text:
1. This appeal has arisen from the order of the I Additional Family Court, Chennai, granting divorce in favour of the respondent husband under Sec. 13(1)(1a) of the Hindu Marriage Act.
2. The respondent husband sought a decree of divorce before the lower Court alleging that the marriage between himself and the appellant herein took place on 5.9.1991; that they have been living happily for a short while; that thereafter, she created problem and went over from the matrimonial house to her parents’ house; that she lodged a false complaint against him, on the basis of which a case was registered by the police for dowry harassment; that he was arrested and later, let on bail; that the criminal proceedings also went on, and thus, all along, he has been harassed by her; that because of that, he had mental cruelty, and hence, it was a fit case for granting the relief of divorce.
4. The trial Court recorded the evidence. On the appraisal of the entire evidence, the Court below has found that it was a fit case for divorce and accordingly, granted the relief, what is being challenged in this C.M.A.
5. The learned Counsel appearing for the appellant wife, would submit that in the criminal case, both the lower Courts have found that there was a dowry harassment; that though the judgments of the lower Courts were set aside by this Court, there was sufficient evidence let in to substantiate the dowry harassment, and apart from that, having harassed his wife by demanding dowry, he has come forward with the false case for divorce; that he has not even cared to maintain the wife and child; and that it is pertinent to note that the wife has also filed a O.P. for restitution of conjugal rights, which shows the intention of the appellant to live with him. Added further the learned Counsel that the husband has not produced any iota of evidence to show that there was any cruelty made against him; that the petition should have been dismissed by the lower Court, and hence, the order of the lower Court has got to be set aside.
7. Admittedly, the appellant married the respondent on 5.9.1991, and out of the said wedlock, there was a male born. It is also not in dispute that she lived with him only for a short time. The only contention put forth by the appellant’s side, is that she was driven away from her matrimonial house, and thus, there was a necessity to live with her parents. On the contrary, the respondent husband came with the case of divorce stating that there was mental cruelty, exerted by her by lodging a false complaint under Sec. 498A I.P.C.; that a case came to be registered, and he was also arrested in that regard; that the same would constitute a cruelty, and hence, divorce has to be given. It is an admitted position that the appellant herein lodged a complaint against her husband, and criminal proceedings were initiated; that the said complaint was taken on file by the learned Chief Metropolitan Magistrate, Chennai, in C.C.No.11007 of 1992, and the trial went on. It is pertinent to point out that after the initiation of the criminal proceedings, the respondent herein was arrested, and subsequently, he was let on bail. Though the case ended in conviction, he took it on appeal in C.A.No.91 of 1998, which was taken up by the Sessions Court, Madras, which also confirmed the conviction and sentence imposed on him. In such circumstances, the husband took it on revision before this Court in Crl.R.C.No.941 of 2000. This Court had an occasion to consider the rival submissions made and to scrutinise the materials. This Court allowed the revision case and acquitted the respondent husband. At this juncture, it has to be pointed out that on the complaint given by the appellant wife against her husband for dowry harassment, a case came to be registered by the police, and he was arrested and let on bail. He faced the trial before the Chief Metropolitan Magistrate’s Court, Chennai in a Calendar Case, and he was convicted and sentenced. That apart, the appeal in C.A.91/98 preferred by him, has also met the same fate at the hands of the Sessions Court. Finally, he was acquitted by this Court.
8. It would be more appropriate and advantageous to reproduce the order of this Court in Crl.R.C.941 of 2000 as follows: “The facts narrated above indicate that the allegations in the complaint to P.W.8 on 26.5.92 should only be considered as an after thought and that the said complaint was given by P.W.1 only to harass the petitioners to subjugate the first petitioner to her wish to stay at Madras. I am unable to accept the prosecution version that the petitioners, joining with the other accused, made a demand for dowry.” Thus, from the wordings found in the judgment of this Court in the revision, it would be clear that it was a false complaint.
9. The case of the appellant was that there was no cruelty exerted, cannot be accepted or countenanced for the simple reason that a fase complaint was lodged against her husband, and the case came to be registered under Sec. 498AI.P.C., and criminal proceedings were initiated, and the husband was also arrested. It remains to be stated that the mental cruelty faced by the husband has to be assessed having regard to his status in his life, educational background and the environment, in which he lived. The husband could have suffered traumatic experience because of the police complaint and the consequent loss of reputation and prestige in the society. This Court is of the considered view that the facts and circumstances in the instant case would clearly speak of volume of the false complaint given by the appellant wife against her husband, which resulted in the criminal proceedings, which he had to face. It is true that he was arrested, and then, he was let on bail. No doubt, it is a clear case, wherein the reputation and prestige of the husband in the society has been spoiled. In such circumstances, lodging of the police complaint by the appellant wife has got to be necessarily termed as mental cruelty. In view of these reasons, it would be suffice to sustain the finding of the lower Court that there was sufficient ground of mental cruelty, which would necessitate for grant of divorce.
11. With the above observation, this civil miscellaneous appeal is dismissed. No costs. Consequently, connected C.M.Ps. are also dismissed.
This entry was posted in cruel wife, cruelty, divorce, fake 498a, false 498a, False 498a is cruelty, Madras HC and tagged cruel wife, cruelty, divorce, Divorce confirmed, divorce granted, Fake 498a is cruelty, false 498a, false 498a is cruelty, Madras HC, madras high court on July 23, 2018 by vinayak.
Marriage in 1979 (Yes 37 years ago !!). Wife leaves husband in 1983. there is very little cohabitation since then, almost nil cohabitation since 1986 ! There are numerous instances of wife beating or quarreling with the husband, wife’s relatives misbehaving with husband’s parents, wife’s people trying to destroy husband’s father’s wheat crop, and a false 498a where husband and co are completely acquitted. However since the first divorce attempt by the husband goes un successfull, husband goes to SC, who sends case back to Raj HC. At Raj HC Abala Nari wife claims that she is ready to come back !! Still Raj HC appreciates the facts and grants the husband divorce on grounds of cruelty !
This appeal is directed against the judgment & decree dated 24.2.1993 passed by the Family Court, Kota, by which application filed by the appellant u/sec. 13 of the Hindu Marriage Act, 1955 (for short the Act 1955), has been rejected with cost of Rs.1000/-.
This case has a chequered history of litigation.
The husband, Nathulal filed a divorce petition u/sec. 13 of the Act 1955, which was registered as Civil Misc. Case No.183/1991, and the same came to be dismissed by the Family Court. Appeal against the said judgment and order on an earlier occasion came to be decided by Division Bench of this Court vide order dated 1.3.1997, by which Coordinate Bench of this Court allowed the appeal and set aside the judgment and decree of the Family Court and granted a decree for divorce in favour of the appellant-husband. The respondent wife, Nathi Bai carried the matter to the Apex Court in Civil Appeal No.3422/1997 that came to be allowed vide order dated 8.10.2002 and order of the Division Bench in the present appeal, No.244/1993 dated 1.3.1997 was set aside and the matter was remitted to the Division Bench of this Court for fresh hearing and disposal in accordance with law.
Keeping all the circumstances in view, since avowedly the High Court has not decided the appellant’s application under Order XLI Rule 27 CPC, the course which commends itself to us is to remand the matter in its entirety to the High Court with a direction to first decide the Appellant’s application under Order XLI Rule 27 CPC. The Impugned Order is accordingly set aside.
The matters are remanded back to the High Court for consideration afresh.
Appeals stand disposed of. No order as to costs.
After the matter was remitted back to this Court, application u/O.41 R.27 was allowed and the judgments annexed thereto were taken on record vide order dated 9.7.2015. Having noticed the above facts, the salient features for disposal of present appeal are noticed hereunder.
Admittedly the appellant-husband got married with the respondent-wife on 27.4.1979 as per the Hindu rites and custom. It has been alleged that in the month of February 1983 respondent wife left the house of appellant husband without any reason and did not turn back. The appellant filed a divorce petition u/sec. 13 in the year 1986 which the appellant withdrew as both the parties entered into a compromise. It is further alleged that in the month of August 1986, respondent came back to the house of the appellant and for some time the behaviour of the respondent was normal, but she started giving threatening and started quarreling with the appellant. It is further alleged that torture of the respondent had gone to such an extent that the respondent lodged a false case against him u/sec. 498-A and 406 IPC in the police station Vigyan Nagar, Kota, on 28.8.1986 against her in-laws in which allegations were levelled regarding demand of dowry against the father and brothers of the appellant and the police after investigation submitted final report, the Investigating Officer having found the entire allegations to be false and that was accepted by the Competent Court of jurisdiction. It is also alleged that the respondent pushed the cycle of the appellant-husband and caught hold of his collar and after abusing him shouted that she would not allow him to go to duty and shut him up in the room and thus there was continuous quarrel in between the parties.
The appellant has also lodged a report on 30.8.1988 against the respondent. It has further been stated that the appellant is serving in Instrumentation Ltd., Kota, and the respondent on one occasion reached the factory premises and misbehaved with the appellant outside the factory gate. It is also alleged that on 2-3 occasions respondent wife brought two persons who attacked the appellant at the time when he was returning from his office. It has further been alleged that the respondent was bent upon to commit his murder and looking to the conduct and behaviour of the respondent and fact of cruelty inflicted upon the appellant, the appellant was unable to live with her and thus an application was moved u/sec. 13 of the Act 1955 in the year 1989, which came to be dismissed as aforesaid.
Mr. Kasliwal, the learned counsel for the appellant has contended that taking into consideration the facts brought in the application for divorce coupled with the material on record, clearly proves that the respondent caused continuous mental and physical cruelty on the appellant husband. The learned Family Court has not considered the material on record insofar as the cruelty of the respondent wife is concerned. There are oral as well as documentary evidence available on record which proves the same. He further contends that the behaviour and conduct of the respondent wife since beginning was not proper and on a small pretext, she left the matrimonial home initially and admittedly did not come for a period of about 3 years and the appellant had to file an application u/sec. 13 of the Hindu Marriage Act before the Family Court, which however was withdrawn because of the intervention of the family members and her relatives, the respondent wife came back to the matrimonial home and after staying, her behaviour for sometime was normal but a false complaint was made against the father and brothers of the appellant on 28.9.1986 with the allegations of beating and demanding dowry, however, after investigation the police filed final report and the same was accepted by the competent court.
(i) 28.8.1986 : FIR No.62/1986 u/sec. 498A IPC by Nathi Bai against appellant’s father and brothers : After investigation police found allegations false.
(ii) 5.10.1989 : Complaint by Vikas Adhikari, Panchayat Samiti Sultanpur (where father of the appellant Nathu Lal was employed) to the effect that respondent Nathi Bai came at the office and tried to create nuisance by which office work was disrupted.
(iii) 14.12.1989 : Complaint by Dwarka Lal, father of the appellant against Nathi Bai and her brothers to the effect that they came at their house and misbehaved with him and mother of the appellant, even the clothes of appellant’s mother were dis-robed. On an FIR having been filed by the appellant, challan was filed against the respondent before the competent court and the respondent had been bound down by the Court of Law to behave well with the appellant.
(iv) 23.3.1990 : FIR No.37/1990 u/sec. 498A IPC by Nathi Bai against father, mother and brothers of appellant. Vide order dated 18.1.2003 passed by Addl. CJM, Fast Track, Digod (Kota), accused were found not guilty in Case No.428/2002.
(v) 7.4.1990 : FIR No.42/1990 u/sec. 498A and 324 IPC by Nathi Bai against father and mother of appellant. Vide order dated 31.1.2003 passed by Addl. CJM, Fast Track Digod (Kota), accused were found not guilty in Case No.117/2002.
(vi) 21.5.1990 : Complaint No.867 registered at Police Station Vigyan Nagar, Kota, on information received over telephone that at the factory gate of Instrumentation Limited Nathu Lal and Nathi Bai were quarreling and fighting. Both were taken to the police station by police. However, subsequently they were released on bail by order of ADM (City) Kota.
(vii) 5.12.1990 : Dwarka Lal, father of appellant filed a complaint before Dy.SP (Rural), Kota, to the effect that Nathi Bai tried to destroy crop of Wheat in his fields by discharging canal water.
(viii) 14.3.1991 : FIR No.21/1991 u/sec.341, 323/34 IPC by Mangi Bai (mother of appellant) against Nathi Bai and her brothers. Vide order dated 25.7.2002 passed by Judl. Magistrate (First Class), Digod, accused were found guilty in Case No.366/1997.
He also drew attention of this Court on application under O.41 R.27 CPC by which he placed reliance on three aforementioned orders dated 25.7.2002 (Case No.366/1997), 18.1.2003 (Case No.428/2002), and 31.1.2003 (Case No.117/2002) passed by Digod Courts. Thus, he contended that there has been plethora of cases and even one criminal case is sufficient to prove cruelty whereas in the instant case there are several criminal cases which certainly proves to the hilt about the physical and mental cruelty against the appellant. He also relied upon the statements of several witnesses recorded, which clearly brings on record the behaviour of the respondent.
Per contra Mr. Suresh Pareek, learned Sr. Counsel for the respondent, assisted by Mr. N.C. Sharma, Advocate, contended that the respondent was always ready, willing and prepared to live as wife of the appellant, peacefully but the appellant was never interested in keeping the respondent and created hindrances by filing complaints for no rhyme or reason. He further contended that the respondent who is present in Court, has categorically, expressly and openly said that she is ready and willing to live with the appellant in the manner appellant wishes, and words before this Court should be taken in the right spirit and at-least the sacred function of the Court in matrimonial matters, should be taken sympathetically, as it is a matter of life and death of a poor and illiterate lady from a village background who do not know the niceties of law, may have taken some abrupt action which does not come within the definition of cruelty.
He further contended that the appellant and his family members demanded dowry and only under such compelling circumstances, complaint was lodged u/sec. 498A IPC by the respondent which by itself cannot be said to be a cruelty. She lived with the appellant, admittedly, from August 1986 to the year 1989 but then, the appellant himself was not interested and created complex situations.
He further contended that the appellant also filed an application for judicial separation which too was dismissed vide order dated 5.12.1995, and contended that the judgment of Trial Court relied upon by the learned counsel for the appellant and brought on record with the application under O.41 R.27 CPC were not before the Family Court and the same cannot be taken into consideration and if at all required, the matter may be remitted to the Family Court for reconsideration of subsequent developments/judgments.
He further contended that the Family Court has taken into consideration each and every factor, particularly the statements of witnesses and came to a correct conclusion which is not required to be interfered with, and vehemently supported the order passed by the Family Court and contended finally that the husband being habitual of filing divorce petition or judicial separation application, wants to get rid of her by seeking divorce by some method. He further contended that age is no consideration in matrimonial matters, rather contended that at this age of about 55 years or so, both husband and wife needs companionship and endeavour of the Court should be to see that they are reunited not only on papers but in reality.
We have heard the learned counsel for the parties and have gone through the impugned order and judgments passed by this Court earlier minutely and the observations of the Apex Court.
(iii) has been incurably of unsound mind, or has suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
498A. Husband or relative of husband of a woman subjecting her to cruelty.
323. Punishment for voluntarily causing hurt.
406. Punishment for criminal breach of trust.Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Admittedly the ground for divorce taken by the appellant against the respondent is that the respondent has treated the appellant with cruelty.
AW-1 Nathulal son of Dwarka Lal stated, inter alia, that on 12.5.1989 at about 8:AM, Nathi Bai misbehaved with him and tried to prevent him from going to his office. He was rescued by neighbourers. One day she fought with him and told that neither she will allow him to go to his duties, nor let him live in Kota, and threatened to even kill him. He also stated that she along with her brothers after abusing him went to his parents’ house where they misbehaved with them and even declothed his mother.
AW-3 Dwarka Lal son of Magan Lal, inter alia, stated that Nathi Bai used to misbehave with him and his wife and even they have suffered beating from her and her brothers. On being cross examined, he stated that he has no knowledge how burn marks at her leg were received by her but she used those marks to gain sympathy from others.
AW-4 and AW-5 Dinesh Gautam son of Moti Shankar and Banwari Lal son of Madan Lal, have stated that they have witnessed the incident of Nathu Lal being abused by Nathi Bai in front of the factory gate of Instrumentation Ltd.
AW-6 Shyam Manohar son of Chaturbhuj, inter alia, has stated in his statement that on 12.3.1991 at about 2:30 in the afternoon when he was going home from village bust stand, he saw 20-25 persons together near the Primary School, and Nathi Bai was also there along with her three brothers and they were abusing and ill-behaving with father and mother of the petitioner Nathu Lal.
On perusal of the witnesses at the instance of the appellant, in our view, clearly proves that the respondent is in the habit of misbehaving not only with aged parents of the appellant and his brothers, but the appellant himself. Leaving apart the statement of AW-1, as he is petitioner appellant-Nathu Lal. Dinesh Gautam (AW-4), Banwari Lal (AW-5), Shyam Manohar (AW-6) and other witnesses have described about the incident of fight which ensued in between the parties outside the factory gate, where the respondent was found beating the appellant and abusing him in front of the staff and officials of the Instrumentation Ltd. NAW-1 Nathi Bai wife of Nathu Lal in her statement, inter alia, stated that she did not fight with her husband on 12.5.1989 nor abused him. She also denied that she had ever threatened her husband. She then stated that after September 1989 she neither went to her in-laws’ house nor abused them. She denied the allegation that she ever wished that her husband should die so that she gets employment in his place. She alleged that for want of dowry, Nathu Lal had left her and differences have widened between them. NAW-2, NAW-3 and NAW-4 Ghanshyamdas son of Madhodas, Ram Ratan Swami, and Birdhilal both sons of Ram Narain, inter alia, stated that dispute between the parties is for demand of dowry by Nathu Lal’s parents. NAW-5, NAW-6 Saroj Singh daughter of Ravindra Pratap Singh, and Kamla Bai wife of Ramkumar, have stated, inter alia, that one day Nathi Bai was weaping and standing outside the house, they enquired from her about the reason of her weaping and standing outside the house, to which Nathi Bai answered that she is wife of Nathu Lal but he has sent a notice/letter of divorce to her. She further stated that when the dispute between the parties grew up, one day in 1986 members of the colony including them, went to Vigyan Nagar Police Station and lodged a report to the effect that Nathi Bai is wife of Nathu Lal but he uses force against her and misbehaves with her. Both the witnesses further stated that younger brothers were residing with the petitioner who used to forcibly push Nathi Bai to go out of the house and torture her. They also claimed that with the help other neighbourers they made Nathi Bai to enter in the house.
We have gone through the statements recorded at the instance of the respondent. While Ghanshyamdas (NAW-2), stated that there was a demand of gold chain in dowry which was conveyed to him by the father of respondent-Nathi Bai, however, in cross-examination he denies having any talk with the appellant in this regard. Ram Ratan Swami (NAW-3), though supports the version of Ghanshyamdas (NAW-2), but speaks of the incident about 10-12 years old and that too by mentioning that respondent’s father had told him about demand of dowry, however, he admitted in cross-examination that the appellant-Nathu Lal never raised any demand for any chain in his presence. Birdhilal (NAW-4), though he is stated to be a Head Constable in the Police Department, but he does not remember his place of posting when appellant’s father and appellant had said about demand of one tola gold chain. In cross-examination, however, he stated that the said incident did not happen in his presence. Ms. Saroj Singh (NAW-5), and Kamla Bai (NAW-6), Mrs. Santosh wife of Suresh Chandra (NAW-7), Mrs. Kesar wife of Radhe Shyam (NAW-8), Mrs. Shanti Verma wife of K.L. Verma (NAW-9), all spoke about the incident of 1986, which in our view is not required to be stressed upon particularly in view of the fact that thereafter admittedly both were living jointly at the instance of the family members of the respondent, and it is only after 1989 that further disputes took place in between the parties.
It would be appropriate to deal the judgments of the Apex Court which have laid down the principles which help discharge the Family Court and other Courts the onerous task in a more realistic and effective manner to decide petitions like this.
66. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act 1955. Because of the change of circumstances and for covering a large number of cases where the marriages are virtually dead and unless this concept is pressed into service, the divorce cannot be granted. Ultimately, it is for the Legislature whether to include irretrievable breakdown of marriage as a ground of divorce or not but in our considered opinion the Legislature must consider irretrievable breakdown of marriage as a ground for grant of divorce under the Hindu Marriage Act 1955.
67. The 71st Report of the Law Commission of India briefly dealt with the concept of Irretrievable breakdown of marriage. This Report was submitted to the Government on 7th April, 1978. We deem it appropriate to recapitulate the recommendation extensively. In this Report, it is mentioned that during last 20 years or so, and now it would be around 50 years, a very important question has engaged the attention of lawyers, social scientists and men of affairs, namely, should the grant of divorce be based on the fault of the party, or should it be based on the breakdown of the marriage? The former is known as the matrimonial offence theory or fault theory. The latter has come to be known as the breakdown theory.
101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of mental cruelty.
The Apex Court has found that there can be no uniform standard but deemed it appropriate to enumerate some instances of human behaviour in dealing with the case of mental cruelty. In our view, sub paras (i), (ii), (x) and (xiv) are relevant in the instant case.
In the case of K. Srinivas Rao v. D.A. Deepa (2013) 5 SCC 226, not only the Apex Court adjudged the above points of mental cruelty as expressed in the case of Samar Ghosh (supra) but also added few more points namely, making unfounded defamatory allegations against spouse or his relatives even in pleadings, filing repeated false complaints or issuing notices or news items which may have adverse impact on the business prospects or the job of spouse and filing repeated complaints and cases against spouse in the facts of the case, amount to causing mental cruelty.
It is true that the foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each others fault to a certain bearable extent has to be inherent in every marriage. It is true that every matrimonial conduct which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses which happen in day to day married life may also not amount to cruelty. Mental cruelty may consist of verbal abuses and insults, by using filthy and ugly language leading to constant disturbance of mental peace of the other party.
In the case of Mayadevi (smt) v. Jagdish Prasad (supra) the Trial Court found that the allegation of cruelty was established. Several instances were noted. One of them related to wife’s behaviour on the date of judgment in the criminal case. After the judgment of conviction was pronounced, she threatened the husband to kill him and prosecute him. It was also noted by the Trial Court that allegation made by her alleging dowry demand was disbelieved and the police gave final report stating that the case was falsely lodged and on these facts the Trial Court granted the decree of divorce, which was confirmed by the High Court. The Apex Court taking into consideration the facts and circumstances in that case held that the husband was subjected to mental and physical cruelty and thus dismissed the appeal.
In the present case as well, the case instituted u/sec. 498-A IPC was dismissed and the same has not been assailed before higher forum.
In the instant case, the contention of learned counsel for the respondent that proceedings u/sec. 498-A IPC and other cases were filed subsequently cannot be considered, but in the light of the judgment of Vishwanath Agrawal (supra) the contention of learned counsel for the respondent is repelled.
We find that the judgments in Vishwanath Agrawal v. Sarla Vishwanath Agrawal (supra), Smt. Savitri Balchandani v. Mulchand Balchandani (supra), Jayakrishna Panigrahi v. Smt. Surekha Panigrahi (supra), Smt. Sadhana Srivastava v. Arvind Kumar Srivastava (supra), A. Jayachandra v. Aneel Kaur (2005) 2 SCC 22, and Suman Kapur v. Sudhir Kapur (2009) 1 SCC 422 were relied upon wherein it is held that false, scandalous, malicious, baseless and unproved allegations even in the written-statement is cruelty to the other party.
It would also be appropriate to mention about the judgments relied upon by the learned counsel for respondent.
In the case of Sujit Banerjee v. Anita Banerjee (supra) the High Court found that a unilateral act of one spouse, reducing the relationship to a situation where the marriage would be deemed to have broken down and such act unless made an issue by the wronged spouse cannot be deemed to be a valid ground to take away the legal right which was caused by the solemnization of marriage. In the abovesaid case, wife did not opt to dissolve the marriage in spite of suffering at the hands of the husband and there was bona fide on her part. On these facts the High Court dismissed the appeal. In our view, the facts are different and entirely distinguishable to what are available in the instant case.
In the case of Archna Sharma v. Suresh Kumar Sharma (supra), the Court found that allegations of cruelty were not pleaded in the divorce petition by seeking amendment thereto and, therefore, not put to trial, and the Court observed that the allegations of cruelty could not be taken note of while granting divorce unless these were made a part of the divorce petition. The High Court in that case was not inclined to grant decree of divorce. However, in the light of the judgment in Vishwanath Agrawal (supra) of the Apex Court, where it has been held that subsequent events can be taken note of and considered, the said judgment is contrary to the law laid down by the Apex Court and is distinguishable. To the same effect is the judgment relied upon by the learned counsel for respondent in the case of Smt. Santosh Sharma v. Ashok Kumar (supra).
Similarly in the case of Vegi Jagadesh Kumar v. V. Radhika (supra), there were mere accusations, taunts by one against other and the High Court found that they were not willful in nature and does not constitute cruelty. The High Court also observed that the other party committed willful and unjustifiable acts inflicting pain and misery on the complainant and causing injury to his/her health. The conduct of complainant must be serious and higher than the wear and tear of married life. It is not cruelty, if acts complained of are not violent in nature. Mere complaints, accusations, or taunts by one against the other if the same are not willful in nature, do not constitute cruelty. The other judgments relied upon by the learned counsel for respondent in the cases of Pramodkumar C Shah (supra), Jagat Singh (supra), Jitendra Singh (supra), Chetan Dass (supra), Kajal Das (supra), Yudhishter Singh (supra), Hari Ram (supra) and P.Malleswaramma (supra), are judgments where the Courts found that cruelty on the spouse was not proved, or one cannot take advantage of his own wrong and on mere fact that erring spouse is moody, whimsical, irritable or inconsiderate, are no grounds for divorce. However, we have taken into consideration the judgments of the Apex Court and the conduct of the respondent in repeatedly causing cruelty on the appellant. Therefore the judgments are distinguishable on facts.
In the instant case in our view there are several complaints against the respondent who took law into her hands, tried to beat the appellant and his family members not only once but on other occasions as well and created commotion even outside the factory gate with the appellant, coupled with filing of cases u/sec. 498-A and other facts clearly lead to irresistible conclusion that cruelty was certainly caused by the respondent against the appellant husband both mental as well as physical.
Taking into consideration the facts as noticed hereinbefore, and the complaints lodged by both the sides, and in particular at the instance of the respondent-Nathi Bai, it is clear that the criminal cases filed at her instance stood dismissed. However, the criminal cases lodged at the instance of the family members of the appellant stood allowed against the respondent, who was found guilty, and in our view taking into consideration the judgments cited supra, clearly make out a case of physical and mental cruelty against the appellant, and a clear case is made out for grant of decree of divorce.
We have also noticed that the respondent filed several complaints against the appellant, she was also convicted in one of the cases involving father, mother and brothers of the appellant, and was sent to jail, whatever time she lived with her husband, she never lived peacefully with him. She left her matrimonial home and came back after more than 3 years. Thereafter also there was no improvement in the conduct of the respondent, as is evident from criminal complaints and the reports of the independent persons against her behaviour so as to gain sympathy of any person. The relevant consideration is to see whether the conduct is such as to cause a reasonable apprehension in the mind of the one that it will be harmful or injurious for him/her to live with the other side. We have given hereinbefore the cases instituted by both the parties against each other. While the cases instituted at the instance of respondent Nathi Bai were found false or/and the accusations made by Nathi Bai were found not guilty, however, in the complaints made at the instance of the petitioner or/and family members, challan was filed against accused Nathi Bai and her brothers and they were found guilty. Thus, this even otherwise proves that the respondent was in habit of filing repeated cases and in our view even one case is sufficient to prove mental cruelty, at-least in matrimonial matters like this.
Though the Court on several occasions tried to persuade both the parties to come to amicable solution through mediation as Courts go slow at-least in matrimonial matters to try to make rapprochement so that bonding of marriage which is considered to be sacred and sacrosanct in the Hindu Law, is maintained/retained.
In matters like this, something more is required to be considered rather than ordinary wear and tear of married life and the Courts have to be very practical and pragmatic in approach while dealing with the divorce petitions filed on the ground of cruelty or otherwise. Foundation of a sound marriage is tolerance, adjustment and respecting one another. The Court has to bear in mind that the problems before it are those of human beings and a delicate bond of husband and wife should be maintained.
Taking into consideration that the respondent has been threatening that she will either put an end to her life or kill the appellant, abusing the husband time and again and threatening that she will make him loose his job, insulting the husband in front of others and his parents also, complaints of independent persons regarding her quarrelsome and uncalled for behaviour, tarnishing not only the image of her husband but also his parents, are almost so grave an order as to imperil the appellant’s sense of personal safety, mental happiness, job satisfaction and reputation, in our humble view a case of cruelty is clearly made out. Taking into consideration that admittedly both have lived separately since 1989 i.e. almost 27 years now and have been fighting tooth and nail against each other, in our view it also can be said to be irretrievable breakdown of marriage or rather it is a failed marriage and the delicate bond of marriage of sacrifice no more is apparent in addition to cruelty and we feel appropriate to let both husband and wife now be made free from the marriage bonding which was solemnized as per Hindu rites and customs in April 1979 i.e. 37 years ago by now, may be dissolved.
In our view, taking into consideration the statements of the witnesses of both sides, the mental cruelty stands proved against the appellant at the instance of the respondent, and the appellant husband deserves indulgence in seeking their marriage dissolved.
A feeble attempt was made by the learned counsel for respondent that the second petition filed by the appellant on the same subject is barred by the principle of res judicata. In our view, taking into consideration the subsequent development and fresh material/evidence, which has come on record for filing of the divorce petition subsequent to earlier petition having been withdrawn, is in order as it can always be filed in view of the subsequent developments. Equally important is that no ground was raised before the Family Court insofar as the second petition is concerned. Accordingly, the argument of learned counsel for the respondent, is rejected.
For the reasons aforesaid, the appeal deserves to be allowed and we quash and set aside the judgment and decree dated 24.2.1993 and their marriage solemnized on 27.4.1979 stands dissolved. A decree for divorce is hereby granted to the appellant. No costs.
(J.K. Ranka) J. (Ajay Rastogi) J.
This entry was posted in 498a, cruel wife, cruelty, divorce, divorce due to false 498a, Rajastan HC and tagged divorce, Divorce due to cruelty, divorce granted, false 498a, false 498a is cruelty, filing False criminal cases is cruelty, Rajastan HC on June 5, 2016 by vinayak.
In laws ready to gift a crore worth bungalow NOT people who demanded dowry !! Fake 498A busted !
This entry was posted in divorce, fake 498a, fake dowry case, false 498a and tagged Fake 498a, false 498a, in laws gifting 1 crore property are NOT the types demanding dowry !! on May 19, 2016 by vinayak.
Pay & quash. ALSO guarantee secrecy so that all sh!t will be under wraps !!
Taking money to quash a 498a 406 case itself leads to a suspicion, that the woman was NOT serious about punishment but just wanted money, and used the police / IPC as a convenient tool !
Now, IF you add a secrecy clause to the quash Judgement, that leads to further suspicion that the woman is planning her second attack !!!
So, in this case, Not only is the man paying to quash, now a clause has been added to stop the flow of information !! for example , this quash says “…..It is also agreed that the parties shall not use, circulate or publicize any evidence or marriage photographs, CDs etc. against the others, which is in their possession which is to the detriment to the other and shall destroy them. It is also agreed that the parties shall not contact each other’s relatives, friends and colleagues of the other side in any manner whatsoever. It is also agreed that the parties shall not create any encumbrances which shall be detrimental to the other. …..” !!
Through: Mr. Rajendra Kumar Tiwari, Advocate.
Through: Mr. M.P. Singh, Additional Public Prosecutor for the State with Sub- Inspector Umed Singh, Police Station Mianwali Nagar, Delhi and Sub-Inspector Raman Pratap, Police Station CWS, Nanakpura.
The present petition under Section 482 Cr.P.C. has been filed by the petitioner, namely, Smt. Jitender Kumar, Sh. Mahavir Singh, Smt. Laxmi, Sh. Narender Kumar and Ms. Pooja for quashing of FIR No.88/2008 dated 19.11.2008, under Sections 498A/406/34 IPC registered at Police Station C.W.C. Nanak Puri on the basis of mediation report in Delhi Mediation Centre, Tis Hazari Courts in view of the settlement arrived at between petitioner no.1 and respondent no.2, Smt. Poornima @ Sonia on 24.03.2014.
Learned Additional Public Prosecutor for respondent-State submitted that the respondent No.2, present in the Court has been identified to be the complainant/first-informant in the FIR in question by SI Umedh Singh.
The factual matrix of the present case is that the marriage between petitioner no.1 and the respondent no.2 was solemnized on 23.04.2008. The family of the husband of the complainant was not satisfied with the dowry. All of the complainant’s jewellery was taken away by her mother-in-law including Rs. 24,000/- cash. The husband of the complainant along with his other family members used to beat and abuse the complainant on several occasions. They also used to humiliate the complainant and her father on the demand of Rs.15 Lakhs at various instances. The respondent no.2/complainant lodged a complaint which resulted into the registration of the FIR in question against the petitioners. Subsequently, on 24.03.2014, during the pendency of the proceedings of Section 12 of D.V. Act instituted by the petitioner against the respondent no.2, the matter was amicably settled between the petitioner no.1 and respondent no.2.
Respondent No.2, present in the Court, submitted that the dispute between the parties has been amicably resolved. As per the mediation report, it is agreed that the parties shall take divorce by way of mutual consent. It is agreed that the petitioner no.1 shall pay the total settlement amount of Rs. 6 Lacs towards as her past, present and future maintenance and permanent alimony and any other legal claims. It is also agreed petitioner no.1 shall pay Rs. 2 Lacs at the time of quashing of the FIR in question. It is agreed that petitioner no.1 has already handed over a DD bearing no. 000614 drawn on PMC Bank for a sum of Rs. 1 Lac to respondent no.2. It is also agreed that the first motion petition shall be filed on or before 21.04.2014 and the second motion petition for divorce by mutual consent shall be filed after six months of the allowing of the first motion petition and within two months thereafter. It is also agreed that petitioner no.1 shall withdraw his petition for divorce on the ground of cruelty which is pending before concerned Family Court, west, THC, Delhi on the 05.04.2014. It is also agreed that respondent no.2 shall withdraw the petition under Section 12 of D.V. Act and her petition under Section 125 Cr.P.C. pending before concerned Family Court, West, THC, Delhi on 05.04.2014. It is also agreed that respondent no.2 shall withdraw the executions filed by her before concerned Family Court, West, THC, Delhi on their next dates of hearing i.e. 02.04.2014 and 16.04.2014 respectively. It is also agreed that both parties shall approach this Court for quashing of the FIR in question within the one month from the date of grant of decree of divorce and that respondent no.2 shall cooperate with petitioner no.1 and his family members. It is also agreed that after the decree of annulment is passed, respondent no.2 shall not have any right, title or interest in the property of petitioner no.1 or his ancestors. It is also agreed that the parties shall not retract from their respective statements failing which they shall make themselves liable for legal action as per law. It is also agreed that the parties shall not use, circulate or publicize any evidence or marriage photographs, CDs etc. against the others, which is in their possession which is to the detriment to the other and shall destroy them. It is also agreed that the parties shall not contact each other’s relatives, friends and colleagues of the other side in any manner whatsoever. It is also agreed that the parties shall not create any encumbrances which shall be detrimental to the other. It is also agreed that the parties shall not give any effect to the complaint, if any already filed and shall not file any complaint against the other in future in respect of the marriage between them subject to the conditions of the settlement being fulfilled. It is also agreed that the parties shall not interfere in the future in each other’s lives and that they shall not visit the workplace or residence of each other. It is also agreed that the parties shall not try to contact each other except through their lawyers and As per the convenience of the lawyers they can have a meeting in the chamber of lawyers in order to give effect to this settlement and bring the litigation to an end. It is also agreed that the parties shall not use the evidence, if any in their possession against the other party before any authority. It is also agreed that the parties shall appear before the Court to abide by the terms of and conditions set out in the agreement and not to dispute the same herein after in future. It is also agreed that the parties shall not make any claim of any nature against each other in respect of the present dispute. It is agreed that the parties shall appear before the Court of Ld. MM (Mahila Court)-02, West, THC, Delhi on 02.04.2014 and on subsequent dates As well as before the Court of Ms. Reena Singh Nag, Ld. Judge, Family Courts, West THC, Delhi on 05.04.2014 and on subsequent dates as well as this Court for quashing of the FIR in question to abide by the terms set out in this settlement. Respondent No.2 affirmed the contents of the aforesaid settlement and of her affidavit dated 07.12.2015 supporting this petition. In the affidavit, the respondent no.2 has stated that she has no objection if the FIR in question is quashed. All the disputes and differences have been resolved through mutual consent. Now no dispute with petitioners survives and so, the proceedings arising out of the FIR in question be brought to an end. Statement of the respondent no.2 has been recorded in this regard in which she stated that she has entered into a compromise with the petitioners and has settled all the disputes with them. She further stated that she has no objection if the FIR in question is quashed.
“29. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings.
29.4. On the other hand, those criminal cases having overwhelmingly and predominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves.
The inherent powers of the High Court ought to be exercised to prevent the abuse of process of law and to secure the ends of justice. The respondent no.2 agreed to the quashing of the FIR in question without any threat or coercion or undue influence and has stated that the matter has been settled out of her own free will. As the matter has been settled and compromised amicably, so, there would be an extraordinary delay in the process of law if the legal proceedings between the parties are carried on. So, this Court is of the considered opinion that this is a fit case to invoke the jurisdiction under Section 482 Cr.P.C. to prevent the abuse of process of law and to secure the ends of justice.
The incorporation of inherent power under Section 482 Cr.P.C. is meant to deal with the situation in the absence of express provision of law to secure the ends of justice such as, where the process is abused or misused; where the ends of justice cannot be secured; where the process of law is used for unjust or unlawful object; to avoid the causing of harassment to any person by using the provision of Cr.P.C. or to avoid the delay of the legal process in the delivery of justice. Whereas, the inherent power is not to be exercised to circumvent the express provisions of law.
It is settled law that the inherent power of the High Court under Section 482 Cr.P.C. should be used sparingly. The Hon’ble Apex Court in the case of State of Maharashtra through CBI v. Vikram Anatrai Doshi and Ors. MANU/SC/0842/2014 and in the case of Inder Singh Goswami v. State of Uttaranchal MANU/SC/0808/2009 has observed that powers under Section 482 Cr.P.C. must be exercised sparingly, carefully and with great caution. Only when the Court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the Court if such power is not exercised, Court would quash the proceedings.
It is a well settled law that where the High Court is convinced that the offences are entirely personal in nature and therefore do not affect public peace or tranquility and where it feels that quashing of such proceedings on account of compromise would bring about peace and would secure ends of justice, it should not hesitate to quash them. In such cases, pursuing prosecution would be waste of time and energy. Non-compoundable offences are basically an obstruction in entering into compromise. In certain cases, the main offence is compoundable but the connected offences are not. In the case of B.S. Joshi and others v. State of Haryana and another 2003 (4) SCC 675 the Hon’ble Apex Court observed that even though the provisions of Section 320 Cr.P.C. would not apply to such offences which are not compoundable, it did not limit or affect the powers under Section 482 Cr.P.C. The Hon’ble Apex Court laid down that if for the purpose of securing the ends of justice, quashing of FIR becomes necessary, section 320 Cr.P.C. would not be a bar to the exercise of power of quashing. In the nutshell, the Hon’ble Apex Court justified the exercise of powers under Section 482 Cr.P.C. to quash the proceedings to secure the ends of justice in view of the special facts and circumstances of the case, even where the offences were non- compoundable. In the light of the aforesaid, this Court is of the view that notwithstanding the fact the offence under Section 498A IPC is a non- compoundable offence, there should be no impediment in quashing the FIR under this section, if the Court is otherwise satisfied that the facts and circumstances of the case so warrant.
The Courts in India are now normally taking the view that endeavour should be taken to promote conciliation and secure speedy settlement of disputes relating to marriage and family affairs such as, matrimonial disputes between the couple or/and between the wife and her in-laws. India being a vast country naturally has large number of married persons resulting into high numbers of matrimonial disputes due to differences in temperament, life-styles, opinions, thoughts etc. between such couples, due to which majority is coming to the Court to get redressal. In its 59th report, the Law Commission of India had emphasized that while dealing with disputes concerning the family, the Court ought to adopt an approach radically different from that adopted in ordinary civil proceedings and that it should make reasonable efforts at settlement before the commencement of the trial. Further it is also the constitutional mandate for speedy disposal of such disputes and to grant quick justice to the litigants. But, our Courts are already overburdened due to pendency of large number of cases because of which it becomes difficult for speedy disposal of matrimonial disputes alone. As the matrimonial disputes are mainly between the husband and the wife and personal matters are involved in such disputes, so, it requires conciliatory procedure to bring a settlement between them. Nowadays, mediation has played a very important role in settling the disputes, especially, matrimonial disputes and has yielded good results. The Court must exercise its inherent power under Section 482 Cr.P.C. to put an end to the matrimonial litigations at the earliest so that the parties can live peacefully.
Since the subject matter of this FIR is essentially matrimonial, which now stands mutually and amicably settled between the parties, therefore, continuance of proceedings arising out of the FIR in question would be an exercise in futility and is a fit case for this Court to exercise its inherent jurisdiction.
In the facts and circumstances of this case, in view of statement made by the respondent no.2 and the compromise arrived at between the parties, the FIR in question warrants to be put to an end and proceedings emanating thereupon need to be quashed.
Accordingly, this petition is allowed and FIR No.88/2008 dated 19.11.2008, under Sections 498A/406/34 IPC registered at Police Station C.W.C. Nanak Puri and the proceedings emanating therefrom are quashed against the petitioners.
This petition is accordingly disposed of.
This entry was posted in Delhi HC, divorce, false 498a, pay money to quash, Quash with a secrecy clause !! and tagged delhi hc, Fake 498a, false 498a, Pay and also add a secrecy clause !, Pay to quash on May 17, 2016 by vinayak.
After accepting dower amount & getting back all utensils as demanded, wife files a complaint case, with Dowry etc allegation of period prior to filing of petition for recovery of dower !! She does so on 13 people including the husband and his family members !! The lower (magistrate) court also takes cognizance !!
So husband and party approach the HC. The Honourable HC concludes “… I find from the materials available on record that this complaint case has been filed with vengeance against the petitioners after recovery of the Dower amount and articles through a competent court….” and “the entire criminal proceeding in connection with C. P. Case No. 1397 of 2008 are, hereby, quashed..” !!
Anwar r/o village Rahmatganj, Pandarpala, P.S Bankmore (Bhuli O.P.) Dist.
For the State : Mr. S.K. Srivastava, APP.
Invoking the inherent power of this Court under Section 482 of the Code of Criminal Procedure (in short ” the Code”), the petitioners 13 in number have prayed for quashing of the entire criminal proceeding including the order taking cognizance dated 02.02.2009 passed by learned Judicial Magistrate, Dhanbad in C.P. Case No. 1397 of 2008.
After examination of the complainant on solemn affirmation and other witnesses, the court took cognizance of the offence under Section 498-A of the Indian Penal Code and directed to issue summons for the appearance of the petitioners.
It appears from the record that before filing of complaint case on 21.07.2008 the opposite party no.2- the complainant had filed a Civil Misc. Case No. 9 of 2008 in the court of Principal Judge, Family Court, Dhanbad under Section 292 of the Mohamdan Law for recovery of Dower of Rs. 39,000/- on the ground that her husband has already given her Talaque and the court after issuance of notice to the present petitioner no.1 directed to pay the Dower amount of Rs. 39,000/- and also directed to return all the articles as per the list given by the complainant. Accordingly, Rs. 39,000/- was handed over to the complainant and an endorsement was made by the complainant on the order-sheet of the said case, which is enclosed as Annexure-3 with this Criminal Miscellaneous Petition. The articles were also returned to the complainant of this case and the list of those articles with the signature of the complainant is enclosed as Annexure-4 with this Criminal Miscellaneous Petition.
Learned counsel Mr. Gautam appearing for the petitioners seriously contented that the continuance of the entire criminal proceeding including the order taking cognizance is bad in law, perverse and abuse of process of law. It was also submitted that the present proceeding is nothing except a vengeance to hurt the petitioners. Hence, continuance of this proceeding amounts to providing a forum to the complainant to settle earlier differences or to take revenge.
Contrary to the aforesaid submissions, Mr. Laik learned Senior Advocate representing the complainant-opposite party no.2 submitted that at this stage, the entire criminal proceeding including the order taking cognizance cannot be quashed as the allegations made in the complaint petition relates to a period before filing of the petition in the court of Principal Judge, Family Court and even though the complainant had admitted the factum of Talaque given by the petitioner no.1 and acceptance of Dower amount and utensils, the petitioners cannot be absolved from criminality.
Apparently, after accepting the Dower amount and getting back all the utensils as demanded by the complainant, the present complaint case was filed with the allegation of period prior to filing of the petition under Section 292 of Mohamdan Law before the Principal Judge, Family Court, Dhanbad. It is not that the petitioner no.1, husband of the complainant, had filed a petition before a competent court for divorce, rather it was the complainant, who had filed the petition for recovery of the Dower amount and utensils, which were given to the petitioner no.1 during marriage. In a case of Arjun Ram Vs. State of Jharkhand and another reported in 2004 CRI. L. J. 2989 while considering the similar situation, the court held that when a case was filed by husband for divorce then a complaint was filed and the court held that it is a motivated one. The Hon’ble Supreme Court in a judgment reported in AIR 1992 SC 604 held that the case filed by way of revenge should be quashed as the same amounts to abuse of the process of the court. In almost a similar situation, the Hon’ble Supreme Court while considering the issue in the case M. Saravana Porselvi Vs. A.R. Chandrashekar @ Parthiban & Others; 2008 (3) East Cr. C 320 (SC) held that if it is a case of customary divorce, the question in regard to existence of good custom may have to be gone into in a civil proceeding. But Criminal prosecution shall not lie. It was initiated malafide. Thus, if it is allowed to continue, the same shall be an abuse of the process of Court.
I find from the materials available on record that this complaint case has been filed with vengeance against the petitioners after recovery of the Dower amount and articles through a competent court.
In that view of the matter, this Criminal Miscellaneous Petition is allowed. The order 02.02.2009 by which cognizance of offence has been taken and the entire criminal proceeding in connection with C. P. Case No. 1397 of 2008 are, hereby, quashed.
This entry was posted in divorce, false 498a, False 498a after divorce and taking dower items back !!, Jarkhand HC and tagged Fake 498, false 498a, false 498a on 13 people AFTER divorce and taking dower items back !!, False dowry case AFTER divorce and taking dower amounts back !!, Jarkhand HC on May 17, 2016 by vinayak.

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In the misleading, unfair and unbalanced memorandum entered into the fair hearing record at MassHealth trust denial cases, the Office of Medicaid usually takes a legally invalid view of Massachusetts trusts, and ignores the fiduciary duties of the trustee.
As a fiduciary, a trustee has the dual duties of loyalty and impartiality. See Johnson v. Witkowski, 30 Mass. App. Ct. 697, 705 (1997), and more generally, Demoulas v. Demoulas Super Markets, Inc., 424 Mass. 501, at 528-529 (1997) quoting Judge Cardozo in Meinhard v. Salmon, 249 N.Y. 458, 4630464 (1928) “(n)ot honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior.” The duty of loyalty to the beneficiaries requires of the trustee that he or she act solely in accordance with the terms of the trust instrument construed so as to carry out the intent of the Settlor. Watson v. Baker, 444 Mass. 487, 491 (2005). Therefore, a trustee may not commit any act that would harm the interest of any beneficiary of the trust, that would waste any trust property, that would give trust property to anyone not entitled thereto, or that would otherwise be contrary to the intent of the Settlor in entrusting the Settlor’s property to the management of a trustee. See King v. Nazzaro, 78 Mass. App. Ct. 1128 (2011); Murphy v. Murphy, Docket No. 2004-3937-BLS2 (2006.) Therefore, if the trust provides that no distribution of principal shall be made to the Settlor, then the trustee is forbidden to do so. To do otherwise would do harm to the beneficial interests of the beneficiaries (or the other beneficiaries, if, for example, the Settlor is an income beneficiary of the trust), and it would be a breach of fiduciary duty. See Anderson v. Bean, 272 Mass. 432, 447-448 (1930).
Another duty of a trustee, the duty of impartiality as between and among the beneficiaries, requires that the trustee not favor one beneficiary over another; instead, the trustee is bound to treat all beneficiaries equitably in accordance with the terms of the trust construed as a whole. King v. Nazzaro, 78 Mass. App. Ct. 1128 (2011). Thus, a power that allows a trustee to make a particular type of investment is not authority to override the intentions of the trust. “Even when there are broad discretionary powers, a trustee may not exercise his or her discretion so as to shift beneficial interests in the trust.” Fine v. Cohen, 35 Mass.App.Ct. 610, 617 (1993). The trustee must balance risk and return in the trustee’s management of the trust estate so as to be fair to both the life income beneficiaries and the remainderpersons.
Trustee duties of loyalty and impartiality are at the very core and essence of what a trust is. A trust is a relationship wherein a trustee manages property for the benefit of others. The trustee is given powers to carry out his assigned duties in the context of the beneficial interests that are bestowed upon the income beneficiary or life tenant and remainderpersons of the trust. For every interest that a beneficiary has under a trust instrument, the trustee has a correlative duty to safeguard and provide that interest to the beneficiary. Thus, trustee powers are made available to the trustee only to the extent necessary to provide the trust beneficiaries with their rightful beneficial interests under the trust. If a beneficial interest is denied to a beneficiary, then the trustee has no authority or discretion to make it available to the beneficiary. The power to purchase annuities, life insurance or any other investment is granted to the trustee only to the extent that the exercise of that power will secure to the beneficiaries their respective beneficial interests. Such a power may not be used to divert one beneficiary’s interest to another beneficiary without breach of fiduciary duty. The conversion of principal to income, or vice versa, to redirect trust resources from one beneficiary to another is not allowed due to the trustee’s duty of impartiality.
MassHealth regulations do not require that the fiduciary duties of a trust be ignored; rather, the fiduciary duties of a trustee are specifically recognized in the definition of “trust” at 130 CMR §515.001: “a legal device satisfying the requirements of state law that places the legal control of property or funds with a trustee. It also includes, but is not limited to, any legal instrument, device, or arrangement that is similar to a trust, including transfers of property by a grantor to an individual or a legal entity with fiduciary obligations so that the property is held, managed, or administered for the benefit of the grantor or others. Such arrangements include, but are not limited to, escrow accounts, pension funds, and similar devices as managed by an individual or entity with fiduciary obligations.” (emphasis added).


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Falls, Cyril (ed). Great Military Battles. The Worlds Most Heroic Military Engagements Over Three Centuries. New York. Exeter Books. 1981. 304 pps. 4to. Hardcover. Reprint. Illustrated in black, white and color. Fine copy in fine dust jacket (in mylar).
Farago, Ladislas. The Broken Seal "Operation Magic" and the Secret Road to Pearl Harbor. New York. Random House. 1967. Octavo. Hardcover. Reprint. Fine copy in near fine (very light shelf wear) dust jacket (in mylar).
Farago, Ladislas. The Game of the Foxes. The Untold Story of German Espionage in the United States and Great Britain During the World War. New York. David McKay. 1972. Octavo. Hard cover. Reprint. Near fine copy (very light shelf wear) in very good dust jacket (in mylar).
Farr, Finis. Rickenbacker's Luck. An American Life. Boston. Houghton, Mifflin and Company. 1979. 366 pps. Octavo. Hardcover. First edition. Illustrated. Fine copy in near fine dust jacket (in mylar).
Farren, Mick. CIA. Secrets of "The Company". New York. Barnes & Noble.
2003. Octavo. Soft cover. First edition. Illustrated in black, white and color. Fine copy.
Fay, Peter Ward. The Opium War. 1840-1842. Barbarians in the Celestial Empire in the Early Part of the Nineteenth Century and the War by Which They Forced Her Gates Afar. Photo available. Chapel Hill. The University of North Carolina Press. 1975. Octavo. Hardcover. First edition. Map end papers. Fine copy in fine dust jacket (in mylar).
Feder, Don. A Jewish Conservative Looks at Pagan America. Shreveport. Huntington House. 1993. 238 pps. Octavo. Soft cover. First edition. Fine copy in fine dust jacket (in mylar).
Feis, Herbert. The Road to Pearl Harbor. New York. Atheneum. 1963. Octavo. Soft cover. Reprint. Fine copy.
Fellman, Michael. Citizen Sherman. A Life of William Tecumseh Sherman. New York. Random House. 1995. Octavo. Hard cover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Ferguson, Niall. The War of the World. Twentieth-Century Conflict and the Descent of the West. New York. Penguin. 2006. 4to. Hardcover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Ferris, Robert. Signers of the Declaration. Historic Places Commemorating the Signing of the Declaration of Independence. Washington. U.S. Dept. of Interior. 1973. 310 pps. Octavo. Hardcover. First edition. Illustrated. Fine copy.
Fest, Joachim. Inside Hitler's Bunker. The Last Days of the Third Reich. New York. Farrar, Straus and Giroux. 2002. 190 pps. Octavo. Hardcover. Illustrated. Fine copy in fine dust jacket (in mylar).

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We are pleased to present to you the list of top 30 plaintiff's verdicts obtained in New York in the year 2015. The list is comprised of various case types that were tried either in state or federal courts.
If you are the attorney who obtained one of the 30 verdicts on this list, you can display a separate, personalized badge on your bio page to showcase your victory and potentially generate more business for your firm. You can buy your personalized attorney badge here.
Case: Buchwald v. Renco Group Inc.
Attorneys: Randy B. Nassau of The Fitzgerald Law Firm, P.C.
Attorneys: David M. Godosky of Godosky & Gentile, P.C.
Attorneys: Stuart L. Finz, Todd M. Rubin of Finz and Finz, P.C.
Attorneys: Neva Hoffmaier of Hoffmaier & Hoffmaier, P.C.
Case: Vargas v. Peter Scalamandre & Sons Inc.
Case: Chisholm v. R.T.Vanderbilt Co.Inc.
Case: Robusto v. Charles B. Chrystal Co. Inc.
Case: Santana v. G.E.B.Medical Management Inc.
Attorneys: Vito A. Cannavo of Sullivan Papain Block Mcgrath & Cannavo P.C.
Case: Muir v. Air & Liquid Systems Corp.
Attorneys: Scott A. Steinberg of Greenberg & Stein, P.C.
Case: Espinal v. New York City Health Hospitals Corp.
Case: Reynoso v. Bovis Lend Lease LMB Inc.
Case: Scudato v. AJS Construction & Renovation Inc.

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RIMBERTO T. SALVANERA, PETITIONER, VS. PEOPLE OF THE PHILIPPINES AND LUCITA PARANE, RESPONDENTS.
On appeal are the Decision dated April 30, 1999 and the two Resolutions of the Court of Appeals, dated September 22, 1999 and May 11, 2000, in CA-G.R. SP No. 46945. The Court of Appeals discharged accused Feliciano Abutin and Domingo Tampelix from the Information in Criminal Case No. TM-1730 for Murder, pending before the Regional Trial Court of Trece Martires City, to become state witnesses. The appellate court likewise cancelled the bail bond of petitioner Rimberto Salvanera.
That on or about October 23, 1995, in the Municipality of Gen. Trias, Province of Cavite, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping each other, with treachery and evident premeditation, then armed with a firearm, did, then and there, wilfully, unlawfully and feloniously assault, attack and shoot one RUBEN PARANE Y MAGSAMBOL, inflicting gunshot wound on his body, resulting to his instantaneous death, to the damage and prejudice of the heirs of the said victim.
As per theory of the prosecution, petitioner was the alleged mastermind; Lungcay, the hired hitman; Abutin, the driver of the motorcycle which carried Lungcay to the place of the commission of the crime; while Tampelix delivered the blood money to the latter. All the accused have been arrested and detained, except Edgardo Lungcay who remained at-large.
Respondent Lucita Parane is the spouse of victim Ruben Parane.
On January 22, 1997, petitioner applied for bail. The prosecution, on March 4, 1997, moved for the discharge of accused Feliciano Abutin and Domingo Tampelix, to serve as state witnesses.
In an Omnibus Order dated September 5, 1997, the trial court granted petitioner's application for bail and denied the prosecutionï¿½s motion for the discharge of accused Abutin and Tampelix. The prosecution moved for reconsideration but the motion was denied.
The prosecution then appealed to the Court of Appeals. It contended that the trial court committed grave abuse of discretion when it denied the motion to discharge accused Abutin and Tampelix to be state witnesses. It alleged that the testimonies of the two accused are absolutely necessary to establish that petitioner masterminded the murder of Ruben Parane. The prosecution likewise claimed that it was premature and baseless for the trial court to grant petitioner's application for bail because the prosecution had not yet rested its case in the hearing for the discharge of the two accused.
The Court of Appeals sustained the prosecution. It discharged accused Feliciano Abutin and Domingo Tampelix from the Information to become state witnesses, and cancelled the bail bond of petitioner Salvanera. In its Resolution dated September 22, 1999, it denied petitioner's Motion for Reconsideration. Petitioner then filed his Motion for Clarification with Leave of Court. The same was also denied in a Resolution dated May 11, 2000.
THE "SUBSTANTIAL CORROBORATION" REQUIREMENT MUST BE SATISFIED THROUGH THE TESTIMONY OF THE OTHER PROSECUTION WITNESSES WHO ARE NOT AN (sic) ACCUSED SOUGHT TO BE DISCHARGED AS STATE WITNESS, NOT BY ANOTHER ACCUSED LIKEWISE SOUGHT TO BE DISCHARGED.
THE SWORN STATEMENT OF AN ACCUSED SOUGHT TO BE DISCHARGED CANNOT BE USED AS EVIDENCE FOR PURPOSES OTHER THAN HIS OWN DISCHARGE PRIOR TO THE ISSUANCE BY A COMPETENT COURT OF THE ORDER OF HIS DISCHARGE.
THE TESTIMONIES OF ABUTIN AND TAMPELIX CANNOT BE SUBSTANTIALLY CORROBORATED IN ITS MATERIAL POINTS BY THE OTHER PROSECUTION WITNESSES.
THE TESTIMONY GIVEN BY AN ACCUSED SOUGHT TO BE DISCHARGED AS STATE WITNESS CANNOT BE USED TO CORROBORATE THE TESTIMONY GIVEN BY ANOTHER ACCUSED LIKEWISE SOUGHT TO BE DISCHARGED AS STATE WITNESS.
RESPONDENT COURT OF APPEALS COMMITTED SERIOUS ERROR IN RENDERING THE FIRST, SECOND AND THIRD ASSAILED ORDERS, DEFYING LAW AND JURISPRUDENCE ON THE MATTER, WHEN IT CANCELLED PETITIONER'S BAIL BOND DESPITE THE FACT THAT THE TRIAL COURT JUDGE ALREADY RULED THAT THE EVIDENCE OF HIS GUILT IS NOT STRONG.
We uphold the ruling of the Court of Appeals.
e) Said accused has not at any time been convicted of any offense involving moral turpitude.
According to petitioner, the testimony of an accused sought to be discharged to become a state witness must be substantially corroborated, not by a co-accused likewise sought to be discharged, but by other prosecution witnesses who are not the accused in the same criminal case. Petitioner justifies this theory on the general principles of justice and sound logic. He contends that it is a notorious fact in human nature that a culprit, confessing a crime, is likely to put the blame on others, if by doing so, he will be freed from any criminal responsibility. Thus, in the instant case, petitioner supposes that both Abutin and Tampelix will naturally seize the opportunity to be absolved of any liability by putting the blame on one of their co-accused. Petitioner argues that prosecution witnesses Parane and Salazar, who are not accused, do not have personal knowledge of the circumstances surrounding the alleged conspiracy. Thus, they could not testify to corroborate the statement of Abutin and Tampelix that petitioner is the mastermind or the principal by induction.
We agree with the Court of Appeals in dismissing this reasoning as specious. To require the two witnesses Parane and Salazar to corroborate the testimony of Abutin and Tampelix on the exact same points is to render nugatory the other requisite that "there must be no other direct evidence available for the proper prosecution of the offense committed, except the testimony of the state witness." The corroborative evidence required by the Rules does not have to consist of the very same evidence as will be testified on by the proposed state witnesses. We have ruled that "a conspiracy is more readily proved by the acts of a fellow criminal than by any other method. If it is shown that the statements of the conspirator are corroborated by other evidence, then we have convincing proof of veracity. Even if the confirmatory testimony only applies to some particulars, we can properly infer that the witness has told the truth in other respects." It is enough that the testimony of a co-conspirator is corroborated by some other witness or evidence. In the case at bar, we are satisfied from a reading of the records that the testimonies of Abutin and Tampelix are corroborated on important points by each other's testimonies and the circumstances disclosed through the testimonies of the other prosecution witnesses, and "to such extent that their trustworthiness becomes manifest."
As part of the conspiracy, Abutin and Tampelix can testify on the criminal plan of the conspirators. Where a crime is contrived in secret, the discharge of one of the conspirators is essential because only they have knowledge of the crime. The other prosecution witnesses are not eyewitnesses to the crime, as, in fact, there is none. No one except the conspirators knew and witnessed the murder. The testimonies of the accused and proposed state witnesses Abutin and Tampelix can directly link petitioner to the commission of the crime.
The decision to grant immunity from prosecution forms a constituent part of the prosecution process. It is essentially a tactical decision to forego prosecution of a person for government to achieve a higher objective. It is a deliberate renunciation of the right of the State to prosecute all who appear to be guilty of having committed a crime. Its justification lies in the particular need of the State to obtain the conviction of the more guilty criminals who, otherwise, will probably elude the long arm of the law. Whether or not the delicate power should be exercised, who should be extended the privilege, the timing of its grant, are questions addressed solely to the sound judgment of the prosecution. The power to prosecute includes the right to determine who shall be prosecuted and the corollary right to decide whom not to prosecute.
In reviewing the exercise of prosecutorial discretion in these areas, the jurisdiction of the respondent court is limited. For the business of a court of justice is to be an impartial tribunal, and not to get involved with the success or failure of the prosecution to prosecute. Every now and then, the prosecution may err in the selection of its strategies, but such errors are not for neutral courts to rectify, any more than courts should correct the blunders of the defense. For fairness demands that courts keep the scales of justice at equipoise between and among all litigants. Due process demands that courts should strive to maintain the legal playing field perfectly even and perpetually level.
Lastly, we affirm the ruling of the appellate court in cancelling the bail bond of petitioner. The grant of petitioner's application for bail is premature. It has to await the testimony of state witnesses Abutin and Tampelix. Their testimonies must be given their proper weight in determining whether the petitioner is entitled to bail.
IN VIEW WHEREOF, the petition is DENIED and the Decision and Resolutions of the Court of Appeals in CA-G.R. SP No. 46945, dated April 30, 1999, September 22, 1999 and May 11, 2000, respectively, are AFFIRMED in toto.
Sandoval-Gutierrez, Azcuna, and Garcia, JJ., concur.
 Sec. 17, Rule 119, The 2000 Revised Rules of Criminal Procedure.
 Sec. 17(5)(b), Rule 119, The 2000 Revised Rules of Criminal Procedure.
 U.S. v. Remigio, 37 Phil. 599, 612 (1918).
 People v. Tabayoyong, G.R. No. 31084, May 29, 1981, 104 SCRA 724, 742, citing People v. Riparip, 86 Phil. 526 (1950).
 Chua v. Court of Appeals, G.R. No. 103397, August 28, 1996, 261 SCRA 112, 119.
 Id., citing People v. Ocimar, 212 SCRA 646 (1992).
 G.R. No. 100295, April 26, 1994, 231 SCRA 783, 785, cited in Pontejos v. Ombudsman, G.R. Nos. 158613-14, February 22, 2006.

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