2008(2) Crimes 45 (SC)
SUPREME COURT OF INDIA
(From Gujarat High Court)
S.B. Sinha & V.S. Sirpurkar, JJ.
Vimalben Ajitbhai Patel — Petitioner
versus
Vatslabeen Ashokbhai Patel and others — ReEspondents
Appeal (civil) 2003 of 2008
[Arising out of SLP (Civil) No. 1061 of 2007]
Decided on : 14-03-2008
WITH
Ajitbhai Revandas Patel and another — Appellants
versus
State of Gujarat and another — Respondents
Criminal Appeal No. 502 of 2008
[Arising out of SLP (Crl.) No. 213 of 2007]
Decided on : 14-03-2008

IMPORTANT POINTS
Maintenance of a married wife is a personal obligation of the husband or on his death, of the father-in-law if the husband is co-sharer of his father’s property. Mother-in-law cannot be fastened with any legal liability to maintain her daughter-in-law, from her own property or otherwise.
Even under the Domestic Violence Act, a wife cannot claim a right of residence in the property belonging to her mother-in-law.
Once the accused surrenders before the Court and the Standing Warrants cancelled, he is no longer an absconder. The purpose of attaching the property comes to an end and it is to be released subject to the provisions of the Code.
Nobody wants to come to court of law and that too as an accused, of his own.
The factors relevant for setting aside an order granting bail and directing cancellation of bail are wholly distinct and different.
Sympathy or sentiment should not allow the Court to have any effect in its decision making process.

Headnote:(a) Hindu Adoptions and Maintenance Act, 1956 – Sections 3 (b) and 18 – Maintenance of a married wife, during subsistence of marriage, is on the husband and it is a personal obligation – Such an obligation can also be met from the properties of which the husband is a co-sharer and not otherwise – The obligation to maintain a daughter-in-law arises only when the husband has died – For invoking the said provision, the husband must have a share in the property – The property in the name of the mother-in-law can neither be a subject matter of attachment – Also, during the life time of the husband his personal liability to maintain his wife cannot be directed to be enforced against such property. (Para 21)

        (b) Hindu Adoptions and Maintenance Act, 1956 – Sections 4, 18 and 19 – In view of the non obstante clause contained in Section 4, the provisions of the Act alone are applicable – Sections 18 and 19 prescribe the statutory liabilities in regard to maintenance of wife by her husband and only on his death upon the father-in-law – Mother-in-law, thus, cannot be fastened with any legal liability to maintain her daughter-in-law from her own property or otherwise. (Para 24)

        AIR 1921 Madras 1187 – Approved.

        (1996) 4 SCC 479; (2000) 6 SCC 310 – Relied upon.

        (c) Domestic Violence Act, 2005 – Section 17 – A wife not only acquires a right to be maintained but also a right of residence – This right of residence extends to joint properties in which the husband has a share – However even under this Act, a wife could not claim a right of residence in the property belonging to her mother-in-law. (Paras 27 and 28)

        (2007) 3 SCC 169 – Relied upon.

        (1977) 3 SCR 261 – Distinguished.

        (d) Code of Criminal Procedure, 1973 – Section 82 – The provision was enacted to secure the presence of the accused – Once he surrenders before the Court and the Standing Warrants cancelled, he is no longer an absconder – The purpose of attaching the property comes to an end and it is to be released subject to the provisions of the Code. (Para 32)

        (e) Code of Criminal Procedure, 1973 – Section 85 – Securing the attendance of an absconding accused, is a matter between the State and the accused – Complainant should not ordinarily derive any benefit therefrom. – If the attached property is to be sold, it vests with the State subject to any order passed under Section 85 of the Code – It cannot be a subject matter of execution of a decree, far less for executing the decree of a third party, who had no right, title or interest thereon. (Para 32)

        (f) Code of Criminal Procedure, 1973 – Section 82 – An order of attachment of a property has nothing to do with the right of tenancy – Right of a tenant could not have been affected by reason of any order of attachment – The terms and conditions of tenancy, being governed by statute, the tenant cannot be evicted except in accordance with law. (Para 33)

        (g) Code of Criminal Procedure, 1973 – Section 84 – Right to object in terms of Section 84 can be invoked by a person who has an independent claim over the property – The wife could not have invoked the provision as she has no independent claim over the property – The said provisions also could not have been invoked for the purpose of execution of a decree. (Para 34)

        (h) Judicial Review – The appellants have been attending the courts – Therefore, the observation made by the Metropolitan Magistrate that they had not come of their own is unfortunate – Nobody wants to come to court of law and that too as an accused, of his own. (Para 37)

        (i) Code of Criminal Procedure, 1973 – Section 439(2) – The factors relevant for setting aside an order granting bail and directing cancellation of bail are wholly distinct and different – Bail cannot be cancelled on the basis of irrelevant contentions – High Court order cannot be sustained. (Para 38)

        (1978) 2 SCR 358 – Relied upon.

        (1984) 1 SCR 839; (2005)2 SCC 13; (2007) 12 SCALE 15 – Referred.

        (1986) 4 SCC 481 – Distinguished.

        (j) Constitution of India – Article 21 – Respondent No. 3 speaks of her own human rights, forgetting the human rights of the appellant, far less the fundamental right of life and liberty conferred on an accused in terms of Article 21 of the Constitution of India – Right of property, although no longer a fundamental right but still is a constitutional and human right – Appellant could not have been deprived of her property except by scrupulously complying with the procedures laid down therefor. (Paras 41 and 42)

        JT 2007 (12) SC 256 – Referred.

        (k) Equity – In the facts of the case the contention of equity raised on behalf of appellant not tenable. (Para 43)

        (1984) 4 SCC 316 – Distinguished.

        (l) Judicial Review – Sympathy or sentiment should not allow the Court to have any effect in its decision making process – Sympathy or sentiment can be invoked only in favour of a person who is entitled thereto – Even on this ground not respondent No. 3, but the appellants, should get relief. (Paras 47 and 48)

        (2006) 4 SCC 1 – Relied upon.

        (1982) 3 SCC 341 – Distinguished.

        (m) Administration of Justice – After the arguments were over, counsel for respondent No. 3 making a strange submission for permitting him to withdraw from the case and to allow the 3rd respondent to argue in person – Such a submission is not expected from a counsel practicing in this Court or from a party, who herself is an Advocate – Such practice deprecated. (Para 49)

       Facts of the case:

        1. Sonalben Rameshchandra Desai was married to Jitendra Ajitbhai Patel (son of the appellants) on 4th May, 1992. The couple fell apart. In 1993 a complaint petition was filed by the 3rd respondent against her husband and the appellants alleging commission of an offence under Sections 406 and 114 of the Indian Penal Code.

        2. Appellants were granted conditional bail. Allegedly on the premise that Appellant No. 2 requires medical treatment, an application for permission was filed in October 1997 but they left India without obtaining permision from the Court.

        3. An application was filed for cancellation of the bail which was rejected by the Metropolitan Magistrate as also by the Sessions Judge. The 3rd respondent filed an application before the High Court which was allowed cancelling the bail of the appellants.

        4. On an application filed by the 3rd respondent on 24th April, 1998 the husband of the appellant was declared an absconder and her properties were attached. Auction proceedings were undertaken.

        5. The 1st Respondent (tenant) and the subsequent auction purchaser filed an application before the High Court but the appellant and her husband were not made parties therein.

        6. By an order dated 25th January, 2006 the 1st respondent was asked to deposit a sum of Rs. 4 lakhs (as he expressed his intention to purchase the said property) apart from a sum of Rs. 10,000/- per month which was to be deposited with the Registrar by him from 10th February, 2006.

        7. Appellant and her husband returned to India and filed an application for cancellation of the said Standing Warrants. By an order dated 27th June, 2006 the said application was allowed.

        8. The 3rd respondent filed an application for setting aside the said order by filing a Criminal Miscellaneous Application before the Sessions Judge, Ahmedabad. The learned Additional Sessions Judge set aside the said order dated 27th June, 2006 and non-bailable warrants were directed to be issued against the appellants herein.

        9. Aggrieved thereby she filed Criminal Misc. Application before the High Court which by reason of the impugned judgment and order has been dismissed.

       Findings of the Court :

        The High Court got swayed by irrelevant considerations. The impugned judgment is not sustainable.

       Result : Appeal allowed with directions.