases that section 498-A of IPC could not be invoked in omnibus manner and with a view to settle score with relatives of husband and such complaints could be quashed by invoking provisions of Section 482 of Indian Penal Code by the High Courts.

 

In the above backdrop, the discussion herein follows:

1.   That the High Court of Punjab & Haryana In Achin Gupta  Supra) had declined to quash the charge sheet in F.I.R dated 05.04.2022 in the Criminal Main No. 14198-2022 (CRM-M-14198-2022) filed by the Appellant for the offences punishable under Section 323, 406, 498A and 506 of the Indian Penal Code, 1860 (for short, the “IPC”) arising from the First Information Report No. 95 of 2021 lodged by the wife of the Appellant) at the Urban Estate Hisar Police Station, District Hisar (Haryana).

2.   That a bare perusal of F.I.R would indicate that the Appellant and his family members are alleged to have demanded dowry and thereby caused mental and physical trauma to the complainant- wife. It was also stated in the F.I.R that the family of the complainant had spent a large sum at the time of marriage and had also handed over her ‘stridhan’ to the Appellant and his family. However, soon thereafter, the Appellant and his family started harassing the complainant on the false pretext alleging that she had failed to discharge her duties as a wife and daughter-in-law and also demanded some more dowry. The Appellant is alleged to be an alcoholic, had extra marital relationship and used to regularly raise his hands on the complainant and she was subjected to inhuman treatment. It was also stated in F.I.R that father and mother of the husband of complainant  would always take the side of their son i.e., the Appellant herein. The father and mother was also arrayed as accused no.2 and 3 and would pressurize the First Informant to get something more towards dowry.

3.   That it was also alleged that the accused persons have ignored the complainant due to their dowry demand and they have even not returned the complainant, her stridhan and threatened her that if without fulfilling their demand of dowry, if the complainant comes to their house, they will kill her. The complainant also alleged that she was serving as an Assistant Professor and that the Appellant and his family would keep her entire salary. The Appellant would assault her whenever she would ask for money, saying that the First Informant should ask her family to bear her personal expenses. The Appellant allegedly continued with the extra marital affair for a long period & later filed a divorce petition in 2019 on absolutely false and baseless grounds.

4.   That upon the registration of FIR, the police carried out the investigation & proceeded to file chargesheet, in October 2021 only against the Appellant herein. A closure report was filed against the remaining 4 accused. The filing of charge sheet resulted in the Criminal Case No. CHI/1856/2021in the court of Judicial Magistrate, First Class, Hisar (Haryana). The Appellant herein moved before the High Court for seeking quashing of the charge sheet /criminal proceedings quashed. The High Court vide its judgment & order dated 05.04.2022declined to quash the criminal proceedings in exercise of its inherent powers under Section 482 of the Criminal Procedure Code, 1973.

5.   That the High Court made the following observations: -

 

“I have heard learned counsel for the petitioner at length and have gone through the record carefully. The main thrust of the arguments raised by counsel for the petitioner is that the complainant had never been interested in living in the matrimonial home and she kept on pressurizing the petitioner for living separately from his family members. In order to achieve her objective she kept on causing harassment to the petitioner and his family members. However, a perusal of the allegations in the FIR would show that the petitioner and the family members gave taunting to the complainant for lowering down their image in the society. Demand of a car was also made. Complainant was taunted for not having been incurred sufficient expenditure on marriage by her parents. There are allegations of beating the complainant by her husband and the other family members. It has been specifically alleged that the petitioner is an alcoholic and has illicit relations with one xxxxx .

 

6.    That the High Court relied upon Hon'ble Supreme Court has settled the law time State of Haryana vs Bhajan Lal, 1992 Supp (1) SCC regarding exercising the jurisdiction under Section 482 Cr.P.C and as per the said parameter, according to high court the F.I.R could not have been quashed.

7.   That the High Court while dismissing the quashing petition preferred by the appellant had further relied upon a judgment passed by hon’ble Supreme Court in Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra, 2021 SCC Online SC 315 wherein it is held that quashing of FIR is an exception rather than an ordinary rule and the High Court should exercise the powers under Section 482 Cr.P.C. sparingly with circumspection. The high court has thus held that after taking into consideration the above facts and circumstances of the present case, in the light of the law settled, the present case does not fall in the category of cases for invoking the inherent powers under Section 482 Cr.P.C. The parameters laid down by the Hon'ble Supreme Court mandate that in a case where from the bare reading of the allegations in the FIR no cognizable offence is made out or it has been lodged to wreak the vengeance then the High Court may intervene. The veracity of the allegations leveled by the complainant can be assessed only after a thorough investigation and thereafter by the Trial Court on the basis of the evidence led before it.

SUPREME COURT

In the above backdrop, the appellant was before Supreme Court.

        Contentions of Appellant:

(i)              The Appellant and his family had filed a divorce petition and also a domestic violence case against the complainant in 2019 and 2020 respectively. As a counter blast to the same, the FIR No. 95 of 2021 dated 09.04.2021 came to be lodged after a period of more than 11 months from the date the First Informant left her matrimonial home and that too, only after the service of summons to her in the domestic violence case. No plausible explanation has been offered for such delay.

(ii)             The FIR was filed with an oblique motive & by way of vengeance towards the Appellant. The complainant and Appellant were married for over 12 years.

(iii)           The allegations in the FIR are too vague and general in nature. There is no specific allegation/incident of harassment levelled against the Appellant in the FIR.

 

Contentions of respondent wife:

(i)              The Appellant and his family continuously demanded for additional dowry after the marriage. They used to beat the complainant and take away her entire salary.

(ii)             After filing of the divorce petition, the Appellant stopped paying anything towards her maintenance and also disconnected the basic facilities such as water connection etc., leaving her with no option but to leave the matrimonial home and return to her parents house at Hisar.

(iii)           The Appellant had an affair with another woman. Only with a view to save the marriage, she kept quiet and did not inform about it to the others.

(iv)          The domestic violence case filed against the complainant  is absolutely frivolous and vexatious.

(v)            The Appellant failed to inform this Court that he had withdrawn the divorce proceedings instituted against the complainant.

ANALYSIS OF SUPREME COURT

(i)          The Appellant and the Respondent No. 2/wife  got married in October 2008.The couple lived together for more than a decade and in the wedlock a child was born in March 2012.It was also noted that the Appellant filed a divorce petition in July 2019 on the ground of cruelty. The divorce petition was withdrawn as the Appellant was finding it difficult to take care of his child, while travelling all the way to Hisar on the dates fixed by the Court. The Appellant’s mother had to file a domestic violence case against the First Informant/complainant in October 2020 under the provisions of the Protection of Women from Domestic Violence Act, 2005.

(ii)        The plain reading of the FIR and the chargesheet papers indicate that the allegations levelled by the First Informant are quite vague, general and sweeping, specifying no instances of criminal conduct. It is also pertinent to note that in the FIR no specific date or time of the alleged offence/offences has been disclosed. Even the police thought fit to drop the proceedings against the other members of the Appellant’s family. Thus, the Supreme Court was of the view that the FIR lodged by the Respondent No. 2 was nothing but a counterblast to the divorce petition & also the domestic violence case.

 

(iii)       The Supreme Court has also noted that the Respondent No. 2/wife had lodged the FIR on 09.04.2021, i.e., nearly 2 years after the filing of the divorce petition by the Appellant and 6 months after the filing of the domestic violence case by her Mother-in-law. Thus, the First Informant/complainant remained silent for nearly 2 years after the divorce petition was filed. With such an unexplained delay in filing the FIR, the Supreme Court had noted that the same was filed only to harass the Appellant and his family members.

(iv)    In para no. 20 and 21 in Achin Gupta (Supra), the Supreme Court has observed as under:

“20. It is now well settled that the power under Section 482 of the Cr.P.C. has to be exercised sparingly, carefully and with caution, only where such exercise is justified by the tests laid down in the Section itself. It is also well settled that  Section 482 of the Cr.P.C. does not confer any new power on the High Court but only saves the inherent power, which the Court possessed before the enactment of the Criminal Procedure Code. There are three circumstances under which the inherent jurisdiction may be exercised, namely :

(i)      to give effect to an order under the Code,

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

(iii)       to otherwise secure the ends of justice.”

 

 

“21. The investigation of an offence is the field exclusively reserved for the Police Officers, whose powers in that field are unfettered, so long as the power to investigate into the cognizable offence is legitimately exercised in strict compliance with the provisions under Chapter XII of the Cr.P.C.. While exercising powers under Section 482 of the Cr.P.C., the court does not function as a Court of appeal or revision. As noted above, the inherent jurisdiction under the Section, although wide, yet should be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. The authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has the power to prevent such abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, the court would be justified to quash any proceeding if it finds that the initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto”.

Significantly, the supreme Court has further observed in the Achin Gupta (Supra) that Once the investigation is over and chargesheet is filed, the FIR pales into insignificance. The court, thereafter, owes a duty to look into all the materials collected by the investigating agency in the form of chargesheet. It is further observed by the Supreme Court that there is nothing in the wording of Section 482 of the Cr.P.C. which in any manner restricts the exercise of the power of the court to prevent the abuse of process of court or miscarriage of justice only to the stage of the FIR. More pertinently, it is held that it would be a travesty of justice to hold that the proceedings initiated against a person can be interfered with at the stage of FIR but not if it has materialized into a chargesheet.

(v)      The Supreme Court had also relied upon judgment rendered by it reported as R.P. Kapur v. State of Punjab reported in AIR 1960 SC 866, while  summarising some categories of cases where inherent power can, and should be exercised to quash the proceedings: -

(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;

ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;

(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.

(vi)         In the case of Arnesh Kumar v. State of Bihar, (Criminal Appeal No. 1277 of 2014, while granting anticipatory bail to accused under Section 498A of the IPC and Section 4 of the Dowry Prohibition Act, 1961,  paras 6 respectively are worth taking note of. They are reproduced below: -

“6. There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A  is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested. Crime in India 2012 Statistics published by National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for offence under Section 498-A of the IPC, 9.4% more than the year 2011. Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net. Its share is 6% out of the total persons arrested under the crimes committed under Penal Code, 1860. It accounts for 4.5% of total crimes committed under different sections of penal code, more than any other crimes excepting theft and hurt. The rate of charge-sheeting in cases under Section 498A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal”..

 

(vii)        The Supreme Court, in the case of State of A.P. v. Vangaveeti Nagaiah, reported in (2009) 12 SCC 466 : AIR 2009 SC 2646, interpreted clause (iii) referred to above, observing thus: -

“6. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained….”.

 

(viii)      In Preeti Gupta v. State of Jharkhand, reported in 2010 Criminal Law Journal 4303 (1), the Supreme Court has observed the following: -

“28. It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. All the courts in our country including this court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society.”

 

(ix) The Supreme Court has thus concluded in Achin Gupta (Supra) by observing as under:

“33. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband's close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband's relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful”.

 

The observation of Supreme Court is apt, while quashing the proceedings/charge sheet u/s 323, 406, 498A and 506   against the appellant herein.

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Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com

RIGHT OF WIDOW IN DECEASED HUSBAND'S PROPERTY AFTER HER REMARRIAGE

 

Right of widow in DECEASED husband's  property after HER remarriage

The law related to inheritance amongst Hindus are quite comprehensive and the issues keeps trickling in as regards this. Though, Hindu Succession Act 1956 or Indian Succession Act 1925 illustrates the aspect of succession in respect of estate left over by a male Hindu or a female Hindu. However, Hindu Succession Act 1956 and Amendment Act 2005 shall apply for inheritance, if no testamentary disposition, such as Will, was left by the deceased. On the other hand if deceased has not died intestate and left a Will or testament, the provisions of Indian Succession Act 1925  for seeking Probate or Letter of Administration of Will, as the case may be, shall apply. The broad contour of this article, however, revolves around right of a widow in the estate of her deceased husband, in case, she marry after the demise of her husband. Whether any embargo is caused in respect of inheriting assets of her deceased husband who died intestate, in case, a woman marries again shall be the crux of the matter.

The issues have found reflection in a recent judgment of Nagpur Bench of Bombay High Court in Second Appeal No.144 of 2007 captioned as Smt jaiwantbai Vs Sunanda & Ors (decided on 23^rd August 2021).

While admitting the appeal, the hon’ble Bombay high Court had framed the following issue?

a) “whether a widow can claim the estate of the husband after re-marriage”?

The Bombay High Court, earlier, had dealt with somewhat similar issue based on a judgment rendered by Supreme Court captioned as Kasturi Devi Vs. Deputy Director of Consolidation & Others AIR 1976 SC 2595. However, the said judgment was remitted in case of right of inheritance of Mother from the estate of deceased Son. It has been held that there will not be any effect on her share of inheritance from a son even after she re-married. However, in Smt jaiwantbai (Supra) the issue is what is the effect on widow’s right of inheritance on the property of the deceased husband.

                          FACTS OF THE CASE

The facts of Smt Jaiwantbai (Supra) shall be of relevance before proceeding further:

Smt Jaiwantbaii is the mother of the deceased-Anil Shenuji Wankhade,  who was working as a Pointsman with Indian Railways. The respondent no.1 “Sunanda”  was married to Anil S Wankhaede (In short referred to as (“ASW”). There was also dispute between Sunanda and ASW and she was living separately. After the death of husband-ASW, Sunanda, re-married in the month of May, 1991 with one Ganesh Saligram Dode (GSD). The appellant herein (Mother of deceased ASW) claimed dues from the Indian Railways in the year 1993. The fact of re-marriage of Sunanda was communicated to the employer- Indian Railways. The employer requisitioned certificate of marriage, however, it could not be submitted. In this backdrop, the employer disbursed dues of Rs.65,000/- to Sunanda. In view of this Smt Jaiwantbai had filed a suit before the Civil Judge (Junior Division), thereby it was prayed that status of Sunanda be declared and injunction order be passed against the employer of her Son and claimed dues from Indian Railways.

The suit filed by the Mother (Appellant herein) was decreed and Indian Railways were directed to pay all the dues to Jaiwantaba. As Indian railways had already released the dues to “Sunanda” (Wife of deceased), thus, the first appeal before the District Court, Akola. The first Appellate Court had modified the judgment. Passed by the Court of first instance. The Indian Railways was directed to disburse the amount to Mother Jaiwantabai and wife Sunanda. The Mother had preferred the second appeal before the High Court against the judgment of First Appellate Court. Whereas the trial Court had accepted the claim of the plaintiff in toto, but, the first Appellate Court has also recognized the share of wife “Sunanda”. The plaintiff (Mother) was aggrieved by the first Appellate Court’s judgment.

The appellant contended that after the re-marriage, “Sunanda” had lost all her rights in the property of deceased husband and that conduct of employer of husband in releasing fund to “Sunanda” was unwarranted as no succession certificate was insisted and funds was released based on nomination. The appellant therefore prayed that the amount be recovered from the wife by the employer and be paid back to appellant Mother.

Per contra, on behalf of wife it was contended that The Hindu Widow’s Re-Marriage Act, 1856 (In short “Act of 1856”) is repealed in the year 1983 and even Section 24 is omitted from the Hindu Succession Act, 1956 (hereinafter referred to as the “Act of 1956”) w.e.f 9^th September, 2005. Reliance was placed on a judgment in the case of Sanjay Purushottam Patankar Vs. Prajakta Pramnod Patil 2015 (6) Mh.L.J. 533 DB. The Indian railways on the other hand maintained that the amount has already been disbursed to the wife on the basis of valid nomination and if the mother claims its recovery, the same may be against the wife only, if she succeeds.

 

Before the High Court. Following facts stands proved: following facts were proved—

a) Marriage between Sunanda and deceased-ASW;

b) Deceased-ASW was working with Indian Railways as a Pointsman;

c) Death of ASW on 19^th April, 1991;

d) remarriage by the wife after the death of husband;

d) Relationship of Jaiwantabai, as a mother with deceased ASW;

e) Disbursal of the amount by Indian Railways to wife of ASW;

f) Re-marriage of wife-Sunanda in the month of May, 1991;

 

The Bombay High Court has observed in Jaiwantbai (Supra) para no. 12 as under:

“12] It is true that the dues from employer is nothing but the self-acquired property of the deceased-Anil. It is also true that as per Section 2 of the Act of 1856 on re-marriage, the rights and interests for deceased husband’s property ceases and then there will be determination as if she have then died. It is also true that the Act of 1856 was repealed in the year 1983. It is pertinent to note that when the Hindu Succession Act was drafted in the year 1956, Section 24 was incorporated. The widow losses right if she remarries on the date when succession opens. It is also true that Section 24 is omitted from the Act of 1956 w.e.f. 9^th  September, 2005. Deceased-Anil expired on 19^th  April, 1991, so on that date succession to his property opened. So, we have to see what was the position in force at that time. The Act of 1856 was already repealed. Section 24 was very much there on the statute book. So, on the basis of that provision, whether it can be said that defendant-Sunanda can be excluded from succeeding the property of deceased-Anil?

                                     

The para 13, 14 and 15 of the aforesaid judgment is of vital importance:

13] The Division Bench of this Court (Principal Seat) in the case of Sanjay Purushottam Patankar (supra), was pleased to refuse stay to the execution of the order passed in testamentary petition. Succession certificate was granted in favour of the wife (even though she re-married) in respect of estate of deceased husband. Then the mother filed separate petition for grant of succession certificate. She asked for stay of the order passed in first testamentary petition. It was refused by learned Single Judge. It was confirmed by the Division Bench of this Court. The provisions of Section 14 of the Act of 1956 was considered.

 

14] It is very well true that if we have to deal with rights of a particular party, we have to consider the provisions of relevant law in its entirety. Section 14 of the Act of 1956 makes the female Hindu being absolute owner if she possessed the property. Whereas Section 24 of the said Act disinherits the widow if she re-marries. Here this Court wants to note the difference in between the wordings of Section 2 of the Act of 1856 on one hand and the wordings of Section 24 of the Act of 1956. There is emphasis ‘on the date when succession opens’ as per Section 24 of the Act of 1956. The status of the widow being remarried continuing to be widow must be on the date when succession opens. The wordings “if on the date the succession opens” does not find place in Section 2 of the Act of 1856. So, we have to respect the intention of the legislators while incorporating these provisions in Section 24 of the Act of 1956.

 

15] In other words, if the widow has not re-married when the succession opens, the disqualification under Section 24 of the Act of 1956 will not be applicable. Admittedly, defendant-Sunanda re-married in May, 1991 (i.e. after opening of succession on 19th April, 1991). For the above discussion, contention of the appellant so as to disqualify the defendant-Sunanda cannot be accepted. The plaintiff-Jaiwantabai and defendant-Sunanda being class 1 heirs are entitled to get equal share in the property of deceased-Anil. As contemplated under Section 10 of the Act of 1956, the widow (Rule 1) and the mother (Rule 2) of the intestate takes one share each. So both are entitled to get 50% from the property of deceased-Anil”.

 

The substantial question as framed above was thus answered in the affirmative by the high court on the basis of the facts involved in this appeal. It was further held that both wife and the Mother shall be entitled to 50 percent share each on the amount paid by the employer on account of deceased.

In this context, a judgment of Supreme Court in a matter bearing Appeal (Civil) 1323 of 2008(Arising out of SLP (C) No. 236 of 2004)  captioned as Cherotte Sugathan (Died through LR & Ors Vs Cherotte Bharathi & Ors shall be of relevance. It is held as under:

14. The question posed before us is no longer res integra. In Chando Mehtain & Ors. v. Khublal Mahto & Ors. [AIR 1983 Patna 33], the Patna High Court opined :

“ The Hindu Widows Remarriage Act, 1856 has not been repealed by the Hindu Succession Act, 1956 but Section 4 of the latter Act has an overriding effect and in effect abrogates the operation of the Hindu Widows Remarriage Act, 1856. According to Section 4 of the Hindu Succession Act all existing laws whether in the shape of enactments or otherwise shall cease to apply to Hindus in so far as they are inconsistent with any of the provisions contained in this Act. In Kasturi Devi v. Deputy Director of Consolidation [AIR 1976 SC 2595], this Court categorically held that a mother cannot be divested of her interest in the deceased son’s property either on the ground of unchastity or remarriage. Kerala High Court, in Thankam v. Rajan [AIR 1999 Kerala 62], held that remarriage of the wife cannot be a ground for her loosing right to succeed to her deceased husbands property”.

 

“15. Yet again this Court, in Velamuri Venkata Sivaprasad (Dead) by LRs. v. Kothuri Venkateswarlu (Dead) by LRs & Ors. [(2000) 2 SCC 139], held :

“Incidentally, Section 24 of the Succession Act of 1956 placed certain restrictions on certain specified widows in the event of there being a remarriage; while it is true that the section speaks of a pre-deceased son or son of a pre-deceased son but this in our view is a reflection of the Shastric law on to the statute. The Act of 1956 in terms of Section 8 permits the widow of a Hindu male to inherit simultaneously with the son, daughter and other heirs specified in Class I of the Schedule. As a matter of fact she takes her share absolutely and not the widows estate only in terms of Section 14. Remarriage of a widow stands legalised by reason of the incorporation of the Act of 1956 but on her remarriage she forfeits the right to obtain any benefit from out of her deceased husband’s estate and Section 2 of the Act of 1856 as noticed above is very specific that the estate in that event would pass on to the next heir of her deceased husband as if she were dead. Incidentally, the Act of 1856 does not stand abrogated or repealed by the Succession Act of 1956 and it is only by Act 24 of 1983 that the Act stands repealed. As such the Act of 1856 had its fullest application in the contextual facts in 1956 when Section 14(1) of the Hindu Succession Act was relied upon by Defendant. We respectfully agree with the said view”.

 

The aforesaid judgments and its recitations leaves no room of doubt that succession opens only on the day of death of a person and status of the parties as regards his/her being living for inheritance on that day or status as regards re-marriage as on that day itself shall be of relevance. The catena of judgments having been referred to above and interpretation thereof in very unambiguous terms, elucidates that the remarriage by a woman after the death of her husband shall not disentitle the widow from inheriting the estate of deceased and the terms of Hindu Succession Act 1956 as amended and up to date shall apply completely.

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                                  Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com

TERRITORIAL JURISDICTION FOR OBJECTION TO ARBITRAL AWARD

 

TERRITORIAL JURISDICTION for objection to arbitral award

 

The “seat” and “venue” of Arbitration is defined

The Arbitration & Conciliation Act 1996, with a view to make the proceedings more effective, have undergone changes and several and successive amendments are carried out and the glitches, if found existing, nevertheless, are settled by judicial pronouncements. The issues of exclusive jurisdiction clause in an agreement and seat of arbitration are often found interlinked and the same caused ambiguity as regards jurisdiction in respect of courts for civil disputes or arbitral disputes. It is however, now, become clear that as regards arbitration clause, irrespective of jurisdiction clause, the seat of arbitration shall mandate that the arbitral proceedings shall be conducted in the location of seat of arbitration itself and the courts located at seat of arbitration shall have the jurisdiction so far as issue of arbitrability are concerned.  Recently, Delhi High Court has again dealt with the aforesaid aspect in a matter captioned as DELHI TOURISM AND TRANSPORTATION DEVELOPMENT CORPORATION versus M/S SATINDER MAHAJAN  reported as 2024 SCC Online Del 3206.

                                  FACTUAL MATRIX

1.   The respondent is located in Pathankot, Punjab and is  registered as a Medium Enterprise under the MSME Act. The respondent entered into an agreement dated 21.01.2016 with the petitioner – Delhi Tourism and Transportation Development Corporation, for construction of a bus depot at Kharkhari Nahar Village, New Delhi. As disputes arose between the parties, the respondent made a claim for payment of its alleged dues under the Agreement before the Facilitation Council. For this purpose, it invoked jurisdiction of the Facilitation Council under Section 18 of the MSME Act.

2.   The Facilitation Council first adopted conciliation proceedings. The conciliation proceedings were closed on 15.10.2020, and the reference was taken up for arbitration. The petitioner also raised an objection as to the jurisdiction of the Facilitation Council, which was rejected by an order dated 26.10.2020.

3.   The award was published by the Facilitation Council and that was impugned before the Delhi High Court. It is undisputed that the Facilitation Council had conducted its proceedings, and made its award, in Pathankot.

4.   The Agreement contains an arbitration clause [Clause 25 of the General Conditions of Contract (“GCC”)] which reads as, “Settlement of Disputes & Arbitration”. The detailed provisions were stipulated in it with regard to resolution of disputes between the parties by way of arbitration, in the event, the parties  are not able to resolve their disputes as per the mechanism provided therein. The GCC did not contain an exclusive jurisdiction clause, nor was the seat of the arbitration stipulated. Though, Clause 25, provided the venue of the arbitration which reads as “shall be such place as may be fixed by the arbitrator in his sole discretion”.

 

5.   The Article 7(1) of a document attached to the tender, entitled “Integrity Pact”. The Integrity Pact was to be signed by the bidder and was to be read as an integral part of the tender document and the Agreement between the parties. It contains certain commitments on part of the bidder to take measures to prevent malpractices, and provides for the consequences of breach thereof.

 

6.   Two provisions in Article 7 of the Integrity Pact are relevant for adjudication of this contention:

“Article 7- Other Provisions

1) This Pact is subject to Indian Law, place of performance and jurisdiction is the Head quarters of the Division of the Principal/Owner, who has floated the Tender.

xxxx xxxx xxxx

5) It is agreed term and condition that any dispute or difference arising between the parties with regard to the terms of this Integrity Agreement / Pact. Any action taken by the Owner/Principal in accordance with this Integrity Agreement/ Pact or interpretation thereof shall not be subject to arbitration.”

 

The following two issues had emerged for the Delhi High Court to decide:

I.      Whether the Agreement between the parties contains an exclusive jurisdiction clause for the purposes of the present petition?

II.     Whether the seat of the arbitration was, in any event, in Delhi?

Thus, what is relevant is that Article 7(1) of the Integrity Pact, provides that jurisdiction in respect thereof is with the headquarters of the division of the owner/principal, being the petitioner. It does not appear to deal with the jurisdiction of courts or resolution of disputes. This provision does not in any way help in determining the question of exclusive jurisdiction for disputes under the main Agreement. The Clause 7(5) of the Integrity Pact is more relevant for this purpose. The said provision makes it clear that disputes and differences arising under the Integrity Pact and questions of interpretation thereof, shall not be subject to arbitration. Thus, it is apparent that the dispute resolution mechanism under the main Agreement and the Integrity Pact were intended to be entirely different for disputes under the main Agreement. Clause 7 of the Integrity Pact was not intended to deal with disputes arising under the underlying Agreement at all. The two documents have to be read together, but such reading must be harmonious and reconcilable. As far as the main Agreement is concerned, disputes as to contractual performance, which were admittedly the subject matter of arbitration proceedings, are not covered by Clause 7 of the Integrity Pact.

The High Court had referred to various judgments of Supreme Court and Division Bench judgments of Delhi High Court and other high court before arriving at conclusion i.e whether the Delhi High Court can entertain the objection under Section 34 of Arbitration & Conciliation Act against the award that was published at Pathankot.

The Kerala High Court has rendered a judgment, albeit in a writ petition under Article 226 of Constitution of India, in a matter captioned as Shreyas Marketing v. Micro and Small Enterprises Facilitation Council 2023 SCC OnLine Ker 4206. In paragraph 7 of the judgment, it is referred that an award under Section 18 of the MSME Act, which is deemed to be an award under the Arbitration Act, can be challenged in the appropriate court at the seat of the concerned facilitation council. This observation was made in the context of determining whether the Kerala High Court was forum conveniens for the purposes of the writ petition.

The Madhya Pradesh High Court, in Madhya Pradesh Purv Kshetra Vidhyut Vitran Company Ltd. v. Ami Tech India Pvt. Ami Tech Ltd 2023:MPHC-JBP:44566.has also followed the aforesaid judgment of the Kerala High Court.

The two division benches of Delhi High Court in Indian Oil Corporation Ltd. v. FEPL Engineering (P) Ltd 2019 SCC OnLine Del 10265  and IRCON International Ltd v. Pioneer Fabricators Pvt. Ltd. 2023 SCC OnLine Del 1811, has held that even where any arbitration, under the MSME Act, is conducted by a facilitation council, situated outside Delhi, jurisdiction for the purposes of challenge to the award, would lie in the Court having exclusive jurisdiction in terms of the contract under consideration.

Venue and Seat

(1) It is the settled law that the “seat” of the arbitration proceedings are to be determined on the basis of connection with the arbitral proceedings, and not with the cause of action for the underlying disputes. The “seat” of arbitration is the place where the arbitral proceedings are anchored; the determination of jurisdiction under Sections 16 to 20 of the CPC for the purposes of filing a suit has no relevance as is held in Indus Mobile Distribution Pvt. Ltd. v. Datawind Innovations Pvt. Ltd. [(2017) 7 SCC 678].

(2) In BGS SGS SOMA JV v. NHPC (2020) 4 SCC 234, the Supreme Court has clearly held that in the absence of any significant contrary indicia, “the inexorable conclusion is that the stated venue is actually the juridical seat of the arbitral proceeding”. The aforesaid view has subsequently been followed by the Supreme Court inter alia in Inox Renewables Ltd. v. Jayesh Electricals Ltd (2023) 3 SCC 733. The Supreme Court has consistently held that the “seat” court alone has jurisdiction to decide a petition under Section 34 of the Arbitration Act. The reference to cause of action was for the purposes of determining the court which a party may approach in anticipation of arbitration proceedings, by way of an application under Section 9 of the Arbitration Act. In fact, the Court, in BBR (India) (P) Ltd. v. S.P. Singla Constructions (P) Ltd (2023) 1 SCC 693, held that Section 42 of the Arbitration Act would not confer jurisdiction in a court which had entertained a Section 9 application, if the seat of the arbitration had, in fact, been changed during the arbitral proceedings. In this context following judgments shall be relevant:

(i)          IRCON International Ltd v. Pioneer Fabricators Pvt. Ltd. 2023 SCC OnLine Del 1811

In the above case, the concerned MSME Facilitation Council was located outside Delhi, but the agreement between the parties conferred exclusive jurisdiction upon the Courts in Delhi.

(ii)            BGS SGS SOMA JV v. NHPC (2020) 4 SCC 234

(iii)    Hindustan Construction Co. Ltd. v. NHPC Ltd.(2020) 4 SCC 310

(iv)      Gujarat State Civil Supplies Corpn. Ltd. v. Mahakali Foods (P) Ltd.(2023) 6 SCC 401

(v)          Silpi Industries v. Kerala SRTC (2021) 18 SCC 790

(vi)           Gammon Engineers & Contractors (P) Ltd. v. Sahay Industries 2023 SCC OnLine Del 518

(vii)     Ahluwalia Contracts (India) Ltd. v. Ozone Research & Applications (I) (P) Ltd.2023 SCC OnLine Del 518

The Delhi High Court in Delhi Tourism (Supra) has held that aforesaid judgments of the Division Bench are applicable in cases where parties agree to confer exclusive jurisdiction for supervision of the arbitration proceedings, upon a particular Court in their contract. The judgments proceed on the basis that the exclusive jurisdiction clause in the agreements between the parties, would not be overridden by conferment of jurisdiction upon a particular MSME Facilitation Council under Section 18 of the MSME Act. For the reasons stated above, the Court had come to the conclusion, that in DELHI TOURISM (Supra) in the Agreement, there is no exclusive jurisdiction clause. The aforesaid judgments of the Division Bench were therefore held to be inapplicable to Delhi Tourism (Supra).

In Para 24 of Delhi Tourism (Supra) the Delhi high Court has held as under:

“24. This also accords with the objective of Section 18(4) of the MSME Act, which permits a medium or small enterprise to approach a facilitation council at the place where it is located. In the absence of an exclusive jurisdiction clause, by which such an enterprise agrees to confer jurisdiction elsewhere, the legislative intent that the dispute will be resolved at the location of the said medium or small enterprise, is furthered by this interpretation”.

 

The objection under section 34 of the Arbitration & Conciliation act 1996 was therefore dismissed for want of jurisdiction.

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                                   Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com